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Consult the Reader Aids section at the end of this page for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
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U.S. Small Business Administration.
Notice of correcting amendment; correction.
The U.S. Small Business Administration (SBA) published in the
Effective on October 6, 2009.
Dean R. Koppel, Office of Government Contracting, Small Business Administration, 409 3rd Street, SW., Washington, DC 20416. Tel: (202) 205-6460 and e-mail:
The SBA published a document in the
In 74 FR 45754 published on September 4, 2009, make the following corrections.
Social Security Administration.
Final rule.
We are revising some of the criteria in the Listing of Impairments (the listings) that we use to evaluate claims involving malignant neoplastic diseases (cancer)
This rule is effective November 5, 2009.
Mark Kuhn, Office of Medical Listings Improvement, Social Security Administration, 6401 Security Boulevard, Baltimore, Maryland 21235-6401, (410) 965-1020. For information on eligibility or filing for benefits, call our national toll-free number, 1-800-772-1213, or TTY 1-800-325-0778, or visit our Internet Web site, Social Security Online, at
The electronic file of this document is available on the date of publication in the
We are revising and making final the rules for evaluating malignant neoplastic diseases we proposed in an NPRM published in the
We are making a few changes from the NPRM as a result of public comments. We explain those changes in our summary of the public comments and our responses later in this preamble.
We developed these final rules as part of our ongoing review of the cancer body system. When we last revised this body system in final rules published on November 15, 2004,
We will use these final rules beginning on their effective date. We will continue to use the current listings until the date these final rules become effective. We will apply the final rules to new applications filed on or after the effective date of the final rules and to claims that are pending on and after the effective date.
We are extending the effective date of the malignant neoplastic diseases body system in parts A and B of the listings until 8 years after the effective date of these final rules. The rules will remain in effect only until that date unless we extend them. We will continue to monitor the rules and may revise them before the end of the 8-year period.
In the NPRM, we provided the public with a 60-day comment period, which ended on June 27, 2008. We received five public comment letters. The comments came from a national cancer advocacy group, a national group representing disability examiners in the State agencies that make disability determinations for us, a national group representing directors of those State agencies, and two individual State agencies.
We provide our responses below to the significant comments that were relevant to this rulemaking. A few of the comments were on subjects that were not related to the proposed rules. For example, commenters suggested changes to the introductory text of this body system and some suggested that we add new listings in sections for which we had not proposed rules. Other commenters made suggestions that involved the steps of our sequential evaluation process coming after the listing step. Although we read and considered these comments, we do not summarize or respond to them below because they are outside the scope of this rulemaking proceeding.
We have summarized the relevant comments below, but have tried to present the commenters' concerns and suggestions accurately and completely.
We adopted a comment that suggested we include the term “multimodal” or the phrase “multimodal therapy” in the list of defined terms in sections 13.00I and 113.00I. The commenter also requested that we provide additional clarification of multimodal therapy. We adopted this comment by moving the definition of “multimodal therapy” from current sections 13.00E2 and 113.00E2 to final sections 13.00I3 and 113.00I2. We also revised the definitions in these sections to make them clearer.
Since we added a new definition in final sections 13.00I and 113.00I, we renumbered the definitions that follow. We also changed the headings of these sections. In the NPRM, we used the heading “
We did not adopt a suggestion that we include in final section 13.00I a definition of the term “first treatment,” which is a term we use only when we refer to an autologous bone marrow transplant in current listing 13.28B. The commenter thought that we defined this term only in an internal instruction. In fact, we already define “first treatment” in current section 13.00L3b, where we explain how to use listing 13.28. Moreover, listing 13.28 refers to section 13.00L3b. We think it will be easier for our adjudicators to find the definition if we leave it where it is.
We also did not adopt a comment that recommended that we add a definition for “satellite lesions.” We use this term only in one section of the listing for melanoma (a kind of skin cancer), and we define it there. See final listing 13.03B2c.
We did not adopt a comment recommending that we provide general guidance for evaluating bilateral neuroblastomas under current listing 13.02A. We consider bilateral neuroblastomas to be tumors of the central nervous system, which we evaluate under listing 13.13.
The same commenter suggested that we emphasize in the introductory text of the malignant neoplastic diseases body system how to evaluate soft tumors of the head and neck under current listing 13.02A. We did not adopt this comment because the listing requires such tumors to be either “inoperable” or “unresectable” and we already define those terms in final section 13.00I.
We did, however, adopt a third comment from this commenter recommending that we explain how we evaluate a recurrence that occurs more than 3 years after remission in connection with listing 13.02 and another listing. In response to this comment, we revised the second sentence of current sections 13.00H2 and 113.00H2, which referred only to the “original” tumor and any metastases, to also include recurrences and relapses. We also added a sentence at the end of final sections 13.00H3 and 113.00H3 to indicate that, if there is a recurrence or relapse after 3 years or another period specified in a listing in this body system, the impairment may again meet or medically equal the requirements of a cancer listing. These changes are only a clarification of our current rules, and ensure that we will not incorrectly find that people with recurrent tumors are no longer disabled.
One commenter suggested that we include criteria in listing 13.03 for melanomas with ulcerative features. The commenter believed that the description of these melanomas in the current American Joint Committee on Cancer (AJCC) staging manual indicates listing-level severity. We disagree with the commenter and have not adopted the comment. While the AJCC staging manual does indicate that melanomas with ulceration have a worse prognosis than non-ulcerated melanomas, it also indicates that many ulcerated melanomas have good prognoses. Therefore, we do not believe that the AJCC staging manual describes an impairment of listing-level severity, and it would be inappropriate for us to find that all people with this condition have a listing-level impairment.
The same commenter recommended that we add criteria for melanoma with in-transit spread; that is, metastasis along the lymph channels. We did not adopt the comment because the final listings already address the disabling effects of in-transit spread. We will evaluate in-transit spread that affects the lymph nodes under final listing 13.03B2a or 13.03B2b. We will evaluate in-transit spread that results in metastases to adjacent skin or distant sites under final listing 13.03B2c.
In response to a comment, we added final listing 113.09C, for medullary carcinoma of the thyroid gland with metastases beyond the regional lymph nodes. Final listing 113.09C is identical to final listing 13.09C. The commenter referred to our statement in proposed 113.00K4 that we did not include a specific listing for children because the condition is rare in children, but did not believe the listings are meant to exclude cancers simply because they are rare. Since our listings do include some rare disorders, we agreed to add this listing in response to the comment. We currently find all such children with the cancer described in final listing 113.09C disabled based on medical equivalence to listing 113.09B.
In the NPRM, we explained in proposed section 113.00K4 that we would use listing 13.09C for children with this type of cancer. Because we are adding listing 113.09C, we did not include that paragraph in these final rules.
One commenter recommended that we include a listing for people with locally advanced breast cancer who receive multimodal therapy. The commenter recommended that we consider these people disabled for either 12 or 18 months from the date of diagnosis. The commenter noted that we have other listings that recognize the difficulties faced by patients during initial treatment of their cancers, even though they have good prognoses, and believed that we could have a similar listing for some people with breast cancer. The commenter indicated that there are treatment regimens that last for at least 7 to 12 months that may have many side effects and that, as treatment progresses, the side effects worsen.
We did not adopt this comment. While we agree with the commenter that there may be some people who are disabled from multimodal therapy for breast cancer and its adverse effects, we do not believe that we can uniformly describe those people medically, as required for a listing. Many people who undergo such therapy are not unable to work for 12 continuous months.
Another commenter recommended that we add a criterion for metastatic breast cancer to an axillary lymph node(s) with perforation of the capsule (that is, tumor extension beyond the capsule),
One commenter recommended that we rewrite listing 13.13 to separate neoplasms that require metastases from those that do not. The commenter provided a suggested revision, but we did not adopt it for two reasons. First, the revisions we proposed to the listing did separate the neoplasms that require metastases from those that do not. As we explained in the preamble to the NPRM:
One commenter pointed out that we have no listing for cancer of the vagina, nor do we provide guidance in the introductory text on how adjudicators should evaluate this malignancy. The commenter suggested that we revise listing 13.23C to include cancer of the vagina or that we explain which listing to use to evaluate this condition. We adopted this comment by including cancer of the vagina in listing 13.23C. The criteria for listing-level cancer of the vulva are also appropriate for cancer of the vagina. Under the prior rules, we would have found medical equivalence to this listing in such cases.
Two commenters expressed concern about our proposal to remove prior listing 13.23E1c, for ovarian cancer with ruptured ovarian capsule, tumor on the serosal surface, ascites with malignant cells, or positive peritoneal washings. One comment letter said that the medical literature with which the commenters were familiar showed that ovarian cancer with these findings has a high mortality rate. However, in the NPRM we cited current medical literature indicating that therapy has significantly improved the prognosis for women who have ovarian cancer with these findings.
The other commenter, a national advocacy group for women with ovarian cancer, agreed with us that the prognosis for these cases has improved significantly, but recommended that we keep the listing to recognize the length and side effects of treatment. The commenter pointed out that women with these findings may undergo the same or similar surgery and chemotherapy as women with more advanced disease and that this treatment substantially limits those women's ability for gainful activity.
While we appreciate the second commenter's concerns—and we agree that some women with the findings in the prior listing will be disabled—we did not adopt the recommendation to keep the listing, primarily because many women with the findings in prior listing 13.23E1c will not be unable to work for at least 12 months. Even though they may be debilitated while they undergo treatment and for some time afterward, many of these women will have only minimal functional limitations 12 months after diagnosis. Therefore, it would be inappropriate for us to keep the prior listing, which would require us to find that all women with the listed criteria are disabled. We must evaluate these cases on an individual basis.
Finally, two commenters recommended that we not remove the listing 13.23E1c because there may be a recurrence of the disease, and a recurrence generally has a poor prognosis. We agree that recurrent ovarian cancer has a poor prognosis, but we already include it in final listing 13.23E1c, our criterion for recurrent ovarian cancer. As we have already noted, we cannot have a listing based only on a risk of recurrence.
We did not adopt a suggestion that we clarify in the introductory text how our adjudicators should use the Gleason grading scale
We made a number of editorial corrections and changes in the final rules from the language of the NPRM. For example, we changed some sentences from passive into active voice. These changes are only for clarity, consistency, and to correct minor grammatical errors in the NPRM; none are substantive.
Under the Act, we have full power and authority to make rules and regulations and to establish necessary and appropriate procedures to carry out such provisions. Sections 205(a), 702(a)(5), and 1631(d)(1).
We have consulted with the Office of Management and Budget (OMB) and determined that these final rules meet the requirements for a significant regulatory action under Executive Order 12866 and were subject to OMB review.
We certify that these final rules have no significant economic impact on a substantial number of small entities because they affect only individuals. Therefore, a regulatory flexibility analysis was not required under the Regulatory Flexibility Act, as amended.
This rule does not create any new or affect any existing collections and, therefore, does not require Office of Management and Budget approval under the Paperwork Reduction Act.
Administrative practice and procedure, Blind, Disability benefits, Old-Age, Survivors and Disability Insurance, Reporting and recordkeeping requirements, Social Security.
Secs. 202, 205(a), (b), and (d)-(h), 216(i), 221(a) and (i), 222(c), 223, 225, and 702(a)(5) of the Social Security Act (42 U.S.C. 402, 405(a), (b), and (d)-(h), 416(i), 421(a) and (i), 422(c), 423, 425, and 902(a)(5)); sec. 211(b), Pub. L. 104-193, 110 Stat. 2105, 2189; sec. 202, Pub. L. 108-203, 118 Stat. 509 (42 U.S.C. 902 note).
The revised text is set forth as follows:
14. Malignant Neoplastic Diseases (13.00 and 113.00): November 5, 2017
E.
2.
H.
2. * * * When the impairment(s) has been in complete remission for at least 3 years, that is, the original tumor or a recurrence (or relapse) and any metastases have not been evident for at least 3 years, the impairment(s) will no longer meet or medically equal the criteria of a listing in this body system.
3. * * * If you have a recurrence or relapse of your malignancy, your impairment may meet or medically equal one of the listings in this body system again.
I.
1.
2.
3.
Examples of multimodal therapy include:
a. Surgery followed by chemotherapy or radiation.
b. Chemotherapy followed by surgery.
c. Chemotherapy and concurrent radiation.
4.
5.
6.
7.
K.
1.
a. Many indolent (non-aggressive) lymphomas are controlled by well-tolerated treatment modalities, although the lymphomas may produce intermittent symptoms and signs. Therefore, we may defer adjudicating these cases for an appropriate period after therapy is initiated to determine whether the therapy will achieve its intended effect, which is usually to stabilize the disease process. (See 13.00E3.) When your disease has been stabilized, we will assess severity based on the extent of involvement of other organ systems and residuals from therapy.
b. A change in therapy for indolent lymphomas is usually an indicator that the therapy is not achieving its intended effect. However, your impairment will not meet the requirements of 13.05A2 if your therapy is changed solely because you or your physician choose to change it, not because of a failure to achieve stability.
2.
a.
6.
13.02
C. Recurrent disease following initial antineoplastic therapy, except recurrence in the true vocal cord.
13.03
B. Melanoma, as described in 1 or 2.
2. With metastases as described in a, b, or c:
a. Metastases to one or more clinically apparent nodes; that is, nodes that are detected by imaging studies (excluding lymphoscintigraphy) or by clinical examination.
b. If the nodes are not clinically apparent, with metastases to four or more nodes.
c. Metastases to adjacent skin (satellite lesions) or distant sites.
13.05
A. Non-Hodgkin's lymphoma, as described in 1 or 2:
1. Aggressive lymphoma (including diffuse large B-cell lymphoma) persistent or recurrent following initial antineoplastic therapy.
2. Indolent lymphoma (including mycosis fungoides and follicular small cleaved cell) requiring initiation of more than one antineoplastic treatment regimen within a consecutive 12-month period. Consider under a disability from at least the date of initiation of the treatment regimen that failed within 12 months.
13.09
B. * * *
C. Medullary carcinoma with metastases beyond the regional lymph nodes.
13.10
B. Carcinoma with metastases to the supraclavicular or infraclavicular nodes, to 10 or more axillary nodes, or with distant metastases.
13.11
13.13
A. Central nervous system malignant neoplasms (brain and spinal cord), as described in 1 or 2:
1. Highly malignant tumors, such as medulloblastoma or other primitive neuroectodermal tumors (PNETs) with documented metastases, grades III and IV astrocytomas, glioblastoma multiforme, ependymoblastoma, diffuse intrinsic brain stem gliomas, or primary sarcomas.
2. Progressive or recurrent following initial antineoplastic therapy.
13.14
B. * * *
C. Carcinoma of the superior sulcus (including Pancoast tumors) with multimodal antineoplastic therapy. Consider under a disability until at least 18 months from the date of diagnosis. Thereafter, evaluate any residual impairment(s) under the criteria for the affected body system.
13.23
C. Vulva or vagina, as described in 1, 2, or 3:
1. Invading adjoining organs.
2. With metastases to or beyond the regional lymph nodes.
3. Persistent or recurrent following initial antineoplastic therapy.
E. Ovaries, as described in 1 or 2:
1. All tumors except germ cell tumors, with at least one of the following:
a. Tumor extension beyond the pelvis; for example, tumor implants on peritoneal, omental, or bowel surfaces.
b. Metastases to or beyond the regional lymph nodes.
c. Recurrent following initial antineoplastic therapy.
13.24
B. With visceral metastases (metastases to internal organs).
13.27
E.
2.
H.
2. * * * When the impairment(s) has been in complete remission for at least 3 years, that is, the original tumor or a recurrence (or relapse) and any metastases have not been evident for at least 3 years, the impairment(s)
3. * * * If you have a recurrence or relapse of your malignancy, your impairment may meet or medically equal one of the listings in this body system again.
I.
1.
2.
a. Surgery followed by chemotherapy or radiation.
b. Chemotherapy followed by surgery.
c. Chemotherapy and concurrent radiation.
3.
4.
5.
K.
1.
a. We provide criteria for evaluating aggressive lymphomas that have not responded to antineoplastic therapy in 113.05. Indolent (non-aggressive) lymphomas are rare in children. We will evaluate indolent lymphomas in children under 13.05 in part A.
2.
a.
4.
113.09
B. * * *
C. Medullary carcinoma with metastases beyond the regional lymph nodes.
113.13
Drug Enforcement Administration, Department of Justice.
Final rule.
With the issuance of this final rule, the Deputy Administrator of the Drug Enforcement Administration (DEA) places the substance fospropofol, including its salts, isomers and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible, into schedule IV of the Controlled Substances Act (CSA). As a result of this rule, the regulatory controls and criminal sanctions of schedule IV will be applicable to the manufacture, distribution, dispensing, importation, and exportation of fospropofol and products containing fospropofol.
Christine A. Sannerud, PhD, Chief, Drug and Chemical Evaluation Section, Office of Diversion Control, Drug Enforcement Administration, 8701 Morrissette Drive, Springfield, Virginia 22152,
On December 12, 2008, the Food and Drug Administration (FDA) approved fospropofol for marketing under the trade name Lusedra® in the United States as a drug product indicated for monitored anesthesia care (MAC) sedation in adult patients undergoing diagnostic or therapeutic procedures.
Fospropofol, 2,6-diisopropopylphenoxymethyl phosphate disodium, is a water soluble, phosphono-O-methyl prodrug of propofol. It is metabolized in the body to propofol, the active metabolite. Propofol has been available for medical use in the United States since 1989 and is not currently a controlled substance. The pharmacological effects of fospropofol are attributed to the pharmacological actions of propofol. Propofol binds to γ-aminobutyric acid (GABA
Since propofol is the active metabolite of fospropofol, the abuse potential of fospropofol is comparable to that of propofol. Animal self-administration studies demonstrated that the reinforcing effects of propofol are relatively low and comparable to midazolam and other schedule IV benzodiazepines. Fospropofol elicits behavioral effects similar to methohexital and midazolam, schedule IV sedative-hypnotics.
Since fospropofol is a new molecular entity, there has been no evidence of diversion, abuse, or law enforcement encounters involving the drug.
On February 27, 2009, the Acting Assistant Secretary for Health, Department of Health and Human Services (DHHS), sent the Deputy Administrator of DEA a scientific and medical evaluation and a letter recommending that fospropofol be placed into schedule IV of the CSA. Enclosed with the February 27, 2009, letter was a document prepared by the FDA entitled, “Basis for the Recommendation for Control of Fospropofol and Its Salts in Schedule IV of the Controlled Substances Act (CSA).” The document contained a review of the factors which the CSA requires the Secretary to consider (21 U.S.C. 811(b)).
After a review of the available data, including the scientific and medical evaluation and the scheduling recommendation from DHHS, the Deputy Administrator of the DEA published a Notice of Proposed Rulemaking entitled “Schedules of Controlled Substances: Placement of Fospropofol into Schedule IV” on July 23, 2009 (74 FR 36424), which proposed placement of fospropofol into schedule IV of the CSA. The proposed rule provided an opportunity for all interested persons to submit their written comments on or before August 24, 2009.
The DEA received two comments in response to the Notice of Proposed Rulemaking. One comment received from a concerned citizen did not relate to fospropofol, the substance that is being controlled. Thus DEA did not consider this comment.
Another comment received from a professional organization of anesthesiologists is in agreement with the findings of scientific and medical evaluation that formed the basis for the present rule controlling fospropofol as a schedule IV substance and it fully supported this control action.
Based on the recommendation of the Acting Assistant Secretary for Health, received in accordance with section 201(b) of the Act (21 U.S.C. 811(b)), and the independent review of the available data by DEA, the Deputy Administrator of DEA, pursuant to sections 201(a) and 201(b) of the Act (21 U.S.C. 811(a) and 811(b)), finds that:
(1) Fospropofol has a low potential for abuse relative to the drugs or substances in schedule III. Although there is no direct comparison to a schedule III substance, this finding is based on the demonstration of the abuse potential of propofol, the active metabolite, relative to the schedule IV substances, methohexital and midazolam;
(2) Fospropofol has a currently accepted medical use in treatment in the United States; and
(3) Abuse of fospropofol may lead to limited physical dependence or psychological dependence relative to the drugs or other substances in schedule III. This finding is based on the symptoms exhibited upon withdrawal from propofol.
Based on these findings, the Deputy Administrator of DEA concludes that fospropofol, including its salts, isomers and salts of isomers whenever the existence of such salts, isomers, and salts of isomers is possible warrants control in schedule IV of the CSA. (21 U.S.C. 812(b)(4))
In accordance with the provisions of the CSA (21 U.S.C. 811(a)), this action is a formal rulemaking “on the record after opportunity for a hearing.” Such proceedings are conducted pursuant to the provisions of 5 U.S.C. 556 and 557 and, as such, are exempt from review by the Office of Management and Budget pursuant to Executive Order 12866, section 3(d)(1).
The Deputy Administrator, in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612), has reviewed this final rule and by approving it certifies that it will not have a significant economic impact on a substantial number of small entities. Fospropofol products will be used for monitored anesthesia care (MAC) sedation in adult patients undergoing diagnostic or therapeutic procedures. Handlers of fospropofol also handle other controlled substances used for sedation which are already subject to the regulatory requirements of the CSA.
This regulation meets the applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988 Civil Justice Reform.
This rulemaking does not preempt or modify any provision of state law; nor does it impose enforcement responsibilities on any state; nor does it diminish the power of any state to enforce its own laws. Accordingly, this rulemaking does not have federalism implications warranting the application of Executive Order 13132.
This rule will not result in the expenditure by state, local and tribal governments, in the aggregate, or by the private sector, of $120,000,000 or more (adjusted for inflation) in any one year, and will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under provisions of the Unfunded Mandates Reform Act of 1995.
This rule is not a major rule as defined by § 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act). This rule will not result in an annual effect on the economy of $100,000,000 or more; a major increase in costs or prices: Or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign based companies in domestic and export markets.
Administrative practice and procedure, Drug traffic control, Narcotics, Prescription drugs.
21 U.S.C. 811, 812, 871(b) unless otherwise noted.
(c) * * *
State Department.
Final rule.
To comply with the Department of Homeland Security regulation requiring sponsoring employers to file petitions for all aliens for whom R-1 nonimmigrant status is sought. This rule establishes the requirement that consular officers ensure that R-1 visa applicants have obtained an approved U.S. Citizenship and Immigration Services Form I-129 petition from the Department of Homeland Security before issuance of a visa.
This rule is effective October 6, 2009.
Lauren A. Prosnik, Legislation and Regulations Division, Visa Services, Department of State, 2401 E Street, NW., Room L-603D, Washington, DC 20520-0106, (202) 663-2951.
On November 26, 2008, the Department of Homeland Security (DHS) promulgated regulations requiring sponsoring employers to file petitions for all aliens for whom R-1 nonimmigrant status is sought. 73 FR 72276. As a result, the requirements for an R-1 nonimmigrant visa now include establishing that the applicant is the beneficiary of an approved petition. U.S. Citizenship and Immigration Services (USCIS) has implemented the petition requirement for nonimmigrant religious workers as a way to determine the bona fides of a petitioning religious organization located in the United States and to determine that a religious worker will be admitted to the United States to work for a specific religious organization at the request of that religious organization. This rule amends the Department regulations to ensure consistency with the regulations set forth by DHS.
This regulation involves a foreign affairs function of the United States and, therefore, in accordance with 5 U.S.C. 553(a)(1), is not subject to the rule making procedures set forth at 5 U.S.C. 553.
Because this final rule is exempt from notice and comment rulemaking under 5 U.S.C. 553, it is exempt from the regulatory flexibility analysis requirements set forth at sections 603 and 604 of the Regulatory Flexibility Act (5 U.S.C. 603 and 604). Nonetheless, consistent with section 605(b) of the Regulatory Flexibility Act (5 U.S.C. 605(b)), the Department certifies that this rule will not have a significant economic impact on a substantial number of small entities. This regulates individual aliens who seek consideration for R-1 nonimmigrant visas and does not affect any small entities, as defined in 5 U.S.C. 601(6).
Section 202 of the Unfunded Mandates Reform Act of 1995 (UFMA), Public Law 104-4, 109 Stat. 48, 2 U.S.C. 1532, generally requires agencies to prepare a statement before proposing any rule that may result in an annual expenditure of $100 million or more by State, local, or tribal governments, or by the private sector. This rule will not result in any such expenditure, nor will it significantly or uniquely affect small governments.
This rule is not a major rule as defined by 5 U.S.C. 804, for purposes of congressional review of agency rulemaking under the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121. This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based companies to compete with foreign based companies in domestic and import markets.
The Department of State has reviewed this proposed rule to ensure its consistency with the regulatory philosophy and principles set forth in Executive Order 12866 and has determined that the benefits of this final regulation justify its costs. The Department does not consider this final rule to be an economically significant action within the scope of section 3(f)(1) of the Executive Order since it is not likely to have an annual effect on the economy of $100 million or more or to adversely affect in a material way the economy, a sector of the economy, competition, jobs, the environment, public health or safety, or State, local or tribal governments or communities.
This regulation will not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. Nor will the rule have federalism implications warranting the application of Executive Orders No. 12372 and No. 13132.
The Department has reviewed the regulations in light of sections 3(a) and 3(b)(2) of Executive Order No. 12988 to eliminate ambiguity, minimize litigation, establish clear legal standards, and reduce burden.
This rule does not impose information collection requirements under the provisions of the Paperwork Reduction Act, 44 U.S.C., Chapter 35.
Aliens, Foreign officials, Immigration, Nonimmigrants, Passports and Visas.
8 U.S.C. 1104; Public Law 105-277, 112 Stat. 2681-795 through 2681-801; 8 U.S.C.1185 note (section 7209 of Pub. L. 108-458, as amended by section 546 of Pub. L. 109-295).
(a)
(1) The consular officer is satisfied that the alien qualifies under the provisions of that section; and
(2) With respect to the principal alien, the consular officer has received official evidence of the approval by USCIS of a petition to accord such classification or the extension by USCIS of the period of authorized stay in such classification; or
(3) The alien is the spouse or child of an alien so classified and is accompanying or following to join the principal alien.
(b)
(c)
(d)
Internal Revenue Service (IRS), Treasury.
Correction to final regulations.
This document contains corrections to final regulations that were published in the
Mireille Khoury, (202) 622-6080 (not a toll free number).
The final regulations (TD 9457) that are the subject of these corrections are under section 4980 of the Internal Revenue Code. This document contains corrections to final regulations (TD 9457) that were published in the
As published, the final regulations (TD 9457) contain errors that may prove to be misleading and are in need of clarification.
Accordingly, the final regulations (TD 9457), that are the subject of FR Doc. E9-21225, are corrected as follows:
On page 46000, column 3, in the signature block, line 6, the language “Assistant Secretary of the Treasury (Tax” is corrected to read “Acting Assistant Secretary of the Treasury (Tax”.
National Park Service.
Interim rule with request for comments.
The National Park Service (NPS) is closing the historic residence of President of the United States Truman at the Harry S Truman National Historic Site to all public use through May 30, 2010. This action is necessary because the house is undergoing major repairs and restoration. All furniture and artifacts that are key to interpretive tours for the public will be removed for the project to protect them. The restoration and repair activities will also create conditions that are a hazard to the public health and safety. Closure of the home will allow completion of a process that will restore to original appearance and protect and conserve the historic home of President Truman and its contents.
You may submit comments, identified by the number 1024-AD79, by any of the following methods:
Superintendent Larry Villalva, at Harry
The Truman Home's construction and conservation projects are part of the National Park Service Centennial Initiative, which was introduced in May 2007. The initiative is a 9-year plan to improve facilities and services in the National Park Service for the 100th anniversary of the agency in 2016. One of the main goals of the initiative is stewardship of natural and cultural resources in our National Parks, including rehabilitation, restoration and maintenance of treasured cultural resources such as the Truman Home. The home is a Victorian style mansion which was built in 1867 and became part of the National Park System in 1983. It served as the residence and home of Harry S Truman, 33rd President of the United States, from 1919 until his death in 1972.
During the park closure, four projects will be completed: installation of a new HVAC system, installation of a fire suppression system, repair of structural deficiencies, and rehabilitation of walls, ceilings and historic wall covering materials. Prior to the these construction projects, the historic furniture and furnishings within the home's first and second story will be removed and placed in curatorial storage. The first floor rooms which normally are visited by the public during interpretive tours will require their furniture to also be removed in order to protect the items from accidental damage by moving equipment into or out of various work locations within the house, and in order to protect the artifacts from fine dust caused by construction activities and other potential falling ceiling debris.
The furniture removal is a very concise process involving detailed photography and mapping documentation in order to insure that each item is returned to its exact original location upon completion of the work.
Historic wallpaper has been removed from the dining room and upstairs bedroom areas for cleaning, repairing, and reinstallation by a paper conservator. Plaster located in many areas throughout the home has failed as a result of deterioration and exposure to moisture which caused ceilings to buckle, and walls to either bulge or crack.
The existing HVAC system installed in 1985 is failing to maintain a stable environment in the Truman Home. This compromises the longevity of not only the homes infrastructure, but also the thousands of artifacts on exhibit and in storage within the home. Plans include installation of three HVAC units to stabilize the interior environment. This project requires removal of flooring on the second floor and attic to install ductwork. With the floor cavities open a fire suppression system will be installed.
Suspension of tours of the home for the visiting public during the construction period is justified in order to allow the construction to proceed efficiently, to prevent public exposure to construction activities and noise, as well as fine particulates and falling debris, and the danger of the movement of equipment in and out of the structure.
There will be some minor effect on a few small businesses in the area but there is no way to avoid it. The remainder of the park will remain open throughout the year and the NPS will offer the public other programs which will be conducted on the Truman Home grounds and at other nearby Truman related sites. Closure of the Truman Home cannot be avoided without compromising the quality and cost of renovation of the home.
It is necessary for the regulation to become effective upon publication in order to allow necessary construction activities scheduled to proceed. Comments are being accepted for a period of 30 days in order to address questions or requests for additional information from the readers.
The following persons participated in the writing of this regulation: Larry Villalva, Superintendent, Harry S Truman National Historic Site, Carol Dage, Curator, Harry S Truman National Historic Site, James Loach, Associate Regional Director, Midwest Regional Office, Omaha, Nebraska and Philip Selleck, Chief, Regulations and Special Park Uses, NPS, Washington, DC.
This rule contains no information collection requirements which require approval by the Office of Management and Budget under 44 U.S.C. 3501
This document is not a significant rule and the Office of Management and Budget has not reviewed this rule under Executive Order 12866. We have made the assessments required by E.O. 12866 and the results are given below.
1. This rule will not have an effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. The area proposed to be restricted through this rulemaking is being closed only during the Truman Home repair, preservation and protection construction activities stabilizing the structure, replacing the HVAC systems and adding a fire suppression system.
2. This rule will not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency. The closure is confined to one building located within a unit of the National Park System, which is neither managed nor occupied by any other agency.
3. This rule does not alter the budgetary effects of entitlements, grants, user fees, or loan programs or the rights or obligations of their recipients. The rule is confined to a closure for public safety and protection of the historic resource, and does not regulate any financial programs or matters.
4. This rule does not raise novel legal or policy issues. Closure of a historic structure for restoration is a normal procedure for assuring public safety, minimizing interruption of the restoration process, and protection of the building and contents while construction is ongoing.
The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or more. This rule will only affect those who will not be able to visit the interior of the Truman Home during the closure.
b. Will not cause a major increase in costs or prices for consumers, individual industries, federal, state, or
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. The primary purpose of this regulation is to implement a closure to allow necessary construction activities to proceed safely and efficiently in order to carry out the protection and preservation of the Truman Home structure. This rule will not change the ability of United States based enterprises to compete in any way.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. The restrictions under this regulation do not have a significant effect or impose an unfunded mandate on any agency or on the private sector. This rule applies only to federal parkland administered by the National Park Service at Truman Home, and no costs will be incurred by any non-federal parties.
Under the criteria in Executive Order 12630, this rule does not have significant takings implications. This rule does not apply to private property, or cause a compensable taking, so there are no takings implications.
In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. This regulation will not have a substantial direct effect on the states, or on the distribution of power and responsibilities among the various levels of government. The rule addresses public access to the Truman Home structure at Harry S Truman National Monument. The affected land is under the administrative jurisdiction of the National Park Service.
This rule complies with the requirements of Executive Order 12988. Specifically, this rule:
a. Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and
b. Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 is not required because the rule is covered by a categorical exclusion.
The Interim Guidance for NPS Director's Order 12 contains a listing of Categorical Exclusions. Section 3.4 (C)(4) of that guidance provides that “repairs to cultural resource sites, structures, utilities and grounds” are categorically excluded “if the action would not adversely affect the cultural resource”. Completion of an environmental screening form disclosed that the adoption of this regulation would result in no measurable adverse environmental effects. In compliance with terms of the National Historic Preservation Act, we executed a Section 106 clearance, recording it on the “XXX” form. Copies of the clearance can be obtained through the park superintendent, as listed under the
We have also determined that the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under the National Environmental Policy Act. As such, a categorical exclusion is the appropriate form of NEPA compliance for this regulatory action.
Under the criteria in Executive Order 13175, we have evaluated this rule and determined that it has no potential effects on federally recognized Indian tribes. This interim rule is temporary, is limited to the closure of the Truman house, does not affect any other area of the park, and does not involve items or interests of federally recognized Indian tribes.
In developing this rule we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
a. Be logically organized;
b. Use the active voice to address readers directly;
c. Use clear language rather than jargon;
d. Be divided into short sections and sentences; and
e. Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
Before including your address, phone number, e-mail address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
National Parks, Reporting and recordkeeping requirements.
16 U.S.C. 1, 3, 9a, 462(k); Sec. 7.96 also issued under DC Code 10-137 (2001) and DC Code 50-2201 (2001).
The Truman Home structure at Harry S Truman National Historic Site is closed to all public use and access until June 1, 2010.
Environmental Protection Agency (EPA).
Final rule.
EPA is approving Indiana's rule revision to extend permit terms for the renewal of Federally Enforceable State Operating Permits (FESOPs) from five years to ten years. Indiana submitted this rule revision for approval on December 19, 2007. FESOPs enable non-major sources to obtain federally enforceable limits that keep them below certain Clean Air Act (Act) applicability thresholds. EPA published proposed and direct final approvals of this request on May 5, 2009. We received adverse comments on our proposed rulemaking, which are addressed below. As a result, EPA withdrew the direct final approval on June 17, 2009.
This final rule is effective on November 5, 2009.
EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2008-0031. All documents in the docket are listed on the
Sam Portanova, Environmental Engineer, Air Permits Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-3189,
Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This
On December 19, 2007, the Indiana Department of Environmental Management (IDEM) requested that EPA approve a rule revision to extend permit terms for the renewal of FESOPs from five years to ten years. On May 5, 2009, EPA published a proposed (74 FR 20665) and direct final (74 FR 20599) approval of this request. EPA received adverse comments on this action and withdrew the direct final approval on June 17, 2009 (74 FR 28616).
EPA received one comment letter with two comments from Valley Watch, Inc.
EPA is approving the revisions to 326 IAC 2-1.1-9.5 and 326 IAC 2-8-4 regarding the permit terms for FESOP renewals.
Under the Act, the Administrator is required to approve a State Implementation Plan (SIP) submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Act; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 7, 2009. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
42 U.S.C. 7401
(c) * * *
(189) On December 19, 2007, Indiana submitted modifications to its Federally Enforceable State Operating Permits rules as a revision to the state implementation plan. The revision extends the maximum permit term for renewals of Federally Enforceable State Operating Permits from five years to ten years. EPA has determined that this revision is approvable under the Clean Air Act.
(i) Incorporation by reference.
(A) Indiana Administrative Code Title 326, Article 2: Permit Review Rules, sections 2-1.1-9.5, “General provisions; term of permit”, and 2-8-4, “Permit content”, are incorporated by reference. Filed with the Publisher of the Indiana Register on November 16, 2007, and became effective on December 16, 2007. Published in the Indiana Register on December 13, 2007 (20071212-IR-326060487FRA).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Fishery closure.
NMFS is closing the commercial sandbar shark research fishery. This action is necessary because NMFS estimated that landings in this fishery have exceeded 80 percent of the available quota.
The commercial sandbar shark research fishery is closed effective 11:30 p.m. local time October 13, 2009, until the effective date of the final 2010 shark season specifications in which NMFS will publish a separate document in the
Karyl Brewster-Geisz or Guy DuBeck, 301-713-2347; fax 301-713-1917.
The Atlantic shark fisheries are managed under the 2006 Consolidated Atlantic Highly Migratory Species (HMS) Fishery Management Plan (FMP), its amendments, and its implementing regulations found at 50 CFR part 635 and issued under authority of the Magnuson-Stevens Fishery Conservation and Management Act (16 U.S.C. 1801
Under § 635.5(b)(1), shark dealers are required to report to NMFS, every two weeks, on all Atlantic sharks they have received. Dealer reports for fish received between the 1st and 15th of the month must be received by NMFS by the 25th of that month. Dealer reports for fish received between the 16th and the end of any month must be received by NMFS by the 10th of the following month. In addition, shark landings within the shark research fishery are monitored via scientific observer reports. Under 50 CFR 635.28(b)(2), when NMFS projects that fishing season landings for a specific shark quota have reached or are about to reach 80 percent of the available quota, NMFS will file for publication with the Office of the
On December 24, 2008, NMFS announced that the sandbar shark quota for the shark research fishery for the 2009 fishing year would be 87.5 metric tons (mt) dressed weight (dw) (193,784 lb dw). Scientific observer reports received through June 26, 2009, and dealer reports through August 26, 2009, indicate that 79.6 mt dw or 90.5 percent of the available quota for the sandbar shark research fishery has been taken. Accordingly, NMFS is closing the commercial sandbar shark research fishery as of 11:30 p.m. local time October 13, 2009. The SCS and pelagic shark fisheries will remain open.
During this closure, a fishing vessel, issued an Atlantic Shark Limited Access Permit (LAP) pursuant to § 635.4, may not possess or sell a sandbar shark, except under the conditions specified in § 635.22(a) and (c) or if the vessel possesses a valid shark research permit under § 635.32 and an NMFS-approved observer is onboard. A shark dealer, issued a permit pursuant to § 635.4, may not purchase or receive sandbar sharks, except that a permitted shark dealer or processor may possess sandbar sharks that were harvested, off-loaded, and sold, traded, or bartered, prior to the effective date of the closure and were held in storage. Additionally, a shark dealer issued a Federal permit, pursuant to § 635.4 may, in accordance with state regulations, purchase or receive a sandbar shark if the shark was harvested, off-loaded, and sold, traded, or bartered from a vessel that fishes only in state waters and had not been issued a Shark LAP, HMS Angling permit, or HMS CHB permit under § 635.4.
Pursuant to 5 U.S.C. 553(b)(B), the Assistant Administrator for Fisheries, NOAA (AA), finds that providing for prior notice and public comment for this action is impracticable and contrary to the public interest because the fisheries are currently underway, and any delay in this action would cause overharvest of the quota and be inconsistent with management requirements and objectives. Similarly, affording prior notice and opportunity for public comment on this action is contrary to the public interest because, if the quota is exceeded, the affected public is likely to experience reductions in the available quota and a lack of fishing opportunities in future seasons. Thus, for these reasons, the AA also finds good cause to waive the 30-day delay in effective date pursuant to 5 U.S.C. 553 (d)(3).
This action is required under 50 CFR 635.28(b)(2) and is exempt from review under Executive Order 12866.
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 pollock in Statistical Area 630 in the Gulf of Alaska (GOA). This action is necessary to prevent exceeding the 2009 total allowable catch (TAC) of pollock for Statistical Area 630 in the GOA.
Effective 1200 hrs, Alaska local time (A.l.t.), October 1, 2009, through 2400 hrs, A.l.t., December 31, 2009.
Josh Keaton, 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.
The 2009 TAC of pollock in Statistical Area 630 of the GOA is 11,058 metric tons (mt) as established by the final 2009 and 2010 harvest specifications for groundfish of the GOA (74 FR 7333, February 17, 2009).
In accordance with § 679.20(d)(1)(i), the Regional Administrator has determined that the 2009 TAC of pollock in Statistical Area 630 of the GOA will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 10,800 mt, and is setting aside the remaining 258 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for pollock in Statistical Area 630 of the GOA.
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 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 pollock in Statistical Area 630 of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 30, 2009.
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 § 679.20 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a permanent Special Local Regulation within the waters of Huntington Bay, New York for the annual Fran Schnarr Open Water Championships. This proposed Special Local Regulation is necessary to provide for the safety of life on the navigable waters of Huntington Bay by protecting swimmers from the hazards imposed by vessel traffic. This action is intended to increase the safety of the swimmers by limiting vessel access to a portion of Huntington Bay, New York during the swim event held on a single day each July. Entry into this area will be prohibited unless authorized by the Captain of the Port, Long Island Sound or the designated on-scene patrol personnel.
Comments and related material must reach the Coast Guard on or before November 5, 2009.
You may submit comments identified by docket number USCG-2009-0520 using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the
If you have questions on this proposed rule, call or e-mail: MSTC Christie Dixon, Prevention Department, USCG Sector Long Island Sound at 203-468-4459, e-mail
We encourage you to participate in this rulemaking by submitting comments and related materials. All comments received will be posted without change to
If you submit a comment, please include the docket number for this rulemaking (USCG-2009-0520), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online (via
To submit your comment online, go to
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to
Anyone can search the electronic form of 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 a Privacy Act notice regarding our public dockets in the January 17, 2008 issue of the
We do not now plan to hold a public meeting. But you may submit a request for one using one of the four methods specified under
Over the last several years, Metropolitan Swimming, Inc. has hosted an annual open water championship swim on the waters of Huntington Bay, NY during a single day in July. This swim has historically involved up to 150 swimmers and accompanying safety craft. Last year, the Coast Guard established a temporary special local regulation to protect the swimmers and safety craft from the hazards imposed by passing water traffic and other water related activities (74 FR 33144 [USCG-2009-0520]).
To ensure the continued safety of the swimmers, safety craft and the boating public, the Coast Guard is proposing to establish a special local regulation around the race course for the duration of the race, generally from 7:15 a.m. to 11:30 a.m. on the day of the race.
The Coast Guard proposes to establish a special local regulation on the navigable waters of Huntington Bay, NY that would exclude all unauthorized persons and vessels from approaching within 100 yards of the proposed race course which consists of the following points: Start/Finish at approximate location 40°54′25.8″ N 073°24′28.8″ N, East Turn at approximate location 40°54′45″ N 073°23′36.6″ N and a West Turn at approximate location 40°54′31.2″ N 073°25′21″ N. This action is intended to prohibit vessel traffic in this portion of Huntington Bay, NY to provide for the safety of swimmers, swimmer safety craft and the boating community from the hazards posed by vessels operating near persons participating in this open water swim.
While the special local regulation will be permanent, it will only be enforced for approximately four hours and fifteen minutes on a single day in July that will be specified annually. Notification of the race date and subsequent enforcement of the special local regulation will be made via separate notice in the
We developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. Below we summarize our analyses based on 13 of these statutes or executive orders.
This proposed rule is not a significant regulatory action under section 3(f) of Executive Order 12866, Regulatory Planning and Review, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. The Office of Management and Budget has not reviewed it under that Order.
We expect the economic impact of this proposed rule to be so minimal that a full Regulatory Evaluation is unnecessary. This regulation may have some impact on the public, but the potential impact would be minimized for the following reason: vessels may transit in all areas of Huntington Bay, NY other than the area of the special local regulation with minimal increased transit time and the special local regulation will only be enforced for approximately four and a quarter hours on a single specified day each July.
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), we have considered whether this proposed rule would have a significant economic impact on a substantial number of small entities. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000.
The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities. This proposed rule may affect the following entities, some of which may be small entities: the owners or operators of vessels intending to transit in those portions of Huntington Bay, NY covered by the special local regulation. For the reasons outlined in the Regulatory Evaluation section above, this rule will not have a significant impact on a substantial number of small entities. If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see
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 proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact: MST1 Christie Dixon, Prevention Department, USCG Sector Long Island Sound at 203-468-4459,
This proposed rule would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on them. We have analyzed this proposed rule under that Order and have determined that it does not have implications for federalism.
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions 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. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
This proposed rule would not effect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actins and Interference with Constitutionally Protected Property Rights.
This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
We have analyzed this proposed rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not an economically significant rule and would not create an environmental risk to health or risk to safety that might disproportionately affect children.
This proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.
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 applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This proposed rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. A preliminary environmental analysis checklist supporting this determination is available in the docket where indicated under
Marine safety, Navigation (water), Reporting and recordkeeping requirements, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 100 as follows:
1. The authority citation for part 100 continues to read as follows:
33 U.S.C. 1233.
2. Add § 100.123 to read as follows:
(a)
(b)
(c)
(2) In accordance with the general regulations in § 100.35 of this part, No person or vessel may enter, transit, or remain within the regulated area during the effective period of regulation unless they are officially participating in the Fran Schnarr Open Water Swim event or are otherwise authorized by the Designated On-scene Patrol Personnel.
(3) All persons and vessels must comply with the instructions from the Coast Guard Captain of the Port Long Island Sound or the designated on-scene patrol personnel. The Designated On-scene Patrol Personnel may delay, modify, or cancel the swim event as conditions or circumstances require.
(4) Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing light or other means, the operator of the vessel must proceed as directed.
(5) Persons and vessels desiring to enter the regulated area may request permission to enter from the designated on scene patrol personnel on VHF-16 or to the Captain of the Port, Long Island Sound via phone at (203) 468-4401.
(d)
Coast Guard, DHS.
Notice of public meetings; request for comments; correction.
The Coast Guard is issuing a correction to an earlier document that
The public meetings will be held at the following locations:
• Washington, DC, October 28, 2009, from 1 p.m. to 3:30 p.m.
• Oakland, CA, November 3, 2009, from 1 p.m. to 3:30 p.m.
• New Orleans, LA, November 19, 2009, from 4:30 p.m. to 7 p.m.
The public meetings will be held at the following locations:
• Washington, DC—United States Coast Guard Headquarters Building, Room 4202, 2100 Second St., SW., Washington, DC 20593.
• Oakland, CA—Ronald V. Dellums Federal Building, Auditorium, 3rd Floor North Tower, 1301 Clay Street, Oakland, CA 94612.
• New Orleans, LA—Ernest N. Morial Convention Center, Room 208, Exhibit Hall A, 900 Convention Center Blvd., New Orleans, LA 70130.
You may submit written comments identified by docket number USCG-2008-1070 before or after the meeting using any one of the following methods:
(1)
(2)
(3)
(4)
To avoid duplication, please use only one of these four methods. Our online docket for this rulemaking is available on the Internet at
If you have questions about this proposed rulemaking, contact Lieutenant Jarrod DeWitz, U.S. Coast Guard, Office of Vessel Activities, Vessel Response Plan Review Team, telephone (202) 372-1219. You may also e-mail questions to
The Coast Guard is issuing this correction to an earlier notice that published on September 25, 2009, (74 FR 48891) in order to correct the date of the Washington, DC, public meeting. Our earlier notice listed 2 different dates for the same meeting; the correct date is October 28, 2009. The time/location of the Washington, DC, public meeting remains unchanged. The dates/times/locations for the Oakland, CA, and New Orleans, LA, public meetings remain unchanged.
We encourage you to participate in this rulemaking by submitting comments either orally at a meeting or in writing. If you bring written comments to a meeting, you may submit them to Coast Guard personnel specified at the meeting to receive written comments. These comments will be submitted to our online public docket. All comments received will be posted without change to
Anyone can search the electronic form of 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 a Privacy Act notice regarding our public dockets in the January 17, 2008 issue of the
For information on facilities or services for individuals with disabilities or to request special assistance at the public meeting, contact Lieutenant Jarrod DeWitz at the telephone number indicated under the
The Coast Guard will hold three public meetings regarding this proposed rulemaking on the following dates and at the following locations:
• Washington, DC, October 28, 2009, from 1 p.m. to 3:30 p.m., at the United States Coast Guard Headquarters Building, Room 4202, 2100 Second Street, SW., Washington, DC 20593.
• Oakland, CA, November 3, 2009, from 1 p.m. to 3:30 p.m., at the Ronald V. Dellums Federal Building, Auditorium, 3rd Floor North Tower, 1301 Clay Street, Oakland, CA 94612.
• New Orleans, LA, November 19, 2009, from 4:30 p.m. to 7 p.m., at the Ernest N. Morial Convention Center, Room 208, Exhibit Hall A, 900 Convention Center Blvd., New Orleans, LA 70130.
Members of the public may attend these meetings up to the seating capacity of the rooms. The meetings may conclude before the allotted time if all matters of concern have been addressed.
We plan to record each meeting using an audio-digital recorder and to make that audio recording available through a link in our online docket. A written summary of comments made and a list of attendees will be placed in the docket after each meeting concludes.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to determine that the Hickory-Morganton-Lenoir, North Carolina, (hereafter referred to as “Hickory, North Carolina”) nonattainment area for the 1997 fine particulate matter (PM
Written comments must be received on or before November 5, 2009.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2009-0751 by one of the following methods:
1.
2.
3.
4.
5.
Joel Huey, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Mr. Huey may be reached by phone at (404) 562-9104 or via electronic mail at
EPA is proposing to determine that the Hickory, North Carolina, PM
If this determination is made final, under the provisions of EPA's PM
If this rulemaking is finalized and EPA subsequently determines, after notice-and-comment rulemaking in the
The determination that EPA proposes with this
This proposed action, if finalized, is limited to a determination that the Hickory, North Carolina, PM
If this proposed determination is made final and the Hickory, North Carolina, area continues to demonstrate attainment with the 1997 PM
On July 18, 1997 (62 FR 36852), EPA established a health-based PM
EPA has reviewed the ambient air monitoring data for PM
(1) The annual primary and secondary PM
(2) The 24-hour primary and secondary PM
Table 1 shows the design values (the metrics calculated in accordance with 40 CFR part 50, appendix N, for determining compliance with the NAAQS) for the 1997 Annual PM
EPA's review of these data indicates that the Hickory, North Carolina, nonattainment area has met and continues to meet the 1997 PM
EPA is proposing to determine that the Hickory, North Carolina, nonattainment area for the 1997 PM
This action proposes to make a determination based on air quality data, and would, if finalized, result in the suspension of certain Federal requirements. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
Environmental protection, Air pollution control, Incorporation by reference, Particulate matter.
Environmental Protection Agency (EPA).
Proposed rule.
EPA is proposing to determine that the Greensboro-Winston Salem-High Point, North Carolina, (hereafter referred to as “Greensboro, North Carolina”) nonattainment area for the 1997 fine particulate matter (PM
Written comments must be received on or before November 5, 2009.
Submit your comments, identified by Docket ID No. EPA-R04-OAR-2009-0561 by one of the following methods:
1.
2.
3.
4.
5.
Joel Huey, Regulatory Development Section, Air Planning Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW., Atlanta, Georgia 30303-8960. Mr. Huey may be reached by phone at (404) 562-9104 or via electronic mail at
EPA is proposing to determine that the Greensboro, North Carolina, PM
If this determination is made final, under the provisions of EPA's PM
As further discussed below, the proposed determination for the Greensboro, North Carolina, PM
If this rulemaking is finalized and EPA subsequently determines, after notice-and-comment rulemaking in the
The determination that EPA proposes with this
This proposed action, if finalized, is limited to a determination that the Greensboro, North Carolina, PM
If this proposed determination is made final and the Greensboro, North Carolina, area continues to demonstrate attainment with the 1997 PM
On July 18, 1997 (62 FR 36852), EPA established a health-based PM
EPA has reviewed the ambient air monitoring data for PM
(1) The annual primary and secondary PM
(2) The 24-hour primary and secondary PM
Table 1 shows the design values (the metrics calculated in accordance with 40 CFR part 50, appendix N, for determining compliance with the NAAQS) for the 1997 Annual PM
EPA's review of these data indicates that the Greensboro, North Carolina, nonattainment area has met and continues to meet the 1997 PM
EPA is proposing to determine that the Greensboro, North Carolina, nonattainment area for the 1997 PM
This action proposes to make a determination based on air quality data, and would, if finalized, result in the suspension of certain Federal requirements. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this rule does not have Tribal implications, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on Tribal governments or preempt Tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Particulate matter.
Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA).
Notice of public hearings.
EPA and NHTSA are announcing the location addresses for the joint public hearings to be held for the “Proposed Rulemaking to Establish Light-Duty Vehicle Greenhouse Gas Emission Standards and Corporate Average Fuel Economy Standards,” published in the
NHTSA and EPA will jointly hold three public hearings on the following dates: October 21, 2009, in Detroit, Michigan, October 23, 2009 in New York, New York, and October 27, 2009 in Los Angeles, California. The hearings will start at 9 a.m. local time and continue until everyone has had a chance to speak. If you would like to present testimony at the public hearings, we ask that you notify the EPA and NHTSA contact persons listed under
NHTSA and EPA will jointly hold three public hearings at the following locations: Detroit Metro Airport Marriott, 30559 Flynn Drive, Romulus, Michigan 48174 on October 21, 2009; New York LaGuardia Airport Marriott, 102-05 Ditmars Boulevard, East Elmhurst, New York 11369 on October 23, 2009; and Renaissance Los Angeles Airport Hotel, 9620 Airport Boulevard, Los Angeles, California 90045 on October 27, 2009. Please see the proposed rule for addresses and detailed instructions for submitting comments.
EPA: Tad Wysor, Office of Transportation and Air Quality, Assessment and Standards Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number: 734-214-4332; fax number: 734-214-4816; e-mail address:
The proposal for which NHTSA and EPA are jointly holding the public hearings was published in the
This notice of public hearings further provides the location addresses for the hearings, shown below:
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 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; the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; ways to enhance the quality, utility and clarity of the information to be collected; ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB),
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA Forest Service
Action of meeting.
The Hood/Willamette Resource Advisory Committee (RAC) will meet on Wednesday, October 28, 2009. The meeting and field trip is scheduled to begin at 9:30 a.m. and will conclude at approximately 4:30 p.m. The meeting will be held at the Mt. Hood National Forest Headquarters; 16400 Champion Way; Sandy, Oregon; (503) 668-1700. The tentative agenda includes: (1) Public Forum; and (2) Field Trip to Title II Projects.
The Public Forum is tentatively scheduled to begin at 9:45 a.m. Time allotted for individual presentations will be limited to 3-4 minutes. Written comments are encouraged, particularly if the material cannot be presented within the time limits for the Public Forum. Written comments may be submitted prior to the October 28th meeting by sending them to Designated Federal Official Connie Athman at the address given below.
For more information regarding this meeting, contact Designated Federal Official Connie Athman; Mt. Hood National Forest; 16400 Champion Way; Sandy, Oregon 97055; (503) 668-1672.
Malheur National Forest, USDA Forest Service.
Notice of New Fee Sites.
The Malheur National Forest is planning to charge a $60 fee for the overnight rental of Short Creek and Sunshine Cabins. These cabins have not been available for recreation use prior to this date. Rentals of other cabins on the Malheur National Forest have shown that people appreciate and enjoy the availability of historic rental cabins. Funds from the rental will be used for the continued operation and maintenance of Short Creek and Sunshine Cabins.
Short Creek and Sunshine Cabins will become available for recreation rental May, 2010.
Forest Supervisor, Malheur National Forest, P.O. Box 909, John Day, OR 97845.
Jennifer Harris, Recreation Fee Coordinator, 541-575-3008.
The Federal Recreation Lands Enhancement Act (Title VII, Pub. L. 108-447) directed the Secretary of Agriculture to publish a six month advance notice in the
This new fee will be reviewed by a Recreation Resource Advisory Committee prior to a final decision and implementation.
The Malheur National Forest currently has three other cabin rentals. These rentals are often fully booked throughout their rental season. An analysis of Short Creek and Sunshine Cabins has shown that people desire having this sort of recreation experience on the Malheur National Forest. A market analysis indicates that the $60/per night fee is both reasonable and acceptable for this sort of unique recreation experience.
People wanting to rent Short Creek and Sunshine Cabins will need to do so through the National Recreation Reservation Service, at
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
The COP is part of a unique Federal-academic partnership designed to provide predictive capability for managing coastal ecosystems. Under the authority of 33 U.S.C. 1442, “Research program respecting possible long-range effects of pollution, overfishing, and man-induced changes of ocean ecosystems”, COP supports research on critical issues associated with the Nation's estuaries, coastal waters and the Great Lakes, and translates its finding into accessible information for coastal managers, planners, lawmakers and the public. COP's projects are multi-disciplinary, large in scale and long in duration (usually three to five years). Grants monies are available for related activities. In addition to the standard grant application and budget forms, applicants for COP grants provide a project summary with their applications, as well as annual and final project reports.
Copies of the above information collection proposal can be obtained by calling or writing Diana Hynek, Departmental Paperwork Clearance Officer, (202) 482-0266, Department of Commerce, Room 7845, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to David Rostker, OMB Desk Officer, FAX number (202) 395-7285, or
International Trade Administration, Department of Commerce.
Notice of meeting.
The U.S. Department of Commerce (DOC) will host a half-day “Energy for Manufacturing Roundtable” on October 20, 2009. This event is intended for members of the manufacturing industry and energy suppliers to the manufacturing industry. Participants will learn about and discuss the consequences that energy consumption and workforce education have on competitiveness; how energy efficiency models can strengthen competition and innovation; and how energy consumption patterns are spurring greater implementation of industrial energy efficient technologies. U.S. leadership in industrial energy efficiency technologies being deployed worldwide will be highlighted.
October 20, 2009.
To apply to participate in the roundtable, please send an e-mail to
The Department invites applications from manufacturers, energy suppliers, and trade associations representing
U.S. Census Bureau.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
To ensure consideration, written comments must be submitted on or before December 7, 2009.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 7845, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Chris Savage, U.S. Census Bureau, Manufacturing and Construction Division, 4600 Silver Hill Road, Room 7K071, Washington, DC 20233-6913, (301) 763-4834, or (via the Internet at
The Manufacturers' Shipments, Inventories, and Orders (M3) survey collects monthly data on shipments, inventories, and new and unfilled orders from manufacturing companies. The orders, as well as the shipments and inventory data, are valuable tools for analysts of business cycle conditions, including members of the Council of Economic Advisers, the Treasury Department, and the business community.
The monthly M3 Survey estimates are based on a relatively small sample and reflect primarily the month-to-month changes of large companies. There is a clear need for periodic benchmarking of the M3 estimates to reflect the manufacturing universe. The Annual Survey of Manufacturers (ASM) provides annual benchmarks for the shipments and inventory data in this monthly survey. There is no benchmark for unfilled orders. The U.S. Census Bureau plans a reinstatement to an expired collection “Manufacturers' Shipments, Inventories and Orders (M3) Supplement: 2006-2007 Unfilled Orders Benchmark Survey,” to be renamed the “Manufacturers' Unfilled Orders Survey.” Over the life of the M3 Survey, there have been four surveys specifically designed to collect unfilled orders. These surveys were conducted in 1976, 1986, 2000, and 2008. After analyzing the results of the 2008 survey, the Census Bureau ascertained the need for an ongoing data collection of unfilled orders data annually.
The Manufacturers' Unfilled Orders Survey will be used as a benchmark for the M3 Survey each year. The Census Bureau will use these data to develop universe estimates of unfilled orders as of the end of the calendar year and adjust the monthly M3 data on unfilled orders to these levels on the NAICS basis. The benchmarked unfilled orders levels will be used to derive estimates of new orders received by manufacturers. The survey data will also be used to determine whether it is necessary to collect unfilled orders data for specific industries on a monthly basis; some industries are not requested to provide unfilled orders data on the M3 Survey.
The Census Bureau will use mail out/mail back survey forms to collect the data. Companies will be asked to respond to the survey within 30 days of receipt. Letters encouraging participation will be mailed to companies that have not responded by the designated time. Telephone follow-up will be conducted to obtain response from delinquent companies.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
U.S. Census Bureau.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general
To ensure consideration, written comments must be submitted on or before December 7, 2009.
Direct all written comments to Diana Hynek, Departmental Paperwork Clearance Officer, Department of Commerce, Room 7845, 14th and Constitution Avenue, NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Michael Davis, U.S. Census Bureau, 7K081, Washington, DC 2033-6900, (301) 763-1605 (or via the Internet at
The Census Bureau plans to request a three-year extension of a currently approved collection for forms C-700, Private Construction Projects; C-700(R), Multifamily Residential Projects; and C-700(SL), State and Local Government Projects. These forms are used to conduct the Construction Progress Reporting Surveys (CPRS) to collect information on the dollar value of construction put in place by private companies, individuals, private multifamily residential buildings, and state and local governments.
The Census Bureau is the preeminent collector and provider of timely, relevant and quality data about the people and economy of the United States. The Form C-700, Private Construction Projects, collects construction put in place data for nonresidential projects owned by private companies or individuals. The Form C-700(R), Multifamily Residential Projects, collects construction put in place data for private multifamily residential buildings. The Form C-700(SL), State and Local Government Projects, collects construction put in place data for state and local government projects.
The Census Bureau uses the information from these surveys to publish the value of construction put in place series. Published estimates are used by a variety of private business and trade associations to estimate the demand for building materials and to schedule production, distribution, and sales efforts. They also provide various government agencies with a tool to evaluate economic policy and to measure progress towards established goals. For example, Bureau of Economic Analysis staff use data to develop the construction components of gross private domestic investment in the gross domestic product. The Federal Reserve Board and the Department of the Treasury use the value in place data to predict the gross domestic product, which is presented to the Board of Governors and has an impact on monetary policy.
An independent systematic sample of projects is selected each month according to predetermined sample rates. Once a project is selected, it remains in the sample until completion of the project. Preprinted forms are mailed monthly to respondents to fill in current month data and any revisions to previous months. Some respondents are later called by a Census interviewer and report data over the phone. Having the information available from a database at the time of the interview greatly helps reduce the time respondents spend on the phone. Interviews are scheduled at the convenience of the respondent, which further reduces their burden.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
Department of Commerce.
Amendment and extension of deadline, of
The United States Department of Commerce, International Trade Administration, U.S. and Foreign Commercial Service has rescheduled the Trade Mission to Algiers, Algeria, and Tripoli, Libya, from November 4-8, 2009, to February 17-22, 2010. The Department of Commerce will accept additional applications for this mission through November 12, 2009. A maximum of 12 additional companies will be selected to participate in the mission from the new applicant pool. Companies previously selected to participate in this mission need not reapply.
For More Information and an Application Packet Contact: Lisa Huot, U.S. Commercial Service, Department of Commerce, Tel: 202-482-2796, Fax: 202-482-9000, E-mail:
Import Administration, International Trade Administration, Department of Commerce
October 6, 2009.
Katie Marksberry, AD/CVD Operations, Office 9, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-7906.
On January 27, 2009, the Department of Commerce (“Department”) issued its preliminary results for the changed circumstances review of the antidumping duty order of certain activated carbon from the People's Republic of China.
In our
Subsequent to the
This notice is published in accordance with sections 751(b) and 777(i) of the Tariff Act of 1930, as amended.
Notice is hereby given that the Foreign-Trade Zones (FTZ) Board staff has terminated its review of the application requesting temporary/interim manufacturing (T/IM) authority withm FTZ 134 at the Volkswagen Group of America Chattanooga Operations, LLC (VGACO) facility in Chattanooga, Tennessee. The application was filed on July 10, 2009 (74 FR 34714, 7-17-2009). Substantive comments submitted in opposition to the VGACO application during the public comment period remove the application from eligibility under the specific T/IM standard of “clearly presenting no new, complex, or controversial issues” (see “Proposals to Facilitate the Use of Foreign-Trade Zones by Small and Medium-Sized Manufacturers,” 69 FR 17643, 4/5/2004). The review was terminated on September 22, 2009.
Department of Commerce.
Notice.
The United States Department of Commerce, International Trade Administration, U.S. and Foreign Commercial Service is organizing a Trade Mission to Dakar, Senegal and Johannesburg, South Africa, March 7-12, 2010. Both of these cities serve as major gateways to other country markets on the African continent, Senegal being the main portal for French-speaking West Africa, and South Africa as the starting point for doing business in southern Africa. This mission will be
The goal of the mission will be to help U.S. companies launch or increase their export business in the Senegalese and South African markets. Participating firms will gain market information, make business and government contacts, solidify exporting strategies, and advance specific projects, towards the outcome of increasing U.S. exports. The mission, to be led by an executive level U.S. Department of Commerce official, will include business-to-business matchmaking appointments with local companies, networking events, and meetings and briefings with government and industry officials. The mission delegation will be comprised of U.S. firms that design, manufacture, supply, and/or integrate products, services, and technologies in the target industries.
Senegal is a secular republic with a strong presidency, bi-cameral legislature, multiple political parties, and historically peaceful transfers of power. Senegal plays a significant role in regional and international affairs, and President Wade has made excellent relations with the United States a high priority. His administration has advanced a liberal economic agenda, including privatizations and other market-opening measures. To support ever growing international trade, Senegal has well-developed port facilities, an international airport that serves as a regional hub for more than 28 airlines, and a serviceable telecommunications infrastructure, including a fiber optics backbone and cellular phone penetration approaching 15% of the population.
The Senegalese are generally well disposed towards Americans, and actively seek U.S. trade and investment. The country's geographic location and its market forces present U.S. companies with significant business opportunities. As of 2008, U.S. foreign direct investment stock in Senegal totaled $18 million. Total bilateral trade in 2008 reached $155 million, with the United States exporting $137 million in goods and services and importing $18.7 million in goods and services from Senegal. A driving force for the growth of this international trade is Senegal's expanding group of higher-income consumers of upscale consumer-ready products. Robust population growth (at 2.6 percent annually) and urbanization stand to bolster such consumer patterns in the long term. The African Development Bank (AfDB) and the World Bank are actively financing public infrastructure projects in Senegal. The AfDB is currently putting a great emphasis on private sector financing; the International Finance Corporation, the private sector-lending arm of the World Bank, has recently financed major infrastructure projects in Senegal. The West African Development Bank and the Islamic Development Bank are also very active lenders in Senegal. The U.S. Trade and Development Agency (USTDA) has financed several studies in Senegal in recent years. In carrying out its mission, USTDA emphasizes economic sectors that are most likely to benefit from U.S. exports of goods and services. Additionally, the U.S. Government's Millennium Challenge Corporation (MCC), created to provide financial aid to qualifying countries towards the goal of sustainable development, recently signed a $540 million compact grant with Senegal. The grant and soon-to-be announced public tenders will be directed to national road rehabilitation, irrigation, and water resources management projects. The MCC proposed Irrigation and Water Resources Management Project, comprising infrastructure investments in the Senegal River Delta and Podor areas, is designed to improve the productivity of the agricultural sector by extending and improving the quality of the irrigation system in certain agriculture-dependent areas of northern Senegal. It also seeks to provide additional supply of water for human and animal use there.
In the power sector, projects for rural electrification, the rehabilitation and replacement of antiquated plants, and the construction of improved transmission and distribution lines will lead to opportunities for U.S. companies. Senegal's growing reliance on crude oil as a power source is of concern to the country because of its cost and price volatility. The search for cheaper alternatives such as coal should lead to the pursuit of more attractive energy resources, and more opportunities for U.S. companies. While coal is a less expensive option, Senegal is also exploring possibilities to become a major biofuel supplier, as well as pursuing other alternative energy schemes, including wind turbine installations and small-scale, decentralized photovoltaic panel systems. Hydroelectricity is also being considered as an alternative to diesel power for Senegal. The Gambia River Basin Development Organization is embarking on a project to construct two hydroelectric power plants along with an interconnection of the power grids to confront persistent power shortage problems and the heavy dependence on imported petroleum products for the production of electricity.
Good prospects for U.S. automotive spare parts suppliers stem from the need to support the increasing number of U.S.-origin cars, second-hand vehicles, automotive accessories, and car servicing franchises in Senegal. The market for imported automobiles, spare parts, and accessories has climbed to $10.4 million during the period of January-July 2009, an increase of 28% from the $8.1 million in automotive imports during that same period in 2008.
In the construction sector, the Millennium Challenge Corporation compact grant creates opportunities for U.S. companies to participate in the Roads Rehabilitation Project (RN2/RN6). The Roads Rehabilitation Project seeks to expand access to markets and services and reduce transportation time and costs by improving the condition of certain strategic roads. The Government of Senegal has prioritized these roads in its Road Sector Master Plan, and their rehabilitation is in line with the national policy of increasing growth through road creation, renovation, and maintenance. The RN2 serves as the primary road to transport and export products from irrigation areas along the Senegal River, thereby complementing the Compact's Irrigation and Water Resources Management Project. The RN2 is also a strategic road, connecting Dakar harbor to Mauritania and Mali, and to southern cities in Senegal. The RN6 is the only road available to transport local agricultural products from Casamance to the rest of Senegal. Strategic as well, it connects Senegal with Guinea Bissau, Guinea-Conakry, and Mali. The improvement of both roads is expected to stimulate domestic and trans-border traffic and commerce.
Senegal's planned Arcelor Mittal (Faleme) iron ore project is expected to provide the best prospects for U.S. companies working in the mining sector. The implementation of this anticipated effort, awaiting the stabilization of the economy, should yield opportunities in mining operations, rail rehabilitation and construction, port development, and
Globally rising food and commodity costs, supplier shortages, and the devaluation of the dollar have increased Africa's interest in U.S. farm equipment, agribusiness technologies, products, and services. Local entrepreneurs recognize that these products and services are needed to support Senegal's modernization of the agricultural production and processing sectors to meet an increasing share of its domestic food needs. Given the high percentage of Senegal's population engaged in agriculture and agricultural processing, coupled with renewed focus on investment and development of the sector, opportunities exist for U.S. companies to supply the full range of farm inputs, new and used agricultural farm equipment, tractors and trucks, irrigation equipment, as well as food processing, transportation and food storage equipment and facilities.
Enjoying macroeconomic stability and a pro-business environment, South Africa is a logical and attractive choice for U.S. companies to enter southern Africa. The mature nature of the South African economy—the most advanced, broad-based, and productive in Sub-Saharan Africa—can be seen in its wide variety of economic sectors and national retail consumption patterns, which range from basic needs (e.g., condensed milk) to high-end durable consumer goods (
Other factors benefiting U.S. exporters include a sophisticated and well-capitalized banking sector, the country's position as the gateway to southern Africa, ongoing growth in market share for U.S. branded goods, and over $50 billion in formalized planned infrastructure expenditures by government-owned utilities and public-private partnerships over the next five years. In addition, the awarding to South Africa of the 2010 FIFA World Cup Soccer championship has resulted in an estimated $2 billion in projects. These projects involve tenders for supply-chain products and services, potentially for bid by interested U.S. companies. The mandate of the country's five development finance institutions, and the commitment of the U.S. Trade and Development Agency and the Agency for International Development to accelerate sustainable socio-economic development in the region by funding physical, social and economic infrastructure in South Africa, will also contribute to opportunities for U.S. companies there.
In the power sector, up to $47 billion is expected to be spent on new infrastructure for generation, transmission and distribution projects over the next five years. South Africa is going ahead with one of the most technologically advanced capital investment projects, the $2.27-billion Pebble Bed Modular Reactor program, identified as the first commercial-scale high-temperature reactor in the world. If this project proves successful, another 10 plants could be built. Independent power producers are also going to work with South Africa's Eskom to increase the new power capacity now required for South Africa. Additional power stations and major power lines are being built on a massive scale to meet rising electricity demand. U.S. companies are encouraged to leverage the need for supplies in conjunction with the upcoming restructuring of the electricity distribution industry into six regional electricity distributors. In addition to nuclear power, an alternative receiving much support from the South African Government, the power-generating infrastructure mix likely to respond to this increased demand includes wind and solar thermal energy, two of the most accessible and growing sectors in the country. There is also considerable potential for non-grid renewable power applications, which can be used to ensure access to power in remote rural areas.
In the automotive sector, the large number of model derivatives imported by South Africa has widespread implications for the aftermarket, representing opportunities for U.S. companies. There is also a lack of telematic components, essential for inflating airbags, facilitation of security and control of tracking devices, and for control of engine/transmission functions. Predictions of significant growth in the proportion of new cars featuring automotive telematics, and the current unavailability of this technology in South Africa pose yet another export opportunity for U.S. exporters.
There has been a rapid growth in demand for automotive specialty equipment and accessories in South Africa. This growth can be attributed to the higher disposable income within specific segments of the South African population. Since 2001 the activity of accessorizing and improving performance of vehicles has been transformed from a hobby to a fully-fledged culture of fierce competition. In the race to individualize and distinguish their vehicles, enthusiasts constantly seek innovative, authentic specialty components with little regard to price. In this lucrative aftermarket sector, South Africans often follow trends set in the United States and are highly receptive to U.S. brands.
Looking at the construction sector, 489 national roads and related projects will be in the pipeline over the medium term. Based on projections of future demand for housing construction in South Africa, 625,324 more 40-square-meter housing units will be needed annually between 2010 and 2016 to eliminate existing housing backlogs. The most significant capital equipment requirements for South Africa will be for tractor loader-backhoes and excavators; the need for 20-ton trucks also is projected to increase 3.7 times in 2010.
The notion of green building is gathering momentum in South Africa, with an array of projects currently in the pipeline due partially to increases in resource prices. These price increases are turning green building into an increasingly feasible option because of issues of longevity, efficiency, and the reduction of operation costs in the long run. In addition, with South Africa struggling with a power crisis and local authorities experiencing hardships pertaining to issues of water, sewerage and solid waste disposal, the government and the private sector are becoming increasingly conscious of the need for environment-friendly building practices. While the South African government recognizes the need for energy efficient buildings and building practices, it is the private sector that is set to lead this revolution. Green building technologies and practices from developed countries such as the United States are sought after in achieving South Africa's objective of creating a green and sustainable building culture.
The mining industry has traditionally been responsible for significant infrastructure development in South Africa. For example, 2,200 miles of railway line, three new ports, and a large amount of bulk handling infrastructure at existing ports are high on the agenda for both the South African government and the mining consortia. Increasing the efficiency of materials handling systems is also critical to exporters of ores and minerals. Significant infrastructure investments are planned for the Saldanha Bay iron and steel ore bulk export hub. Some other planned projects are the creation of a dedicated rail line for the export of manganese from the Northern Cape to the Coega Port, the building of a chorine plant, as well as an aluminum/steel smelter; a planned 65-mile slurry pipeline to the Majuba coal station, as well as a bulk coal handling system from the Waterberg coalfields for the Groot Geluk power station, and enhanced bulk material handling systems for coal at the port of Richards Bay.
The agribusiness sector in South Africa has many opportunities for U.S. exporters. The short-term market for agricultural machinery is very good. Farmers appear to be optimistic about current agricultural conditions, clearly evidenced by the latest tractor, combine, and baler sales statistics. Sporadic rains and prevalent dry weather conditions are still concerns and present excellent opportunities for no-till planting equipment. Domestic companies and local farmers have also indicated a strong interest in soil sampling equipment. With the continued downscaling of the large-scale workforce, excellent opportunities are being presented for high-end navigational tractors and precision farming equipment. Most of the precision agriculture equipment, such as planters and combine harvesters, is primarily imported from the United States, and smaller implements are purchased locally. Known U.S. brands like McCormick, John Deere, and New Holland are well entrenched in this market. The regional expansion of markets throughout southern Africa presents additional opportunities for U.S. businesses.
The goal of this trade mission is to facilitate greater access to the Senegalese and South African markets by providing participants with first-hand market information, access to government decision makers, and one-on-one appointments with business contacts, including potential agents, distributors, and partners. The mission program is anticipated to include meetings in Dakar with regionally posted U.S. economic officers and trade specialists to enhance the prospect of regional opportunities.
The trade mission will include two stops: Dakar, Senegal; and Johannesburg, South Africa. In each city, participants will meet with new business/government contacts. Additional business meetings in other African countries can be arranged before or after the mission through the Gold Key Service for an added cost of $700 per city (exclusive of interpreter and transportation costs).
Sunday, March 7, 2010: Evening market briefing; No-host dinner with location TBD.
Monday, March 8, 2010: U.S. trade mission participant briefings/meetings with Senegalese and regional government and industry officials; One-on-one business appointments; Networking reception.
Tuesday, March 9, 2010: U.S. Embassy briefings and meetings; One-on-one business appointments; No-host dinner with location TBD.
Wednesday, March 10, 2010: Morning departure to Johannesburg.
Wednesday, March 10, 2010: Market briefing.
Thursday, March 11, 2010: Meetings with government and industry officials; One-on-one business appointments; Evening networking reception.
Friday, March 12, 2010: One-on-one business appointments.
Mission concludes Friday afternoon. Participants may return to United States or continue on for additional appointments arranged separately under the Gold Key Service.
All parties interested in participating in the Executive-led Trade Mission to Senegal and South Africa must complete and submit an application package for consideration by the Department of Commerce. All applicants will be evaluated on their ability to meet certain conditions and best satisfy the selection criteria as outlined below. A minimum of 5 and maximum of 15 companies will be selected to participate in the mission from the applicant pool. U.S. companies already doing business with Senegal and South Africa as well as U.S. companies seeking to enter these markets for the first time may apply.
After a company has been selected to participate in the mission, a payment to the Department of Commerce in the form of a participation fee is required. The participation fee for an individual company representative will be $5,200 for large firms and $3,500 for small or medium-sized enterprises (SMEs).
• An applicant must submit a completed and signed mission application and supplemental application materials, including adequate information on the company's products and/or services, primary market objectives, and goals for participation. If the Department of Commerce receives an incomplete application, the Department may reject the application, request additional information, or take the lack of information into account when evaluating the applications.
• Each applicant must also certify that the products and services it seeks to export through the mission are either produced in the United States, or, if not, marketed under the name of a U.S. firm and have at least 51 percent U.S. content of the value of the finished product or service.
Selection will be based on the following criteria:
• Suitability of the company's products or services to the Senegalese and South African markets.
• Applicant's potential for business in Senegal and South Africa, including likelihood of exports resulting from the mission.
• Consistency of the applicant's goals and objectives with the stated scope of the mission.
• Past or current export activity or ability to initiate and sustain immediate export activities.
Referrals from political organizations and any documents containing references to partisan political activities (including political contributions) will be removed from an applicant's submission and not considered during the selection process.
Mission recruitment will be conducted in an open and public manner. Outreach will include posting on the Commerce Department trade mission calendar (
Recruitment for the mission will begin immediately and conclude January 15, 2010. Applications will be available online on the mission Web site at
International Trade Administration, Department of Commerce.
Notice of Performance Review Board Membership.
5 CFR 430.3 10 requires agencies to publish notice of Performance Review Board appointees in the
Gwendolyn E. Brown, Department of Commerce Human Resources Operations Center (DOCHROC), Office of Executive Resources Operations, 14th and Constitution Avenue, NW., Room 5015A, Washington, DC 20230, at (202) 482-3060.
The purpose of the Performance Review Board is to review and make recommendations to the appointing authority on performance management issues such as appraisals, bonuses, pay level increases, and Presidential Rank Awards for members of the Senior Executive Service. The term of the new members of the ITA PRB will expire after two years in December 31, 2011. The Acting Under Secretary for International Trade. Michelle O'Neill, has named the following members of the International Trade Administration Performance Review Board:
1. Patricia A. Sefcik, Executive Director for Trade Promotion and Outreach (Chair).
2. Walter M. Bastian, Deputy Assistant Secretary for Western Hemisphere, Market Access and Compliance.
3. David M. Robinson, Chief Financial Officer and Director of Administration (new).
4. Edward C. Yang, Senior Director, China Non-Market Economy Compliance Unit (new).
5. Joel Secundy, Deputy Assistant Secretary for Services, ITA (new).
6. Lisa A. Casias, Director for Financial Management (new).
Commodity Futures Trading Commission.
Notice of action and request for comment.
The Commodity Futures Trading Commission (“CFTC” or “Commission”) is undertaking a review to determine whether the Mid-C Financial Peak (“MDC”) contract; Mid-C Financial Peak Daily (“MPD”) contract; Mid-C Financial Off-Peak (“OMC”) contract; and Mid-C Financial Off-Peak Daily (“MXO”) contract, offered for trading on the IntercontinentalExchange, Inc. (“ICE”), an exempt commercial market (“ECM”) under Sections 2(h)(3)-(5) of the Commodity Exchange Act (“CEA” or the “Act”), perform significant price discovery functions. Authority for this action is found in section 2(h)(7) of the CEA and Commission rule 36.3(c) promulgated thereunder. In connection with this evaluation, the Commission invites comment from interested parties.
Comments must be received on or before October 21, 2009.
Comments may be submitted by any of the following methods:
• Follow the instructions for submitting comments.
•
•
•
•
All comments received will be posted without change to
Gregory K. Price, Industry Economist, Division of Market Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. Telephone: (202) 418-5515. E-mail:
On March 16, 2009, the CFTC promulgated final rules implementing provisions of the CFTC Reauthorization Act of 2008 (“Reauthorization Act”)
In determining whether an ECM's contract is or is not a SPDC, the Commission will evaluate the contract's material liquidity, price linkage to other contracts, potential for arbitrage with other contracts traded on designated contract markets or derivatives transaction execution facilities, use of the ECM contract's prices to execute or settle other transactions, and other factors.
In order to facilitate the Commission's identification of possible SPDCs, Commission rule 36.3(c)(2) requires that an ECM operating in reliance on section 2(h)(3) promptly notify the Commission and provide supporting information or data concerning any contract: (i) That averaged five trades per day or more over the most recent calendar quarter; and (ii) (A) for which the ECM sells price information regarding the contract to market participants or industry publications; or (B) whose daily closing or settlement prices on 95 percent or more of the days in the most recent quarter were within 2.5 percent of the contemporaneously determined closing, settlement, or other daily price of another agreement.
Commission rule 36.3(c)(3) establishes the procedures by which the Commission makes and announces its determination on whether a specific ECM contract serves a significant price discovery function. Under those procedures, the Commission will publish a notice in the
The MDC contract is cash settled based on the arithmetic calendar-month average of peak-hour day-ahead electricity prices published daily in the “ICE Day Ahead Power Price Report” for the Mid-Columbia hub during all peak hours in the month of the electricity production. The peak-hour electricity price reported each day by the ICE is a volume-weighted index that includes qualifying,
Based upon a required quarterly notification filed on July 27, 2009 (mandatory under Rule 36.3(c)(2)), the ICE reported that, with respect to its MDC contract, the total number of trades was 2,022 in the second quarter of 2009, resulting in a daily average of 31.6 trades. During the same period, the MDC contract had a total trading volume of 67,400 contracts and an average daily trading volume of 1,053.1
It appears that the MDC contract may satisfy the material liquidity and material price reference factors for SPDC determination. With respect to material liquidity, trading in the ICE MDC contract averaged more than 1,000 contracts on a daily basis, with more than 30 separate transactions each day. In addition, the open interest in the subject contract was large. In regard to material price reference, while it did not specifically address the power contracts under review, the ECM Study stated that, in general, market participants view the ICE as a price discovery market for certain electricity contracts. Power contracts based on actively-traded hubs are transacted heavily on the ICE's electronic trading platform, with the remainder being completed over-the-counter and potentially submitted for clearing by voice brokers. In addition, the ICE sells its price data to market participants in a number of different packages which vary in terms of the hubs covered, time periods, and whether the data are daily only or historical. For example, the ICE offers “West Power End of Day” data packages with access to all price data or just 12, 24, 36, or 48 months of historical data.
The MPD contract is cash settled based on the day-ahead index price published in the settlement month by the ICE for the specified day. The peak day-ahead electricity prices are published in the “ICE Day Ahead Power Price Report.” For each peak day of the month, the ICE reports a next-day peak electricity price for each hub using the methodology noted above. The ICE contracts on which the price index is based specify physical delivery of power. The size of the MPD contract is 400 MWh. The MPD contract is listed for 38 consecutive days.
Based upon a required quarterly notification filed on July 27, 2009 (mandatory under Rule 36.3(c)(2)), the ICE reported that, with respect to its MPD contract, the total number of trades was 1,294 in the second quarter of 2009, resulting in a daily average of 20.2 trades. During the same period, the MPD contract had a total trading volume of 18,862 contracts and an average daily trading volume of 294.7 contracts. Moreover, the open interest as of June 30, 2009, was 826 contracts.
It appears that the MPD contract may satisfy the material liquidity and material price reference factors for SPDC determination. With respect to material liquidity, trading in the ICE contract averaged nearly 300 contracts on a daily basis, with more than 20 separate transactions each day. In addition, the open interest in the subject contract was sizable. In regard to material price reference, while it did not specifically address the power contracts under review, the ECM Study stated that, in general, market participants view the ICE as a price discovery market for certain electricity contracts. Power contracts based on actively-traded hubs are transacted heavily on the ICE's electronic trading platform, with the remainder being completed over-the-counter and potentially submitted for clearing by voice brokers. In addition, the ICE sells its price data to market participants in a number of different packages which vary in terms of the hubs covered, time periods, and whether the data are daily only or historical. For example, the ICE offers “West Power End of Day” data packages with access to all price data or just 12, 24, 36, or 48 months of historical data.
The OMC contract is cash settled based on the arithmetic calendar month average of off-peak day-ahead electricity prices published in the “ICE Day Ahead Power Price Report” for the Mid-Columbia hub during all off-peak hours in the month of the electricity production. The electricity price reported each day by the ICE is a volume-weighted index that includes qualifying day-ahead off-peak power contracts based on the Mid-Columbia hub that are traded on the ICE platform from 6 a.m. to 11 a.m. CST on the date of publication. The ICE contracts on which the price index is based specify physical delivery of power. The ICE publishes off-peak index prices for those hubs where there is sufficient trading activity. The size of the OMC contract is 25 MWh,
Based upon a required quarterly notification filed on July 27, 2009 (mandatory under Rule 36.3(c)(2)), the ICE reported that, with respect to its OMC contract, the total number of trades was 443 in the second quarter of 2009, resulting in a daily average of 6.9 trades. During the same period, the OMC contract had a total trading volume of 185,950 contracts and an average daily trading volume of 2,905.5 contracts. The open interest as of June 30, 2009, was 1,015,361 contracts (each with a size of 25 MWh).
It appears that the OMC contract may satisfy the material liquidity and material price reference factors for SPDC determination. With respect to material liquidity, trading in the ICE OMC contract averaged nearly 3,000 contracts on a daily basis, with more than six separate transactions each day. In addition, the open interest in the subject contract was large. In regard to material price reference, while it did not identify the particular contract under review, the ECM Study stated that, in general, market participants view the ICE as a price discovery market for certain electricity contracts. Power contracts based on actively-traded hubs are transacted heavily on the ICE's electronic trading platform, with the remainder being completed over-the-counter and potentially submitted for clearing by voice brokers. In addition, the ICE sells its price data to market participants in a number of different packages which vary in terms of the hubs covered, time periods, and whether the data are daily only or historical. For example, the ICE offers “West Power End of Day” data packages with access to all price data or just 12, 24, 36, or 48 months of historical data.
The MXO contract is cash settled based on the day-ahead index price published in the settlement month by the ICE for the specified day. The off-peak day-ahead electricity prices are published in the “ICE Day Ahead Power Price Report.” For each off-peak day of the month, the ICE reports a next-day off-peak electricity price for each hub using the methodology noted above. The ICE contracts on which the price index is based specify physical delivery of power. The size of the MXO contract is 25 MWh. The MXO contract is listed for 38 consecutive days.
Based upon a required quarterly notification filed on July 27, 2009 (mandatory under Rule 36.3(c)(2)), the ICE reported that, with respect to its MXO contract, the total number of trades was 437 in the second quarter of 2009, resulting in a daily average of 6.8 trades. During the same period, the MXO contract had a total trading volume of 61,688 contracts and an average daily trading volume of 963.9 contracts. Moreover, the open interest as of June 30, 2009, was 5,232 contracts.
It appears that the MXO contract may satisfy the material liquidity and material price reference factors for SPDC determination. With respect to material
In evaluating whether an ECM's agreement, contract, or transaction performs a significant price discovery function, section 2(h)(7) of the CEA directs the Commission to consider, as appropriate, four specific criteria: price linkage, arbitrage, material price reference, and material liquidity. As it explained in Appendix A to the Part 36 rules, the Commission, in making SPDC determinations, will apply and weigh each factor, as appropriate, to the specific contract and circumstances under consideration.
As part of its evaluation, the Commission will consider the written data, views, and arguments from any ECM that lists the potential SPDC and from any other interested parties. Accordingly, the Commission requests comment on whether the ICE's MDC, MPD, OMC, and/or MXO contracts perform significant price discovery functions. Commenters' attention is directed particularly to Appendix A of the Commission's Part 36 rules for a detailed discussion of the factors relevant to a SPDC determination. The Commission notes that comments which analyze the contracts in terms of these factors will be especially helpful to the determination process. In order to determine the relevance of comments received, the Commission requests that commenters explain in what capacity are they knowledgeable about one or several of the subject contracts. Moreover, because four contracts are included in this notice, it is important that commenters identify to which contract or contracts their comments apply.
The Paperwork Reduction Act of 1995 (“PRA”)
Section 15(a) of the CEA
The bulk of the costs imposed by the requirements of Commission Rule 36.3 relate to significant and increased information-submission and reporting requirements adopted in response to the Reauthorization Act's directive that the Commission take an active role in determining whether contracts listed by ECMs qualify as SPDCs. The enhanced requirements for ECMs will permit the Commission to acquire the information it needs to discharge its newly-mandated responsibilities and to ensure that ECMs with SPDCs are identified as entities with the elevated status of registered entity under the CEA and are in compliance with the statutory terms of the core principles of section 2(h)(7)(C) of the Act. The primary benefit to the public is to enable the Commission to discharge its statutory obligation to monitor for the presence of SPDCs and extend its oversight to the trading of SPDCs.
Commodity Futures Trading Commission.
Notice of action and request for comment.
The Commodity Futures Trading Commission (“CFTC” or “Commission”) is undertaking a review to determine whether the SP-15 Financial Day-Ahead LMP
Comments must be received on or before October 21, 2009.
Comments may be submitted by any of the following methods:
• Follow the instructions for submitting comments.
•
•
•
•
All comments received will be posted without change to
Gregory K. Price, Industry Economist, Division of Market Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581. Telephone: (202) 418-5515. E-mail:
On March 16, 2009, the CFTC promulgated final rules implementing provisions of the CFTC Reauthorization Act of 2008 (“Reauthorization Act”)
In determining whether an ECM's contract is or is not an SPDC, the Commission will consider the contract's material liquidity, price linkage to other contracts, potential for arbitrage with other contracts traded on designated contract markets or derivatives transaction execution facilities, use of the ECM contract's prices to execute or settle other transactions, and other factors.
In order to facilitate the Commission's identification of possible SPDCs, Commission rule 36.3(c)(2) requires that an ECM operating in reliance on section 2(h)(3) promptly notify the Commission and provide supporting information or data concerning any contract: (i) That averaged five trades per day or more over the most recent calendar quarter; and (ii) (A) for which the ECM sells price information regarding the contract to market participants or industry publications; or (B) whose daily closing or settlement prices on 95 percent or more of the days in the most recent quarter were within 2.5 percent of the contemporaneously determined closing, settlement, or other daily price of another agreement.
Commission rule 36.3(c)(3) establishes the procedures by which the Commission makes and announces its determination on whether a specific ECM contract serves a significant price discovery function. Under those procedures, the Commission will publish a notice in the
The SPM contract is cash settled based on the arithmetic average of peak-hour, day-ahead LMPs posted by the California ISO
Based upon a required quarterly notification filed on July 27, 2009 (mandatory under Rule 36.3(c)(2)), the
It appears that the SPM contract may satisfy the material liquidity and material price reference factors for SPDC determination. With respect to material liquidity, trading in the SPM contract averaged more than 2,000 contracts on a daily basis, with approximately 50 separate transactions each day. In addition, the open interest in the subject contract was extremely large. In regard to material price reference, while it did not specifically address the power contracts under review, the ECM Study stated that, in general, market participants view the ICE as a price discovery market for certain electricity contracts. Specifically, power contracts based on actively-traded hubs are transacted heavily on the ICE's electronic trading platform, with the remainder being traded over-the-counter through voice brokers and potentially submitted for clearing. In addition, the ICE sells its price data to market participants in a number of different packages which vary in terms of the hubs covered, time periods, and whether the data are daily only or historical. For example, the ICE offers “West Power End of Day” data packages with access to all price data or just 12, 24, 36, or 48 months of historical data.
The SDP contract is cash settled based on the arithmetic average of peak-hour, day-ahead LMPs posted by the CAISO for the SP-15 EZ Gen Hub for all peak hours on the day prior to generation. The LMPs are derived from power trades that result in physical delivery. The size of the SDP contract is 400 MWh. The SDP contract is listed for 45 consecutive calendar days.
Based upon a required quarterly notification filed on July 27, 2009 (mandatory under Rule 36.3(c)(2)), the ICE reported that, with respect to its SDP contract, 6,159 separate transactions occurred in the second quarter of 2009, resulting in a daily average of 96.2 trades. During the same period, the SDP contract had a total trading volume of 23,365 contracts and an average trading volume of 365.1 contracts per day. Moreover, the open interest in the contract as of June 30, 2009, was 3,387 contracts.
It appears that the SDP contract may satisfy the material liquidity and material price reference factors for SPDC determination. With respect to material liquidity, trading in the ICE SDP contract averaged more than 350 contracts on a daily basis, with more than 95 separate transactions each day. In addition, the open interest in the subject contract was large. In regard to material price reference, while it did not specifically address the power contracts under review, the ECM Study stated that, in general, market participants view the ICE as a price discovery market for certain electricity contracts. Specifically, power contracts based on actively-traded hubs are transacted heavily on the ICE's electronic trading platform, with the remainder being traded over-the-counter through voice brokers and potentially submitted for clearing. In addition, the ICE sells its price data to market participants in a number of different packages which vary in terms of the hubs covered, time periods, and whether the data are daily only or historical. For example, the ICE offers “West Power End of Day” data packages with access to all price data or just 12, 24, 36, or 48 months of historical data.
The SRP contract is cash settled based on the arithmetic average of hourly, real-time LMPs posted by the CAISO for the SP-15 EZ Gen Hub for all peak hours in the day of the electricity generation. The LMPs are derived from power trades that result in physical delivery. The size of the SRP contract is 400 MWh, and the unit of trading is any multiple of 400 MWh. The SRP contract is listed for 45 consecutive calendar days.
Based upon a required quarterly notification filed on July 27, 2009 (mandatory under Rule 36.3(c)(2)), the ICE reported that, with respect to its SRP contract, 826 separate transactions occurred in the second quarter of 2009, resulting in a daily average of 12.9 trades. During the same period, the SRP contract had a total trading volume of 1,014 contracts and an average trading volume of 15.8 contracts per day. Moreover, the open interest in the contract as of June 30, 2009, was 143 contracts.
It appears that the SRP contract may satisfy the material liquidity and material price reference factors for SPDC determination. With respect to material liquidity, trading in the ICE SRP contract averaged more than 15 contracts on a daily basis, with more than 12 separate transactions each day. In addition, the open interest in the subject contract was substantial. In regard to material price reference, while it did not specifically address the power contracts under review, the ECM Study stated that, in general, market participants view the ICE as a price discovery market for certain electricity contracts. Specifically, power contracts based on actively-traded hubs are transacted heavily on the ICE's electronic trading platform, with the remainder being traded over-the-counter through voice brokers and potentially submitted for clearing. In addition, the ICE sells its price data to market participants in a number of different packages which vary in terms of the hubs covered, time periods, and whether the data are daily only or historical. For example, the ICE offers “West Power End of Day” data packages with access to all price data or just 12, 24, 36, or 48 months of historical data.
The OFP contract is cash settled based on the arithmetic average of off-peak-hour, day-ahead LMPs posted by the CAISO for the SP-15 Existing Zone Generation (EZ Gen) Hub for all off-peak hours in the calendar month. The LMPs are derived from power trades that result in physical delivery. The size of the OFP contract is 25 megawatt hours (“MWh”), and the unit of trading is any multiple of 25 MWh. That is, a minimum of 25 MWh must be delivered each off-peak day of the month, and trading is restricted to multiples of the number of off-peak days in the contract month. The OFP contract is listed for up to 86 months including three entire calendar years.
Based upon a required quarterly notification filed on April 30, 2009 (mandatory under Rule 36.3(c)(2)), the ICE reported that its OFP contract met the minimum five trades or more per day threshold in the first quarter of 2009. During that period, the OFP contract had a total trading volume of 1,159,586 contracts and the open interest as of March 31, 2009, was 3,259 contracts.
It appears that the ICE OFP contract may satisfy the material liquidity and material price reference factors for SPDC determination. With respect to material liquidity, the OFP contract met the minimum trading threshold with a total trading volume of over one million contracts in the first quarter of 2009. In addition, the ending open interest was sizeable. In regard to material price reference, while it did not specifically
The DPN contract is cash settled based on the arithmetic average of the peak-hour, day-ahead LMPs posted by the CAISO for the NP-15 EZ Gen Hub for peak hours on the day prior to generation. The LMPs are derived from power trades that result in physical delivery. The size of the DPN contract is 400 MWh. The DPN contract is listed for 45 consecutive calendar days.
Based upon a required quarterly notification filed on July 27, 2009 (mandatory under Rule 36.3(c)(2)), the ICE reported that, with respect to its DPN contract, 2,782 separate transactions occurred in the second quarter of 2009, resulting in a daily average of 43.5 trades. During the same period, the DPN contract had a total trading volume of 5,766 contracts and an average trading volume of 90.1 contracts per day. Moreover, the open interest in the contract as of June 30, 2009, was 947 contracts.
It appears that the DPN contract may satisfy the material liquidity and material price reference factors for SPDC determination. With respect to material liquidity, trading in the ICE DPN contract averaged approximately 90 contracts on a daily basis, with more than 40 separate transactions each day. In addition, the open interest in the subject contract was significant. In regard to material price reference, while it did not specifically address the power contracts under review, the ECM Study stated that, in general, market participants view the ICE as a price discovery market for certain electricity contracts. Specifically, power contracts based on actively-traded hubs are transacted heavily on the ICE's electronic trading platform, with the remainder being traded over-the-counter through voice brokers and potentially submitted for clearing. In addition, the ICE sells its price data to market participants in a number of different packages which vary in terms of the hubs covered, time periods, and whether the data are daily only or historical. For example, the ICE offers “West Power End of Day” data packages with access to all price data or just 12, 24, 36, or 48 months of historical data.
The UNP contract is cash settled based on the arithmetic average of the off-peak-hour, day-ahead LMPs posted by the CAISO for the NP-15 EZ Gen Hub for off-peak hours on the day prior to generation. The LMPs are derived from power trades that result in physical delivery. The size of the UNP contract is 25 MWh. The UNP contract is listed for 45 consecutive calendar days.
Based upon a required quarterly notification filed on July 27, 2009 (mandatory under Rule 36.3(c)(2)), the ICE reported that, with respect to its UNP contract, 1,925 separate transactions occurred in the second quarter of 2009, resulting in a daily average of 30.1 trades. During the same period, the UNP contract had a total trading volume of 36,936 contracts and an average trading volume of 577.1 contracts per day. Moreover, the open interest in the contract as of June 30, 2009, was 4,152 contracts.
It appears that the UNP contract may satisfy the material liquidity and material price reference factors for SPDC determination. With respect to material liquidity, trading in the ICE UNP contract averaged more than 575 contracts on a daily basis, with more than 30 separate transactions each day. In addition, the open interest in the subject contract was large. In regard to material price reference, while it did not specifically address the power contracts under review, the ECM Study stated that, in general, market participants view the ICE as a price discovery market for certain electricity contracts. Specifically, power contracts based on actively-traded hubs are transacted heavily on the ICE's electronic trading platform, with the remainder being traded over-the-counter through voice brokers and potentially submitted for clearing. In addition, the ICE sells its price data to market participants in a number of different packages which vary in terms of the hubs covered, time periods, and whether the data are daily only or historical. For example, the ICE offers “West Power End of Day” data packages with access to all price data or just 12, 24, 36, or 48 months of historical data.
In evaluating whether an ECM's agreement, contract, or transaction performs a significant price discovery function, section 2(h)(7) of the CEA directs the Commission to consider, as appropriate, four specific criteria: price linkage, arbitrage, material price reference, and material liquidity. As it explained in Appendix A to the part 36 rules, the Commission, in making SPDC determinations, will apply and weigh each factor, as appropriate, to the specific contract and circumstances under consideration.
As part of its evaluation, the Commission will consider the written data, views, and arguments from any ECM that lists the potential SPDC and from any other interested parties. Accordingly, the Commission requests comment on whether the subject contracts perform significant price discovery functions. Commenters' attention is directed particularly to Appendix A of the Commission's part 36 rules for a detailed discussion of the factors relevant to an SPDC determination. The Commission notes that comments which analyze the contracts in terms of these factors will be especially helpful to the determination process. In order to determine the relevance of comments received, the Commission requests that commenters explain in what capacity are they knowledgeable about the subject contracts. Moreover, commenters are requested to identify the contract or contracts to which their comments apply.
The Paperwork Reduction Act of 1995 (“PRA”)
Section 15(a) of the CEA
The bulk of the costs imposed by the requirements of Commission Rule 36.3 relate to significant and increased information-submission and reporting requirements adopted in response to the Reauthorization Act's directive that the Commission take an active role in determining whether contracts listed by ECMs qualify as SPDCs. The enhanced requirements for ECMs will permit the Commission to acquire the information it needs to discharge its newly-mandated responsibilities and to ensure that ECMs with SPDCs are identified as entities with the elevated status of registered entity under the CEA and are in compliance with the statutory terms of the core principles of section 2(h)(7)(C) of the Act. The primary benefit to the public is to enable the Commission to discharge its statutory obligation to monitor for the presence of SPDCs and extend its oversight to the trading of SPDCs.
Department of Education.
Correction notice.
On August 27, 2009, the Department of Education published a comment period notice in the
Pursuant to Section 14(a)(2)(A) of the Federal Advisory Committee Act (FACA) and in accordance with 41of the Code of Federal Regulations, Section 102-3.65, and following consultation with the Committee Management Secretariat, General Services Administration, notice is hereby given that the DOE/NSF Nuclear Science Advisory Committee has been renewed for a two-year period.
The Committee will provide advice to the Associate Director of the Office of Science for Nuclear Physics (DOE), and the Assistant Director, Directorate for Mathematical and Physical Sciences (NSF), on scientific priorities within the field of basic nuclear science research. The Under Secretary for Science has determined that renewal of the Committee is essential to conduct business of the Department of Energy and the National Science Foundation and is in the public interest in connection with the performance duties imposed by law upon the Department of Energy. The Committee will continue to operate in accordance with the provisions of the Federal Advisory Committee Act, the Department of Energy Organization Act (Pub. L. 95-91), and implementing regulations.
Ms. Rachel Samuel at (202) 586-3279.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
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j. Deadline for filing motions to intervene and protests, comments, recommendations, preliminary terms and conditions, and preliminary fishway prescriptions is 60 days from the issuance of this notice; reply comments are due 105 days from the issuance date of this notice.
The Commission's Rules of Practice require all intervenors filing documents with the Commission to serve a copy of that document on each person on the official service list for the project. Further, if an intervenor files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency.
Motions to intervene, protests, comments, recommendations,
k. This application has been accepted for filing and is now is ready for environmental analysis.
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Register online at
n. Anyone may submit comments, a protest, or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, protests, or motions to intervene must be received on or before the specified comment date for the particular application.
All filings must (1) bear in all capital letters the title “PROTEST”, “MOTION TO INTERVENE”, “COMMENTS,” “REPLY COMMENTS,” “RECOMMENDATIONS,” “PRELIMINARY TERMS AND CONDITIONS,” or “PRELIMINARY FISHWAY PRESCRIPTIONS;” (2) set forth in the heading the name of the applicant and the project number of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person protesting or intervening; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, recommendations, terms and conditions or prescriptions must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). Agencies may obtain copies of the application directly from the applicant. A copy of any protest or motion to intervene must be served upon each representative of the applicant specified in the particular application. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.
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The application will be processed according to the following revised Hydro Licensing Schedule. Revisions to the schedule may be made as appropriate.
(For projects with a Non-Draft NEPA document):
p. Final amendments to the application must be filed with the Commission no later than 30 days from the issuance date of this notice.
q. A license applicant must file no later than 60 days following the date of issuance of the notice of acceptance and ready for environmental analysis provided for in § 5.22: (1) A copy of the water quality certification; (2) a copy of the request for certification, including proof of the date on which the certifying agency received the request; or (3) evidence of waiver of water quality certification.
In accordance with the National Environmental Policy Act of 1969 and Federal Energy Regulatory Commission regulations, 18 CFR part 380 (Order No. 486, 52 FR 47879), the Office of Energy Projects has reviewed Virginia Electric and Power Company's application for non-project use of project lands and waters to permit East Oaks, LLC (East Oaks) to construct a boat forklift pad at its commercial marina at the Roanoke Rapids and Gaston Project. The proposal is located on Lake Gaston in Warren County, North Carolina.
A copy of the EA is on file with the Commission and is available for public inspection. The EA may also be viewed on the Commission's Web site at
Any comments on the EA should be filed by October 29, 2009 and should be addressed to the Secretary, Federal Energy Regulatory Commission, 888 First Street, NE., Room 1-A, Washington, DC 20426. Please reference the project name and project number (P-2009-128) on all comments. Comments may be filed electronically via the Internet in lieu of paper. The Commission strongly encourages electronic filings. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site under the
Take notice that on September 22, 2009, Douglas F. Egan filed an application for authorization to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act, 16 U.S.C. 825d and Part 45 of the regulations of the Federal Energy Regulatory Commission, 18 CFR Part 45.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
Take notice that on September 22, 2009, Gary Lambert filed an application for authorization to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act, 16 USC 825d and Part 45 of the regulations of the Federal Energy Regulatory Commission, 18 CFR Part 45.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
Take notice that on September 22, 2009, Sarita Shoulla filed an application for authorization to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act, 16 U.S.C. 825d and Part 45 of the regulations of the Federal Energy Regulatory Commission, 18 CFR Part 45.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible online at
Take notice that on September 22, 2009, the Deputy Secretary, U.S. Department of Energy, pursuant to the authority vested by the Department of Energy's Delegation Order Nos. 00-001.00C and 00-037.00, and by section 302(a) of the Department of Energy Organization Act (Pub. L. 95-91), submitted Rate Order SEPA-51, approved on an interim basis, effective September 20, 2009, Rate Schedules JW-1-I and JW-2-F for the sale of power from the Jim Woodruff System, and submitted for confirmation and approval on a final basis, pursuant to the authority vested in the Federal Energy Regulatory Commission by Delegation Order No. 00-037.00, Rate Schedule JW1-I, effective September 20, 2009 through September 19, 2014.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that on September 22, 2009, Christopher Carey filed an application for authorization to hold interlocking positions, pursuant to section 305(b) of the Federal Power Act, 16 U.S.C. 825d and Part 45 of the regulations of the Federal Energy Regulatory Commission, 18 CFR Part 45.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
This constitutes notice, in accordance with 18 CFR 385.2201(b), of the receipt of prohibited and exempt off-the-record communications.
Order No. 607 (64 FR 51222, September 22, 1999) requires Commission decisional employees, who make or receive a prohibited or exempt off-the-record communication relevant to the merits of a contested proceeding, to deliver to the Secretary of the Commission, a copy of the communication, if written, or a summary of the substance of any oral communication.
Prohibited communications are included in a public, non-decisional file associated with, but not a part of, the decisional record of the proceeding. Unless the Commission determines that the prohibited communication and any responses thereto should become a part of the decisional record, the prohibited off-the-record communication will not be considered by the Commission in reaching its decision. Parties to a proceeding may seek the opportunity to respond to any facts or contentions made in a prohibited off-the-record communication, and may request that the Commission place the prohibited communication and responses thereto in the decisional record. The Commission will grant such a request only when it determines that fairness so requires. Any person identified below as having made a prohibited off-the-record communication shall serve the document on all parties listed on the
Exempt off-the-record communications are included in the decisional record of the proceeding, unless the communication was with a cooperating agency as described by 40 CFR 1501.6, made under 18 CFR 385.2201(e) (1) (v).
The following is a list of off-the-record communications recently received by the Secretary of the Commission. The communications listed are grouped by docket numbers in ascending order. These filings are available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
Environmental Protection Agency.
Notice.
In compliance with the Paperwork Reduction Act (PRA) (44 U.S.C. 3501
Comments must be submitted on or before December 7, 2009.
Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2006-0745, by one of the following methods:
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Geanetta Heard, Office of Transportation and Air Quality, Transportation and Regional Programs Division, Mail Code 6406J, Environmental Protection Agency, 1200 Pennsylvania Ave., NW., Washington, DC 20460; telephone number: (202) 343-9017; fax number: (202) 343-2801; e-mail address:
EPA has established a public docket for this ICR under Docket ID No. EPA-HQ-OAR-2006-0745. The docket is available for online viewing at
Use
(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 number assigned to this action in the subject line on the first page of your response. You may also provide the name, date, and Federal Register citation.
The ICR provides a detailed explanation of the Agency's estimate, which is only briefly summarized here:
There is a reduction of $1,079,325 in the total estimated respondent burden compared with that identified in the previous ICR. This change is due to the use of a more correct Bureau of Labor Statistics table reflecting costs for the gasoline retail station industry.
EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval pursuant to 5 CFR 1320.12. At that time, EPA will issue another
Environmental Protection Agency (EPA).
Notice.
This notice announces that EPA has received a petition from the National Center for Healthy Housing, Alliance for Healthy Homes, Sierra Club, et al., (petitioners) on August 10, 2009, and requests comments on issues raised by the petition. The petition requests, under section 21 of the Toxic Substances Control Act (TSCA) or, in the alternative, under 5 U.S.C. 553(c), EPA to lower the regulatory lead dust standards and modify the regulatory definition of lead-based paint. EPA must either grant or deny a TSCA section 21 petition within 90 days of filing.
Comments must be received on or before October 21, 2009.
Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2009-0655, by one of the following methods:
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This action is directed to the public in general. This action may, however, be of interest to you if you manufacture, process, distribute, or use lead-based paint. 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
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i. Identify the document by docket ID number and other identifying information (subject heading,
ii. Follow directions. The Agency may ask you to respond to specific questions or organize comments by referencing a Code of Federal Regulations (CFR) part or section number.
iii. Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.
iv. Describe any assumptions and provide any technical information and/or data that you used.
v. If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow for it to be reproduced.
vi. Provide specific examples to illustrate your concerns and suggest alternatives.
vii. Explain your views as clearly as possible, avoiding the use of profanity or personal threats.
viii. Make sure to submit your comments by the comment period deadline identified.
Under TSCA section 21 (15 U.S.C. 2620), any person can petition EPA to initiate a rulemaking proceeding for the issuance, amendment, or repeal of a rule under TSCA section 4, 6, or 8 or an order under TSCA section 5(e) or 6(b)(2). A TSCA section 21 petition must set forth the facts that are claimed to establish the necessity for the action requested. EPA is required to grant or deny a TSCA section 21 petition within 90 days of its filing. If EPA grants the petition, the Agency must promptly commence an appropriate proceeding. If EPA denies the petition, the Agency must publish its reasons for the denial in the
The scope of a TSCA section 21 petition is limited to the issuance, amendment, or repeal of a rule under TSCA section 4, 6, or 8 or an order under TSCA section 5(e) or 6(b)(2). Section 21(b)(1) of TSCA requires that the petition “set forth the facts which it is claimed establish that it is necessary” to issue the rule or order requested. 15 U.S.C. 2620(b)(1). Thus, TSCA section 21 implicitly incorporates the statutory standards that apply to the requested actions. In addition, TSCA section 21 establishes standards a court must use to decide whether to order EPA to initiate rulemaking in the event of a lawsuit filed by the petitioner after denial of a TSCA section 21 petition. 15 U.S.C. 2620(b)(4)(B). Accordingly, EPA will refer to the standards in TSCA section 21 and in the provisions under which actions have been requested to evaluate this petition.
On August 10, 2009, EPA received a petition from the National Center for Healthy Housing, Alliance for Healthy Homes, Sierra Club, et al., petitioning EPA to amend regulations promulgated under TSCA sections 401 and 403. Specifically, the petitioners are requesting that EPA:
“1. Lower dust lead hazard standards at 40 CFR 745.65(b), 40 CFR 745.227(e)(8)(viii), and 40 CFR 745.227(h)(3)(i) from 40 micrograms of lead per square foot of surface area (μg/ft
The petitioners provide results of analysis derived from studies that have become available since the current dust lead standards were promulgated in 2001. Studies referenced by petitioners, include: Dixon et al. (2009) (Ref. 2), National Center for Healthy Housing (rev. 2006) (Ref. 3), Wilson (2008) (Ref. 4), and the Cincinnati Children’s Hospital Medical Center’s “HOME Study.”
Citing their analysis of data from the National Health and Nutrition Examination Survey (NHANES) from 1999-2004 (Refs. 2 and 4), the petitioners conclude that:
1. “4.6% of children with an average age of 33 months living in pre-1978 homes would have a blood lead level of 10 μg/[deciliter]dL or greater when their floor dust lead loading was 12 μg/ft
2. “At a floor dust lead loading of 12 μg/ft
3. “5.1% of children would have a blood lead level of 10 μg/dL or greater when their window sill dust lead loading was 100 μg/ft
From their own “Study of HUD’s Risk Assessment Methodology in Three U.S. Communities” (Ref .3), the petitioners assert “that children living in homes with floor dust lead levels under 20 μg/ft
The petitioners also contend that “the economic consequences of a rule based on the standards recommended in this petition will be less than EPA originally estimated when it adopted the current standards.” They provide that in the January 5, 2001 final rule (Ref. 5), EPA estimated that 22 million homes would have lead dust hazards based on a standard of 10 μg/ft
When reviewing the regulatory definition of lead-based paint at 40 CFR 745.103 and 745.223, the petitioners note that EPA simply adopted that statutory standard: Lead-based paint means paint or other surface coatings that contain lead equal to or in excess of 1.0 mg/cm
To support their request that EPA lower the lead level in the definition of lead-based paint, petitioners explain that “under the current standards, paint that contains less than 5,000 ppm of lead would not be considered lead-based paint. As a result, when a lead inspector or lead risk assessor documents levels of 4,500 ppm of lead in the paint, the buyer or tenant would be told that lead-based paint is not present. The buyer or tenant would be unaware of the potential dangers of disturbing the paint.” Petition at 6.
The petitioners estimate that “the economic consequences of this change
Under TSCA section 21, EPA must either grant or deny a petition within 90 days. EPA is providing this opportunity for the public to comment on, or provide any additional information relevant to, the issues identified in the petition. In order for the Agency to consider such comments within the 90-day petition review period, EPA must receive the comments on or before October 21, 2009 (see
In assessing the usability of any data or information that may be submitted, EPA plans to follow the guidelines in EPA’s “A Summary of General Assessment Factors for Evaluating the Quality of Scientific and Technical Information” (EPA 100B-03/001), referred to as the “Assessment Factors Document.” The “Assessment Factors Document” was published in the
1. National Center for Healthy Housing, Alliance for Healthy Homes and Sierra Club. Letter from Rebecca Morley, National Center for Healthy Housing; Patrick MacRoy, Alliance for Healthy Homes; and Tom Neltner, Sierra Club to Administrator Jackson, Environmental Protection Agency. Re: Citizen Petition to EPA Regarding the Paint and Dust Lead Standards. August 10, 2009.
2. Dixon, S.L.; Gaitens, J.M.; Jacobs, D.E., et al. (2009) Exposure of U.S. children to residential dust lead, 1999-2004: II: The contribution of lead-contaminated dust to children’s blood lead levels.
3. National Center for Healthy Housing (rev. 2006) Study of HUDs Risk Assessment Methodology in Three U.S. Communities: Final Report, Columbia, MD (accessed 5-13-2009:
4. Wilson, Jonathan. (2008) Should the EPA Lead Dust Standards be Lowered? (accessed 5-8-2009:
5. EPA. Lead; Identification of Dangerous Levels of Lead; Final Rule.
6. EPA. A Summary of General Assessment Factors for Evaluating the Quality of Scientific and Technical Information; Notice.
Environmental protection, Lead, Lead-based paint, Lead dust hazard standards.
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency's Environmental Laboratory Advisory Board (ELAB), as previously announced, will have teleconference meetings on October 21, 2009 at 1 p.m. ET; November 18, 2009 at 1 p.m. ET; December 16, 2009 at 1 p.m. ET; February 17, 2010 at 1 p.m. ET; and March 17, 2010 at 1 p.m. ET to discuss the ideas and views presented at the previous ELAB meetings, as well as new business. Items to be discussed by ELAB over these coming meetings include: (1) Expanding the number of laboratories seeking National Environmental Laboratory Accreditation Conference (NELAC) accreditation; (2) proficiency testing; (3) ELAB support to the Agency's Forum on Environmental Measurements (FEM); (4) implementing the performance approach; and (5) follow-up on some of ELAB's past recommendations and issues. In addition to these teleconferences, ELAB will be hosting their next face-to-face meeting on January 25, 2010 at the Hyatt Regency in Chicago, IL at 1:30 p.m. (CT).
Written comments on laboratory accreditation issues and/or environmental monitoring issues are encouraged and should be sent to Ms. Lara P. Autry, DFO, U.S. EPA (E243-05), 109 T.W. Alexander Drive, Research Triangle Park, NC 27709, faxed to (919) 541-4261, or e-mailed to
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than October 19, 2009.
Board of Governors of the Federal Reserve System, September 30, 2009.
The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than October 21, 2009.
Board of Governors of the Federal Reserve System, October 1, 2009.
The Consumer Advisory Council will meet on Thursday, October 22, 2009. The meeting, which will be open to public observation, will take place at the Federal Reserve Board's offices in Washington, DC, in Dining Room E on the Terrace Level of the Martin Building. For security purposes, anyone planning to attend the meeting should register no later than Tuesday, October 20, by completing the form found online at:
Attendees must present photo identification to enter the building and should allow sufficient time for security processing.
The meeting will begin at 9 a.m. and is expected to conclude at 12:30 p.m. The Martin Building is located on C Street, NW., between 20th and 21st Streets.
The Council's function is to advise the Board on the exercise of the Board's responsibilities under various consumer financial services laws and on other matters on which the Board seeks its advice. Time permitting, the Council will discuss the following topics:
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Members will discuss proposed changes to Regulation Z (Truth in Lending) regarding disclosures that consumers receive in connection with closed-end mortgages and home-equity lines of credit. Members will also discuss amendments that would provide new consumer protections for home-secured credit, including provisions to prevent mortgage loan originators from steering consumers to more expensive loans.
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Members will discuss proposed amendments to Regulation Z to protect consumers who use credit cards from a number of potentially costly practices.
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Members will discuss loss-mitigation efforts, including the Administration's Making Home Affordable program, the performance of modified mortgages, and other issues related to foreclosures.
Reports by committees and other matters initiated by Council members also may be discussed.
Persons wishing to submit views to the Council on any of the above topics may do so by sending written statements to Jennifer Kerslake, Secretary of the Consumer Advisory Council, Division of Consumer and Community Affairs, Board of Governors of the Federal Reserve System, Washington, DC 20551. Information about this meeting may be obtained from Ms. Kerslake at 202-452-6470.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y (12 CFR Part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act. Additional information on all bank holding companies may be obtained from the National Information Center website at
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 20, 2009.
Board of Governors of the Federal Reserve System, September 30, 2009.
National Institute for Occupational Safety and Health (NIOSH), Department of Health and Human Services (HHS).
Notice.
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 St. Louis Airport Storage site, St. Louis, Missouri, 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
Office of the National Coordinator for Health Information Technology, HHS.
Notice of meeting.
This notice announces a forthcoming subcommittee meeting of a Federal advisory committee of the Office of the National Coordinator for Health Information Technology (ONC). The meeting will be open to the public.
Persons attending ONC's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
ONC welcomes the attendance of the public at its advisory committee meetings. Seating is limited at the location, and ONC will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Judy Sparrow, 202-205-4528, at least seven (7) days in advance of the meeting.
ONC is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (Pub. L. 92-463, 5 U.S.C., App. 2).
Office of the Secretary (OS), HHS.
Notice.
The Secretary of Homeland Security determined on September 23, 2008 that there is a significant potential for a domestic emergency involving a heightened risk of attack with a specified biological, chemical, radiological, or nuclear agent or agents—in this case, Bacillus anthracis. On the basis of this determination, the Secretary of Health and Human Services is renewing the October 1, 2008 declaration by former Secretary Michael O. Leavitt of an emergency justifying the authorization of emergency use of doxycycline hyclate tablets accompanied by emergency use information subject to the terms of any authorization issued by the Food and Drug Commissioner under 21 U.S.C. 360bbb-3(a). This notice is being issued in accordance with section 564(b)(4) of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. 360bbb-3(b)(4).
This Notice and referenced HHS declaration are effective as of October 1, 2009.
Nicole Lurie, MD MSPH, Assistant Secretary for Preparedness and Response, Office of the Secretary, Department of Health and Human Services, 200 Independence Avenue, SW., Washington, DC 20201, Telephone (202) 205-2882 (this is not a toll free number).
On September 23, 2008, former Secretary of Homeland Security, Michael Chertoff, determined that there is a significant potential for a domestic emergency, involving a heightened risk of attack with a specified biological, chemical, radiological, or nuclear agent or agents—in this case, Bacillus anthracis, although there is no current domestic emergency involving anthrax, no current heightened risk of an anthrax attack, and no credible information indicating an imminent threat of an attack involving Bacillus anthracis. Pursuant to section 564(b) of the Federal Food, Drug and Cosmetic Act, 21 U.S.C. 360bbb-3(b), and on the basis of such determination, on October 1, 2008, former Secretary of Health and Human Services, Michael O. Leavitt, declared an emergency justifying the authorization of the emergency use of doxycycline hyclate tablets accompanied by emergency use information subject to the terms of any authorization issued under 21 U.S.C. 360bbb-3(a).
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2)(A) of Title 44, United States Code, as amended by the Paperwork Reduction Act of 1995, Pub. L. 104-13), the Health Resources and Services Administration (HRSA) publishes periodic summaries of proposed projects being developed for submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, e-mail
Comments are invited on: (a) The proposed collection of information for the proper performance of the functions of the agency; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Clinicians participating in the HRSA National Health Service Corps (NHSC) Scholarship Program use the online Travel Request Worksheet to receive travel funds from the Federal Government to perform pre-employment interviews at sites on the NHSC's Opportunities List.
The travel approval process is initiated when a scholar notifies the NHSC of an impending interview at one or more NHSC approved practice sites. The Travel Request Worksheet is also used to initiate the relocation process after a NHSC scholar has successfully been matched to an approved practice site. Upon receipt of the Travel Request Worksheet, the NHSC will review and approve or disapprove the request and promptly notify the scholar and the NHSC logistics contractor regarding travel arrangements and authorization of the funding for the site visit or relocation.
The estimated annual burden is as follows:
E-mail comments to
In compliance with the requirement for opportunity for public comment on proposed data collection projects (section 3506(c)(2)(A) of Title 44, United States Code, as amended by the Paperwork Reduction Act of 1995, Pub. L. 104-13), the Health Resources and Services Administration (HRSA) publishes periodic summaries of proposed projects being developed for submission to the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995. To request more information on the proposed project or to obtain a copy of the data collection plans and draft instruments, call the HRSA Reports Clearance Officer on (301) 443-1129.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The Health Education Assistance Loan (HEAL) program continues to administer and monitor outstanding loans which were provided to eligible students to pay for educational costs in a number of health professions. HEAL forms collect information that is required for responsible program management. The HEAL Repayment Schedule, Fixed and Variable, provides the borrower with the cost of a HEAL loan, the number and amount of payments, and the Truth-in-Lending disclosures. The Lender's Report on HEAL Student Loans Outstanding (Call Report), provides information on the status of loans outstanding by the number of borrowers and total number of loans whose loan payments are in various stages of the loan cycle, such as student education and repayment, and the corresponding dollar amounts. These forms are needed to provide borrowers with information on the cost of their loan(s) and to determine which lenders may have excessive delinquencies and defaulted loans.
The estimate of burden for the forms is as follows:
E-mail comments to
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the
SAMHSA's CMHS is requesting approval for a revision to the National Outcome Measures (NOMs) for Consumers Receiving Mental Health Services (OMB No. 0930-0285, Expiration Date: 4/30/2010). The name of this data collection effort is revised to the CMHS TRAC Reporting System (hereafter referred to as TRAC) to enable SAMHSA CMHS to consolidate its performance reporting activities within one package. This request includes a revision of the currently approved data collection effort directed at consumers of the Services (NOMs) programs; additional questions will enable CMHS to more fully explain grantee performance in relation to Agency and/or program objectives. This request also includes the addition of two new surveys to be completed by the Project Directors of grants that include infrastructure development and prevention activities. These new instruments will enable SAMHSA CMHS to capture a standardized set of performance indicators using a uniform reporting method.
These proposed data activities are intended to promote the use of consistent measures among CMHS grantees and contractors funded through the Program of Regional and National Significance (PRNS) and Children's Mental Health Initiative (CMHI) budget lines. These common measures recommended by CMHS are a result of extensive examination and recommendations, using consistent criteria, by panels of staff, experts, and grantees. Wherever feasible, the proposed measures are consistent with or build upon previous data development efforts within CMHS. These data collection activities will be organized to reflect and support the domains specified for SAMHSA's NOMs for the Services programs, and the categories developed by CMHS to specify the Infrastructure Development and Prevention program activities. The use of consistent measurement for specified outcomes across CMHS-funded projects will improve the ability of SAMHSA and CMHS to respond to the Government Performance and Results Act (GPRA) and the Office of Management and Budget Program Assessment Rating Tool (PART) evaluations.
The currently approved data collection effort for the SAMHSA CMHS programs that provide direct treatment to consumers includes separate data collection forms that are parallel in design for use in interviewing adults and children (or their caregivers for children under the age of 11 years old). These SAMHSA TRAC data will be collected at baseline, at six month reassessments for as long as the consumer remains in treatment, and at discharge. The proposed data collection encompasses eight of the ten SAMHSA NOMs domains.
Changes to the current tools include the following:
• The administrative section of all tools was changed to allow grantees to capture and track when consumers refuse interviews, consent cannot be obtained from proxy, and consumers are impaired or unable to provide consent. The administrative section of the children's tools was additionally changed to capture whether the respondent is the child or his/her caregiver.
• Questions were added to all tools to capture general health, psychological functioning, life in the community, and substance use.
• CMHS reduced the data collection requirement for 3-month programs to be consistent with 6-month programs; all grant programs will be required to collect the NOMs interviews in 6 month intervals. CMHS will require the collection of Clinical Discharge interviews.
In addition to questions asked of consumers as listed above, programs will be required to abstract information from consumer records regarding the services provided. The time to complete the revised instruments is estimated as shown below. These estimates are based on grantee reports of the amount of time required to complete the currently approved instruments accounting for the additional time required to complete the new questions, as based on an informal pilot.
CMHS has identified categories and associated grant- or community-level indicators to assess performance of the Infrastructure Development grant programs to be reported by the grant Project Directors. The performance indicators are the focus of this proposed data collection. A web-based data entry system will be developed to capture this performance data for all CMHS-funded Infrastructure Development grants upon approval of the indicators. Not all categories or indicators will apply to every grant program; CMHS Program Directors will be responsible for determining whether a category (or an indicator within a category) applies to
Grantee Project Directors will be responsible for submitting data quarterly. The use of standardized domains and data collection approaches will enhance aggregate data development and reporting.
CMHS has identified categories and associated grant- or community-level indicators to assess performance of the Prevention grant programs. The performance indicators are the focus of this proposed data collection. A web-based data entry system will be developed to capture this performance data for all CMHS-funded Prevention and Mental Health Promotion grants upon approval of the indicators. Not all categories or indicators will apply to every grant program; CMHS Program Directors will be responsible for determining whether a category (or an indicator within a category) applies to each grant program, establishing targets at the grant level, and monitoring data submission. The following table summarizes the total number of indicators for each category that may or may not apply to each grant program:
Grantee Project Directors will be responsible for submitting data quarterly. The use of standardized domains and data collection approaches will enhance aggregate data development and reporting.
Following is the estimated annual response burden for this effort.
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 7-1044, 1 Choke Cherry Road, Rockville, MD 20850 and e-mail her a copy at
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
These regulations meet the directive under 42 U.S.C. 10826(b) requiring the Secretary to promulgate final regulations to carry out the PAIMI Act.
On January 1, each eligible State protection and advocacy (P&A) system is required to prepare a report that describes its activities, accomplishments, and expenditures to protect the rights of individuals with mental illness supported with payments from PAIMI Program allotments during the most recently completed fiscal year. The PAIMI Act at 42 U.S.C. 10824(a) requires that each P&A system transmit a copy of its annual report to the Secretary (via SAMHSA/CMHS) and to the State Mental Health Agency where the system is located. These annual PAIMI Program Performance Reports (PPR) to the Secretary must include the following information:
• The number of (PAIMI-eligible) individuals with mental illness served;
• A description of the types of activities undertaken;
• A description of the types of facilities providing care or treatment to which such activities are undertaken;
• A description of the manner in which the activities are initiated;
• A description of the accomplishments resulting from such activities;
• A description of systems to protect and advocate the rights of individuals with mental illness supported with payments from PAIMI Program allotments;
• A description of activities conducted by States to protect and advocate such rights;
• A description of mechanisms established by residential facilities for individuals with mental illness to protect such rights; and
• A description of the coordination among such systems, activities and mechanisms;
• Specification of the number of systems that are public and nonprofit systems established with PAIMI Program allotments;
• Recommendations for activities and services to improve the protection and advocacy of the rights of individuals with mental illness and a description of the need for such activities and services that were not met by the State P&A systems established under the PAIMI Act due to resource or annual program priority limitations.
** [The PAIMI Rules at 42 CFR Part 51 at section 51.32(b), state that P&A systems may place restrictions on case or client acceptance criteria developed as part of its annual PAIMI priorities. Each P&A system is required to inform prospective clients of any such restrictions when he/she requests a service].
This PAIMI PPR summary must include a separate section, prepared by the PAIMI Advisory Council (PAC) that describes the council's activities and its assessment of the operations of the State P&A system at 42 U.S.C. 10805(7).
The burden estimate for the annual State P&A system reporting requirements for these regulations is as follows:
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 7-1044, One Choke Cherry Road, Rockville, MD 20857
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d)
The Substance Abuse and Mental Health Administration's (SAMHSA) Center for Substance Abuse Treatment (CSAT) will continue to monitor program performance of its Addiction Technology Transfer Centers (ATTCs). The ATTCs disseminate current health services research from the National Institute on Drug Abuse, National Institute on Alcohol Abuse and Alcoholism, National Institute of Mental Health, Agency for Health Care Policy and Research, National Institute of Justice, and other sources, as well as other SAMHSA programs. To accomplish this, the ATTCs develop and update State-of-the-art, research-based curricula and professional development training.
Each of the forms is described below. SAMHSA/CSAT is proposing to revise the Event Description and Post-Event forms currently used by the ATTCs. The Follow-Up forms will not be changed. The Pre-Events forms currently in use will be eliminated.
Sixty percent of the forms are administered in person to participants at educational and training events, who complete the forms by paper and pencil. Ten percent of the training courses are online, and thus, those forms are administered online. The remaining thirty percent is made up of 30-day follow-up forms that are distributed to consenting participants via electronic mail using an online survey tool.
(1) The Event Description Form will be revised. The form collects event information. It includes questions regarding the SAMHSA priority areas and cross-cutting principles covered by the content of the event. SAMHSA's priority areas and cross-cutting principles have been revised since this form was approved, so the form will be revised to match the updated priorities and principles. In addition, the Event Description Form asks which of SAMHSA's Technical Assistance Publications (TAPs) and Treatment Improvement Protocols (TIPs) were used during the event. New TIPs and TAPs have been published since the form was approved. Those new TIPs and TAPs will be added to the form.
(2) The Pre-Event Form for meetings, technical assistance events, and training events will be eliminated. The demographic information that was collected on this form will be added to the Post-Event Forms. By incorporating this demographic information on the Post-Event Forms, the Pre-Event Form can be eliminated, thereby reducing the response burden for participants.
(3) The Post-Event Form for all events will be revised. The five current demographic questions will be revised to reflect a more current understanding of the field, and five additional demographic questions will be included.
(4) The Follow-Up Form for all events will remain the same as the ones currently in use by the ATTCs.
The ATTCs provide technical assistance, which is a jointly planned consultation generally involving a series of contacts between the ATTC and an outside organization/institution during which the ATTC provides expertise and gives direction toward resolving a problem or improving conditions. The ATTCs hold meetings, which are ATTC sponsored or co-sponsored events in which a group of people representing one or more agencies other than the ATTC work cooperatively on a project, problem, and/or a policy. The ATTCs will collect satisfaction measures after each technical assistance and meeting event. The ATTCs will base the Post-Event Form on the approved CSAT Government Performance and Results Act (GPRA) Customer Satisfaction form (OMB #0930-0197). The only revision to this GPRA form will be that the ATTCs will revise the five current demographic questions asked on this form and include five additional demographic questions. The ATTCs will collect satisfaction measures 30 days after each event by using the approved CSAT Government Performance and Results Act (GPRA) Customer Satisfaction form (OMB #0930-0197). The ATTCs are eliminating the Technical Assistance and Meeting Pre-Event Forms currently in use.
Trainings are defined as ATTC sponsored or co-sponsored events, mainly focusing on the enhancement of knowledge and/or skills of counselors and other professionals who work with individuals with substance use disorder-related problems. The ATTCs will collect information from training participants at the end of the training event by using a revised version of the currently approved Post-Event Form for training. The current approval for this form is under OMB #0930-0216. The only revision to this Post-Event Form will be that the ATTCs will revise the five current demographic questions asked and include five additional demographic questions. The ATTCs will collect information from training participants 30 days after the training event by using the same form currently approved for this purpose under OMB #0930-0216. The Pre-Event Form for training will be eliminated.
The information collected on the ATTC forms will assist CSAT in documenting the numbers and types of participants in ATTC events, describing the extent to which participants report improvement in their clinical competency, and which method is most effective in disseminating knowledge to various audiences. This type of information is crucial to support CSAT in complying with GPRA reporting requirements and will inform future development of knowledge dissemination activities.
The chart below summarizes the annualized burden for this project.
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 7-1044, One Choke Cherry Road, Rockville, MD 20857
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing that a proposed collection of information has been submitted to the Office of Management and Budget (OMB) for review and clearance under the Paperwork Reduction Act of 1995.
Fax written comments on the collection of information by November 5, 2009.
To ensure that comments on the information collection are received, OMB recommends that written comments be faxed to the Office of Information and Regulatory Affairs, OMB, Attn: FDA Desk Officer, FAX: 202-395-6974, or e-mailed to
Jonna Capezzuto, Office of Information Management (HFA-710), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-796-3794,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
The draft guidance describes the agency's general recommendations and procedures for issuance of emergency use authorizations (EUA) under section 564 of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360bbb-3), which was amended by the Project BioShield Act of 2004 (Pub. L. 108-276). The act permits the FDA Commissioner (the Commissioner) to authorize the use of unapproved medical products or unapproved uses of approved medical products during an emergency declared under section 564 of the act. The data to support issuance of an EUA must demonstrate that, based on the totality of the scientific evidence available to the Commissioner, including data from adequate and well-controlled clinical trials (if available), it is reasonable to believe that the product may be effective in diagnosing, treating, or preventing a serious or life-threatening disease or condition (21 U.S.C. 360bbb-3(c)). Although the exact type and amount of data needed to support an EUA may vary depending on the nature of the declared emergency and the nature of the candidate product, FDA recommends that a request for consideration for an EUA include scientific evidence evaluating the product's safety and effectiveness, including the adverse event profile for diagnosis, treatment, or prevention of the serious or life-threatening disease or condition, as well as data and other information on safety, effectiveness, risks and benefits, and (to the extent available) alternatives.
Under section 564 of the act, the FDA Commissioner may establish conditions on the approval of an EUA. Section 564(e) requires the FDA Commissioner (to the extent practicable given the
For purposes of estimating the burden of reporting, FDA has established six categories of respondents: (1) Those who file a Request for Consideration for an EUA and, in lieu of submitting the data, provide reference to a pending or approved application; (2) those who file a Request for Consideration for an EUA, without reference to a pending or approved application; (3) those who submit pre-EUA submissions to FDA on a candidate EUA product, which references a pending or approved application; (4) those who submit pre-EUA submissions to FDA on a candidate EUA product, for which there is no reference to a pending or approved application; (5) manufacturers of an unapproved EUA product who must report to FDA regarding such activity; and (6) state and local public health officials who carry out an activity related to an unapproved EUA product (e.g., administering the product to recipients) and who must report to FDA regarding such activity.
For purposes of estimating the burden of recordkeeping, FDA has calculated the anticipated burden on manufacturers of unapproved products authorized for emergency use. FDA also anticipates that some state and local public health officials may be required to perform additional recordkeeping (e.g., related to the administration of unapproved EUA products to civilians) and calculated a recordkeeping burden for those activities.
No burden was attributed to reporting or recordkeeping for unapproved uses of approved products, since those products already are subject to approved collections of information (adverse experience reporting for biological products is approved under OMB Control No. 0910-0308 through September 30, 2011; adverse drug experience reporting is approved under OMB Control No. 0910-0230 through July 31, 2012; investigational new drug application regulations are approved under OMB Control No. 0910-0014 through August 31, 2011; and investigational device exemption reporting is approved under OMB Control Number 0910-0078 through January 31, 2010). Thus, FDA estimates the burden of this collection of information as follows:
The annual burden estimate for this information collection is 3,204 hours. The estimated reporting burden for this collection is 2,544 hours, and the estimated recordkeeping burden is 660 hours.
In the
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act of 1995 (the PRA), Federal agencies are required to publish notice in the
Submit written or electronic comments on the collection of information by December 7, 2009.
Submit electronic comments on the collection of information to
Denver Presley Jr., Office of Information Management (HFA-710), Food and Drug Administration, 5600 Fishers Lane, Rockville, MD 20857, 301-796-3793.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
With respect to the following collection of information, FDA invites comments on these topics: (1) Whether the proposed collection of information is necessary for the proper performance of FDA's functions, including whether the information will have practical utility; (2) the accuracy of FDA's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques, when appropriate, and other forms of information technology.
Section 409(a) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 348(a)) provides that a food additive shall be deemed to be unsafe unless its use is permitted by a regulation which prescribes the condition(s) under which it may safely be used, or unless it is exempted by regulation for investigational use. Section 409(b) of the act specifies the information that must be submitted by a petition in order to establish the safety of a food additive and to secure the issuance of a regulation permitting its use.
To implement the provision of section 409 of the act, procedural regulations have been issued under part 571 (21 CFR part 571). These procedural regulations are designed to specify more thoroughly the information that must be submitted to meet the requirement set down in broader terms by the law. The regulations add no substantive requirements to those indicated in the law, but seek to explain the requirements and provide a standard format for submission of petitions, that when implemented, will speed up the time for processing. Labeling requirements for food additives intended for animal consumption are also set forth in various regulations contained in 21 CFR parts 573, 582, and 584. The labeling regulations are considered by FDA to be cross-referenced to § 571.1, which is the subject of this same OMB clearance for food additive petitions.
FDA estimates the burden of this collection of information as follows:
FDA derived the annual reporting burden estimate for the different categories as follows:
Thus, the estimated total annual burden for this information collection is 18,200 hours.
Pursuant to the Federal Advisory Committee Act, as amended (5 U.S.C. Appendix 2), the Director, National Institutes of Health (NIH), announces the establishment of the Interagency Breast Cancer and Environmental Research Coordinating Committee (Committee).
The Committee shall coordinate all efforts within the Department of Health and Human Services to share and coordinate information on existing research activities, and make recommendations to the Secretary DHHS, the National Institutes of Health and other Federal agencies regarding how to improve existing research programs.
The Committee's primary mission is to facilitate the efficient and effective exchange of information on breast cancer research activities among the member agencies, and to coordinate solicitation of proposals for collaborative, multidisciplinary research, including proposals to evaluate environmental and genomic factors that may be related to the etiology of breast cancer.
Duration of this committee is two years from the date the Charter is filed.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is publishing a list of premarket approval applications (PMAs) that have been approved. This list is intended to inform the public of the availability of safety and effectiveness summaries of approved PMAs through the Internet and the agency's Division of Dockets Management.
Submit written requests for copies of summaries of safety and effectiveness data to the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, rm. 1061, Rockville, MD 20852. Please cite the appropriate docket number as listed in table 1 of this document when submitting a written request. See the
Nicole Wolanski, Center for Devices and Radiological Health (HFZ-402), Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, rm. 1650, Silver Spring, MD 20993, 301-796-6570.
In the
In accordance with section 515(d)(4) and (e)(2) of the Federal Food, Drug, and Cosmetic Act (the act) (21 U.S.C. 360e(d)(4) and (e)(2)), notification of an order approving, denying, or withdrawing approval of a PMA will continue to include a notice of opportunity to request review of the order under section 515(g) of the act. The 30-day period for requesting reconsideration of an FDA action under § 10.33(b) (21 CFR 10.33(b)) for notices announcing approval of a PMA begins on the day the notice is placed on the
The regulations provide that FDA publish a quarterly list of available safety and effectiveness summaries of PMA approvals and denials that were announced during that quarter. The following is a list of approved PMAs for which summaries of safety and effectiveness were placed on the Internet from January 1, 2009, through March 31, 2009. There were no denial actions during this period. The list provides the manufacturer's name, the product's generic name or the trade name, and the approval date.
Persons with access to the Internet may obtain the documents at
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Doreen Kezer at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of a meeting of the Director's Council of Public Representatives.
The meeting will be open to the public, with attendance limited to space available. Individuals who plan to attend and need special assistance, such as sign language interpretation or other reasonable accommodations, should notify the Contact Person listed below in advance of the meeting.
Any interested person may file written comments with the committee by forwarding the statement to the Contact Person listed on this notice. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person.
In the interest of security, NIH has instituted stringent procedures for entrance onto the NIH campus. All visitor vehicles, including taxicabs, hotel, and airport shuttles will be inspected before being allowed on campus. Visitors will be asked to show one form of identification (for example, a government-issued photo ID, driver's license, or passport) and to state the purpose of their visit.
In accordance with section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), notice is hereby given of the following meeting:
Agenda items are subject to change as priorities indicate.
Gladys Cate, Office of Minority and Special Populations, Bureau of Primary Health Care, Health Resources and Services Administration, 5600 Fishers Lane, Rockville, Maryland 20857; telephone (301) 594-0367.
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available on the FDA Internet under the appropriate date at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Ann Marie Williams, Conference Management Staff, 301-796-5966, at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Elaine Ferguson at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
This notice announces a forthcoming meeting of a public advisory committee of the Food and Drug Administration (FDA). The meeting will be open to the public.
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Elaine Ferguson at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Dated: September 29, 2009.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The contract proposals and the discussions could disclose confidential trade secrets or commercial
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(a) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of an Interagency Autism Coordinating Committee (IACC) meeting.
The purpose of the IACC meeting is to discuss recommendations for the annual update of the IACC Strategic Plan for Autism Spectrum Disorders Research. The meeting will be open to the public and will be accessible by webcast and conference call.
In addition, any interested person may submit written comments to the IACC prior to the meeting by sending the statement to the Contact Person listed on this notice at least 24 hours in advance of the meeting. The statement should include the name, address, telephone number and when applicable, the business or professional affiliation of the interested person. All written statements received by the deadline for both oral and written public comment will be provided to the IACC for their consideration.
The meeting will be open to the public through a conference call phone number and webcast live on the Internet. Individuals who participate in person or by using these electronic services and who need special assistance, such as captioning of the conference call or other reasonable accommodations, should submit a request at least 7 days prior to the meeting.
NIH has instituted stringent security procedures for entrance onto the NIH campus. All visitors must enter through the NIH Gateway Center. This center combines visitor parking, non-commercial vehicle inspection and visitor ID processing, all in one location. The NIH will process all visitors in vehicles or as pedestrians. You will be asked to submit to a vehicle or personal inspection and will be asked to state the purpose of your visit. Visitors over 15 years of age must provide a form of government-issued ID such as a driver's license or passport. All visitors should be prepared to have their personal belongings inspected and to go through metal detection inspection.
When driving to NIH, plan some extra time to get through the security checkpoints. Be aware that visitor parking lots on the NIH campus can fill up quickly. The NIH campus is also accessible via the metro Red Line, Medical Center Station. The Natcher Conference Center is a 5-minute walk from the Medical Center Metro Station.
Additional NIH campus visitor information is available at:
As a part of security procedures, attendees should be prepared to present a photo ID at the meeting registration desk during the check-in process. Pre-registration is recommended. Seating will be limited to the room capacity and seats will be on a first come, first served basis, with expedited check-in for those who are pre-registered.
Members of the public who participate using the conference call phone number will be able to listen to the meeting but will not be heard.
To access the webcast live on the Internet the following computer capabilities are required: (A) Internet Explorer 5.0 or later, Netscape Navigator 6.0 or later or Mozilla Firefox 1.0 or later; (B) Windows® 2000, XP Home, XP Pro, 2003 Server or Vista; (C) Stable 56k, cable modem, ISDN, DSL or better Internet connection; (D) Minimum of Pentium 400 with 256 MB of RAM (Recommended); (E) Java Virtual Machine enabled (Recommended).
Meeting schedule is subject to change.
Information about the IACC is available on the website:
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Federal Emergency Management Agency, DHS.
Notice.
FEMA gives notice that the countywide per capita impact indicator under the Public Assistance program for disasters declared on or after October 1, 2009, will be decreased.
James A. Walke, Disaster Assistance Directorate, Federal Emergency
Response and Recovery Directorate Policy No. 9122.1 provides that FEMA will adjust the countywide per capita impact indicator under the Public Assistance program to reflect annual changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor.
FEMA gives notice of a decrease in the countywide per capita impact indicator to $3.23 for all disasters declared on or after October 1, 2009.
FEMA bases the adjustment on a decrease in the Consumer Price Index for All Urban Consumers of 1.5 percent for the 12-month period ended in August 2009. The Bureau of Labor Statistics of the U.S. Department of Labor released the information on September 16, 2009.
Federal Emergency Management Agency, DHS.
Notice.
FEMA gives notice of a decrease of the maximum amount for Small Project Grants to State and local governments and private nonprofit facilities for disasters declared on or after October 1, 2009.
James A. Walke, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3834.
The Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act), 42 U.S.C. 5121-5207, prescribes that FEMA must annually adjust the maximum grant amount made under section 422, Small Project Grants, Simplified Procedure, relating to the Public Assistance program, to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor.
FEMA gives notice of a decrease of the maximum amount of any Small Project Grant made to the State, local government, or to the owner or operator of an eligible private nonprofit facility, under section 422 of the Stafford Act, to $63,200 for all disasters declared on or after October 1, 2009.
FEMA bases the adjustment on a decrease in the Consumer Price Index for All Urban Consumers of 1.5 percent for the 12-month period ended in August 2009. The Bureau of Labor Statistics of the U.S. Department of Labor released the information on September 16, 2009.
Federal Emergency Management Agency, DHS.
Notice.
FEMA gives notice that the statewide per capita impact indicator under the Public Assistance program for disasters declared on or after October 1, 2009, will be decreased.
DATE:
James A. Walke, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3834.
44 CFR 206.48 provides that FEMA will adjust the statewide per capita impact indicator under the Public Assistance program to reflect changes in the Consumer Price Index for All Urban Consumers published by the Department of Labor.
FEMA gives notice that the statewide per capita impact indicator will be decreased to $1.29 for all disasters declared on or after October 1, 2009.
FEMA bases the adjustment on a decrease in the Consumer Price Index for All Urban Consumers of 1.5 percent for the 12-month period ended in August 2009. The Bureau of Labor Statistics of the U.S. Department of Labor released the information on September 16, 2009.
U.S. Customs and Border Protection (CBP), Department of Homeland Security.
60-Day Notice and request for comments; Extension of an existing collection of information: 1651-0035.
As part of its continuing effort to reduce paperwork and respondent burden, CBP invites the general public and other Federal agencies to comment on an information collection requirement concerning Holders or Containers which Enter the United States Duty Free. This request for comment is being made pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13; 44 U.S.C. 3505(c)(2)).
Written comments should be received on or before December 7, 2009, to be assured of consideration.
Direct all written comments to U.S. Customs and Border Protection, Attn: Tracey Denning, Office of Regulations and Rulings, 799 9th Street, NW., 7th Floor, Washington, DC 20229-1177.
Requests for additional information should be directed to Tracey Denning, U.S. Customs and Border Protection, Office of Regulations and Rulings, 799 9th Street, NW., 7th Floor, Washington, DC 20229-1177, at 202-325-0265.
CBP invites the general public and other Federal agencies to comment on proposed and/or continuing information collections pursuant to the Paperwork Reduction Act of 1995 (Pub. L. 104-13; 44 U.S.C. 3505(c)(2)). The comments should address: (a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have
30-Day Notice of Information Collection Under Review; Form I-730, Refugee/Asylee Relative Petition; OMB Control No. 1615-0037.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until November 5, 2009. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Products Division, Clearance Office, 111 Massachusetts Avenue, Washington, DC 20529-2210. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at
When submitting comments by e-mail, please make sure to add OMB Control No. 1615-0037 in the subject box. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument, please visit the Web site at:
We may also be contacted at: USCIS, Regulatory Products Division, 111 Massachusetts Avenue, NW., Washington, DC 20529-2210, Telephone number 202-272-8377.
30-Day Notice of Information Collection Under Review; File No. OMB-5, Notice of Immigration Pilot Program; OMB Control No. 1615-0061.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until November 5, 2009. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Products Division, Clearance Office, 111 Massachusetts Avenue, Washington, DC 20529-2210. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at
When submitting comments by e-mail, please make sure to add OMB Control No. 1615-0061 in the subject box. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection, please visit the website at:
We may also be contacted at: USCIS, Regulatory Products Division, 111 Massachusetts Avenue, NW., Washington, DC 20529-2210, Telephone number 202-272-8377.
30-Day Notice of Information Collection Under Review; Form I-602, Application by Refugee for Waiver of Grounds of Excludability; OMB Control No. 1615-0069.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until November 5, 2009. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Products Division, Clearance Office, 111 Massachusetts Avenue, Washington, DC 20529-2210. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at
When submitting comments by e-mail, please make sure to add OMB Control No. 1615-0069 in the subject box. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument, please visit the Web site at:
We may also be contacted at: USCIS, Regulatory Products Division, 111 Massachusetts Avenue, NW., Washington, DC 20529-2210, Telephone number 202-272-8377.
60-Day Notice of Information Collection Under Review; Form I-854, Interagency Alien Witness and Informant Record; OMB Control No. 1615-0046.
The Department Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection is published to obtain comments from the public and affected agencies. Comments are encouraged and will be accepted for sixty days until December 7, 2009.
During this 60 day period, USCIS will be evaluating whether to revise the Form I-854. Should USCIS decide to revise Form I-854 we will advise the public when we publish the 30-day notice in the
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), USCIS, Chief, Regulatory Products Division, Clearance Officer, 111 Massachusetts Avenue, NW., Washington, DC 20529-2210. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at
If you need a copy of the information collection instrument, please visit the Web site at:
We may also be contacted at: USCIS, Regulatory Products Division, 111 Massachusetts Avenue, NW., Washington, DC 20529-2210, Telephone number 202-272-8377.
30-Day Notice of Information Collection Under Review; Form I-129S, Nonimmigrant Petition Based on Blanket L Petition; OMB Control No. 1615-0010.
The Department of Homeland Security, U.S. Citizenship and Immigration Services (USCIS) has submitted the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995. The information collection was previously published in the
The purpose of this notice is to allow an additional 30 days for public comments. Comments are encouraged and will be accepted until November 5, 2009. This process is conducted in accordance with 5 CFR 1320.10.
Written comments and/or suggestions regarding the item(s) contained in this notice, especially regarding the estimated public burden and associated response time, should be directed to the Department of Homeland Security (DHS), and to the Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), USCIS Desk Officer. Comments may be submitted to: USCIS, Chief, Regulatory Products Division, Clearance Office, 111 Massachusetts Avenue, Washington, DC 20529-2210. Comments may also be submitted to DHS via facsimile to 202-272-8352 or via e-mail at
When submitting comments by e-mail, please make sure to add OMB Control No. 1615-0010 in the subject box. Written comments and suggestions from the public and affected agencies should address one or more of the following four points:
(1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(3) Enhance the quality, utility, and clarity of the information to be collected; and
(4) Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.
(1)
(2)
(3)
(4)
(5)
(6)
If you need a copy of the information collection instrument, please visit the Web site at:
We may also be contacted at: USCIS, Regulatory Products Division, 111 Massachusetts Avenue, NW., Washington, DC 20529-2210, Telephone number 202-272-8377.
Federal Emergency Management Agency, DHS.
Notice.
This is a notice of the Presidential declaration of a major disaster for the Territory of American Samoa (FEMA-1859-DR), dated September 29, 2009, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
Notice is hereby given that, in a letter dated September 29, 2009, the President declared a major disaster under the authority of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207 (the Stafford Act), as follows:
I determined that the damage in certain areas of the Territory of American Samoa resulting from an earthquake, tsunami, and flooding beginning on September 29, 2009, and continuing, 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
In order to provide Federal assistance, you were hereby authorized to allocate from funds available for these purposes such amounts as you find necessary for Federal disaster assistance and administrative expenses.
You were authorized to provide Individual Assistance and assistance for debris removal and emergency protective measures (Categories A and B) under the Public Assistance program in the designated areas, Hazard Mitigation throughout the Territory, and any other forms of assistance under the Stafford Act that you deem appropriate subject to completion of Preliminary Damage Assessments (PDAs), unless you determine that the incident is of such unusual severity and magnitude that PDAs are not required to determine the need for supplemental Federal assistance pursuant to 44 CFR 206.33(d). Direct Federal assistance is authorized.
Consistent with the requirement that Federal assistance is supplemental, any
Further, you were authorized to make changes to this declaration to the extent allowable under the Stafford Act.
The time period prescribed for the implementation of section 310(a), Priority to Certain Applications for Public Facility and Public Housing Assistance, 42 U.S.C. 5153, shall be for a period not to exceed six months after the date of this declaration.
The Federal Emergency Management Agency (FEMA) hereby gives notice that pursuant to the authority vested in the Administrator, under Executive Order 12148, as amended, Kenneth R. Tingman, of FEMA is appointed to act as the Federal Coordinating Officer for this declared disaster.
The following areas of the Territory of American Samoa have been designated as adversely affected by this declared major disaster:
The Territory of American Samoa for Individual Assistance.
Debris removal and emergency protective measures (Categories A and B) under the Public Assistance program for the Territory of American Samoa. Direct Federal assistance is authorized.
All islands within the Territory of American Samoa are eligible to apply for assistance under the Hazard Mitigation Grant Program.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of New York (FEMA-1857-DR), dated September 1, 2009, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of New York is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of September 1, 2009.
Allegany County for Public Assistance. The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of Georgia (FEMA-1858-DR), dated September 24, 2009, and related determinations.
Peggy Miller, Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 646-3886.
The notice of a major disaster declaration for the State of Georgia is hereby amended to include the following areas among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of September 24, 2009.
Cherokee, DeKalb, Fulton, and Newton Counties for Public Assistance, including direct Federal assistance (already designated for Individual Assistance).
Crawford County for Public Assistance, including direct Federal assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050 Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
FEMA gives notice of the maximum amount for assistance under the Individuals and Households Program for emergencies and major disasters declared on or after October 1, 2009.
Berl D. Jones, Jr., Disaster Assistance Directorate, Federal Emergency Management Agency, 500 C Street, SW., Washington, DC 20472, (202) 212-1000.
Section 408 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (the Stafford Act), 42 U.S.C. 5174, prescribes that FEMA must annually adjust the maximum amounts for assistance provided under the Individuals and Households (IHP) Program. FEMA gives notice that the maximum amount of IHP financial assistance provided to an individual or household under section 408 of the Stafford Act with respect to any single emergency or major disaster is $29,900. The decrease in award amount as stated above is for any single emergency or major disaster declared on or after October 1, 2009. In addition, in accordance with 44 CFR 61.17(c), this adjustment includes the maximum amount of available coverage under any Group Flood Insurance Policy (GFIP) issued for those disasters.
FEMA bases the adjustment on a decrease in the Consumer Price Index for All Urban Consumers of 1.5 percent for the 12-month period ended in August 2009. The Bureau of Labor Statistics of the U.S. Department of Labor released the information on September 16, 2009.
Office of the Assistance Secretary for Public and Indian Housing, HUD.
Notice of proposed information collection.
The proposed information collection requirement described below will be submitted to the Office of Management and Budget (OMB) for review, as required by the Paperwork Reduction Act. The Department is soliciting public comments on the subject proposal.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control number and sent to: Lillian L. Deitzer, Departmental Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street, SW., Room 4178, Washington, DC 20410-5000; telephone 202.402.8048 (this is not a toll-free number) or e-mail Ms. Deitzer at
Dacia Rogers, Office of Policy, Programs and Legislative Initiatives, PIH, Department of Housing and Urban Development, 451 7th Street, SW., Room 4116, Washington, DC 20410; telephone 202 402-3374, for copies of other available documents (this is not a toll-free number.)
The Department will submit the proposed information collection to the Office of Management and Budget (OMB) for review, as required by the Paper Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended).
This Notice is soliciting comments from members of the public and affected agencies concerning the proposed collection of information to: (1) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information; (3) enhance the quality, utility, and clarity of the information to be collected; and (4) minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated collection techniques or other forms of information technology;
This notice also lists the following information:
As a condition of granting HUD staff and staff of processing entities with access to the EIV system, each prospective user of the system must (1) Request access to the system; (2) agree to comply with HUD's established rules of behavior; and (3) review and signify their understanding of their responsibilities of protecting data protected under the Federal Privacy Act (5 USC 552a, as amended). As such, the collection of information about the user and the type of system access required by the prospective user is required by HUD to: (1) Identify the user; (2) determine if the prospective user in fact requires access to the EIV system and in what capacity; (3) provide the prospective user with information related to the Rules of Behavior for
HUD will collect the following information from each prospective user: Public Housing Agency (PHA) code, organization name, address, prospective user's full name, HUD-assigned user ID, position title, telephone number, facsimile number, type of work which involves the use of the EIV system, type of system action requested, requested access roles to be assigned to prospective user, public housing development numbers to be assigned to prospective PHA user, and prospective user's signature and date of request. The information will be collected electronically and manually (for those who are unable to transmit electronically) via a PDF-fillable or Word-fillable document, which can be e-mailed, faxed or mailed to HUD.
If this information is not collected, the Department will not be in compliance with the Federal Privacy Act and be subject to civil penalties.
The Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, as amended.
Office of the Assistant Secretary for Public and Indian Housing, HUD.
Notice.
HUD announces the availability on its Web site of the applicant information, deadline information, and other requirements for the Family Unification Program (FUP) NOFA for FY2009. Approximately $14.6 million is made available through this NOFA, through the Omnibus Appropriations Act, 2009 (Pub. L. 111-8, approved March 11, 2009). The FY2009 FUP NOFA that provides this information is available on the Grants.gov Web site at
Questions regarding specific program requirements should be directed to the agency contact identified in the program NOFA. Questions regarding the 2009 General Section should be directed to the Office of Departmental Grants Management and Oversight at 202-708-0667 (this is not a toll-free number) or the NOFA Information Center at 1-800-HUD-8929 (toll-free). Persons with hearing or speech impairments may access these numbers via TTY by calling the Federal Information Relay Service at 1-800-877-8339.
Office of the Assistant Secretary for Policy Development and Research, HUD.
Notice.
This document designates “Difficult Development Areas” (DDAs) and “Qualified Census Tracts” (QCTs) for purposes of the Low-Income Housing Tax Credit (LIHTC) under Section 42 of the Internal Revenue Code of 1986 (the Code) (26 U.S.C. 42). The United States Department of Housing and Urban Development (HUD) makes new DDA designations annually and is making new designation of QCTs at this time on the basis of revised metropolitan statistical area (MSA) definitions published by the Office of Management and Budget (OMB). In accordance with the Gulf Opportunity Zone (GO Zone) Act of 2005, the authorization for GO Zone DDAs expires on December 31, 2010 and consequently, this will be the last designation of GO Zone DDAs.
For questions on how areas are designated and on geographic definitions, contact Michael K. Hollar, Senior Economist, Economic Development and Public Finance Division, Office of Policy Development and Research, Department of Housing and Urban Development, 451 Seventh Street, SW., Room 8234, Washington, DC 20410-6000; telephone number (202) 402-5878, or send an e-mail to
This notice designates DDAs for each of the 50 states, the District of Columbia, Puerto Rico, American Samoa, Guam, the Northern Mariana Islands, and the U.S. Virgin Islands. The designations of DDAs in this notice are based on final Fiscal Year (FY) 2009 Fair Market Rents (FMRs), FY2009 income limits, and 2000 Census population counts, as explained below. This notice also lists those areas treated as DDAs under the Gulf Opportunity Zone Act of 2005 (GO Zone Act) (Pub. L. 109-135; the GO Zone Act, as amended by the U.S. Troop Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability Appropriations Act of 2007). Specifically, the GO Zone Act provides that areas “determined by the President to warrant individual or individual and public assistance from the federal government under the Robert T. Stafford Disaster Relief and Emergency Assistance Act (Stafford Act)” as a result of Hurricanes Katrina, Rita, or Wilma: (1) Shall be treated as DDAs designated under subclause (I) of Internal Revenue Code section 42(d)(5)(C)(iii)
This notice also re-designates QCTs based on those newly defined MSAs published by the Office of Management and Budget (OMB) since 2006 that have been included in HUD's Section 8 Income Limits though FY2009. New MSAs have been designated in Arizona and Florida, however these result only in changes to QCT designations in the new Arizona metropolitan area and the nonmetropolitan part of Arizona. The designations of QCTs under Section 42 of the Internal Revenue Code published September 28, 2006, (71 FR 57234) for the remainder of Arizona, the remaining 49 states, the District of Columbia, Puerto Rico, U.S. Virgin Islands, and on December 19, 2003, (68 FR 70982) for American Samoa, Guam, and the Northern Mariana Islands, remain in effect because QCTs in these areas are not affected by the updated metropolitan area definitions.
Data from the 2000 Census on total population of metropolitan areas and nonmetropolitan areas are used in the designation of DDAs. The Office of Management and Budget (OMB) first published new metropolitan area definitions incorporating 2000 Census data in OMB Bulletin No. 03-04 on June 6, 2003, and updated them periodically through OMB Bulletin No. 08-01 on November 20, 2007. The FY2009 FMRs and FY2009 income limits used to designate DDAs are based on these new metropolitan statistical area (MSA) definitions, with modifications to account for substantial differences in rental housing markets (and, in some cases, median income levels) within MSAs. The most recent update of MSA definitions published in OMB Bulletin No. 09-01 on November 20, 2008 are inconsistent with the FY2009 FMRs and FY2009 income limits and therefore are not incorporated in these DDA and QCT designations.
The U.S. Department of the Treasury (Treasury) and its Internal Revenue Service (IRS) are authorized to interpret and enforce the provisions of the Code, including the LIHTC found at Section 42 of the Code. The Secretary of HUD is required to designate DDAs and QCTs by Section 42(d)(5)(C) (re-designated section 42(d)(5)(B) by the Housing and Economic Recovery Act of 2008) of the Code. In order to assist in understanding HUD's mandated designation of DDAs and QCTs for use in administering Section 42, a summary of the section is provided. The following summary does not purport to bind Treasury or the IRS in any way, nor does it purport to bind HUD, since HUD has authority to interpret or administer the Code only in instances where it receives explicit statutory delegation.
The LIHTC is a tax incentive intended to increase the availability of low-income housing. Section 42 provides an income tax credit to owners of newly constructed or substantially rehabilitated low-income rental housing projects. The dollar amount of the LIHTC available for allocation by each state (credit ceiling) is limited by population. Each state is allowed a credit ceiling based on a statutory formula indicated at Section 42(h)(3). States may carry forward unallocated credits derived from the credit ceiling for one year; however, to the extent such unallocated credits are not used by then, the credits go into a national pool to be redistributed to states as additional credit. State and local housing agencies allocate the state's credit ceiling among low-income housing buildings whose owners have applied for the credit. Besides Section 42 credits derived from the credit ceiling, states may also provide Section 42 credits to owners of buildings based on the percentage of certain building costs financed by tax-exempt bond proceeds. Credits provided under the tax-exempt bond “volume cap” do not reduce the credits available from the credit ceiling.
The credits allocated to a building are based on the cost of units placed in service as low-income units under particular minimum occupancy and maximum rent criteria. In general, a building must meet one of two thresholds to be eligible for the LIHTC: Either 20 percent of the units must be rent-restricted and occupied by tenants with incomes no higher than 50 percent of the Area Median Gross Income (AMGI), or 40 percent of the units must be rent-restricted and occupied by tenants with incomes no higher than 60 percent of AMGI. The term “rent-restricted” means that gross rent, including an allowance for tenant-paid utilities, cannot exceed 30 percent of the tenant's imputed income limitation (
The LIHTC reduces income tax liability dollar-for-dollar. It is taken annually for a term of 10 years and is intended to yield a present value of either: (1) 70 percent of the “qualified basis” for new construction or substantial rehabilitation expenditures that are not federally subsidized (as defined in Section 42(i)(2)), or (2) 30 percent of the qualified basis for the cost of acquiring certain existing buildings or projects that are federally subsidized. The actual credit rates are adjusted monthly for projects placed in service after 1987 under procedures specified in Section 42. Individuals can use the
The qualified basis represents the product of the building's “applicable fraction” and its “eligible basis.” The applicable fraction is based on the number of low-income units in the building as a percentage of the total number of units, or based on the floor space of low-income units as a percentage of the total floor space of residential units in the building. The eligible basis is the adjusted basis attributable to acquisition, rehabilitation, or new construction costs (depending on the type of LIHTC involved). These costs include amounts chargeable to a capital account that are incurred prior to the end of the first taxable year in which the qualified low-income building is placed in service or, at the election of the taxpayer, the end of the succeeding taxable year. In the case of buildings located in designated DDAs or designated QCTs, eligible basis can be increased up to 130 percent from what it would otherwise be. This means that the available credits also can be increased by up to 30 percent. For example, if a 70 percent credit is available, it effectively could be increased to as much as 91 percent.
Section 42 of the Code defines a DDA as any area designated by the Secretary of HUD as an area that has high construction, land, and utility costs relative to the AMGI. All designated DDAs in metropolitan areas (taken together) may not contain more than 20 percent of the aggregate population of all metropolitan areas, and all designated areas not in metropolitan areas may not contain more than 20 percent of the aggregate population of all nonmetropolitan areas.
Under section 42(d)(5)(B) of the Code, a Qualified Census Tract is any census tract (or equivalent geographic area defined by the Bureau of the Census) in which at least 50 percent of households have an income less than 60 percent of the AMGI or, where the poverty rate is at least 25 percent. There is a limit on the number of Qualified Census Tracts in any metropolitan statistical area that may be designated to receive an increase in eligible basis: All of the designated census tracts within a given metropolitan area may not together contain more than 20 percent of the total population of the metropolitan area. For purposes of HUD designations of Qualified Census Tracts, all nonmetropolitan areas in a state are treated as if they constituted a single nonmetropolitan area.
The GO Zone Act provides that areas “determined by the President to warrant individual or individual and public assistance from the Federal Government” under the Stafford Act by reason of Hurricanes Katrina, Rita, or Wilma shall be treated as DDAs designated under subclause I of Internal Revenue Code section 42(d)(5)(C)(iii) (
Section 42(d)(5)(C)(v) as added to the Code by the Housing and Economic Recovery Act of 2008, and re-designated as Section 42(d)(5)(B)(v), allows states to award an increase in basis up to 30 percent to buildings located outside of federally designated DDAs and QCTs if the increase is necessary to make the building financially feasible. This state discretion applies only to buildings allocated credits under the state housing credit ceiling and is not permitted for buildings receiving credits in connection with tax-exempt bonds. Rules for such designations shall be set forth in the LIHTC-allocating agencies' qualified allocation plans (QAPs).
This notice lists all areas “determined by the President to warrant individual or individual and public assistance from the Federal Government” under the Stafford Act by reason of Hurricanes Katrina, Rita, or Wilma as DDAs according to lists of counties and parishes from the Federal Emergency Management Agency Web site (
In developing the list of the remaining DDAs, HUD compared housing costs with incomes. HUD used 2000 Census population data and the MSA definitions, as published in OMB Bulletin No. 08-01 on November 20, 2007, with modifications, as described below. In keeping with past practice of basing the coming year's DDA designations on data from the preceding year, the basis for these comparisons is the FY2009 HUD income limits for very low-income households (Very Low-Income Limits, or VLILs), which are based on 50 percent of AMGI, and final FY2009 FMRs used for the Housing Choice Voucher (HCV) program. In formulating the FY2009 FMRs and VLILs, HUD modified the current OMB definitions of MSAs to account for substantial differences in rents among areas within each new MSA that were in different FMR areas under definitions used in prior years. HUD formed these “HUD Metro FMR Areas” (HMFAs) in cases where one or more of the parts of newly defined MSAs that previously were in separate FMR areas had 2000 Census base 40th-percentile recent-mover rents that differed, by 5 percent or more, from the same statistic calculated at the MSA level. In addition, a few HMFAs were formed on the basis of very large differences in AMGIs among the MSA parts. All HMFAs are contained entirely within MSAs. All nonmetropolitan counties are outside of MSAs and are not broken up by HUD for purposes of setting FMRs and VLILs. (Complete details on HUD's process for determining FY2009 FMR areas and FMRs are available at
HUD's unit of analysis for designating metropolitan DDAs, therefore, consists of: Entire MSAs, in cases where these were not broken up into HMFAs for
1. For each HMFA and each nonmetropolitan county, a ratio was calculated. This calculation used the final FY2009 two-bedroom FMR and the FY2009 four-person VLIL.
a. The numerator of the ratio was the area's final FY2009 FMR. In general, the FMR is based on the 40th-percentile gross rent paid by recent movers to live in a two-bedroom apartment. In metropolitan areas granted a FMR based on the 50th-percentile rent for purposes of improving the administration of HUD's HCV program (see 71 FR 5068), the 40th-percentile rent was used to ensure nationwide consistency of comparisons.
b. The denominator of the ratio was the monthly LIHTC income-based rent limit, which was calculated as
2. The ratios of the FMR to the LIHTC income-based rent limit were arrayed in descending order, separately, for HMFAs and for nonmetropolitan counties.
3. The non-GO Zone DDAs are those HMFAs and nonmetropolitan counties not in areas “determined by the President to warrant individual or individual and public assistance from the Federal Government” under the Stafford Act by reason of Hurricanes Katrina, Rita, or Wilma, with the highest ratios cumulative to 20 percent of the 2000 population of all HMFAs and of all nonmetropolitan counties, respectively.
In developing this list of QCTs, HUD used 2000 Census 100-percent count data on total population, total households, and population in households; a special tabulation of household income at the tract level from the 2000 Census; the 2000 Census base AMGIs computed at the HMFA level as described above to determine tract eligibility; and the MSA definitions published in OMB Bulletin No. 08-01 on November 20, 2007, for determining how many eligible tracts can be designated under the statutory 20 percent population cap.
HUD uses the HMFA-level AMGIs to determine QCT eligibility because the statute, specifically 26 U.S.C. 42(d)(5)(B)(iv)(II), refers to the same section of the Code that defines income for purposes of tenant eligibility and unit maximum rent, specifically 26 U.S.C. 42(g)(4). By rule, the IRS sets these income limits according to HUD's VLILs, which in FY2006 and thereafter are established at the HMFA level. Similarly, HUD uses the entire MSA to determine how many eligible tracts can be designated under the 20 percent population cap as required by the statute (26 U.S.C. 42(d)(5)(B)(ii)(III)), which states that MSAs should be treated as singular areas. The QCTs were determined as follows:
1. To be eligible to be designated a QCT, a census tract must have 50 percent of its households with incomes below 60 percent of the AMGI or have a poverty rate of 25 percent or more. In metropolitan areas, HUD calculates 60 percent of AMGI by multiplying by a factor of 0.6 the HMFA median family income for 1999, as estimated by HUD from 2000 Census data. Outside of metropolitan areas, HUD calculates 60 percent of AMGI by multiplying by a factor of 0.6 the state-specific, non-metropolitan balance median family income for 1999, as estimated by HUD. (For a complete listing of HMFA median family incomes for 1999, see
2. For each census tract, the percentage of households below the 60 percent income standard (income criterion) was determined by: (a) Calculating the average household size of the census tract, (b) applying the income standard after adjusting it to match the average household size, and (c) calculating the number of households with incomes below the income standard. In performing this calculation, HUD used a special tabulation of household income data from the 2000 Census that provides more detail than the data on household income distribution publicly released by the Census Bureau and used in the designation of QCTs published December 12, 2002. Therefore, even in MSAs where there was no geographic change, a different set of census tracts may be determined eligible and designated as QCTs based on these more accurate data. HUD's special tabulations of census tract household income distribution are available for download from
3. For each census tract, the poverty rate was determined by dividing the population with incomes below the poverty line by the population for whom poverty status has been determined.
4. QCTs are those census tracts in which 50 percent or more of the households meet the income criterion, or 25 percent or more of the population is in poverty, such that the population of all census tracts that satisfy either one or both of these criteria does not exceed 20 percent of the total population of the respective area.
5. In areas where more than 20 percent of the population resides in eligible census tracts, census tracts are designated as QCTs in accordance with the following procedure:
a. Eligible tracts are placed in one of two groups. The first group includes tracts that satisfy both the income and poverty criteria for QCTs. The second group includes tracts that satisfy either the income criterion or the poverty criterion, but not both.
b. Tracts in the first group are ranked from lowest to highest on the income criterion. Then, tracts in the first group are ranked from lowest to highest on the poverty criterion. The two ranks are averaged to yield a combined rank. The tracts are then sorted on the combined rank, with the census tract with the highest combined rank being placed at the top of the sorted list. In the event of a tie, more populous tracts are ranked above less populous ones.
c. Tracts in the second group are ranked from lowest to highest on the income criterion. Then, tracts in the second group are ranked from lowest to highest on the poverty criterion. The two ranks are then averaged to yield a combined rank. The tracts are then sorted on the combined rank, with the census tract with the highest combined rank being placed at the top of the sorted list. In the event of a tie, more populous tracts are ranked above less populous ones.
d. The ranked first group is stacked on top of the ranked second group to yield a single, concatenated, ranked list of eligible census tracts.
e. Working down the single, concatenated, ranked list of eligible tracts, census tracts are designated until the designation of an additional tract would cause the 20 percent limit to be exceeded. If a census tract is not designated because doing so would raise the designated population percentage above 20 percent, subsequent census tracts are then considered to determine
In identifying DDAs, HUD applied caps, or limitations, as noted above. The cumulative population of metropolitan DDAs not in areas “determined by the President to warrant individual or individual and public assistance from the Federal Government” under the Stafford Act by reason of Hurricanes Katrina, Rita, or Wilma cannot exceed 20 percent of the cumulative population of all metropolitan areas. The cumulative population of nonmetropolitan DDAs not in areas “determined by the President to warrant individual or individual and public assistance from the Federal Government” under the Stafford Act by reason of Katrina, Rita, or Wilma cannot exceed 20 percent of the cumulative population of all nonmetropolitan areas.
In applying these caps, HUD established procedures to deal with how to treat small overruns of the caps. The remainder of this section explains those procedures. In general, HUD stops selecting areas when it is impossible to choose another area without exceeding the applicable cap. The only exceptions to this policy are when the next eligible excluded area contains either a large absolute population or a large percentage of the total population, or the next excluded area's ranking ratio, as described above, was identical (to four decimal places) to the last area selected, and its inclusion resulted in only a minor overrun of the cap. Thus, for both the designated metropolitan and nonmetropolitan DDAs, there may be minimal overruns of the cap. HUD believes the designation of additional areas in the above examples of minimal overruns is consistent with the intent of the Code. As long as the apparent excess is small due to measurement errors, some latitude is justifiable because it is impossible to determine whether the 20 percent cap has been exceeded. Despite the care and effort involved in a Decennial Census, the Census Bureau and all users of the data recognize that the population counts for a given area and for the entire country are not precise. Therefore, the extent of the measurement error is unknown. There can be errors in both the numerator and denominator of the ratio of populations used in applying a 20 percent cap. In circumstances where a strict application of a 20 percent cap results in an anomalous situation, recognition of the unavoidable imprecision in the census data justifies accepting small variances above the 20 percent limit.
As stated in OMB Bulletin 08-01, defining metropolitan areas:
OMB establishes and maintains the definitions of Metropolitan * * * Statistical Areas, * * * solely for statistical purposes. * * * OMB does not take into account or attempt to anticipate any non-statistical uses that may be made of the definitions[.] In cases where * * * an agency elects to use the Metropolitan * * * Area definitions in nonstatistical programs, it is the sponsoring agency's responsibility to ensure that the definitions are appropriate for such use. An agency using the statistical definitions in a nonstatistical program may modify the definitions, but only for the purposes of that program. In such cases, any modifications should be clearly identified as deviations from the OMB statistical area definitions in order to avoid confusion with OMB's official definitions of Metropolitan * * * Statistical Areas.
Following OMB guidance, the estimation procedure for the FY2009 FMRs incorporates the current OMB definitions of metropolitan areas based on the Core-Based Statistical Area (CBSA) standards, as implemented with 2000 Census data, but makes adjustments to the definitions, in order to separate subparts of these areas in cases where FMRs (and in a few cases, VLILs) would otherwise change significantly if the new area definitions were used without modification. In CBSAs where sub-areas are established, it is HUD's view that the geographic extent of the housing markets are not yet the same as the geographic extent of the CBSAs, but may approach becoming so as the social and economic integration of the CBSA component areas increases.
The geographic baseline for the new estimation procedure is the CBSA Metropolitan Areas (referred to as Metropolitan Statistical Areas or MSAs) and CBSA Non-Metropolitan Counties (nonmetropolitan counties include the county components of Micropolitan CBSAs where the counties are generally assigned separate FMRs). The HUD-modified CBSA definitions allow for subarea FMRs within MSAs based on the boundaries of “Old FMR Areas” (OFAs) within the boundaries of new MSAs. (OFAs are the FMR areas defined for the FY2005 FMRs. Collectively, they include the June 30, 1999, OMB definitions of MSAs and Primary MSAs (old definition MSAs/PMSAs), metropolitan counties deleted from old definition MSAs/PMSAs by HUD for FMR-setting purposes, and counties and county parts outside of old definition MSAs/PMSAs referred to as non-metropolitan counties.) Subareas of MSAs are assigned their own FMRs when the subarea 2000 Census Base FMR differs significantly from the MSA 2000 Census Base FMR (or, in some cases, where the 2000 Census base AMGI differs significantly from the MSA 2000 Census Base AMGI). MSA subareas, and the remaining portions of MSAs after subareas have been determined, are referred to as “HUD Metro FMR Areas (HMFAs),” to distinguish such areas from OMB's official definition of MSAs.
In addition, Waller County, Texas, which is part of the Houston-Baytown-Sugar Land, TX HMFA, is not an area “determined by the President to warrant individual or individual and public assistance from the Federal Government” under the Stafford Act by reason of Hurricanes Katrina, Rita, or Wilma. It is, therefore, excluded from the definition of the Houston-Baytown-Sugar Land, TX HMFA and is assigned the FMR and VLIL of the Houston-Baytown-Sugar Land, TX HMFA and is evaluated as if it were a separate metropolitan area for purposes of designating DDAs. The Houston-Baytown-Sugar Land, TX HMFA is assigned the indicator “(part)” in the list of Metropolitan DDAs.
In the New England states (Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont), HMFAs are defined according to county subdivisions or minor civil divisions (MCDs), rather than county boundaries. However, since no part of a HMFA is outside an OMB-defined, county-based MSA, all New England nonmetropolitan counties are kept intact for purposes of designating Nonmetropolitan DDAs.
For the convenience of readers of this notice, the geographical definitions of designated Metropolitan DDAs are included in the list of DDAs.
The Census Bureau provides no tabulations of 2000 Census data for Broomfield County, Colorado, an area that was created from parts of four Colorado counties when the city of Broomfield became a county in November 2001. Broomfield County is made up of former parts of Adams, Boulder, Jefferson, and Weld Counties. The boundaries of Broomfield County are similar, but not identical to, the boundaries of the city of Broomfield at the time of the 2000 Census. In OMB metropolitan area definitions and, therefore, for purposes of this notice, Broomfield County is included as part of the Denver-Aurora, CO MSA. Census tracts in Broomfield County include the parts of the Adams, Boulder, Jefferson, and Weld County census tracts that
DDAs are designated annually as updated income and FMR data are made public. QCTs are designated periodically as new data become available, or as metropolitan area definitions change. QCTs are being updated at this time to reflect the recent changes to 2000 Census-based metropolitan area definitions (OMB Bulletin 03-04, June 6, 2003, as updated through OMB Bulletin 08-01, November 20, 2007).
For DDAs designated by reason of being in areas “determined by the President to warrant individual or individual and public assistance from the Federal Government” under the Stafford Act by reason of Hurricanes Katrina, Rita, or Wilma (the GO Zone Designation), the designation is effective:
(1) For housing credit dollar amounts allocated and buildings placed in service during the period beginning on January 1, 2006, and ending on December 31, 2010; or
(2) For purposes of Section 42(h)(4) of the Internal Revenue Code, for buildings placed in service during the period beginning on January 1, 2006, and ending on December 31, 2010, but only with respect to bonds issued after December 31, 2005.
The 2010 lists of DDAs that are not part of the GO Zone Designation are effective:
(1) For allocations of credit after December 31, 2009; or
(2) For purposes of Section 42(h)(4) of the Code, if the bonds are issued and the building is placed in service after December 31, 2009.
If an area is not on a subsequent list of DDAs, the 2010 lists are effective for the area if:
(1) The allocation of credit to an applicant is made no later than the end of the 365-day period after the applicant submits a complete application to the LIHTC-allocating agency, and the submission is made before the effective date of the subsequent lists; or
(2) For purposes of Section 42(h)(4) of the Code, if:
(a) The bonds are issued or the building is placed in service no later than the end of the 365-day period after the applicant submits a complete application to the bond-issuing agency, and
(b) the submission is made before the effective date of the subsequent lists, provided that both the issuance of the bonds and the placement in service of the building occur after the application is submitted.
An application is deemed to be submitted on the date it is filed if the application is determined to be complete by the credit-allocating or bond-issuing agency. A “complete application” means that no more than
In the case of a “multiphase project,” the DDA or QCT status of the site of the project that applies for all phases of the project is that which applied when the project received its first allocation of LIHTC. For purposes of Section 42(h)(4) of the Code, the DDA or QCT status of the site of the project that applies for all phases of the project is that which applied when the first of the following occurred: (a) The building(s) in the first phase were placed in service or (b) the bonds were issued.
For purposes of this notice, a “multiphase project” is defined as a set of buildings to be constructed or rehabilitated under the rules of the LIHTC and meeting the following criteria:
(1) The multiphase composition of the project (
(2) The aggregate amount of LIHTC applied for on behalf of, or that would eventually be allocated to, the buildings on the site exceeds the one-year limitation on credits per applicant, as defined in the QAP of the LIHTC-allocating agency, or the annual per capita credit authority of the LIHTC allocating agency, and is the reason the applicant must request multiple allocations over 2 or more years; and
(3) All applications for LIHTC for buildings on the site are made in immediately consecutive years.
Members of the public are hereby reminded that the Secretary of Housing and Urban Development, or the Secretary's designee, has sole legal authority to designate DDAs and QCTs by publishing lists of geographic entities as defined by, in the case of DDAs, the several states and the governments of the insular areas of the United States and, in the case of QCTs, by the Census Bureau; and to establish the effective dates of such lists. The Secretary of the Treasury, through the IRS thereof, has sole legal authority to interpret, and to determine and enforce compliance with the Code and associated regulations, including
For the convenience of readers of this notice, interpretive examples are provided below to illustrate the consequences of the effective date in areas that gain or lose DDA status. The term “regular DDA,” as used below, refers to DDAs that are designated by the Secretary of HUD as having high construction, land, and utility costs relative to AMGI. The term “GO Zone DDA” refers to areas “determined by the President to warrant individual or individual and public assistance from the Federal Government” under the Stafford Act by reason of Hurricanes Katrina, Rita, or Wilma. The examples covering regular DDAs are equally applicable to QCT designations.
In accordance with 40 CFR 1508.4 of the regulations of the Council on Environmental Quality and 24 CFR 50.19(c)(6) of HUD's regulations, the policies and procedures contained in this notice provide for the establishment of fiscal requirements or procedures that do not constitute a development decision affecting the physical condition of specific project areas or building sites and, therefore, are categorically excluded from the requirements of the National Environmental Policy Act, except for extraordinary circumstances, and no Finding of No Significant Impact is required.
Executive Order 13132 (entitled “Federalism”) prohibits an agency from publishing any policy document that has federalism implications if the document either imposes substantial direct compliance costs on state and local governments and is not required by statute, or the document preempts state law, unless the agency meets the consultation and funding requirements of section 6 of the executive order. This notice merely designates DDAs as required under Section 42 of the Internal Revenue Code, as amended, for the use by political subdivisions of the states in allocating the LIHTC. This notice also details the technical methodology used in making such designations. As a result, this notice is not subject to review under the order.
Minerals Management Service (MMS), Interior.
Notice of extension of an information collection (1010-0006).
To comply with the Paperwork Reduction Act of 1995 (PRA), MMS is inviting comments on a collection of information that we will submit to the Office of Management and Budget (OMB) for review and approval. The information collection request (ICR) concerns the paperwork requirements in the regulations under 30 CFR 256, “Leasing of Sulphur or Oil and Gas in the Outer Continental Shelf,” and 30 CFR 260, “Outer Continental Shelf Oil and Gas Leasing.”
Submit written comments by December 7, 2009.
Cheryl Blundon, Regulations and Standards Branch at (703) 787-1607. You may also contact Cheryl Blundon to obtain a copy, at no cost, of the regulations and the forms that require the subject collection of information.
You may submit comments by either of the following methods listed below.
• Electronically: go to
• Mail or hand-carry comments to the Department of the Interior; Minerals Management Service; Attention: Cheryl Blundon; 381 Elden Street, MS-4024; Herndon, Virginia 20170-4817. Please reference Information Collection 1010-0006 in your subject line and include your name and return address.
The Independent Offices Appropriations Act of 1952 (IOAA), 31 U.S.C. 9701, authorizes Federal agencies to recover the full cost of services that provide special benefits. Under the Department of the Interior's (DOI) policy implementing the IOAA, the Minerals Management Service (MMS) is required to charge the full cost for services that provide special benefits or privileges to an identifiable non-Federal recipient above and beyond those that accrue to the public at large. Instruments of transfer of a lease or interest are subject to cost recovery, and MMS regulations specify the filing fee for these transfer applications.
These authorities and responsibilities are among those delegated to the MMS under which we issue regulations governing oil and gas and sulphur operations in the OCS. This ICR addresses the regulations at 30 CFR Part 256, “Leasing of Sulphur or Oil and Gas in the OCS,” 30 CFR Part 260, “OCS Oil and Gas Leasing,” and the associated supplementary Notices to Lessees and Operators (NTLs) intended to provide clarification, description, or explanation of these regulations. This ICR also concerns the use of forms to process bonds per subpart I, Bonding, the transfer of interest in leases per subpart J, Assignments, Transfers and Extensions, and the filing of relinquishments per subpart K, Termination of Leases. The forms are:
• MMS-2028, OCS Mineral Lessee's and Operator's Bond,
• MMS-2028A, OCS Mineral Lessee's and Operator's Supplemental Plugging and Abandonment Bond,
• MMS-150, Assignment of Record Title Interest in Federal OCS Oil and Gas Lease,
• MMS-151, Assignment of Operating Rights Interest in Federal OCS Oil and Gas Lease,
• MMS-152, Relinquishment of Federal OCS Oil and Gas Lease.
We will protect specific individual replies from disclosure as proprietary information according to section 26 of the OCS Lands Act, the Freedom of Information Act (5 U.S.C. 552) and its implementing regulations (43 CFR part 2), and 30 CFR 256.10(d). No items of a sensitive nature are collected. Responses are mandatory or are required to obtain or retain a benefit.
• § 256.64, Form MMS-150—Assignment of Record Title Interest in Federal OCS Oil and Gas Lease, $186/per response.
• § 256.64, Form MMS-151—Assignment of Operating Rights Interest in Federal OCS Oil and Gas Lease, $186/per response.
• § 256.64, Non-required document filing fee, $27/per response.
Agencies must also estimate the non-hour paperwork cost burdens to respondents or recordkeepers resulting from the collection of information. Therefore, if you have costs to generate, maintain, and disclose this information, you should comment and provide your total capital and startup cost components or annual operation, maintenance, and purchase of service components. You should describe the methods you use to estimate major cost factors, including system and technology acquisition, expected useful life of capital equipment, discount rate(s), and the period over which you incur costs. Capital and startup costs include, among other items, computers and software you purchase to prepare for collecting information, monitoring, and record storage facilities. You should not include estimates for equipment or services purchased: (i) Before October 1, 1995; (ii) to comply with requirements not associated with the information collection; (iii) for reasons other than to provide information or keep records for the Government; or (iv) as part of customary and usual business or private practices.
We will summarize written responses to this notice and address them in our submission for OMB approval. As a result of your comments, we will make any necessary adjustments to the burden in our submission to OMB.
United States International Trade Commission.
Institution of antidumping investigations and scheduling of preliminary phase investigations.
The Commission hereby gives notice of the institution of investigations and commencement of preliminary phase antidumping investigation Nos. 731-TA-1174-1175 (Preliminary) under section 733(a) of the Tariff Act of 1930 (19 U.S.C. 1673b(a)) (the Act) to determine whether there is a reasonable indication that an industry in the United States is materially injured or threatened with material injury, or the establishment of an industry in the United States is materially retarded, by reason of imports from China and Mexico of seamless refined copper pipe and tube, provided for in subheadings 7411.10.10, and 8415.90.80 of the Harmonized Tariff Schedule of the United States, that are alleged to be sold in the United States at less than fair value. Unless the Department of Commerce extends the time for initiation pursuant to section 732(c)(1)(B) of the Act (19 U.S.C. 1673a(c)(1)(B)), the Commission must reach a preliminary determination in antidumping investigations in 45 days, or in this case by November 16, 2009. The Commission's views are due at Commerce within five business days thereafter, or by November 23, 2009.
For further information concerning the conduct of these investigations and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and B (19 CFR part 207).
Elizabeth Haines (202-205-3200), Office of Investigations, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the investigations must be served on all other parties to the investigations (as identified by either the public or BPI service list), and a certificate of service must be timely filed. The Secretary will not accept a document for filing without a certificate of service.
These investigations are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.12 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined not to review an initial determination (“ID”) (Order No. 7) issued by the presiding administrative law judge (“ALJ”) in the above-captioned investigation granting a motion filed by complainants Red Bull GmbH and Red Bull North America, Inc. (collectively, “Red Bull”) to amend the complaint and notice of investigation to add six new respondents.
Paul M. Bartkowski, Office of the General Counsel, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 708-5432. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street, SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on June 17, 2009, based on a complaint filed by Red Bull GmbH and Red Bull North America, Inc. (“Red Bull”). 74 FR 28725 (June 17, 2009). The complaint as amended alleged violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain energy drink products by reason of infringement of U.S. Trademark Registration Nos. 3,092,197; 2,946,045; 2,994,429; and 3,479,607 and U.S. Copyright Registration No. VA0001410959. The complaint initially named six respondents: Chicago Import, Inc.; Lamont Dist., Inc. a/k/a Lamont Distributors Inc.; India Imports, Inc., a/k/a International Wholesale Club; Washington Food and Supply of DC, Inc., a/k/a Washington Cash & Carry; Vending Plus, Inc.; and Baltimore Beverage Co.
On September 8, 2009, the ALJ issued the subject ID, granting Red Bull's motion to amend the complaint and notice of investigation to add six new respondents: Posh Nosh Imports; Greenwich, Inc.; Advantage Food Distributors, Ltd.; Wheeler Trading, Inc.; Avalon International General Trading, LLC; and Central Supply, Inc. No petitions for review were filed. The Commission has determined not to review the subject ID.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in sections 210.42 of the Commission's Rules of Practice and Procedure (19 CFR 210.42).
By order of the Commission.
United States International Trade Commission.
Termination of investigation.
On September 21, 2009, the Department of Commerce published notice in the
Angela M. W. Newell (202-708-5409),
This investigation is being terminated under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 201.10 of the Commission's rules (19 CFR 201.10).
By order of the Commission.
In accordance with Section 8 of the Voting Rights Act, as amended, 42 U.S.C. 1973f, I hereby certify that in my judgment the appointment of federal observers is necessary to enforce the guarantees of the Fourteenth and Fifteenth Amendments of the Constitution of the United States in the Bethel Census Area, Alaska. This area is included within the scope of the determinations of the Attorney General and the Director of the Census made under Section 4(b) of the Voting Rights Act, 42 U.S.C. 1973b(b), and published in the
Office of Justice Programs (OJP), Justice.
Notice of meeting.
This is an announcement of a meeting of the Public Safety Officer Medal of Valor Review Board to review applications for the 2008-2009 Medal of Valor Awards and to discuss upcoming activities. The meeting time and location are located below.
October 23, 2009, 9 a.m. to 4 p.m.
The meeting will take place at the Office of Justice Programs, 810 7th Street, NW., Washington, DC 20531.
Gregory Joy, Policy Advisor, Bureau of Justice Assistance, Office of Justice Programs, 810 7th Street, NW., Washington, DC 20531, by telephone at (202) 514-1369, toll free (866) 859-2687, or by e-mail at
The Public Safety Officer Medal of Valor Review Board carries out those advisory functions specified in 42 U.S.C. 15202. Pursuant to 42 U.S.C. 15201, the President of the United States is authorized to award the Public Safety Officer Medal of Valor, the highest national award for valor by a public safety officer. The purpose of this meeting is to review applications for the 2008-2009 Medal of Valor Awards and to discuss upcoming activities related thereto.
This meeting will be open to the public. For security purposes, members of the public who wish to attend must register at least five (5) days in advance of the meeting by contacting Mr. Joy. All attendees will be required to sign in at the front desk.
Photo identification will be required for admission. Additional identification documents may be required.
Access to the meeting will not be allowed without prior registration. Anyone requiring special accommodations should contact Mr. Joy at least five (5) days in advance of the meeting.
National Archives and Records Administration (NARA).
Notice of availability of proposed records schedules; request for comments.
The National Archives and Records Administration (NARA) publishes notice at least once monthly of certain Federal agency requests for records disposition authority (records schedules). Once approved by NARA, records schedules provide mandatory instructions on what happens to records when no longer needed for current Government business. They authorize the preservation of records of continuing value in the National Archives of the United States and the destruction, after a specified period, of records lacking administrative, legal, research, or other value. Notice is published for records schedules in which agencies propose to destroy records not previously authorized for disposal or reduce the retention period of records already authorized for disposal. NARA invites public comments on such records schedules, as required by 44 U.S.C. 3303a(a).
Requests for copies must be received in writing on or before November 5, 2009. Once the appraisal of the records is completed, NARA will send a copy of the schedule. NARA staff usually prepare appraisal memorandums that contain additional information concerning the records covered by a proposed schedule. These, too, may be requested and will be provided once the appraisal is completed. Requesters will be given 30 days to submit comments.
You may request a copy of any records schedule identified in this notice by contacting the Life Cycle Management Division (NWML) using one of the following means:
Requesters must cite the control number, which appears in parentheses after the name of the agency which submitted the schedule, and must provide a mailing address. Those who desire appraisal reports should so indicate in their request.
Laurence Brewer, Director, Life Cycle Management Division (NWML), National Archives and Records
Each year Federal agencies create billions of records on paper, film, magnetic tape, and other media. To control this accumulation, agency records managers prepare schedules proposing retention periods for records and submit these schedules for NARA's approval, using the Standard Form (SF) 115, Request for Records Disposition Authority. These schedules provide for the timely transfer into the National Archives of historically valuable records and authorize the disposal of all other records after the agency no longer needs them to conduct its business. Some schedules are comprehensive and cover all the records of an agency or one of its major subdivisions. Most schedules, however, cover records of only one office or program or a few series of records. Many of these update previously approved schedules, and some include records proposed as permanent.
The schedules listed in this notice are media neutral unless specified otherwise. An item in a schedule is media neutral when the disposition instructions may be applied to records regardless of the medium in which the records are created and maintained. Items included in schedules submitted to NARA on or after December 17, 2007, are media neutral unless the item is limited to a specific medium. (
No Federal records are authorized for destruction without the approval of the Archivist of the United States. This approval is granted only after a thorough consideration of their administrative use by the agency of origin, the rights of the Government and of private persons directly affected by the Government's activities, and whether or not they have historical or other value.
Besides identifying the Federal agencies and any subdivisions requesting disposition authority, this public notice lists the organizational unit(s) accumulating the records or indicates agency-wide applicability in the case of schedules that cover records that may be accumulated throughout an agency. This notice provides the control number assigned to each schedule, the total number of schedule items, and the number of temporary items (the records proposed for destruction). It also includes a brief description of the temporary records. The records schedule itself contains a full description of the records at the file unit level as well as their disposition. If NARA staff has prepared an appraisal memorandum for the schedule, it too includes information about the records. Further information about the disposition process is available on request.
1. Department of Agriculture, Grain Inspection, Packers and Stockyards Administration (N1-545-08-3, 20 items, 17 temporary items). Records relating to budget and financial matters, including such records as budget estimates, routine project files, congressional presentations and other materials relating to congressional hearings. Proposed for permanent retention are such records as policy files, annual reports and summaries, and files on significant projects which set a precedent. The proposed disposition instructions are limited to paper records.
2. Department of Health and Human Services, Administration on Aging (N1-439-09-1, 8 items, 5 temporary items). Records of the Assistant Secretary including declined invitations and duplicate/working copies of daily activity schedules, phone logs, and briefing books. Proposed for permanent retention are accepted invitations and recordkeeping copies of telephone logs and briefing books. Recordkeeping copies of daily activity schedules were previously approved for permanent retention.
3. Department of Health and Human Services, Food and Drug Administration (N1-88-09-9, 5 items, 5 temporary items). Master files of electronic information systems used to track administrative workflow for such processes as new drug and biologic product applications, lot testing and distribution, and licensing.
4. Department of Homeland Security, U.S. Coast Guard (N1-26-09-1, 3 items, 3 temporary items). Reports and logs that relate to the movement of dangerous cargoes on inland waterways.
5. Department of the Interior, National Business Center (N1-48-09-6, 10 items, 10 temporary items). Electronic information systems relating to routine administrative matters, such as charge card transactions, finance and accounting activities, bank card training, personnel assignments, procurement actions, and equal employment opportunity reporting.
6. Department of Justice, Federal Bureau of Investigation (N1-65-09-15, 5 items, 5 temporary items). Master files, audit logs, and statistical reports associated with an electronic information system relating to surveillance activities.
7. Department of Justice, Federal Bureau of Investigation (N1-65-09-24, 2 items, 2 temporary items). Master files and usage agreements associated with an electronic information system that contains data concerning violent crimes.
8. Department of Justice, Federal Bureau of Investigation (N1-65-09-29, 3 items, 2 temporary items). Outputs and audit logs associated with an electronic information system that contains data concerning bank robberies. Master files are proposed for permanent retention.
9. Department of the Navy, Naval Criminal Investigative Service (N1-NU-09-7, 11 items, 11 temporary items). Web content records and web management and operations records for the agency's internal and external Web sites.
10. Department of Transportation, Federal Aviation Administration (N1-237-09-7, 2 items, 2 temporary items). Master files and outputs of an electronic information system used to track use of computer applications by agency regional centers.
11. Department of Transportation, Federal Aviation Administration (N1-237-09-8, 2 items, 2 temporary items). Master files of electronic information systems used for surveys used in connection with ISO 9000 certification.
12. Department of Transportation, Federal Aviation Administration (N1-237-09-9, 3 items, 3 temporary items). Master files of electronic information systems used to track use and maintenance of tools, supplies, and equipment.
13. Department of Transportation, Federal Aviation Administration (N1-237-09-10, 1 item, 1 temporary item). Master files of an electronic information system used to maintain information concerning agency owned or leased real estate.
14. Department of Transportation, Federal Aviation Administration (N1-237-09-11, 1 item, 1 temporary item). Master files of an electronic information system that contains data concerning computer equipment.
15. Department of Transportation, National Highway Traffic Safety Administration (N1-416-09-3, 1 item, 1 temporary item). Master files associated with an electronic information system used to track and manage grants.
16. Department of the Treasury, Internal Revenue Service (N1-58-08-13, 3 items, 2 temporary items). Scanned and paper versions of forms relating to one participant pension benefit plans and related working papers. Master files containing
17. Department of the Treasury, Internal Revenue Service (N1-58-09-49, 1 item, 1 temporary item). Master files of an electronic information system used by agency personnel to obtain information concerning individual taxpayer accounts in order to respond to inquiries.
18. Department of the Treasury, Internal Revenue Service (N1-58-09-52, 1 item, 1 temporary item). Master files of an electronic information system containing data concerning actions stemming from receipt of information from whistleblowers. Data includes identifying information concerning the whistleblower, status of the resulting investigation, and any subsequent payments made to the whistleblower.
19. Export-Import Bank of the United States, Chief Information Office (N1-275-09-5, 1 item, 1 temporary item). Master files of an electronic information system used to prepare reports relating to the Bank's financial activities.
20. Federal Energy Regulatory Commission, Agency-wide (N1-138-09-4, 79 items, 79 temporary items). Docketed formal case files for electric utilities, gas producers and utilities, oil producers and pipelines, hydropower licensing, and miscellaneous filings. Paper recordkeeping copies of these files were previously approved for disposal.
21. National Archives and Records Administration, Office of Presidential Libraries (DAA-0064-2009-0002, 1 item, 1 temporary item). Electronic data relating to the review under the Presidential Records Act and the Freedom of Information Act of unclassified electronic records of the administration of Presidents Ronald Reagan, George H. W. Bush, and William Clinton.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463), as amended, notice is hereby given that two meetings of the Arts Advisory Panel to the National Council on the Arts will be held at the Nancy Hanks Center, 1100 Pennsylvania Avenue, NW., Washington, DC 20506 as follows (ending times are approximate):
The closed portions of meetings are for the purpose of Panel review, discussion, evaluation, and recommendations on financial assistance under the National Foundation on the Arts and the Humanities Act of 1965, as amended, including information given in confidence to the agency. In accordance with the determination of the Chairman of February 28, 2008, these sessions will be closed to the public pursuant to subsection (c)(6) of section 552b of Title 5, United States Code.
Any person may observe meetings, or portions thereof, of advisory panels that are open to the public, and if time allows, may be permitted to participate in the panel's discussions at the discretion of the panel chairman. If you need special accommodations due to a disability, please contact the Office of AccessAbility, National Endowment for the Arts, 1100 Pennsylvania Avenue, NW., Washington, DC 20506, 202/682-5532, TDY-TDD 202/682-5496, at least seven (7) days prior to the meeting.
Further information with reference to these meetings can be obtained from Ms. Kathy Plowitz-Worden, Office of Guidelines & Panel Operations, National Endowment for the Arts, Washington, DC 20506, or call 202/682-5691.
9:30 a.m., Wednesday, October 14, 2009.
NTSB Conference Center, 429 L'Enfant Plaza SW., Washington, DC 20594.
The Two items are open to the public.
Telephone: (202) 314-6100.
The press and public may enter the NTSB Conference Center one hour prior to the meeting for setup and seating.
Individuals requesting specific accommodations should contact Rochelle Hall at (202) 314-6305 by Friday, October 9, 2009.
The public may view the meeting via a live or archived webcast by accessing a link under “News & Events” on the NTSB home page at
Candi Bing, (202) 314-6403.
U.S. Nuclear Regulatory Commission (NRC).
Notice of the OMB review of information collection and solicitation of public comment.
The NRC has recently submitted to OMB for review the following proposal for the collection of information under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The NRC published a
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A copy of the final supporting statement may be viewed free of charge at the NRC Public Document Room, One White Flint North, 11555 Rockville Pike, Room O-1 F21, Rockville, Maryland 20852. OMB clearance requests are available at the NRC worldwide Web site:
Comments and questions should be directed to the OMB reviewer listed below by November 5, 2009. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date.
The NRC Clearance Officer is Tremaine Donnell, (301) 415-6258.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Notice of license renewal application and opportunity to request a hearing.
A request for a hearing must be filed by December 7, 2009.
Kevin M. Ramsey, Project Manager, Fuel Manufacturing Branch, Division of Fuel Cycle Safety and Safeguards, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Mail Stop EBB-2-C40M, Washington, DC 20555-0001, Telephone: (301) 492-3123; Fax number: (301) 492-3359; e-mail:
The U.S. Nuclear Regulatory Commission (NRC) has received, by letters dated June 30 and August 28, 2009, a request for renewal of Special Nuclear Material License No. SNM-124 from Nuclear Fuel Services, Inc. (NFS), located in Erwin, Tennessee. License No. SNM-124 authorizes NFS to manufacture reactor fuel at its fuel fabrication facility using high-enriched and low-enriched uranium. Specifically, the request would authorize NFS to continue licensed activities for 40 years.
An administrative review, documented in a letter to NFS dated September 3, 2009, found the application acceptable to begin a formal technical review. If the NRC approves the request, the approval will be documented in NRC License No. SNM-124. However, before approving the proposed amendment, the NRC will need to make the findings required by the Atomic Energy Act of 1954, as amended (the Act), and the NRC's regulations. These findings will be documented in a Safety Evaluation Report and an Environmental Assessment.
The NRC hereby provides notice that this is a proceeding on an application to renew Material License No. SNM-124 at NFS' fuel fabrication facility located in Erwin, Tennessee. Any person whose interest may be affected by this proceeding and who desires to participate as a party, must file a request for a hearing and a specification of the contentions which the person seeks to have litigated in the hearing, in accordance with the NRC E-filing rule, which the NRC promulgated on August 28, 2007 (72 FR 49139). All documents filed in NRC adjudicatory proceedings, including documents filed by interested governmental entities participating under 10 CFR 2.315(c) and any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, must be filed in accordance with the E-filing rule. The E-filing rule requires participants to submit and serve documents over the Internet or, in some cases, to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek a waiver in accordance with the procedures described below.
To comply with the procedural requirements of E-filing, at least ten (10) days prior to the filing deadline, the petitioner/requestor must contact the Office of the Secretary by e-mail at
Once a petitioner/requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE
A person filing electronically using the agency's adjudicatory E-filing system may seek assistance through the “Contact Us” link located on the NRC website at
Participants who believe that they have a good cause for not submitting documents electronically must, in accordance with 10 CFR 2.302(g), file a motion with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville, Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service.
Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition and/or request should be granted and/or the contentions should be admitted based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii).
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
The formal requirements for documents contained in 10 CFR 2.304(c)-(e) must be met. If the NRC grants an electronic document exemption in accordance with 10 CFR 2.302(g)(3)), then the requirements for paper documents, set forth in 10 CFR 2.304(b) must be met.
In accordance with 10 CFR 2.309(b), a request for a hearing must be filed by December 7, 2009.
In addition to meeting other applicable requirements of 10 CFR 2.309, a request for a hearing must state:
1. The name, address, and telephone number of the requester;
2. The nature of the requester's right under the Act to be made a party to the proceeding;
3. The nature and extent of the requester's property, financial or other interest in the proceeding;
4. The possible effect of any decision or order that may be issued in the proceeding on the requester's interest; and
5. The circumstances establishing that the request for a hearing is timely in accordance with 10 CFR 2.309(b).
In accordance with 10 CFR 2.309(f)(1), a request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:
1. Provide a specific statement of the issue of law or fact to be raised or controverted;
2. Provide a brief explanation of the basis for the contention;
3. Demonstrate that the issue raised in the contention is within the scope of the proceeding;
4. Demonstrate that the issue raised in the contention is material to the findings that the NRC must make to support the action that is involved in the proceeding;
5. Provide a concise statement of the alleged facts or expert opinions which support the requester's/petitioner's position on the issue and on which the requester/petitioner intends to rely to support its position on the issue; and
6. Provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact.
In addition, in accordance with 10 CFR 2.309(f)(2), contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, environmental report, or other supporting document filed by an applicant or licensee, or otherwise available to the petitioner. On issues arising under the National Environmental Policy Act, the requester/petitioner shall file contentions based on the applicant's environmental report. The requester/petitioner may amend those contentions or file new contentions if there are data or conclusions in the NRC draft, or final environmental assessment, environmental impact statement, or any supplements relating thereto that differ significantly from the data or conclusions in the applicant's documents. Otherwise, contentions may be amended or new contentions filed after the initial filing only with leave of the presiding officer.
Each contention shall be given a separate numeric or alpha designation within one of the following groups:
1. Technical—primarily concerns issues relating to matters discussed or referenced in the Safety Evaluation Report for the proposed action.
2. Environmental—primarily concerns issues relating to matters discussed or referenced in the Environmental Report for the proposed action.
3. Emergency Planning—primarily concerns issues relating to matters discussed or referenced in the Emergency Plan as it relates to the proposed action.
4. Physical Security—primarily concerns issues relating to matters discussed or referenced in the Physical
5. Miscellaneous—does not fall into one of the categories outlined above.
If the requester/petitioner believes a contention raises issues that cannot be classified as primarily falling into one of these categories, the requester/petitioner must set forth the contention and supporting bases, in full, separately for each category into which the requester/petitioner asserts the contention belongs with a separate designation for that category.
Requesters/petitioners should, when possible, consult with each other in preparing contentions and combine similar subject matter concerns into a joint contention, for which one of the co-sponsoring requesters/petitioners is designated the lead representative. Further, in accordance with 10 CFR 2.309(f)(3), any requester/petitioner that wishes to adopt a contention proposed by another requester/petitioner must do so, in accordance with the E-filing rule, within ten days of the date the contention is filed, and designate a representative who shall have the authority to act for the requester/petitioner.
In accordance with 10 CFR 2.309(g), a request for hearing and/or petition for leave to intervene may also address the selection of the hearing procedures, taking into account the provisions of 10 CFR 2.310.
Documents related to this action, including the application for amendment and other supporting documentation, are available electronically at the NRC's Electronic Reading Room at
1. ML091900061: License Renewal Application dated June 30, 2009.
2. ML092450469: Additional Information for License Renewal dated August 28, 2009.
3. ML091450265: Acceptance of Application for Technical Review dated September 3, 2009.
If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to
These documents may also be viewed electronically on the public computers located at the NRC's Public Document Room, O1F21, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. The PDR reproduction contractor will copy documents for a fee.
A. This Order contains instructions regarding how potential parties to this proceeding may request access to documents containing Sensitive Unclassified Non-Safeguards Information (SUNSI).
B. Within 10 days after publication of this notice of hearing and opportunity to petition for leave to intervene, any potential party who believes access to SUNSI is necessary to respond to this notice may request such access. A “potential party” is any person who intends to participate as a party by demonstrating standing and filing an admissible contention under 10 CFR 2.309. Requests for access to SUNSI submitted later than 10 days after publication will not be considered absent a showing of good cause for the late filing, addressing why the request could not have been filed earlier.
C. The requester shall submit a letter requesting permission to access SUNSI to the Office of the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemakings and Adjudications Staff, and provide a copy to the Associate General Counsel for Hearings, Enforcement and Administration, Office of the General Counsel, Washington, DC 20555-0001. The expedited delivery or courier mail address for both offices is: U.S. Nuclear Regulatory Commission, 11555 Rockville Pike, Rockville, Maryland 20852. The e-mail address for the Office of the Secretary and the Office of the General Counsel are
(1) A description of the licensing action with a citation to this
(2) The name and address of the potential party and a description of the potential party's particularized interest that could be harmed by the action identified in C.(1);
(3) The identity of the individual or entity requesting access to SUNSI and the requester's basis for the need for the information in order to meaningfully participate in this adjudicatory proceeding. In particular, the request must explain why publicly available versions of the information requested would not be sufficient to provide the basis and specificity for a proffered contention;
D. Based on an evaluation of the information submitted under paragraph C.(3) the NRC staff will determine within 10 days of receipt of the request whether:
(1) There is a reasonable basis to believe the petitioner is likely to establish standing to participate in this NRC proceeding; and
(2) The requester has established a legitimate need for access to SUNSI.
E. If the NRC staff determines that the requester satisfies both D.(1) and D.(2) above, the NRC staff will notify the requester in writing that access to SUNSI has been granted. The written notification will contain instructions on how the requester may obtain copies of the requested documents, and any other conditions that may apply to access to those documents. These conditions may include, but are not limited to, the signing of a Non-Disclosure Agreement or Affidavit, or Protective Order
F. Filing of Contentions. Any contentions in these proceedings that are based upon the information received as a result of the request made for SUNSI must be filed by the requester no later than 25 days after the requester is granted access to that information. However, if more than 25 days remain between the date the petitioner is granted access to the information and the deadline for filing all other contentions (as established in the notice of hearing or opportunity for hearing), the petitioner may file its SUNSI contentions by that later deadline.
G. Review of Denials of Access.
(1) If the request for access to SUNSI is denied by the NRC staff either after a determination on standing and need for access, or after a determination on trustworthiness and reliability, the NRC staff shall immediately notify the requester in writing, briefly stating the reason or reasons for the denial.
(2) The requester may challenge the NRC staff's adverse determination by filing a challenge within 5 days of receipt of that determination with: (a) The presiding officer designated in this proceeding; (b) if no presiding officer has been appointed, the Chief Administrative Judge, or if he or she is unavailable, another administrative judge, or an administrative law judge with jurisdiction pursuant to 10 CFR 2.318(a); or (c) if another officer has been designated to rule on information access issues, with that officer.
H. Review of Grants of Access. A party other than the requester may challenge an NRC staff determination granting access to SUNSI whose release would harm that party's interest independent of the proceeding. Such a challenge must be filed with the Chief Administrative Judge within 5 days of the notification by the NRC staff of its grant of access.
If challenges to the NRC staff determinations are filed, these procedures give way to the normal process for litigating disputes concerning access to information. The availability of interlocutory review by the Commission of orders ruling on such NRC staff determinations (whether granting or denying access) is governed by 10 CFR 2.311.
I. The Commission expects that the NRC staff and presiding officers (and any other reviewing officers) will consider and resolve requests for access to SUNSI, and motions for protective orders, in a timely fashion in order to minimize any unnecessary delays in identifying those petitioners who have standing and who have propounded contentions meeting the specificity and basis requirements in 10 CFR Part 2. Attachment 1 to this Order summarizes the general target schedule for processing and resolving requests under these procedures.
For the Nuclear Regulatory Commission.
Pursuant to section 189a. (2) of the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (the Commission or NRC) is publishing this regular biweekly notice. The Act requires the Commission publish notice of any amendments issued, or proposed to be issued and grants the Commission the authority to issue and make immediately effective any amendment to an operating license upon a determination by the Commission that such amendment involves no significant
This biweekly notice includes all notices of amendments issued, or proposed to be issued from September 10, 2009, to September 23, 2009. The last biweekly notice was published on September 22, 2009 (74 FR 48316).
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in Title 10 of the
The Commission is seeking public comments on this proposed determination. Any comments received within 30 days after the date of publication of this notice will be considered in making any final determination.
Normally, the Commission will not issue the amendment until the expiration of 60 days after the date of publication of this notice. The Commission may issue the license amendment before expiration of the 60-day period provided that its final determination is that the amendment involves no significant hazards consideration. In addition, the Commission may issue the amendment prior to the expiration of the 30-day comment period should circumstances change during the 30-day comment period such that failure to act in a timely way would result, for example in derating or shutdown of the facility. Should the Commission take action prior to the expiration of either the comment period or the notice period, it will publish in the
Written comments may be submitted by mail to the Chief, Rulemaking and Directives Branch (RDB), TWB-05-B01M, Division of Administrative Services, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, and should cite the publication date and page number of this
Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the Commission's PDR, located at One White Flint North, Public File Area O1F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the petitioner/requestor seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner/requestor shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner/requestor intends to rely in proving the contention at the hearing. The petitioner/requestor must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner/requestor intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the amendment under consideration. The contention must be one which, if proven, would entitle the petitioner/requestor to relief. A petitioner/requestor who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the hearing.
If a hearing is requested, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to decide when the hearing is held. If the final determination is that the amendment request involves no significant hazards consideration, the Commission may issue the amendment and make it immediately effective, notwithstanding the request for a hearing. Any hearing held would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, any hearing held would take place before the issuance of any amendment.
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other
To comply with the procedural requirements of E-Filing, at least ten (10) days prior to the filing deadline, the petitioner/requestor should contact the Office of the Secretary by e-mail at
Once a petitioner/requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory e-filing system may seek assistance through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file an exemption request, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service.
Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the request and/or petition should be granted and/or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii). Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
For further details with respect to this license amendment application, see the application for amendment which is available for public inspection at the Commission's PDR, located at One White Flint North, Public File Area O1F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the ADAMS Public Electronic Reading Room on the Internet at the NRC Web site,
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated? No.
The proposed change to the definition of FUEL HANDLING is an administrative
Therefore, the proposed amendment does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated? No.
The proposed change to the definition of FUEL HANDLING is an administrative clarification and does not affect the operation of the plant in any way. The proposed changes to allow lower FESW water level limits do not alter the manner in which individual fuel assemblies are moved; or alter the design function of the FESW or any other structures, systems, and components used to ensure safe fuel storage. All of the accidents previously evaluated in the LACBWR Decommissioning Plan have been reviewed for impact as a result of the proposed water level changes. The existing accidents remain applicable and bounding for the LACBWR facility with the proposed changes in place and do not affect the plant in such a manner that a new accident has been created.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety? No.
The proposed change to the definition of FUEL HANDLING is an administrative clarification and does not affect plant operation or safety margins in any way. The proposed changes to allow lower FESW water level limits do not alter the manner in which individual fuel assemblies are moved; or alter the design function of the FESW or any other structures, systems, and components used to ensure safe fuel storage. All of the accidents previously evaluated in the LACBWR Decommissioning Plan have been reviewed for impact as a result of the proposed water level changes. The likelihood and consequences of previously evaluated accidents remain applicable and bounding with the proposed changes in place; thus, safety margins remain the same.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The U.S. Nuclear Regulatory Commission (NRC) staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
No. The proposed change revises the existing Indian Point 3 Refueling Water Storage Tank (RWST) Technical Specification (TS) Surveillance Requirement (SR) to remove the level indication function for the L-921 instrument loop. Removal of a TS SR for the level indication does not increase the probability of an accident occurring since it is not an accident initiator and does not increase the consequences of an accident since it is not performing any mitigating function and is not a post accident instrument. The proposed revision will not affect RWST lo-lo level alarm function used for operator guidance to begin sequencing to Recirculation Mode of Safety Injection during a postulated loss of coolant accident (LOCA). There will be no change in equipment qualification requirements or changes to the surveillance requirement for the lo-lo level alarm. Therefore the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
No. The proposed change removes the RWST level indication function from the RWST lo-lo level alarm surveillance requirement for the L-921 instrument loop. The proposed change does not involve installation of new equipment or modification of existing equipment, so that no new equipment failure modes are introduced. Also, the proposed change does not result in a change to the way that the equipment or facility is operated so that no new accident initiators are created. Therefore the proposed change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
No. The proposed change removes the RWST level indication function from the RWST io-lo level alarm surveillance requirement for the L-921 instrument loop. There is no change to the design requirements or the surveillance interval. The proposed change does not add the level indicating function elsewhere in the TS because it is a local level indication that is only used during normal operation and was never a post accident monitoring instrument. Therefore the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Will operation of the facility in accordance with this proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change modifies the SRs that demonstrate the operability of the SDC Isolation, Reactor Pressure—High function. The current surveillance requirements include a 92-day calibration and a 24-month logic system functional test. These surveillance requirements are typical for pressure switches installed on dedicated process measurement lines. The proposed change in surveillance requirements is consistent with the use of ATTS [Analog Transmitter Trip System] transmitters installed on shared process measurement lines. The proposed surveillance requirements include the standard requirements applied to all ATTS equipment and thus will result in acceptable demonstration of the operability of the SDC Isolation Reactor Pressure—High function.
The ATTS equipment that will be used for the SDC Isolation, Reactor Pressure—High function is classified as safety related and is environmentally qualified. The logic input configuration of the ATTS equipment will be the same as the configuration of the pressure switches. This will assure the same functionality currently performed by the pressure switches currently used for the SDC Isolation Reactor Pressure—High function. The reliability of the ATTS has been proven in other RPS [Reactor Protection System], PCIS [Primary Containment Isolation System], and ECCS [Emergency Core Cooling System] functions and is comparable to the reliability of the pressure switches that currently perform the SDC Isolation, Reactor Pressure—High function. Therefore, the consequences of any accident mitigated by the SDC Isolation, Reactor Pressure—High function will not increase.
Based on these considerations, the proposed surveillance requirement changes do not involve a significant increase in the probability or consequences of an accident 'previously evaluated.
2. Will operation of the facility in accordance with this proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change aligns the TS surveillance requirements with the type of equipment that will be used to supply the reactor pressure input to the SDC Isolation Reactor Pressure—High logic. Since the transmitters that will be used to supply the reactor pressure input are currently installed equipment there are no new accidents introduced by the equipment. The proposed change in SRs aligns the requirements with the—requirements currently imposed on the equipment in other JAF TS applications. The performance of the SDC Isolation, Reactor Pressure—High function, is not altered by changing the input source for reactor pressure parameter. Redundant power sources within the ATTS assure the functionality of the system during all plant operating modes that require the SDC Isolation, Reactor Pressure—High function. The proposed change will not introduce any new failure modes and, therefore, does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Will operation of the facility in accordance with this proposed change involve a significant reduction in a margin of safety?
Response: No.
The TS surveillance requirements that will be imposed on the SDC Isolation, Reactor Pressure—High function reflect the equipment that will perform that function. The proposed change in surveillance requirements will appropriately demonstrate the operability of the SDC Isolation, Reactor Pressure—High function.
Since the proposed changes to the SRs are consistent with the SRs for ATTS transmitters in other RPS, PCIS, and ECCS applications the proposed requirements have been demonstrated to provide an adequate margin of safety. Therefore, the proposed change does not involve a significant reduction in any margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change revises TS 5.5.8, Inservice Testing Program, for consistency with the requirements of 10 CFR 50.55a(f)(4) for pumps and valves which are classified as American Society of Mechanical Engineers (ASME) Code Class 1, Class 2 and Class 3. The proposed change incorporates revisions to the ASME Code which is consistent with the expectations of 10 CFR 50.55(a).
The proposed change does not impact any accident initiators or analyzed events or assumed mitigation of accident or transient events. The proposed change does not involve the addition or removal of any equipment, or any design changes to the facility. Therefore, this proposed change does not represent a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change does not involve a modification to the physical configuration of the plant (
3. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed change revises TS 5.5.8, Inservice Testing Program, for consistency with the requirements of 10 CFR 50.55a(f)(4) for pumps and valves which are classified as ASME Code Class 1, Class 2 and Class 3. The proposed change incorporates revisions to the ASME Code, which is consistent with the expectations of 10 CFR 50.55a. The safety function of the affected pumps and valves are maintained. Therefore, this proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the
The Nuclear Regulatory Commission (NRC) staff issued a “Notice Of Opportunity To Comment On Model Safety Evaluation, Model No Significant Hazards Determination, And Model Application For Licensees that Wish To Adopt TSTF-478, Revision 2, `BWR [Boiling-Water Reactor] Technical Specification Changes that Implement the Revised Rule for Combustible Gas Control,” in the
The Containment Atmosphere Dilution (CAD) system is not an initiator to any accident previously evaluated. The TS Required Actions taken when a drywell cooling system fan is inoperable are not initiators to any accident previously evaluated. As a result, the probability of any accident previously evaluated is not significantly increased.
The revised 10 CFR 50.44 no longer defines a design-basis accident (DBA) hydrogen release and the Commission has subsequently found that the DBA loss-of-coolant accident (LOCA) hydrogen release is not risk significant. In addition, CAD has been determined to be ineffective at mitigating hydrogen releases from the more risk significant beyond DBAs that could threaten containment integrity. Therefore, elimination of the CAD system will not significantly increase the consequences of any accident previously evaluated. The consequences of an accident while relying on the revised TS Required Actions for drywell cooling system fans are no different than the consequences of the same accidents under the current Required Actions. As a result, the consequences of any accident previously evaluated are not significantly increased.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
No new or different accidents result from utilizing the proposed change. The proposed change permits physical alteration of the plant involving removal of the CAD system. The CAD system is not an accident precursor, nor does its existence or elimination have any adverse impact on the pre-accident state of the reactor core or post accident confinement of radionuclides within the containment building from any design basis event. The changes to the TS do not alter assumptions made in the safety analysis, but reflect changes to the design requirements allowed under the revised 10 CFR 50.44. The proposed change is consistent with the revised safety analysis assumptions.
Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
The Commission has determined that the DBA LOCA hydrogen release is not risk significant, therefore is not required to be analyzed in a facility accident analysis. The proposed change reflects this new position and, due to remaining plant equipment, instrumentation, procedures, and programs that provide effective mitigation of and recovery from reactor accidents, including postulated beyond design basis events, does not result in a significant reduction in a margin of safety.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
Based on the above, the NRC concludes that the proposed change presents no significant hazards consideration under the standards set forth in 10 CFR 50.92(c), and, accordingly, a finding of “no significant hazards consideration” is justified.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The proposed change to revise the definition of operable-operability, modify the provisions under which equipment may be considered operable when either its normal or emergency power source is inoperable, delete Technical Specification (TS) limiting conditions for operation (LCO) 2.0.1(2), and relocate the guidance for inoperable power supplies and verifying operability of redundant components into the LCO for electrical equipment is more aligned with NUREG-1432,
The new requirement added to TS 2.7 provides assurance that a loss of offsite power during the period that an EDG (or house service transformer) is inoperable, or loss of an EDG during the period that a house service transformer is inoperable, or loss of a house service transformer during the period that an EDG is inoperable, does not result in a complete loss of safety function of critical systems; thereby such a loss does not significantly increase the probability of an accident.
Consistent with NUREG 1432, the 4-hour allowed time added to TS 2.7(2)j for the EDGs, takes into account the capacity and capability of the remaining alternating current (AC) sources, a reasonable time for repairs, and the low probability of a design basis accident (DBA) occurring during this period. On a component basis, single failure protection for the required feature's function may have been lost; however, function has not been lost.
Additionally, consistent with NUREG-1432, the 24-hour allowed time added to TS 2.7(2)b for the house service transformers takes into account the capacity and capability of the remaining AC sources, a reasonable time for repairs, and the low probability of a DBA occurring during this period.
The proposed change removes the surveillance requirement (SR) to perform an inspection of the EDG on a refueling inspection frequency in accordance with the manufacturer's recommendations. This inspection is considered a maintenance activity, not an SR, and has no impact on the probability of an accident since EDGs are not initiators for any analyzed event. Deletion of TS SR 3.7(1)e from the TS does not impact the capability of the EDGs to perform their accident mitigation functions. The required EDG maintenance inspections will continue to be performed in accordance with the licensee-controlled EDG maintenance process. The consequences of an accident are not impacted because EDG operability is controlled by other portions of TS 3.7, which ensures that required surveillances are performed. The appropriate LCOs are entered in the event that EDG surveillance criteria are not met.
As a result of redefining “OPERABLE” and adding the provision to TS 2.7(2)j, the statements “provided there are no inoperable required engineered safeguards components which are redundant” related to the electrical distribution components are being deleted from the other 2.7(2) TS for the buses, transformer, and motor control center (MCC) for clarification and consistency because these statements restrict only to engineered safeguards components. In addition, the administrative changes to renumber the existing TS sections “TS 2.0.1(3) to 2.0.1(2)” and TS 3.7(1)f to TS 3.7(1)e. are being made as a result of deletions to previous TS paragraphs and are being made for consistency and clarification. Rearranging the listing order of the MCCs in TS 2.7(1)f and TS 2.7(2)g in bus order clarifies the TS. As such, these editorial changes are not initiators of any accidents previously evaluated. As a result, the probability of an accident previously evaluated is not affected.
Therefore, the proposed change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed changes do not involve a physical alteration to the plant (
By deleting TS LCO 2.0.1(2) and including the guidance in TS 2.7, inconsistencies in the existing TS will be eliminated. The new requirements added to TS 2.7 will include guidance to declare required systems or components without a normal or emergency power source available inoperable, when a redundant system or component is also inoperable. This provides assurance that a loss of offsite power, during the period that an EDG (or house service transformer) is inoperable, or loss of an EDG during the period that a house service transformer is inoperable (or vice versa), does not result in a complete loss of safety function of critical systems.
No new failure mechanisms would be created. The proposed changes do not alter any assumptions made in the safety analyses. For the most part, the proposed changes are more aligned with the STS.
Therefore, the proposed changes do not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The proposed changes to delete TS 2.0.1(2) and relocate the guidance for inoperable power supplies and verifying operability of redundant components to TS LCO 2.7(2)j, to delete the statement that MCC-3C1 may be inoperable in excess of 8 hours if battery chargers No. 1 and No. 2 are operable, and to delete the SR for inspecting the DG on a refueling frequency in accordance with the manufacturer's recommendations do not alter the manner in which safety limits or limiting safety system settings are determined. The safety analysis acceptance criteria are not affected by these proposed changes. The sources of power credited for design basis events are not affected by the proposed changes.
The proposed changes to modify the provisions under which equipment may be considered operable when either its normal or emergency power source is inoperable, delete TS LCO 2.0.1(2), and relocate the guidance for inoperable power supplies and verifying operability of redundant components into the LCO for electrical equipment is more aligned with the STS. These changes are being made to address inconsistencies in guidance provided in TS 2.0.1(2) and TS 2.7(2). The proposed change does not reduce the operability requirements for the transformers, buses, MCCs, or EDGs and therefore will not result in plant operation in a configuration outside of the design basis.
Further, the proposed change does not change the design function of any equipment assumed to operate in the event of an accident.
Therefore, the proposed change does not involve a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
Additionally, the proposed amendment also includes an editorial/administrative change which corrects a typographical error in the SSES Units 1 and 2 TS Section 3.10.8.f.
1. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
No. The proposed change to TS Table 3.3.5.1-1 increases the Technical Specification allowable value for the HPCI suction low level automatic transfer function from ≥ 3 6 inches to ≥ 40.5 inches above the CST bottom. There are no process setpoint changes associated with this TS allowable value change. This TS change does not introduce the possibility of an increase in the probability or consequences of an accident because the HPCI automatic transfer function is not an initiator of any new accidents nor does it introduce any new failure modes. The CST is not safety related and therefore not credited in any design basis accident analyses. However, the CST reserve volume is credited in anticipated transients without scram (ATWS), Appendix R and station blackout (SBO) evaluations. The reserve volume available in the CST at the proposed allowable value of 40.5 inches above the CST bottom remains adequate to fully support these HPCI system support functions and the change fully supports HPCI system operation. The reserve volume is not reduced as a result of the proposed change in the TS allowable value since the transfer will still occur at the CST low level instrument setpoint of 43.5 inches above tank bottom, which remains unchanged.
The HPCI system automatic transfer function occurs at the point in a design basis accident (DBA) when the CST level reaches the low level transfer setpoint. This proposed change will require the HPCI pump suction to be transferred from the CST to the SP at 40.5 inches versus 36 inches above the CST bottom. Currently, the TS allow this transfer to occur at 36 inches. This proposed change is conservative because it assures the suction transfer will occur while there is more water in the tank, thus eliminating the possibility of vortex formation and air intrusion to the HPCI pump suction. Since this proposed change ensures the HPCI system automatic suction transfer function occurs without adversely impacting HPCI system operation, it does not involve a significant increase in the probability or consequences of an accident previously evaluated.
The proposed editorial/administrative change is necessary to correct a typographical error in the SSES Units 1 and 2 TS Section 3.10.8.f. This editorial change does not involve a significant increase in the probability or consequences of an accident previously evaluated.
2. Does the proposed change create the possibility of a new or different kind of accident from any accident previously evaluated?
No. As discussed above, the proposed change to TS Table 3.3.5.1-1 involves increasing the TS allowable value for the HPCI low level automatic transfer function from the CST to the SP at ≥ 36 inches to ≥ 40.5 inches above the CST tank bottom. This change ensures the HPCI automatic transfer function occurs without introducing the possibility of vortex formation or air intrusion in the HPCI pump suction path. All HPCI system support functions remain unaffected by this change. This TS change does not introduce the possibility of a new accident because the HPCI automatic transfer function is not an initiator of any accident and no new failure modes are introduced. There are no new types of failures or new or different kinds of accidents or transients that could be created by these changes. Therefore, this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
The proposed editorial/administrative change only corrects a typographical error in the SSES Units 1 and 2 TS Section 3.10.8.f. This editorial change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed change involve a significant reduction in a margin of safety?
No. The margin of safety is established through equipment design, operating parameters, and the setpoints at which automatic actions are initiated. The proposed change to TS Table 3.3.5.1-1 involves increasing the allowable level at which the HPCI automatic suction transfer from the CST to the SP must occur to avoid the possibility of vortex formation or air intrusion into the HPCI pump. This change does not result in a change to the level switch setpoint, which initiates the HPCI suction transfer from the CST to the SP. Although the allowable value for the transfer is now closer to the process setpoint for activation of the level switch, this reduction in operating margin was reviewed and determined to be acceptable. The level switch setpoint tolerances were established based on historical instrument data and instrument characteristics. These tolerances provide adequate margin to the proposed TS allowable value of 40.5 inches above the CST bottom. The tolerances further ensure the transfer will occur prior to level reaching the technical specification allowable value. Therefore, the proposed change does not result in a significant reduction in a margin of safety.
The proposed editorial/administrative change only corrects a typographical error in the SSES Units 1 and 2 TS Section 3.10.8.f. This editorial change does not result in a significant reduction in a margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Response: No.
The major components in the MG set consist of a motor, fluid coupler and a generator. The motor drives the generator through the fluid coupler. The speed and output of the generator rise and fall as the volume of fluid in the coupler is varied by changing the position of the scoop tube. As the generator's output increases or decreases, the speed of the recirculation pump follows suit. The scoop tube mechanism has both mechanical and electrical overspeed stops that limit recirculation flow by limiting the MG set speed. The electrical stop actuates first. The mechanical stop is designed to prevent the scoop tube motion if the electrical stop fails or to mitigate overshoot of the electrical stop. The electrical stops are not credited in any of the accident or transient analyses. The mechanical stop settings are an input used in the determination of the flow dependent minimum critical power ratio (MCPR) and the linear heat generation rate (LHGR) or average planar linear heat generation rate (APLHGR) operating limits. These operating limits are established and documented on a cycle-specific basis in the core operating limits report (COLR) in accordance with TS 6.9.1.9. Operation within the MCPR, LGHR and APLHGR operating limits is required in accordance with TSs 3.2.3, 3.2.4, and 3.2.1, respectively.
Once relocated, any future changes to the surveillance requirements for the MG set scoop tube mechanical and electrical stop settings would be controlled by 10 CFR 50.59.
There are no physical plant modifications associated with this change. The proposed amendment would not alter the way any structure, system, or component (SSC) functions and would not alter the way the plant is operated. As such, the proposed
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously evaluated?
Response: No.
The proposed amendment would not change the design function or operation of the SSCs involved and would not impact the way the plant is operated. As such, the proposed change would not introduce any new failure mechanisms, malfunctions, or accident initiators not already considered in the design and licensing bases. Therefore, the proposed change does not create the possibility of a new or different kind of accident from any previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
Response: No.
The margin of safety is associated with the confidence in the ability of the fission product barriers (
Based on this review, it appears that the three standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the amendment request involves no significant hazards consideration.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Notice of Consideration of Issuance of Amendment to Facility Operating License, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing in connection with these actions was published in the
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.22(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the applications for amendment, (2) the amendment, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment as indicated. All of these items are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area 01F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
The Commission's related evaluation of these amendments is contained in a Safety Evaluation dated September 21, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation and final finding of no significant hazards consideration of the
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 16, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 18, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated September 16, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 15, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 18, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 15, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated September 18, 2009.
No significant hazards consideration comments received: No.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated September 9, 2009.
No significant hazards consideration comments received: No.
During the period since publication of the last biweekly notice, the Commission has issued the following amendments. The Commission has determined for each of these amendments that the application for the amendment complies with the standards and requirements of the Atomic Energy Act of 1954, as amended (the Act), and the Commission's rules and regulations. The Commission has made appropriate findings as required by the Act and the Commission's rules and regulations in 10 CFR Chapter I, which are set forth in the license amendment.
Because of exigent or emergency circumstances associated with the date the amendment was needed, there was not time for the Commission to publish, for public comment before issuance, its usual Notice of Consideration of Issuance of Amendment, Proposed No Significant Hazards Consideration Determination, and Opportunity for a Hearing.
For exigent circumstances, the Commission has either issued a
In circumstances where failure to act in a timely way would have resulted, for example, in derating or shutdown of a nuclear power plant or in prevention of either resumption of operation or of increase in power output up to the plant's licensed power level, the Commission may not have had an opportunity to provide for public comment on its no significant hazards consideration determination. In such case, the license amendment has been
Under its regulations, the Commission may issue and make an amendment immediately effective, notwithstanding the pendency before it of a request for a hearing from any person, in advance of the holding and completion of any required hearing, where it has determined that no significant hazards consideration is involved.
The Commission has applied the standards of 10 CFR 50.92 and has made a final determination that the amendment involves no significant hazards consideration. The basis for this determination is contained in the documents related to this action. Accordingly, the amendments have been issued and made effective as indicated.
Unless otherwise indicated, the Commission has determined that these amendments satisfy the criteria for categorical exclusion in accordance with 10 CFR 51.22. Therefore, pursuant to 10 CFR 51.22(b), no environmental impact statement or environmental assessment need be prepared for these amendments. If the Commission has prepared an environmental assessment under the special circumstances provision in 10 CFR 51.12(b) and has made a determination based on that assessment, it is so indicated.
For further details with respect to the action see (1) the application for amendment, (2) the amendment to Facility Operating License, and (3) the Commission's related letter, Safety Evaluation and/or Environmental Assessment, as indicated. All of these items are available for public inspection at the Commission's Public Document Room (PDR), located at One White Flint North, Public File Area O1F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible from the Agencywide Documents Access and Management System's (ADAMS) Public Electronic Reading Room on the Internet at the NRC Web site,
The Commission is also offering an opportunity for a hearing with respect to the issuance of the amendment. Within 60 days after the date of publication of this notice, any person(s) whose interest may be affected by this action may file a request for a hearing and a petition to intervene with respect to issuance of the amendment to the subject facility operating license. Requests for a hearing and a petition for leave to intervene shall be filed in accordance with the Commission's “Rules of Practice for Domestic Licensing Proceedings” in 10 CFR Part 2. Interested person(s) should consult a current copy of 10 CFR 2.309, which is available at the Commission's PDR, located at One White Flint North, Public File Area O1F21, 11555 Rockville Pike (first floor), Rockville, Maryland, and electronically on the Internet at the NRC Web site,
As required by 10 CFR 2.309, a petition for leave to intervene shall set forth with particularity the interest of the petitioner in the proceeding, and how that interest may be affected by the results of the proceeding. The petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements: (1) The name, address, and telephone number of the requestor or petitioner; (2) the nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestor's/petitioner's property, financial, or other interest in the proceeding; and (4) the possible effect of any decision or order which may be entered in the proceeding on the requestor's/petitioner's interest. The petition must also identify the specific contentions which the petitioner/requestor seeks to have litigated at the proceeding.
Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the petitioner/requestor shall provide a brief explanation of the bases for the contention and a concise statement of the alleged facts or expert opinion which support the contention and on which the petitioner intends to rely in proving the contention at the hearing. The petitioner must also provide references to those specific sources and documents of which the petitioner is aware and on which the petitioner intends to rely to establish those facts or expert opinion. The petition must include sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact.
Each contention shall be given a separate numeric or alpha designation within one of the following groups:
1. Technical—primarily concerns/issues relating to technical and/or health and safety matters discussed or referenced in the applications.
2. Environmental—primarily concerns/issues relating to matters discussed or referenced in the environmental analysis for the applications.
3. Miscellaneous—does not fall into one of the categories outlined above.
As specified in 10 CFR 2.309, if two or more petitioners/requestors seek to co-sponsor a contention, the petitioners/requestors shall jointly designate a representative who shall have the authority to act for the petitioners/requestors with respect to that contention. If a petitioner/requestor seeks to adopt the contention of another sponsoring petitioner/requestor, the petitioner/requestor who seeks to adopt the contention must either agree that the sponsoring petitioner/requestor shall act as the representative with respect to that contention, or jointly designate with the sponsoring petitioner/requestor a representative who shall have the authority to act for the petitioners/requestors with respect to that contention.
Those permitted to intervene become parties to the proceeding, subject to any limitations in the order granting leave to intervene, and have the opportunity to participate fully in the conduct of the
All documents filed in NRC adjudicatory proceedings, including a request for hearing, a petition for leave to intervene, any motion or other document filed in the proceeding prior to the submission of a request for hearing or petition to intervene, and documents filed by interested governmental entities participating under 10 CFR 2.315(c), must be filed in accordance with the NRC E-Filing rule, which the NRC promulgated in August 28, 2007, (72 FR 49139). The E-Filing process requires participants to submit and serve all adjudicatory documents over the internet or in some cases to mail copies on electronic storage media. Participants may not submit paper copies of their filings unless they seek a waiver in accordance with the procedures described below.
To comply with the procedural requirements of E-Filing, at least five (5) days prior to the filing deadline, the petitioner/requestor must contact the Office of the Secretary by e-mail at
Once a petitioner/requestor has obtained a digital ID certificate, had a docket created, and downloaded the EIE viewer, it can then submit a request for hearing or petition for leave to intervene. Submissions should be in Portable Document Format (PDF) in accordance with NRC guidance available on the NRC public Web site at
A person filing electronically using the agency's adjudicatory e-filing system may seek assistance through the “Contact Us” link located on the NRC Web site at
Participants who believe that they have a good cause for not submitting documents electronically must file a motion, in accordance with 10 CFR 2.302(g), with their initial paper filing requesting authorization to continue to submit documents in paper format. Such filings must be submitted by: (1) First class mail addressed to the Office of the Secretary of the Commission, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention: Rulemaking and Adjudications Staff; or (2) courier, express mail, or expedited delivery service to the Office of the Secretary, Sixteenth Floor, One White Flint North, 11555 Rockville, Pike, Rockville, Maryland, 20852, Attention: Rulemaking and Adjudications Staff. Participants filing a document in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service.
Non-timely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer, or the Atomic Safety and Licensing Board that the petition and/or request should be granted and/or the contentions should be admitted, based on a balancing of the factors specified in 10 CFR 2.309(c)(1)(i)-(viii).
Documents submitted in adjudicatory proceedings will appear in NRC's electronic hearing docket which is available to the public at
The supplemental letter dated September 8, 2009, provided additional information that clarified the application, did not expand the scope of the application as originally noticed, and did not change the NRC staff's original proposed no significant hazards consideration determination as published in
The Commission's related evaluation of the amendment, finding of exigent circumstances, consideration of public comments, state consultation, and final NSHC determination are contained in a safety evaluation dated September 17, 2009.
U.S. Nuclear Regulatory Commission.
Notice of availability and opportunity to provide comments.
Comments must be provided by December 21, 2009.
Ata Istar, Structural Mechanics and Materials Branch, Division of Spent Fuel Storage and Transportation Division, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20005-0001. Telephone: (301) 492-3409; fax number: (301) 492-3342; e-mail:
The Nuclear Regulatory Commission (NRC) has prepared a draft Standard Review Plan (SRP) NUREG-1927, entitled “Standard Review Plan for Renewal of Independent Spent Fuel Storage Installation Licenses and Dry Cask Storage System Certificate of Compliance.” This draft SRP would provide guidance to the NRC staff when reviewing Safety Analyses Reports submitted by applicants for renewals of specific Independent Spent Fuel Storage Installation licenses or dry cask storage system certificates of compliance under 10 CFR part 72. This draft SRP is related to the proposed rule published in the
Documents related to this action are available electronically at the NRC's Electronic Reading Room at
These documents may also be viewed electronically on the public computers located at the NRC's PDR, O-1 F21, One White Flint North, 11555 Rockville Pike, Rockville, MD 20852. The PDR reproduction contractor will copy documents for a fee. Comments and questions on this draft SRP should be directed to Ata Istar, Structural Mechanics and Materials Branch, Division of Spent Fuel Storage and Transportation, Office of Nuclear Materials Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20005-0001 by December 21, 2009. Comments received after this date will be considered if it is practical to do so, but assurance of consideration cannot be given to comments received after this date. Comments can also be submitted by telephone, fax, or e-mail to the following: Telephone: (301) 492-3409; fax number: (301) 492-3342; e-mail:
For the U.S. Nuclear Regulatory Commission.
The U.S. Nuclear Regulatory Commission (NRC) is considering issuance of a temporary exemption from Title 10 of the
The requirements in 10 CFR 50.46 specifically, and 10 CFR 50, Appendix K implicitly, refer to the use of Zircaloy or ZIRLO cladding. Therefore, a temporary exemption is required to use fuel rods clad with an advanced zirconium-based alloy that is not either Zircaloy or ZIRLO. Unlike the current fuel assemblies, the lead fuel assemblies (LFAs) manufactured by AREVA NP will contain M5 alloy cladding material. The licensee has requested a temporary exemption to allow the use of M5 alloy cladding.
The temporary exemption would allow up to 16 LFAs manufactured by AREVA NP with M5 alloy cladding material to be inserted into the SONGS Unit 2 or Unit 3 reactor cores during the
The proposed action is in accordance with the licensee's request for exemption dated January 30, 2009, as supplemented by letter dated March 16, 2009.
The proposed temporary exemption is needed by SCE to allow the use of M5 alloy clad LFAs to evaluate cladding material for use in future fuel assemblies and to provide a more robust design to eliminate grid to rod fretting fuel failures. The regulations specify standards and acceptance criteria only for fuel rods clad with Zircaloy or ZIRLO. Consistent with 10 CFR 50.46, a temporary exemption is required to use fuel rods clad with an advanced alloy that is not Zircaloy or ZIRLO. Therefore, the licensee needs a temporary exemption to insert up to 16 LFAs containing new cladding material into the SONGS Unit 2 or Unit 3 reactor cores.
The NRC has completed its safety evaluation of the proposed action and concludes that the proposed exemption will not present any undue risk to the public health and safety. The safety evaluation performed by Framatome ANP, Inc., “BAW-10227P-A, Evaluation of Advanced Cladding and Structural Material (M5) in PWR Reactor Fuel, Framatome Cogema Fuels, February 2000,” demonstrates that the predicted chemical, mechanical, and material performance characteristics of the M5 cladding are within those approved for Zircaloy under anticipated operational occurrences and postulated accidents. Furthermore, the LFAs will be placed in non-limiting locations. In the unlikely event that cladding failures occur in the LFAs, the environmental impact would be minimal and is bounded by previous accident analyses.
The proposed action will not significantly increase the probability or consequences of accidents. No changes are being made in the types of effluents that may be released offsite. There is no significant increase in the amount of any effluent released offsite. There is no significant increase in occupational or public radiation exposure. Therefore, there are no significant radiological environmental impacts associated with the proposed action.
With regard to potential non-radiological impacts, the proposed action does not have a potential to affect any historic sites. It does not affect non-radiological plant effluents, does not affect any environmental resources, and has no other environmental impact. Therefore, there are no significant non-radiological environmental impacts associated with the proposed action.
Accordingly, the NRC concludes that there are no significant environmental impacts associated with the proposed action.
The details of the staff's safety evaluation will be provided in the exemption that will be issued as part of the letter to the licensee approving the exemption to the regulation.
As an alternative to the proposed action, the staff considered denial of the proposed action (
The action does not involve the use of any different resources than those previously considered in the Final Environmental Statement for SONGS Units 2 and 3, dated May 12, 1981.
In accordance with its stated policy, on April 8, 2009, the NRC staff consulted with the California State official, Mr. Steve Hsu of the Radiologic Health Branch of the California Department of Public Health, regarding the environmental impact of the proposed action. The State official had no comments.
On the basis of the environmental assessment, the NRC concludes that the proposed action will not have a significant effect on the quality of the human environment. Accordingly, the NRC has determined not to prepare an environmental impact statement for the proposed action.
For further details with respect to the proposed action, see the licensee's letter dated January 30, 2009, as supplemented by letter dated March 16, 2009, Agency Documents Access and Management System (ADAMS) Accession Nos. ML090360738 and ML090780251, respectively. Documents may be examined, and/or copied for a fee, at the NRC's Public Document Room (PDR), located at One White Flint North, Public File Area O1 F21, 11555 Rockville Pike (first floor), Rockville, Maryland. Publicly available records will be accessible electronically from the ADAMS Public Electronic Reading Room on the Internet at the NRC Web site,
For the Nuclear Regulatory Commission.
Plant Licensing Branch IV, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation.
Weeks of October 5, 12, 19, 26, November 2, 9, 2009.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of October 5, 2009.
There are no meetings scheduled for the week of October 19, 2009.
There are no meetings scheduled for the week of October 26, 2009.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
* The schedule for Commission meetings is subject to change on short notice. To verify the status of meetings, call (recording)—(301) 415-1292. Contact person for more information: Rochelle Bavol, (301) 415-1651.
The Briefing on Fire Protection Closure Plan previously scheduled on Thursday, May 28, 2009, at 9:30 a.m. has been cancelled. A more focused briefing has been scheduled in its place: The Briefing on Fire Protection Lessons Learned from Shearon Harris currently scheduled on Tuesday, November 3, 2009, at 9:30 a.m.
The NRC Commission Meeting Schedule can be found on the Internet at:
The NRC provides reasonable accommodation to individuals with disabilities where appropriate. If you need a reasonable accommodation to participate in these public meetings, or need this meeting notice or the transcript or other information from the public meetings in another format (
This notice is distributed electronically to subscribers. If you no longer wish to receive it, or would like to be added to the distribution, please contact the Office of the Secretary, Washington, DC 20555 (301-415-1969), or send an e-mail to
Postal Regulatory Commission.
Notice.
The Postal Service recently filed a notice with the Commission announcing that it has entered into an additional Global Expedited Package Services Contract 2 contract. This document provides public notice of the Postal Service's filing and announces establishment of a formal docket to consider the Postal Service's action. It also invites public comment and addresses other procedural matters.
Comments are due October 7, 2009.
Submit comments electronically via the Commission's Filing Online system at
Stephen L. Sharfman, General Counsel, 202-789-6820 or
On September 25, 2009, the Postal Service filed a notice announcing that it has entered into an additional Global Expedited Package Services 2 (GEPS 2) contract.
In support of its Notice, the Postal Service filed four attachments as follows:
1.
2.
3.
4.
The Commission establishes Docket No. CP2009-66 for consideration of matters related to the contract identified in the Postal Service's Notice.
Interested persons may submit comments on whether the Postal Service's contract is consistent with the policies of 39 U.S.C. 3632, 3633 or 3642. Comments are due no later than October 7, 2009. The public portions of these filings can be accessed via the
The Commission appoints Paul L. Harrington to serve as Public Representative in this proceeding.
1. The Commission establishes Docket No. CP2009-66 for consideration of the issues raised in this docket.
2. Comments by interested persons in these proceedings are due no later than October 7, 2009.
3. Pursuant to 39 U.S.C. 505, Paul L. Harrington is appointed to serve as officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.
4. The Secretary shall arrange for publication of this Order in the
By the Commission.
Small Business Administration.
Notice of reporting requirements submitted for OMB Review.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35), agencies are required to submit proposed reporting and recordkeeping requirements to OMB for review and approval, and to publish a notice in the
Submit comments on or before November 5, 2009. If you intend to comment but cannot prepare comments promptly, please advise the OMB Reviewer and the Agency Clearance Officer before the deadline.
Address all comments concerning this notice to:
Jacqueline White, Agency Clearance Officer, (202) 205-7044.
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 15c3-1 (17 CFR 240.15c3-1) under the Securities Exchange Act of 1934 (15 U.S.C. 78a
Please note that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Comments should be directed to: (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or by sending an e-mail to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 17f-1(b) under the Exchange Act requires approximately 26,000 entities in the securities industry to register in the Lost and Stolen Securities Program (“Program”). Registration fulfills a statutory requirement that entities report and inquire about missing, lost, counterfeit, or stolen securities. Registration also allows entities in the securities industry to gain access to a confidential database that stores information for the Program.
We estimate that 1,000 new entities will register in the Program each year. The staff estimates that the average number of hours necessary to comply with the Rule 17f-1(b) is one-half hour. The total burden is therefore 500 hours (1,000 times one-half) annually for all participants.
Rule 17f-1(b) is a registration obligation only. Registering under Rule 17f-1(b) is mandatory to obtain the benefit of a central database that stores information about missing, lost, counterfeit, or stolen securities for the Program. Reporting institutions required to register under Rule 17f-1(b) will not be kept confidential; however, the Program database will be kept confidential. Please note that an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number.
Comments should be directed to: (i) Desk Officer for the Securities and Exchange Commission, Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10102, New Executive Office Building, Washington, DC 20503 or by sending an e-mail to:
Notice is hereby given that pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Rule 30b1-6T (17 CFR 270.30b1-6T) under the Investment Company Act of 1940 (the “Act”) is entitled: “Weekly Portfolio Report for Certain Money Market Funds.” The rule requires that if the market-based net asset value (“market-based NAV”) of a registered investment company, or series thereof, that is regulated as a money market fund under rule 2a-7 (17 CFR 270.2a-7) on any business day is less than $.9975
Commission staff estimates estimate, based on past experience under the Guarantee Program, that 10 money market funds are required by rule 30b1-6T to provide weekly reports disclosing certain information regarding the fund's portfolio holdings. Staff estimates that money market funds require an average of approximately 6 burden hours to compile and electronically submit the initial required portfolio holdings information, and an average of approximately 4 burden hours in subsequent reports.
The estimate of average burden hours is made solely for the purposes of the Paperwork Reduction Act, and is not derived from a comprehensive or even a representative survey or study of the costs of Commission rules. An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid control number. Compliance with rule 30b1-6T is mandatory for any money market fund whose market-based NAV is less than $.9975. Responses to the disclosure requirements will be kept confidential.
The Commission requests written comments 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 collection of information; (c) ways to enhance the quality, utility, and clarity of the information collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. Consideration will be given to comments and suggestions submitted in writing within 60 days of this publication.
Please direct your written comments to Charles Boucher, Director/CIO, Securities and Exchange Commission, c/o Shirley Martinson, 6432 General Green Way, Alexandria, VA 22312; or send an e-mail to:
Securities and Exchange Commission (“Commission”).
Notice of application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from section 19(b) of the Act and rule 19b-1 under the Act.
Applicants request an order to permit a registered closed-end investment company to make periodic distributions of long-term capital gains with respect to its common shares as often as monthly in any one taxable year, and as frequently as distributions are specified by or in accordance with the terms of its preferred shares.
Evergreen Income Advantage Fund (“EIAF”), Evergreen Multi-Sector Income Fund (“EMSIF”), Evergreen Utilities and High Income Fund (“EUHIF”), Evergreen International Balanced Income Fund (“EIBIF”), and Evergreen Global Dividend Opportunity Fund (“EGDOF”) (each a “Fund” and collectively, the “Funds”); and Evergreen Investment Management Company, LLC (the “Investment Adviser”).
The application was filed on October 14, 2003, and amended on October 28, 2008, June 29, 2009, and September 29, 2009.
An order granting the application will be issued unless the Commission orders a hearing. Interested persons may request a hearing by writing to the Commission's Secretary and serving applicants with a copy of the request, personally or by mail. Hearing requests should be received by the Commission by 5:30 p.m. on October 26, 2009, and should be accompanied by proof of service on applicants, in the form of an affidavit or, for lawyers, a certificate of service. Hearing requests should state the nature of the writer's interest, the reason for the request, and the issues contested. Persons who wish to be notified of a hearing may request notification by writing to the Commission's Secretary.
Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090; Applicants: Evergreen Income Advantage Fund, 200 Berkeley Street, Boston, MA 02116.
Christine Y. Greenlees, Senior Counsel, at (202) 551-6879, or Mary Kay Frech, Branch Chief, at (202) 551-6821 (Division of Investment Management, Office of Investment Company Regulation).
The following is a summary of the application. The complete application may be obtained via the Commission's Web site by searching for the file number, or for an applicant using the Company name box, at
1. Each of the Funds is a closed-end management investment company registered under the Act and organized as a Delaware statutory trust.
2. The Investment Adviser, a subsidiary of Wells Fargo, a bank holding company, is registered under the Investment Advisers Act of 1940 (“Advisers Act”). The Investment Adviser has provided investment advisory services to each Fund since its inception. Each Fund will be advised by investment advisers that are registered under the Advisers Act.
3. Applicants state that prior to relying on the order, the board of trustees (the “Board”) of each Fund, including a majority of the members of the Board who are not “interested persons” of the Fund as defined in section 2(a)(19) of the Act (the “Independent Trustees”), will review information regarding the purpose and terms of a proposed distribution policy, the likely effects of such policy on such Fund's long-term total return (in relation to market price and net asset value (“NAV”) per common share) and the relationship between such Fund's distribution rate on its common shares under the policy and such Fund's total return (in relation to NAV per share). Applicants state that prior to relying on the requested order the Independent Trustees also will consider what conflicts of interest the Investment Adviser and the affiliated persons of the Investment Adviser and each such Fund might have with respect to the adoption or implementation of such policy. Applicants further state that prior to relying on the requested order, and after considering such information, the Board, including the Independent Trustees, of each Fund will approve a distribution policy with respect to its Fund's common shares (the “Plan”) and will determine that such Plan is consistent with such Fund's investment objective(s) and in the best interests of such Fund's common shareholders.
4. Applicants state that the purpose of each Fund's Plan is to permit such Fund to distribute over the course of each year, through periodic distributions as nearly equal as practicable and any required special distributions, an amount closely approximating the total taxable income of such Fund during such year. Applicants note that under the Plan, each Fund would distribute to its respective common shareholders a fixed monthly percentage of the market price of such Fund's common shares at a particular point in time or a fixed monthly percentage of NAV at a particular time or a fixed monthly amount, any of which may be adjusted
5. Applicants state that prior to relying on the requested order, the Board will adopt policies and procedures under rule 38a-1 under the Act that are reasonably designed to ensure that all notices required to be sent to the Fund's shareholders pursuant to section 19(a) of the Act, rule 19a-1 under the Act, and condition 4 below (“19(a) Notices”) comply with condition 2.a. below, and that all other written communications by the Fund or its agents regarding distributions under the Plan include the disclosure required by condition 3.a. below. Applicants state that prior to relying on the requested order, the Board will adopt policies and procedures that require each of the Funds to keep records that demonstrate its compliance with all of the conditions of the requested order and that are necessary for such Fund to form the basis for, or demonstrate the calculation of, the amounts disclosed in its 19(a) Notices.
1. Section 19(b) of the Act generally makes it unlawful for any registered investment company to make long-term capital gains distributions more than once every twelve months. Rule 19b-1 under the Act limits the number of capital gains dividends, as defined in section 852(b)(3)(C) of the Code (“distributions”), that a fund may make with respect to any one taxable year to one, plus a supplemental “clean up” distribution made pursuant to section 855 of the Code not exceeding 10% of the total amount distributed for the year, plus one additional capital gain dividend made in whole or in part to avoid the excise tax under section 4982 of the Code.
2. Section 6(c) provides that the Commission may, by order upon application, conditionally or unconditionally exempt any person, security, or transaction, or any class or classes of persons, securities or transactions, from any provision of the Act, if and to the extent that the exemption is necessary or appropriate in the public interest and consistent with the protection of investors and the purposes fairly intended by the policy and provisions of the Act.
3. Applicants state that one of the concerns underlying section 19(b) and rule 19b-1 is that shareholders might be unable to differentiate between frequent distributions of capital gains and dividends from investment income. Applicants state, however, that rule 19a-1 effectively addresses this concern by requiring that a separate statement showing the sources of a distribution (
4. Applicants further state that each Fund will make the additional disclosures required by the conditions set forth below, and each of them will adopt, prior to reliance on the requested order, compliance policies and procedures in accordance with rule 38a-1 under the Act to ensure that all required 19(a) Notices and disclosures are sent to shareholders. Applicants argue that by providing the information required by section 19(a) and rule 19a-1, and by complying with the procedures adopted under the Plan and the conditions listed below, each Fund's shareholders would be provided sufficient information to understand that their periodic distributions are not tied to the Fund's net investment income (which for this purpose is each Fund's taxable income other than from capital gains) and realized capital gains to date, and may not represent yield or investment return. Applicants also state that compliance with the Fund's compliance procedures and condition 3 set forth below will ensure that prospective shareholders and third parties are provided with the same information. Accordingly, applicants assert that continuing to subject the Funds to section 19(b) and rule 19b-1 would afford shareholders no extra protection.
5. Applicants note that section 19(b) and rule 19b-1 also were intended to prevent certain improper sales practices, including, in particular, the practice of urging an investor to purchase shares of a fund on the basis of an upcoming capital gains dividend (“selling the dividend”), where the dividend would result in an immediate corresponding reduction in NAV and would be in effect a taxable return of the investor's capital. Applicants submit that the “selling the dividend” concern should not apply to closed-end investment companies, such as the Funds, that do not continuously distribute shares. According to applicants, if the underlying concern extends to secondary market purchases of shares of closed-end funds that are subject to a large upcoming capital gains dividend, adoption of a periodic distribution plan actually helps minimize the concern by avoiding, through periodic distributions, any buildup of large end-of-the-year distributions.
6. Applicants also note that common shares of closed-end funds often trade in the marketplace at a discount to the funds' NAV. Applicants believe that this discount may be reduced if the Funds are permitted to pay relatively frequent dividends on their common shares at a consistent rate, whether or not those dividends contain an element of long-term capital gain.
7. Applicants assert that the application of rule 19b-1 to a Plan actually could have an undesirable influence on portfolio management decisions. Applicants state that, in the absence of an exemption from rule 19b-1, the implementation of a periodic distribution plan imposes pressure on management (a) not to realize any net long-term capital gains until the point in the year that the fund can pay all of its remaining distributions in accordance with rule 19b-1, and (b) not to realize any long-term capital gains during any particular year in excess of the amount of the aggregate pay-out for the year (since as a practical matter excess gains must be distributed and accordingly would not be available to satisfy pay-out requirements in following years), notwithstanding that purely investment considerations might favor realization of long-term gains at different times or in different amounts. Applicants thus assert that by limiting the number of capital gain distributions that a fund may make with respect to any one year, rule 19b-1 may prevent the efficient operation of a periodic distribution plan whenever that fund's net realized long-term capital gains in any year exceed the total of the periodic distributions
8. Applicants also assert that rule 19b-1 may cause fixed regular periodic distributions under a periodic distribution plan to be funded with returns of capital
9. Applicants state that Revenue Ruling 89-81 under the Code requires that a fund that has both common stock and preferred stock outstanding designate the types of income,
10. Applicants assert that the potential abuses addressed by section 19(b) and rule 19b-1 do not arise with respect to preferred stock issued by a closed-end fund. Applicants assert that such distributions are fixed or determined in periodic auctions by reference to short-term interest rates rather than by reference to performance of the issuer, and Revenue Ruling 89-81 determines the proportion of such distributions that are comprised of the long-term capital gains.
11. Applicants also submit that the “selling the dividend” concern is not applicable to preferred stock, which entitles a holder to no more than a periodic dividend at a fixed rate or the rate determined by the market, and, like a debt security, is priced based upon its liquidation value, dividend rate, credit quality, and frequency of payment. Applicants state that investors buy preferred shares for the purpose of receiving payments at the frequency bargained for, and do not expect the liquidation value of their shares to change.
12. Applicants request an order under section 6(c) granting an exemption from section 19(b) and rule 19b-1 to permit each Fund to distribute periodic capital gains dividends (as defined in section 852(b)(3)(C) of the Code) as often as monthly in any one taxable year with respect to its common shares and, with respect to each Fund with outstanding preferred shares, to allocate to its preferred shares capital gain dividends as often as necessary in any one taxable year to comply with IRS Revenue Ruling 89-81.
Applicants agree that any order of the Commission granting the requested relief will be subject to the following conditions:
1.
2.
a. Each 19(a) Notice disseminated to the holders of the Fund's common shares, in addition to the information required by section 19(a) and rule 19a-1:
i. Will provide, in a tabular or graphical format:
(1) The amount of the distribution, on a per share basis, together with the amounts of such distribution amount, on a per share basis and as a percentage of such distribution amount, from estimated: (A) Net investment income; (B) net realized short-term capital gains; (C) net realized long-term capital gains; and (D) return of capital or other capital source;
(2) The fiscal year-to-date cumulative amount of distributions, on a per share basis, together with the amounts of such cumulative amount, on a per share basis and as a percentage of such cumulative amount of distributions, from estimated: (A) Net investment income; (B) net realized short-term capital gains; (C) net realized long-term capital gains; and (D) return of capital or other capital source;
(3) The average annual total return in relation to the change in NAV for the 5-year period (or, if the Fund's history of operations is less than five years, the time period commencing immediately following the Fund's first public offering) ending on the last day of the month prior to the most recent distribution record date compared to the current fiscal period's annualized distribution rate expressed as a percentage of NAV as of the last day of the month prior to the most recent distribution record date; and
(4) The cumulative total return in relation to the change in NAV from the last completed fiscal year to the last day of the month prior to the most recent distribution record date compared to the fiscal year-to-date cumulative distribution rate expressed as a percentage of NAV as of the last day of the month prior to the most recent distribution record date.
Such disclosure shall be made in a type size at least as large and as prominent as the estimate of the sources of the current distribution; and
ii. Will include the following disclosure:
(1) “You should not draw any conclusions about the Fund's investment performance from the amount of this distribution or from the terms of the Fund's Plan”;
(2) “The Fund estimates that it has distributed more than its income and net realized capital gains; therefore, a portion of your distribution may be a return of capital. A return of capital may occur, for example, when some or all of the money that you invested in the Fund is paid back to you. A return of capital distribution does not necessarily reflect the Fund's investment performance and should not be confused with ‘yield’ or ‘income’ ”;
(3) “The amounts and sources of distributions reported in this 19(a)
Such disclosure shall be made in a type size at least as large as and as prominent as any other information in the 19(a) Notice and placed on the same page in close proximity to the amount and the sources of the distribution.
b. On the inside front cover of each report to shareholders under rule 30e-1 under the Act, the Fund will:
i. Describe the terms of the Plan (including the fixed amount or fixed percentage of the distributions and the frequency of the distributions);
ii. Include the disclosure required by condition 2.a.ii.(1) above;
iii. State, if applicable, that the Plan provides that the Board may amend or terminate the Plan at any time without prior notice to Fund shareholders; and
iv. Describe any reasonably foreseeable circumstances that might cause the Fund to terminate the Plan and any reasonably foreseeable consequences of such termination.
c. Each report provided to shareholders under rule 30e-1 under the Act and in each prospectus filed with the Commission on Form N-2 under the Act, will provide the Fund's total return in relation to changes in NAV in the financial highlights table and in any discussion about the Fund's total return.
3.
a. Each Fund will include the information contained in the relevant 19(a) Notice, including the disclosure required by condition 2.a.ii. above, in any written communication (other than a communication on Form 1099) about the Plan or distributions under the Plan by the Fund, or agents that the Fund has authorized to make such communication on the Fund's behalf, to any Fund common shareholder, prospective common shareholder or third-party information provider;
b. Each Fund will issue, contemporaneously with the issuance of any 19(a) Notice, a press release containing the information in the 19(a) Notice and will file with the Commission the information contained in such 19(a) Notice, including the disclosure required by condition 2.a.ii. above, as an exhibit to its next filed Form N-CSR; and
c. Each Fund will post prominently a statement on its (or the Investment Adviser's) web site containing the information in each 19(a) Notice, including the disclosure required by condition 2.a.ii. above, and will maintain such information on such web site for at least 24 months.
4.
5.
If:
a. A Fund's common shares have traded on the stock exchange that they primarily trade on at the time in question at an average premium to NAV equal to or greater than 10%, as determined on the basis of the average of the discount or premium to NAV of the Fund's common shares as of the close of each trading day over a 12-week rolling period (each such 12-week rolling period ending on the last trading day of each week); and
b. The Fund's annualized distribution rate for such 12-week rolling period, expressed as a percentage of NAV as of the ending date of such 12-week rolling period, is greater than the Fund's average annual total return in relation to the change in NAV over the 2-year period ending on the last day of such 12-week rolling period; then:
i. At the earlier of the next regularly scheduled meeting or within four months of the last day of such 12-week rolling period, the Board including a majority of the Independent Trustees:
(1) Will request and evaluate, and the Investment Adviser will furnish, such information as may be reasonably necessary to make an informed determination of whether the Plan should be continued or continued after amendment;
(2) Will determine whether continuation, or continuation after amendment, of the Plan is consistent with the Fund's investment objective(s) and policies and is in the best interests of the Fund and its shareholders, after considering the information in condition 5.b.i.(1) above; including, without limitation:
(A) Whether the Plan is accomplishing its purpose(s);
(B) The reasonably foreseeable material effects of the Plan on the Fund's long-term total return in relation to the market price and NAV of the Fund's common shares; and
(C) The Fund's current distribution rate, as described in condition 5.b. above, compared with the Fund's average annual taxable income or total return over the 2-year period, as described in condition 5.b., or such longer period as the Board deems appropriate; and
(3) Based upon that determination, will approve or disapprove the continuation, or continuation after amendment, of the Plan; and
ii. The Board will record the information considered by it, including its consideration of the factors listed in condition 5.b.i.(2) above, and the basis for its approval or disapproval of the continuation, or continuation after amendment, of the Plan in its meeting minutes, which must be made and preserved for a period of not less than six years from the date of such meeting, the first two years in an easily accessible place.
6.
a. A rights offering below NAV to holders of the Fund's common shares;
b. An offering in connection with a dividend reinvestment plan, merger, consolidation, acquisition, spin-off or reorganization of the Fund; or
c. An offering other than an offering described in conditions 6.a. and 6.b. above, provided that, with respect to such other offering:
i. The Fund's annualized distribution rate for the six months ending on the last day of the month ended immediately prior to the most recent distribution record date,
ii. The transmittal letter accompanying any registration statement filed with the Commission in connection with such offering discloses that the Fund has received an order under section 19(b) to permit it to make periodic distributions of long-term capital gains with respect to its common stock as frequently as twelve times each year, and as frequently as distributions are specified by or determined in accordance with the terms of any outstanding preferred stock as such Fund may issue.
7.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change would revise minimum eligibility criteria applicable to common stock loaned through OCC's Stock Loan Programs and deposited as margin collateral.
In its filing with the Commission, OCC included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. OCC has prepared summaries, set forth in sections (A), (B), and (C) below, of the most significant aspects of these statements.
The purpose of this rule change is to revise OCC's minimum eligibility requirements for stock borrows and loans accepted in the OCC's Stock Loan Programs and common stock accepted as margin collateral.
OCC's clearing services involve common stock
Under OCC's Stock Loan Programs, only loans of stocks that are either underlying securities for options or futures or ETFs based on a stock index underlying an index option contract are eligible for clearance through OCC (collectively, “Options-Related Stocks”). OCC restricted stock loan activity to limit its risk to loans supporting short sales that might be serving as hedges for options transactions or helping to add liquidity to the options markets. At the time this criterion was implemented in 2002, OCC managed the risk of stock loan transactions for most clearing members on a credit basis—that is OCC did not collect margin on such transactions. As noted above, OCC now requires margin on all stock loan transactions thus reducing the risk associated with this activity. Accordingly, OCC believes that it is no longer necessary or appropriate to limit stock loan transactions to Options-Related Stocks.
In connection with the foregoing change, OCC is proposing to supplement its existing criteria for stock eligible for the Stock Loan Programs by requiring that in order to qualify as an “Eligible Stock” for purposes of the Stock Loan Programs a stock must be a “covered security” as defined in Section 18(b)(1) of the Securities Act of 1933.
Under current OCC Rule 604(b)(4), clearing members can deposit common stocks that meet the following criteria: minimum price of $3 per share and traded on a national securities exchange, or traded in the Nasdaq Global Market or the Nasdaq Capital Market. The aggregate value of margin attributed to a single stock cannot exceed 10% of a clearing member's total margin requirement. Stocks are haircut by 30% for margin valuation purposes. Stocks that have been suspended from trading by or are subject to special margin requirements under the rules of a listing market because of volatility, lack of liquidity, or similar characteristics are not eligible for deposit as margin.
Under the approved but not yet implemented Collateral in Margins program, any common stock that meets the above criteria except the minimum price requirement and that is deliverable upon exercise or maturity of a cleared contract (
(1) Replace the requirement of listing on a national securities exchange or specific Nasdaq markets with the requirement that all common stocks deposited as margin must be “covered securities” as described above;
(2) Provide that the $3 minimum share price requirement will apply to deposits of common stocks that are not Options Related Stocks;
(3) permit OCC to waive the $3 minimum share price if it determines that other factors, including trading volume, the number of shareholders, the number of outstanding shares, and current bid/ask spreads warrant such action;
(4) delete Interpretation and Policy .13, adopted in SR-OCC-2009-08, which made the 10% concentration test inapplicable to certain ETFs because the 10% test will be eliminated for all stocks (including ETFs) when Collateral in Margins is implemented.
In addition, OCC proposes to amend Rule 1001 to provide that the determination of “average aggregate daily margin requirement” and “daily margin requirement” would be performed without reference to any deposits of securities (
The changes proposed in this rule filing more closely align both the stock collateral and stock loan eligibility criteria with the criteria for selection of underlying equity securities. While some differences still exist, OCC believes that the proposed discretionary authority will provide OCC with sufficient flexibility to treat equity options, stock loan transactions, and stock collateral in a consistent manner when appropriate. For example, the $3 minimum price requirement is similar or identical to requirements contained in the equity options listing criteria of the options exchanges. In addition, the factors that OCC proposes to be considered in determining whether an exception to the $3 minimum may be granted are consistent with those reflected in such criteria. These factors are widely regarded as among the most relevant in determining whether a stock is liquid.
STANS's functionality permits OCC to propose there changes. STANS considers a security's historical price volatility in generating its simulated market moves resulting in coverage parameters that vary based on the overall risk of a particular underlying security. STANS also identifies and addresses concentrated positions. By incorporating equity options positions, stock loan positions, and upon implementation of the Collateral in Margins changes common stock deposits within a single concentration analysis, OCC can identify where hedged positions exist and can also identify areas of cumulative exposure where additional collateral may be appropriate (
Upon Commission approval, OCC proposes to implement the changes to stock loan eligibility criteria immediately. OCC proposes that the changes in eligibility criteria for common stock deposited as margin be implemented concurrently with implementation of the Collateral in Margins program, which is currently scheduled for implementation in the fourth quarter 2009.
OCC believes the proposed rule change is consistent with the purposes and requirements of Section 17A of the Act
OCC does not believe that the proposed rule change would impose any burden on competition.
Written comments were not and are not intended to be solicited with respect to the proposed rule change and none
Within thirty-five days of the date of publication of this notice in the
(A) By order approve the 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 Commissions Internet comment form (
• Send an e-mail to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission by the Division of Trading and Markets, pursuant to delegated authority.
On July 29, 2009, NYSE Amex LLC (“NYSE Amex” or “Exchange”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to amend its MRP to incorporate violations for opening transactions in restricted classes, failure to report position and account information, and failure to complete mandatory annual training. The Exchange proposes to implement a fine schedule for Amex Options Trading Permit (“ATP”) Holders that effect opening transactions in restricted series of options, inconsistent with the terms of any such restriction, in violation of Rule 916 or 916C. This fine will consist of $1,000 for the first violation during a rolling 24-month period, $2,500 for a second violation within the same period, and $5,000 for a third violation during the same period. The Exchange also proposes to incorporate violations for failing to accurately report position and account information to the Exchange on a Large Option Position Report (“LOPR”) pursuant to Rules 906(a) and 906C(a). This fine will consist of $1,000 for the first violation in a rolling 24-month period, $2,500 for a second violation within the same period, and $5,000 for a third violation within the same period. The Exchange believes that, in most cases, violations of trading in restricted classes and violations of LOPR reporting may be handled efficiently through the MRP. However, any egregious activity or activity that is believed to be manipulative will continue to be subject to formal disciplinary proceedings.
The Exchange also proposes to increase fines for violations of NYSE Amex Rules 933NY(a),
The Commission finds that the proposal is consistent with the requirements of the Act and the rules and regulations thereunder applicable to a national securities exchange.
In approving this proposed rule change, the Commission in no way minimizes the importance of compliance with NYSE Amex rules and all other rules subject to the imposition of fines under the MRP. The Commission believes that the violation of any self-regulatory organization's rules, as well as Commission rules, is a serious matter. However, the MRP provides a reasonable means of addressing rule violations that do not rise to the level of requiring formal disciplinary proceedings, while providing greater flexibility in handling certain violations. The Commission expects that NYSE Amex will continue to conduct surveillance with due diligence and make a determination based on its findings, on a case-by-case basis, whether a fine of more or less than the recommended amount is appropriate for a violation under the MRP or whether a violation requires formal disciplinary action under NYSE Amex Rule 476.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (the “Act”)
The Exchange proposes to amend Rule 900.3NY to (i) offer PNP Blind orders to its Participants and (ii) make technical corrections to the numbering of Rule 900.3NY. The text of the proposed rule change is attached as Exhibit 5 to the 19b-4 form. A copy of this filing is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
NYSE Amex has an existing order type known as PNP (Post No Preference)
Certain ATP Holders have asked for a similar order type that will also not route if marketable against the NBBO, but, unlike a PNP order, will not be cancelled if similarly marketable.
A PNP Blind order is a limit order that is to be executed on the Exchange, but never routed to another market. The
The Exchange believes that the implementation of the aforementioned rule change modifying NYSE Amex order entry options will preserve order execution opportunities on the NYSE Amex market, provide greater control over the circumstances of executions, and provide an opportunity for enhanced executions.
The Exchange is also making technical corrections to the numbering of the subparagraphs in Rule 900.3NY.
The Exchange believes the proposed rule change is consistent with and furthers the objectives of Section 6(b)(5) of the Act, in that it is designed to promote just and equitable principles of trade, remove impediments to and perfect the mechanisms of a free and open market and a national market system and, in general, to protect investors and the public interest, by providing investors with additional order types that allow greater flexibility in maintaining compliance with the rules, or providing an opportunity for enhanced executions, or managing the circumstances in which their orders are executed.
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.
Because the foregoing proposed rule change does not:
(i) Significantly affect the protection of investors or the public interest;
(ii) Impose any significant burden on competition; and
(iii) Become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, 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
The Exchange has asked the Commission to waive the 30-day operative delay. The Commission hereby grants the Exchange's request.
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 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 Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, 100 F Street, NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
The Social Security Administration (SSA) publishes a list of information collection packages requiring clearance by the Office of Management and Budget (OMB) in compliance with Public Law 104-13, the Paperwork Reduction Act of 1995, effective October 1, 1995. This notice includes revisions and extensions of OMB-approved information collections.
SSA is soliciting comments on the accuracy of the agency's burden estimate; the need for the information; its practical utility; ways to enhance its quality, utility, and clarity; and ways to minimize the burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, e-mail, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and the SSA Director for Reports Clearance to the addresses or fax numbers shown below.
I. The information collection below is pending at SSA. SSA will submit it to OMB within 60 days from the date of this notice. To be sure we consider your comments, we must receive them no later than December 7, 2009. Individuals can obtain copies of the collection instrument by calling the SSA Director for Reports Clearance at 410-965-0454 or by writing to the above e-mail address.
1.
2.
3.
4.
II. SSA has submitted the information collections we list below to OMB for clearance. Your comments on the information collections would be most useful if OMB and SSA receive them within 30 days from the date of this publication. To be sure we consider your comments, we must receive them no later than November 5, 2009. You can obtain a copy of the OMB clearance packages by calling the SSA Director for Reports Clearance at 410-965-0454 or by writing to the above e-mail address.
1.
Department of State.
Notice.
This public notice provides information on how to apply for the DV-2011 Program. This notice is issued pursuant to 22 CFR 42.33(b)(3) which implements sections 201(a)(3), 201(e), 203(c) and 204(a)(1)(I) of the Immigration and Nationality Act, as amended, (8 U.S.C. 1151, 1153, and 1154(a)(1)(I)).
The congressionally mandated Diversity Immigrant Visa Program (DV-2011) is administered on an annual basis by the Department of State and conducted under the terms of Section 203(c) of the Immigration and Nationality Act (INA). Section 131 of the Immigration Act of 1990 (Pub. L. 101-649) amended INA 203 and provides for a class of immigrants known as “diversity immigrants.” Section 203(c) of the INA provides a maximum of 55,000 Diversity Visas (DVs) each fiscal year to be made available to persons from countries with low rates of immigration to the United States.
The annual DV program makes permanent residence visas available to persons meeting the simple, but strict, eligibility requirements. A computer-generated random lottery drawing chooses selectees for DVs. The visas are distributed among six geographic regions with a greater number of visas going to regions with lower rates of immigration, and with no visas going to nationals of countries sending more than 50,000 immigrants to the United States over the period of the past five years. Within each region, no single country may receive more than seven percent of the available DVs in any one year.
For DV-2011, natives of the following countries are not eligible to apply because the countries sent a total of more than 50,000 immigrants to the United States in the previous five years:
Brazil, Canada, China (Mainland-Born), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, Philippines, Poland, South Korea, United Kingdom (Except Northern Ireland) and Its Dependent Territories, and Vietnam.
Persons born in Hong Kong SAR, Macau SAR, and Taiwan are eligible. For DV-2011, no countries have been added or removed from the previous year's list of eligible countries.
The Department of State implemented the electronic registration system beginning with DV-2005 in order to make the DV process more efficient and secure. The Department utilizes special technology and other means to identify those who commit fraud for the purposes of illegal immigration or who submit multiple entries.
Entries for the DV-2011 DV Lottery must be submitted electronically between noon, Eastern Daylight Time (EDT) (GMT-4), Friday, October 2, 2009, and noon, Eastern Standard Time (EST) (GMT-5) Monday, November 30, 2009. Applicants may access the electronic Diversity Visa (E-DV) Entry Form at
To enter the DV lottery, you must be a native of one of the listed countries. See “List of Countries by Region Whose Natives Qualify.” In most cases, this means the country in which you were born. However, there are two other ways you may be able to qualify. First, if you were born in a country whose natives are ineligible but your spouse was born in a country whose natives are eligible, you can claim your spouse's country of birth, provided both you and your spouse are on the selected entry, are issued visas, and enter the United States simultaneously. Second, if you were born in a country whose natives are ineligible, but neither of your parents was born there or resided there at the time of your birth, you may claim nativity in one of your parents' country of birth, if it is a country whose natives qualify for the DV-2011 program.
To enter the lottery, you must meet either the education or work experience requirement of the DV program. You must have either a high school education or its equivalent, defined as successful completion of a 12-year course of elementary and secondary education OR two years of work experience within the past five years in an occupation requiring at least two years of training or experience to perform. The U.S. Department of Labor's
The Department of State will only accept completed E-DV Entry Forms submitted electronically at
All entries by an individual will be disqualified if more than ONE entry for that individual is received, regardless of who submitted the entry. You may prepare and submit your own entry, or have someone submit the entry for you.
A successfully registered entry will result in the display of a confirmation screen containing your name and a
Paper entries will not be accepted.
Group or family photographs will not be accepted; there must be a separate photograph for each family member. Failure to submit the required photographs for your spouse and each child listed will result in an incomplete entry to the E-DV system. The entry will not be accepted and must be resubmitted. Failure to enter the correct photograph of each individual in the case into the E-DV system will result in disqualification of the principal applicant and refusal of all visas in the case at the time of the visa interview.
A digital photograph (image) of you, your spouse, and each child must be submitted online with the E-DV Entry Form. The image file can be produced either by taking a new digital photograph or by scanning a photographic print with a digital scanner.
Entries are subject to disqualification and visa refusal for cases in which the photographs are not recent or have been manipulated or fail to meet the specifications explained below.
The image file must adhere to the following compositional specifications and technical specifications and can be produced in one of the following ways: taking a new digital image or using a digital scanner to scan a submitted photograph. Entrants may test their photos for suitability through the photo validator link on the E-DV Web site before submitting their entries. The photo validator provides additional technical advice on photo composition along with examples of acceptable and unacceptable photos.
The submitted digital image must conform to the following compositional specifications or the entry will be disqualified: The person being photographed must directly face the camera; the head of the person should not be tilted up, down, or to the side; the head height or facial region size (measured from the top of the head, including the hair, to the bottom of the chin) must be between 50 percent and 69 percent of the image's total height. The eye height (measured from the bottom of the image to the level of the eyes) should be between 56 percent and 69 percent of the image's height; the photograph should be taken with the person in front of a neutral, light-colored background; dark or patterned backgrounds are not acceptable; the photograph must be in focus; photos in which the person being photographed is wearing sunglasses or other items that detract from the face will not be accepted; photographs of applicants wearing head coverings or hats are only acceptable if the head covering is worn because of religious beliefs, and even then, the head covering may not obscure any portion of the face of the applicant. Photographs of applicants with tribal or other headgear not specifically religious in nature will not be accepted; photographs of military, airline, or other personnel wearing hats will not be accepted.
Color photographs in 24-bit color depth are required. Photographs may be downloaded from a camera to a file on a computer, or they may be scanned to a file in the computer. If you are using a scanner, the settings must be for True Color or 24-bit color mode. Color photographs must be scanned at this setting for the requirements of the DV program. See the additional scanning requirements below.
The submitted digital photograph must conform to the following specifications or the system will automatically reject the E-DV Entry Form and notify the sender.
When taking a new digital image: the image file format must be in the Joint Photographic Experts Group (JPEG) format; it must have a maximum image file size of two hundred forty kilobytes (240 KB); the minimum acceptable image resolution and dimensions are 600 pixels (width) x 600 pixels (height). Image pixel dimensions must be in a square aspect ratio (meaning the height must be equal to the width). The image color depth must be 24-bit color. [
Before a photographic print is scanned, it must meet the compositional specifications listed above. If the photographic print meets the print color and compositional specifications, scan the print using the following scanner specifications: Scanner resolution must be at least 150 dots per inch (dpi); the image file in JPEG format; the maximum image file size must be two hundred forty kilobytes (240 KB); the image resolution 600 by 600 pixels; the image color depth 24-bit color. [Note that black and white, monochrome, or grayscale images will not be accepted.]
There is only one way to enter the DV-2011 lottery. You must submit the DS 5501, the Electronic Diversity Visa Entry Form (E-DV Entry Form), which is accessible only online at
The Department of State strongly encourages applicants to complete the application without the assistance of “Visa Consultants,” “Visa Agents,” or other individuals who offer to submit an application on behalf of applicants. In many cases, these facilitators substitute their address for an applicant's address and thereby receive the selection notification instead of it being received by the actual applicant. Subsequently, the visa facilitators extort money from the selectees in order to receive the notification information that should have rightly gone directly to the DV selectee.
Those who submit the E-DV Entry Form will be asked to include the following information:
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4. City Where You Were Born.
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9. Country where you live today.
10. Phone Number (optional).
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The computer will randomly select individuals from among all qualified entries. The selected individuals will be notified by mail between May and July 2010; the notification letters will provide further instructions, including information on fees connected with immigration to the United States. Those selected in the random drawing are not notified by e-mail. Those individuals not selected will not receive any notification. U.S. embassies and consulates will not be able to provide a list of successful entrants. Successful entrants' spouses and unmarried children under age 21 may also apply for visas to accompany or follow-to-join the principal applicant. DV-2011 visas will be issued between October 1, 2010 and September 30, 2011.
Processing of entries and issuance of DVs to successful individuals and their eligible family members MUST occur by midnight on September 30, 2011. Under no circumstances can DVs be issued or adjustments approved after this date, nor can family members obtain DVs to follow-to-join the principal applicant in their case in the United States after this date.
In order to receive a DV to immigrate to the United States, those chosen in the random drawing must meet ALL eligibility requirements under U.S. law. These requirements may significantly increase the level of scrutiny required and time necessary for processing for natives of some countries listed in this notice, including, but not limited to, countries identified as state sponsors of terrorism.
No fee is charged for the electronic lottery entry in the annual DV program. The U.S. Government employs no outside consultants or private services to operate the DV program. Any intermediaries or others who offer assistance to prepare DV entries do so without the authority or consent of the U.S. Government. Use of any outside intermediary or assistance to prepare a DV entry is entirely at the entrant's discretion.
A qualified electronic entry submitted directly by an applicant has an equal chance of being randomly selected by the computer at the KCC as does a qualified electronic entry received from an outside intermediary on behalf of the applicant. However, receipt of more than one entry per person will disqualify the person from registration, regardless of the source of the entry.
Your country of eligibility will normally be the same as your country of birth. Your country of eligibility is not related to where you live. “Native” ordinarily means someone born in a particular country, regardless of the individual's current country of residence or nationality. For immigration purposes, “native” can also mean someone who is entitled to be “charged” to a country other than the one in which he/she was born under the provisions of Section 202(b) of the INA. For example, if you were born in a country that is not eligible for this year's DV program, you may claim chargeability to the country where your derivative spouse was born, but you will not be issued a DV-1 unless your spouse is also eligible for and issued a DV-2, and both of you must enter the United States together with the DVs. In a similar manner, a minor dependent child can be “charged” to a parent's country of birth.
Finally, if you were born in a country not eligible to participate in this year's DV program, you can be “charged” to the country of birth of either of your parents as long as neither parent was a resident of the ineligible country at the time of the your birth. In general, people are not considered residents of a country in which they were not born or legally naturalized if they are only visiting the country, studying in the country temporarily, or stationed temporarily in the country for business or professional reasons on behalf of a company or government from a country other than the country in which the applicant was born. If you claim alternate chargeability, you must indicate such information on the E-DV Entry Form in question #6. Please be aware that listing an incorrect country of eligibility or chargeability (i.e., one to which you cannot establish a valid claim) may disqualify your entry.
Yes, you must provide an e-mail address this year as part of your entry, it is no longer optional. If you are selected, you will still receive an official letter from the KCC by regular mail, but KCC may send other communication to you by e-mail. Please provide a personal e-mail address that you can access, rather than using someone else's address or a standard company address. All other requirements for DV-2011 remain the same as for the previous year. The Entry Status Check will be available for DV-2011 beginning July 1, 2010. If you applied for the DV-2010 program, you may check the status of your entry until the end of June 2010.
Signatures are not required on the E-DV Entry Form. Recent and individual photographs of you, your spouse, and all children under 21 years of age are required. Family or group photographs are not accepted. Refer to information on the photograph requirements located in this notice.
DVs are intended to provide an immigration opportunity for persons from countries other than the countries that send large numbers of immigrants to the United States. The law states that no DVs shall be provided for natives of “high admission” countries. The law defines this to mean countries from which a total of 50,000 persons in the Family-Sponsored and Employment-Based visa categories immigrated to the United States during the period of the previous five years. Each year, the U.S. Citizenship and Immigration Services (USCIS) adds the family and employment immigrant admission figures for the previous five years in order to identify the countries whose natives will be ineligible for the annual diversity lottery. Because there is a separate determination made before each annual E-DV entry period, the list of countries whose natives are not eligible may change from one year to the next.
By law, the U.S. DV program makes available a maximum of 55,000 permanent residence visas each year to eligible persons. However, the Nicaraguan Adjustment and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulates that beginning as early as DV-1999, and for as long as necessary, up to 5,000 of the 55,000 annually allocated DVs will be made available for use under the NACARA program. The actual reduction of the limit by up to 5,000 DVs began with DV-2000 and is likely to remain in effect through the DV-2011 program.
USCIS determines the DV regional limits for each year according to a formula specified in Section 203(c) of the INA. Once the USCIS has completed the calculations, the regional visa limits will be announced.
The DV-2011 entry period will run through the registration period listed above. Each year, millions of people apply for the program during the registration period. The massive volume of entries creates an enormous amount of work in selecting and processing successful individuals. Holding the entry period during October, November, and December will ensure that selectees are notified in a timely manner, and gives both the visa applicants and our embassies and consulates time to prepare and complete cases for visa issuance. You are strongly encouraged to enter early in the registration period. Excessive demand at end of the registration period may slow the system down. No entries whatsoever will be accepted after noon EST Monday, November 30, 2009.
Yes, an applicant may be in the United States or in another country, and the entry may be submitted from the United States or from abroad.
Yes, the law allows only one entry by or for each person during each registration period. Individuals for whom more than one entry is submitted will be disqualified. The Department of State will employ sophisticated technology and other means to identify individuals who submit multiple entries during the registration period. People submitting more than one entry will be disqualified and an electronic record will be permanently maintained by the Department of State. Individuals may apply for the program each year during the regular registration period.
Yes, a husband and a wife may each submit one entry if each meets the eligibility requirements. If either is selected, the other is entitled to derivative status.
On your entry you must list your spouse (husband or wife), and all unmarried children under 21 years of age, with the exception of children who are already U.S. citizens or Legal Permanent Residents. You must list your spouse even if you are currently separated from him/her, unless you are legally separated (
The fact that you have listed family members on your entry does not mean that they later must travel with you. They may choose to remain behind. However, if you include an eligible dependent on your visa application forms that you failed to include on your original entry, your case will be disqualified. This only applies to those who were family members at the time the original application was submitted, not those acquired at a later date. Your spouse may still submit a separate entry, even though he or she is listed on your entry, as long as both entries include details on all dependents in your family. See question #10 above.
You may prepare and submit your own entry, or have someone submit the entry for you. Regardless of whether an entry is submitted by the individual directly, or assistance is provided by an attorney, friend, relative,
The law and regulations require that every entrant must have at least a high school education or its equivalent or have, within the past five years, two years of work experience in an occupation requiring at least two years training or experience. A “high school education or equivalent” is defined as successful completion of a 12-year course of elementary and secondary education in the United States or successful completion in another country of a formal course of elementary and secondary education comparable to a high school education in the United States. Only formal courses of study meet this requirement; correspondence programs or equivalency certificates (such as the G.E.D.) are not acceptable. Documentary proof of education or work experience must be presented to the consular officer at the time of the visa interview.
At the KCC, all entries received from each region will be individually numbered. After the end of the registration period, a computer will randomly select entries from among all the entries received for each geographic region. Within each region, the first entry randomly selected will be the first case registered; the second entry selected the second registration, etc. All entries received during the registration period will have an equal chance of being selected within each region. When an entry has been selected, the entrant will be sent a notification letter by the KCC, which will provide visa application instructions. The KCC will continue to process the case until those selected to be visa applicants are instructed to appear for visa interviews at a U.S. consular office or until those qualifying to change status in the United States apply at a domestic USCIS office.
Notifications to those selected in the random lottery are
Yes, provided they are otherwise eligible to adjust status under the terms of Section 245 of the INA, selected individuals who are physically present in the United States may apply to the USCIS for adjustment of status to permanent resident. Applicants must ensure that USCIS can complete action on their cases, including processing of any overseas derivatives, before September 30, 2011, since on that date registrations for the DV-2011 program expire. No visa numbers for the DV-2011 program will be available after midnight on September 30, 2011, under any circumstances.
All entrants, including those not selected, may check the status of their entry through the E-DV Web site and find out if their entry was or was not selected. Entrants should keep their own confirmation page information from the time of their entry until they may check the status of their entry online. Status information for DV-2011 will be available online from July 1, 2010, until June 30, 2011. (Status information for the previous DV lottery, DV-2010, is available online from July 1, 2009, until June 30, 2010.) All official notification letters are sent to the address indicated on the entry within five to seven months from the end of the application period.
There are 50,000 DV visas available for DV-2011, but more than that number of individuals will be selected. Because it is likely that some of the first 50,000 persons who are selected will not qualify for visas or pursue their cases to visa issuance, more than 50,000 entries will be selected by the KCC to ensure that all of the available DVs are issued. However, this also means that there will not be a sufficient number of visas for all those who are initially selected. All applicants who are selected will be informed promptly of their place on the list. Interviews for the DV-2011 program will begin in October 2010. The KCC will send appointment letters to selected applicants four to six weeks before the scheduled interviews with U.S. consular officers at overseas posts. Each month, visas will be issued to those applicants who are ready for issuance during that month, visa number availability permitting. Once all of the 50,000 DVs have been issued, the program for the year will end. In principle, visa numbers could be finished before September 2011. Selected applicants who wish to receive visas must be prepared to act promptly on their cases. Random selection by the KCC computer as a selectee does not automatically guarantee that you will receive a visa. You must qualify for the visa as well.
There is no minimum age to apply for the program, but the requirement of a high school education or work experience for each principal applicant at the time of application will effectively disqualify most persons who are under age 18.
There is no fee for submitting an electronic lottery entry. DV applicants must pay all required visa fees at the time of visa application directly to the consular cashier at the embassy or consulate. Details of required DV and immigrant visa (IV) application fees will be included with the instructions sent
Applicants are subject to all grounds of ineligibility for IVs specified in the INA. There are no special provisions for the waiver of any ground of visa ineligibility aside from those ordinarily provided in the Act, nor is there special processing for waiver requests. Some general waiver provisions for people with close relatives who are U.S. Citizens of Lawful Permanent Resident aliens may be available to DV applicants as well, but the time constraints in the DV program will make it difficult for applicants to benefit from such provisions.
Yes, such persons may apply for the DV program.
Persons selected in the DV-2011 lottery are entitled to apply for visa issuance only during fiscal year 2011, from October 1, 2010, through September 30, 2011. Applicants must obtain the DV or adjust status by the end of the fiscal year. There is no carry-over of DV benefits into the next year for persons who are selected but who do not obtain visas by September 30, 2011 (the end of the fiscal year). Also, spouses and children who derive status from a DV-2011 registration can only obtain visas in the DV category between October 2010 and September 2011. Applicants who apply overseas will receive an appointment letter from the KCC four to six weeks before the scheduled appointment.
The death of an individual selected in the lottery results in automatic revocation of the DV case. Any eligible spouse and/or children are no longer entitled to the DV, for that entry.
Online entry will be available during the registration period beginning at noon EDT (GMT-4) on October 2, 2009, and ending at noon EST (GMT-5) on November 30, 2009.
No, you will not be able to save the form into another program for completion and submission later. The E-DV Entry Form is a Web form only. This makes it more “universal” than a proprietary word processor format. Additionally, it does require that the information be filled in and submitted while online.
Yes, this can be done as long as the photograph meets the photograph requirements in the instructions and the photograph is electronically submitted with, and at the same time as, the E-DV Entry Form is submitted. The applicants must already have the scanned photograph file when they submit the entry online. The photograph cannot be submitted separately from the online application. Only one online entry can be submitted for each person. Multiple submissions will disqualify the entry for that person for DV-2011. The entire entry (photograph and application together) can be submitted electronically from the United States or from overseas.
No, this cannot be done. The E-DV Entry Form is designed to be completed and submitted at one time. However, because the form is in two parts, and because of possible network interruptions and delays, the E-DV system is designed to permit up to sixty (60) minutes between when the forms are downloaded and when the entry is received by the E-DV Web site. If more than 60 minutes elapse and the entry has not been electronically received, the information already received is discarded. This is done so that there is no possibility that a full entry could accidentally be interpreted as a duplicate of a previous partial entry. The DV-2011 instructions explain clearly and completely what information is required to fill in the form. Thus you can be fully prepared, making sure you have all of the information needed before you start to complete the form online.
Yes, the entry can be resubmitted. Since the entry was automatically rejected, it was not actually considered as submitted to the E-DV Web site. It does not count as a submitted E-DV entry, and no confirmation notice of receipt is sent. If there are problems with the digital photograph sent, because it does not conform to the requirements, it is automatically rejected by the E-DV Web site. However, the amount of time it takes the rejection message to reach the sender is unpredictable given the nature of the Internet. If the problem can be fixed by the applicant, and the Form Part One or Two is resent within 60 minutes, there is no problem. Otherwise, the applicant will have to restart the submission process. An applicant can try to submit an application as many times as is necessary until a complete application is received and the confirmation notice sent.
The response from the E-DV Web site which contains confirmation of the receipt of an acceptable E-DV Entry Form is sent by the E-DV Web site immediately. However, how long it takes the response to reach the sender is unpredictable due to the nature of the Internet. If many minutes have elapsed since pressing the `Submit' button, there is no harm in pressing the `Submit' button a second time. The E-DV system will not be confused by a situation where the `Submit' button is hit a second time because no confirmation response has been received. An applicant can try to submit an application as many times as is necessary until a complete application is received and the confirmation notice sent. However, once you receive a confirmation notice, do not resubmit your information.
Keep your confirmation page. You will need it to check the status of your entry yourself at the official DV Web site
The KCC will send the letters notifying those selected. These letters will contain instructions for the visa application process. The instructions say the selected applicants will pay all DV and IV fees in person only at the U.S. embassy or consulate at the time of the visa application. The consular cashier or consular officer immediately gives the visa applicant a U.S. Government receipt for payment. You should never send money for DV fees through the mail, through Western Union, or any other delivery service.
The E-DV lottery entries are made on the Internet, on the official U.S. Government E-DV Web site at
The Department of State's Bureau of Consular Affairs advises the public that only Internet sites including the “.gov” indicator are official government Web sites. Many other non-governmental Web sites (
Some Web sites may try to mislead customers and members of the public into thinking they are official Web sites and may contact you by e-mail to lure you to their offers. These Web sites may attempt to require you to pay for services such as forms and information about immigration procedures, which are otherwise free on the Department of State Visa Services Web site or overseas through the U.S. embassy consular sections' Web sites. Additionally, these other Web sites may require you to pay for services you will not receive (such as fees for DV applications and visas) in an effort to steal your money. If you send in money to one of these scams, you will never see it again. Also, you should be wary of sending any personal information to these Web sites that might be used for identity fraud/theft.
If you wish to file a complaint about Internet fraud, please see the econsumer.gov Web site, hosted by the Federal Trade Commission, in cooperation with consumer protection agencies from 17 nations (
No, applicants who obtain a DV are not provided any type of assistance such as airfare, housing assistance, or subsidies. If you are selected to apply for a DV, before you can be issued a visa, you will be required to provide evidence that you will not become a public charge in the United States. This evidence may be in the form of a combination of your personal assets, an Affidavit of Support (Form I-134) from a relative or friend residing in the United States, and/or an offer of employment from an employer in the United States.
The lists below show the countries whose natives are eligible for DV-2011, grouped by geographic region. Dependent areas overseas are included within the region of the governing country. The countries whose natives are not eligible for the DV-2011 program were identified by the USCIS according to the formula in Section 203(c) of the INA. The countries whose natives are not eligible for the DV program (because they are the principal source countries of Family-Sponsored and Employment-Based immigration or “high admission” countries) are noted after the respective regional lists.
Algeria; Angola; Benin; Botswana; Burkina Faso; Burundi; Cameroon; Cape Verde; Central African Republic; Chad; Comoros; Congo; Congo, Democratic Republic of the; Cote D'Ivoire (Ivory Coast); Djibouti; Egypt; Equatorial Guinea; Eritrea; Ethiopia; Gabon; Gambia, The; Ghana; Guinea; Guinea-Bissau; Kenya; Lesotho; Liberia; Libya; Madagascar; Malawi; Mali; Mauritania; Mauritius; Morocco; Mozambique; Namibia; Niger; Nigeria; Rwanda; Sao Tome and Principe; Senegal; Seychelles; Sierra Leone; Somalia; South Africa; Sudan; Swaziland; Tanzania; Togo; Tunisia; Uganda; Zambia; Zimbabwe.
Persons born in the Gaza Strip are chargeable to Egypt.
Afghanistan; Bahrain; Bangladesh; Bhutan; Brunei; Burma; Cambodia; East Timor; Hong Kong Special Administrative Region; Indonesia; Iran; Iraq; Israel; Japan; Jordan; Kuwait; Laos; Lebanon; Malaysia; Maldives; Mongolia; Nepal; North Korea; Oman; Qatar; Saudi Arabia; Singapore; Sri Lanka; Syria; Taiwan; Thailand; United Arab Emirates; Yemen.
Albania; Andorra; Armenia; Austria; Azerbaijan; Belarus; Belgium; Bosnia and Herzegovina; Bulgaria; Croatia; Cyprus; Czech Republic; Denmark (including components and dependent areas overseas); Estonia; Finland; France (including components and dependent areas overseas); Georgia; Germany; Greece; Hungary; Iceland; Ireland; Italy; Kazakhstan; Kosovo; Kyrgyzstan; Latvia; Liechtenstein; Lithuania; Luxembourg; Macedonia, the Former Yugoslav Republic; Macau Special Administrative Region; Malta; Moldova; Monaco; Montenegro; Netherlands (including components and dependent areas
The Bahamas.
In North America, natives of Canada and Mexico are not eligible for this year's DV program.
Australia (including components and dependent areas overseas); Fiji; Kiribati; Marshall Islands; Micronesia, Federated States of; Nauru; New Zealand (including components and dependent areas overseas); Palau; Papua New Guinea; Samoa; Solomon Islands; Tonga; Tuvalu; Vanuatu.
Antigua and Barbuda; Argentina; Barbados; Belize; Bolivia; Chile; Costa Rica; Cuba; Dominica; Grenada; Guyana; Honduras; Nicaragua; Panama; Paraguay; Saint Kitts and Nevis; Saint Lucia; Saint Vincent and the Grenadines; Suriname; Trinidad and Tobago; Uruguay; Venezuela.
Brazil, Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, Jamaica, Mexico, and Peru.
In accordance with Section 25 of the Arms Export Control Act (AECA), as amended, 22 U.S.C. 2765, the State Department prepares an annual report to Congress (the “Javits” Report) regarding an arms sales proposal covering all Foreign Military Sales (FMS) and Direct Commercial Sales (DCS) of major weapons or weapons-related defense equipment worth $7,000,000 or more, and of any other weapons or weapons-related defense equipment worth $25,000,000 or more, which are considered eligible for approval during the relevant calendar year.
All DCS Javits Report 2010 submissions must be received by October 23, 2009.
Members of the public who need additional information regarding the DCS portion of the Javits Report should contact Allie Frantz, PM/DDTC, SA-1, 12th Floor, Directorate of Defense Trade Controls, Bureau of Political-Military Affairs, U.S. Department of State, Washington, DC 20522-0112; telephone (202) 736-9220; or e-mail
The Javits Report 2010 is an Arms Sales Proposal, to Congress, which covers all sales and licensed commercial exports under the Arms Export Control Act of major weapons or weapons-related defense equipment worth $7,000,000 or more, and of any other weapons or weapons-related defense equipment worth $25,000,000 or more, which are considered eligible for approval during calendar year 2010, together with an indication of which sales and licensed commercial exports are deemed most likely to result in a letter of offer or the issuance of an export license during 2010.
Javits Report entries for proposed Direct Commercial Sales should be submitted on the DS-4048 form to
Office of the United States Trade Representative.
Notice.
The Office of the United States Trade Representative (USTR) is providing notice of country-by-country allocations of the Fiscal Year (FY) 2010 in-quota quantity of the tariff-rate quotas for imported raw cane sugar, refined and specialty sugar, and sugar-containing products.
Inquiries may be mailed or delivered to Leslie O'Connor, Director of Agricultural Affairs, Office of Agricultural Affairs, Office of the United States Trade Representative, 600 17th Street, NW., Washington, DC 20508.
Leslie O'Connor, Office of Agricultural Affairs, telephone: 202-395-6127 or facsimile: 202-395-4579.
Pursuant to Additional U.S. Note 5 to Chapter 17 of the Harmonized Tariff Schedule of the United States (HTS), the United States maintains tariff-rate quotas (TRQs) for imports of raw cane sugar and refined sugar. Pursuant to Additional U.S. Note 8 to Chapter 17 of the HTS, the United States maintains a TRQ for imports of sugar-containing products.
Section 404(d)(3) of the Uruguay Round Agreements Act (19 U.S.C. 3601(d)(3)) authorizes the President to allocate the in-quota quantity of a TRQ for any agricultural product among supplying countries or customs areas.
On September 25, 2009, the Secretary of Agriculture (Secretary) announced the sugar program provisions for fiscal year (FY) 2010 (Oct. 1, 2009, through Sept. 30, 2010). The Secretary announced an in-quota quantity of the TRQ for raw cane sugar for FY 2010 of 1,117,195 metric tons* raw value (MTRV), which is the minimum amount to which the United States is committed under the World Trade Organization (WTO) Uruguay Round Agreements. USTR is allocating this quantity (1,117,195 MTRV) to the following countries in the amounts specified below:
These allocations are based on the countries' historical shipments to the United States. The allocations of the in-quota quantities of the raw cane sugar TRQ to countries that are net importers of sugar are conditioned on receipt of the appropriate verifications of origin, and certificates for quota eligibility must accompany imports from any country for which an allocation has been provided.
On September 25, 2009, the Secretary announced the establishment of the in-quota quantity of the FY 2010 refined sugar TRQ at 90,039 MTRV for which the sucrose content, by weight in the dry state, must have a polarimeter reading of 99.5 degrees or more. This amount includes the minimum level to which the United States is committed under the WTO Uruguay Round Agreements (22,000 MTRV of which 1,656 MTRV is reserved for specialty sugar) and an additional 68,039 MTRV for specialty sugars. USTR is allocating a total of 10,300 MTRV of refined sugar to Canada, 2,954 MTRV of refined sugar to Mexico, and 7,090 MTRV of refined sugar to be administered on a first-come, first-served basis.
Imports of all specialty sugar will be administered on a first-come, first-served basis in five tranches. The Secretary has announced that the total in-quota quantity of specialty sugar will be the 1,656 MTRV included in the WTO minimum plus an additional 68,039 MTRV. The first tranche of 1,656 MTRV will open October 20, 2009. All types of specialty sugars are eligible for entry under this tranche. The second tranche of 25,000 MTRV will open on November 10, 2009. The third, fourth, and fifth tranches of 14,346 MTRV each will open on January 12, 2010, May 17, 2010 and August 24, 2010, respectively. The second, third, fourth and fifth tranches will be reserved for organic sugar and other specialty sugars not currently produced commercially in the United States or reasonably available from domestic sources.
With respect to the in-quota quantity of 64,709 metric tons (MT) of the TRQ for imports of certain sugar-containing products maintained under Additional U.S. Note 8 to Chapter 17 of the HTS, USTR is allocating 59,250 MT to Canada. The remainder, 5,459 MT, of the in-quota quantity is available for other countries on a first-come, first-served basis.
Federal Aviation Administration, DOT.
Notice.
The Federal Aviation Administration (FAA) announces its findings on the noise compatibility program (NCP) submitted by the Metropolitan Airport Authority of Peoria for General Wayne A. Downing Peoria International Airport under the provisions of 49 U.S.C. 47501
Under section 47504 of the Act, an airport operator who has previously submitted a noise exposure map may submit to the FAA a noise compatibility program which sets forth the measures taken or proposed by the airport operator for the reduction of existing non-compatible land uses and prevention of additional non-compatible land uses within the area covered by the noise exposure maps. The Act requires such programs to be developed in consultation with interested and effected parties including local communities, government agencies, airport users, and FAA personnel.
Each airport noise compatibility program developed in accordance with Federal Aviation Regulations (FAR) Part 150 is a local program. The FAA does not substitute its judgment for that of the airport proprietor with respect to which measures should be recommended for action. The FAA's approval or disapproval of FAR Part 150 program recommendations is measured according to the standards expressed in Part 150 and the Act and is limited to the following determinations:
a. The noise compatibility program was developed in accordance with the provisions and procedures of FAR Part 150;
b. Program measures are reasonably consistent with achieving the goals of reducing existing non-compatible land
c. Program measures would not create an undue burden on interstate or foreign commerce, unjustly discriminate against types or classes of aeronautical uses, violate the terms of airport grants agreements, or intrude into areas preempted by the Federal Government; and
d. Program measures relating to the use of flight procedures can be implemented within the period covered by the program without derogating safety, adversely affecting the efficient use of navigable airspace and air traffic control systems, or adversely affecting other powers and responsibilities of the Administrator prescribed by law.
The submitted program included eleven proposed actions for noise mitigation on and off the airport, as applicable. The FAA completed its review and determined that the procedural and substantive requirements of the Act and FAR Part 150 have been satisfied.
On September 16, 2009, the FAA approved the General Wayne A. Downing Peoria International Airport noise compatibility program. All eleven of the recommendations of the program were approved.
Specific limitations with respect to FAA's approval of an airport noise compatibility program are delineated in FAR Part 150, section 150.5. Approval is not a determination concerning the acceptability of land uses under Federal, State, or local law. Approval does not by itself constitute an FAA implementing action. A request for Federal action or approval to implement specific noise compatibility measures may be required, and an FAA decision on the request may require an environmental assessment of the proposed action. Approval does not constitute a commitment by the FAA to financially assist in the implementation of the program nor a determination that all measures covered by the program are eligible for grant-in-aid funding from the FAA. Where Federal funding is sought, requests for project grants must be submitted to the FAA Chicago Airports District Office.
These determinations are set forth in detail in a Record of Approval signed by Deb Roth on September 16, 2009. The Record of Approval, as well as other evaluation materials and the documents comprising the submittal, are available for review at the FAA office listed above and at the administrative offices of the General Wayne A. Downing Peoria International Airport.
Ms. Amy Hanson, Environmental Protection Specialist, CHI-603, Federal Aviation Administration, Chicago Airport District Office, 2300 East Devon Avenue, Des Plaines, IL 60018. Telephone number: 847-294-7354. Documents reflecting this FAA action may also be reviewed at this same location.
Federal Highway Administration (FHWA), DOT.
Notice.
This notice provides information regarding the FHWA's finding that a Buy America waiver is appropriate for the purchase of foreign Mobile Harbor Cranes in the Federal-aid/American Recovery and Reinvestment Act of 2009 project for the Toledo Port Authority General Cargo Facility.
The effective date of the waiver is October 6, 2009.
For questions about this notice, please contact Mr. Gerald Yakowenko, FHWA Office of Program Administration, (202) 366-1562, or via e-mail at
An electronic copy of this document may be downloaded from the Federal Register's home page at:
The FHWA's Buy America policy in 23 CFR 635.410 requires a domestic manufacturing process for any steel or iron products (including protective coatings) that are permanently incorporated in a Federal-aid construction project. The regulation also provides for a waiver of the Buy America requirements when the application of such requirements would be inconsistent with the public interest or when satisfactory quality domestic steel and iron products are not sufficiently available. This notice provides information regarding the FHWA's finding that a Buy America waiver is appropriate for the acquisition of Mobile Harbor Cranes at the General Cargo Facility in Ohio. While funded by funds made available to the FHWA and subject to the Buy America requirements under 23 U.S.C. 313 and 23 CFR 635.410, the project is being administered by the Maritime Administration. The FHWA has coordinated this Buy America waiver for administrative convenience.
In accordance with the Division I, section 126 of the “Omnibus Appropriations Act, 2009” (Pub. L. 111-8), the FHWA published a notice of intent to issue a waiver on the Mobile Harbor Cranes (
In accordance with the provisions of section 117 of the SAFETEA-LU Technical Corrections Act of 2008 (Pub. L. 110-244, 122 Stat. 1572), the FHWA is providing this notice as its finding that a waiver of Buy America requirements is appropriate. The FHWA invites public comment on this finding for an additional 15 days following the effective date of the finding. Comments may be submitted to the FHWA's Web site via the link provided to the Ohio waiver page noted above.
23 U.S.C. 313; Public Law 110-161, 23 CFR 635.410.
Federal Aviation Administration (FAA), DOT.
Notice of Intent to Rule on Application.
The FAA proposes to rule and invites public comment on the application to impose and use the revenue from a PFC Chicago O'Hare International Airport under the provisions of the 49 U.S.C. 40117 and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
Comments must be received on or before date which is 30 days after date of publication in the
Comments on this application may be mailed or delivered in triplicate to the FAA at the following address: Jack Delaney, Federal Aviation Administration, Acting Manager, Chicago Airports District Office, 2300 E. Devon, Des Plaines, Illinois 60018.
In addition, one copy of any comments submitted to the FAA must be mailed or delivered to Rosemarie Andolino, Commissioner of the City of Chicago Department of Aviation at the following address: Chicago O'Hare International Airport, 10510 West Zemke Road, P.O. Box 66142, Chicago, Illinois 60666.
Air carriers and foreign air carriers may submit copies of written comments previously provided to the City of Chicago Department of Aviation under section 158.23 of Part 158.
Jack Delaney, Federal Aviation Administration, Acting Manager, Chicago Airports District Office, 2300 E. Devon, Des Plaines, Illinois 60018, (847) 294-7336. The application may be reviewed in person at this same location.
The FAA proposes to rule and invites public comment on the application to impose, use the revenue from, impose and use the revenue from a PFC at Chicago O'Hare International Airport under the provisions of the 49 U.S.C. 40117 and Part 158 of the Federal Aviation Regulations (14 CFR Part 158).
On September 17, 2009, the FAA determined that the application to impose, use the revenue from, impose and use the revenue from a PFC submitted by City of Chicago Department of Aviation was substantially complete within the requirements of section 158.25 of Part 158. The FAA will approve or disapprove the application, in whole or in part, no later than January 1, 2010.
The following is a brief overview of the application.
Any person may inspect the application in person at the FAA Office listed above under
In addition, any person may, upon request, inspect the application, notice and other documents germane to the application in person at the City of Chicago Department of Aviation.
Internal Revenue Service (IRS), Treasury.
Notice.
The Information Reporting Program Advisory Committee (IRPAC) will hold a public meeting on Wednesday, October 28, 2009.
Ms. Caryl Grant, National Public Liaison, CL:NPL:SRM, Rm. 7559, 1111 Constitution Avenue, NW., Washington, DC 20224. Telephone: 202-927-3641 (not a toll-free number). E-mail address:
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988), a public meeting of the IRPAC will be held on Wednesday, October 28, 2009 from 9 a.m. to 12 p.m. in the Main IRS Building, 1111 Constitution Avenue, NW., Room 3313, Washington, DC. Issues that may be discussed include: reporting of customer's basis in securities transactions, supplemental W-4 instructions and simplification of tax compliance—Non-resident Aliens, proposed regulations under IRC 3402(t) Withholding on Certain Payments Made by Government Entities, TIN masking on payee 1099s, reporting of payments in settlement of payment card and third party network transactions, Form SSA-7028, notice to third party of Social Security number assignment, 5500 enhancements, use of logos on substitute information returns, Section 530 relief, Barter Exchange education, back-up withholding and B-Notice, Forms 3921 and 3922, Administration's Proposals—Tax Information Reporting and withholding, expansion of e-Services, federally declared, disaster casualty losses, proposed ETA e-Channel program, Build American Bonds, Form 1098—Mortgage Interest Statement, Form 5498—Reporting for Successor Beneficiaries, Form 945-X, IRM 4.10.21—Examinations, Form 8886—Reportable Transaction Disclosure Statement, Form 1098-T—Tuition Statement, Form 1099-MISC—missing or incorrect TIN, Notice 2009-46—personal usage of employer-provided cell phones, and WHIFTS—Widely Held Fixed Investment Trusts. Last minute agenda changes may preclude advance notice. Due to limited seating and security requirements, please call or email Caryl Grant to confirm your attendance. Ms. Grant can be reached at 202-927-3641 or
Internal Revenue Service (IRS), Treasury.
Notice of Meeting.
An open meeting of the Area 5 Taxpayer Advocacy Panel will be conducted. The Taxpayer Advocacy Panel is soliciting public comments, ideas, and suggestions on improving customer service at the Internal Revenue Service.
The meeting will be held Tuesday, November 10, 2009.
Patricia Robb at 1-888-912-1227 or 414-231-2360.
Notice is hereby given pursuant to Section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988) that a meeting of the Area 5 Taxpayer Advocacy Panel will be held Tuesday, November 10, 2009, at 9:30 a.m. Central Time via telephone conference. The public is invited to make oral comments or submit written statements for consideration. Due to limited conference lines, notification of intent to participate must be made with Patricia Robb. For more information please contact Ms. Robb at 1-888-912-1227 or 414-231-2360, or write TAP Office Stop 1006MIL, 211 West Wisconsin Avenue, Milwaukee, WI 53203-2221, or post comments to the Web site:
The agenda will include various IRS issues.
The United States Mint is announcing the price of the 2009 United States Mint Lincoln Coin and Chronicles Set. As part of the 2009 Abraham Lincoln Commemorative Silver Dollar Program, the United States Mint is producing a limited edition collectible product capturing the life and legacy of President Abraham Lincoln. This set contains one proof 2009 Abraham Lincoln Commemorative Silver Dollar and four proof 95% copper one-cent coins featuring the four 2009 one-cent coin reverse designs. The slip-covered tri-fold case features a reproduction of a photograph of Abraham Lincoln and a reproduction of the original Gettysburg Address in Lincoln's handwriting. The 2009 United States Mint Lincoln Coin and Chronicles Set will be offered for sale on October 15, 2009, at a price of $55.95 per set.
B. B. Craig, Associate Director for Sales and Marketing; United States Mint; 801 9th Street, NW.; Washington, DC 20220; or call 202-354-7500.
31 U.S.C. 5111, 5112 & 9701; Public Law 109-285, the Abraham Lincoln Commemorative Coin Act.
Environmental Protection Agency (EPA).
Final rule.
On September 15, 1997, EPA adopted new source performance standards (NSPS) and emissions guidelines (EG) for hospital/medical/infectious waste incinerators (HMIWI). The NSPS and EG were established under Sections 111 and 129 of the Clean Air Act (CAA or Act). In a response to a suit filed by the Sierra Club and the Natural Resources Defense Council (Sierra Club), the U.S. Court of Appeals for the District of Columbia Circuit (the Court) remanded the HMIWI regulations on March 2, 1999, for further explanation of EPA's reasoning in determining the minimum regulatory “floors” for new and existing HMIWI. The HMIWI regulations were not vacated and were fully implemented by September 2002. On February 6, 2007, we published our proposed response to the Court's remand. Following recent court decisions and receipt of public comments regarding the proposal, we re-assessed our response to the remand, and on December 1, 2008, we published another proposed response and solicited public comments. This action promulgates our response to the Court's remand and also satisfies the CAA Section 129(a)(5) requirement to conduct a review of the standards every 5 years.
The amendments to 40 CFR 60.32e, 60.33e, 60.36e, 60.37e, 60.38e, 60.39e, Table 1A and 1B to subpart Ce, and Tables 2A and 2B to subpart Ce are effective as of December 7, 2009. The amendments to 40 CFR 60.17, 60.50c, 60.51c, 60.52c, 60.55c, 60.56c, 60.57c, 60.58c, and Tables 1A and 1B to subpart Ec are effective as of April 6, 2010. The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of April 6, 2010.
EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2006-0534 and Legacy Docket ID No. A-91-61. All documents in the docket are listed on the
Mr. Ketan D. Patel, Natural Resources and Commerce Group, Sector Policies and Programs Division (E143-03), Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-9736; fax number: (919) 541-3470; e-mail address:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by the final action. To determine whether your facility would be affected by the final action, you should examine the applicability criteria in 40 CFR 60.50c of subpart Ec and 40 CFR 60.32e of subpart Ce. If you have any questions regarding the applicability of the final action to a particular entity, contact the person listed in the preceding
In addition to being available in the docket, an electronic copy of this final action will also be available on the Worldwide Web (WWW) through the Technology Transfer Network (TTN). Following signature, a copy of the final action will be posted on the TTN's policy and guidance page for newly proposed or promulgated rules at the following address:
Under Section 307(b)(1) of the Clean Air Act (CAA or Act), judicial review of this final rule is available only by filing a petition for review in the U.S. Court of Appeals for the District of Columbia Circuit (the Court) by December 7, 2009. Under Section 307(d)(7)(B) of the CAA, only an objection to this final rule that was raised with reasonable specificity during the period for public comment can be raised during judicial review. CAA Section 307(d)(7)(B) also provides a mechanism for EPA to convene a proceeding for reconsideration, “[i]f the person raising an objection can demonstrate to EPA that it was impracticable to raise such objection within [the period for public comment] or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule.” Any person seeking to make such a demonstration to us should submit a Petition for Reconsideration to the Office of the Administrator, Environmental Protection Agency, Room 3000, Ariel Rios Building, 1200 Pennsylvania Ave., NW., Washington, DC 20460, with a copy to the person listed in the preceding
Section 129 of the CAA, entitled “Solid Waste Combustion,” requires EPA to develop and adopt new source performance standards (NSPS) and emissions guidelines (EG) for solid waste incineration units pursuant to CAA Sections 111 and 129. Sections 111(b) and 129(a) of the CAA (NSPS program) address emissions from new HMIWI, and CAA Sections 111(d) and 129(b) (EG program) address emissions from existing HMIWI. The NSPS are directly enforceable Federal regulations, and under CAA Section 129(f)(1) become effective 6 months after promulgation. Under CAA Section 129(f)(2), the EG become effective and enforceable as expeditiously as practicable after EPA approves a State plan implementing the EG but no later than 3 years after such approval or 5 years after the date the EG are promulgated, whichever is earlier.
A HMIWI is defined as any device used to burn hospital waste or medical/infectious waste. Hospital waste means discards generated at a hospital, and medical/infectious waste means any waste generated in the diagnosis, treatment, or immunization of human beings or animals, in research pertaining thereto, or in the production or testing of biologicals (
Incineration of hospital/medical/infectious waste causes the release of a wide array of air pollutants, some of which exist in the waste feed material and are released unchanged during combustion, and some of which are generated as a result of the combustion process itself. These pollutants include particulate matter (PM); heavy metals, including lead (Pb), cadmium (Cd), and mercury (Hg); toxic organics, including chlorinated dibenzo-p-dioxins/dibenzofurans (CDD/CDF); carbon monoxide (CO); nitrogen oxides (NO
Waste segregation is the separation of certain components of the waste stream in order to reduce the amount of air pollution emissions associated with that waste when incinerated. The separated waste may include paper, cardboard, plastics, glass, batteries, aluminum cans, food waste, or metals. Separation of these types of wastes reduces the amount of chlorine- and metal-containing wastes being incinerated, which results in lower potential emissions of HCl, CDD/CDF, Hg, Cd, and Pb.
Combustion control includes the proper design, construction, operation, and maintenance of HMIWI to destroy or prevent the formation of air pollutants prior to their release to the atmosphere. Test data indicate that as secondary chamber residence time and temperature increase, emissions decrease. Combustion control is most effective in reducing CDD/CDF, PM, and CO emissions. The 2-second combustion level, which includes a minimum secondary chamber temperature of 1800 °F and residence time of 2 seconds, is considered to be the best level of combustion control (
The CAA sets forth a two-stage approach to regulating emissions from
In setting forth the methodology EPA must use to establish the first-stage technology-based NSPS and EG, CAA Section 129(a)(2) provides that standards “applicable to solid waste incineration units promulgated under Section 111 and this Section shall reflect the maximum degree of reduction in emissions of [certain listed air pollutants] that the Administrator, taking into consideration the cost of achieving such emissions reduction, and any non-air quality health and environmental impacts and energy requirements, determines is achievable for new and existing units in each category.” This level of control is referred to as a “maximum achievable control technology,” or MACT, standard.
In promulgating a MACT standard, EPA must first calculate the minimum stringency levels for new and existing solid waste incineration units in a category, generally based on levels of emissions control achieved or required to be achieved by the subject units. The minimum level of stringency is called the MACT “floor,” and CAA Section 129(a)(2) sets forth differing levels of minimum stringency that EPA's standards must achieve, based on whether they regulate new and reconstructed sources, or existing sources. For new and reconstructed sources, CAA Section 129(a)(2) provides that the “degree of reduction in emissions that is deemed achievable [* * *] shall not be less stringent than the emissions control that is achieved in practice by the best controlled similar unit, as determined by the Administrator.” Emissions standards for existing units may be less stringent than standards for new units, but “shall not be less stringent than the average emissions limitation achieved by the best performing 12 percent of units in the category (excluding units which first met lowest achievable emissions rates 18 months before the date such standards are proposed or 30 months before the date such standards are promulgated, whichever is later).”
The MACT floors form the least stringent regulatory option EPA may consider in the determination of MACT standards for a source category. EPA must also determine whether to control emissions “beyond-the-floor,” after considering the costs, non-air quality health and environmental impacts, and energy requirements of such more stringent control. EPA made such MACT floor and beyond-the-floor determinations and on September 15, 1997, adopted NSPS (40 CFR part 60, subpart Ec) and EG (40 CFR part 60, subpart Ce) using this approach for entities which operate HMIWI. The NSPS and EG are designed to reduce air pollution emitted from new and existing HMIWI, including HCl, CO, Pb, Cd, Hg, PM, CDD/CDF (total, or 2,3,7,8-tetrachlorinated dibenzo-p-dioxin toxic equivalent (TEQ)), NO
On November 14, 1997, the Sierra Club and the Natural Resources Defense Council (Sierra Club) filed suit in the Court. The Sierra Club claimed that EPA violated CAA Section 129 by setting emissions standards for HMIWI that are less stringent than required by Section 129(a)(2); that EPA violated Section 129 by not including pollution prevention or waste minimization requirements; and that EPA had not adequately considered the non-air quality health and environmental impacts of the standards.
On March 2, 1999, the Court issued its opinion in
On February 6, 2007, EPA proposed a response to the HMIWI remand. The proposed response was based on a reassessment of information and data that were available at the time of promulgation in 1997, in light of the EPA's understanding of the Court's rulings in the
On December 1, 2008, EPA re-proposed its response to the Court's remand. EPA's decision to re-propose was based on a number of factors, including further rulings by the U.S. Court of Appeals that were issued after our 2007 proposal was published. In addition, public comments regarding the 2007 proposal raised issues that, upon further consideration, we believed would best be addressed through a re-proposal. One issue regarded the use of emissions limits included in State regulations and State-issued permits as surrogates for estimated actual emissions limitations achieved. Another issue regarded EPA's previous reliance on control technology performance as the sole indicator of HMIWI performance in making MACT floor determinations, which did not necessarily account for other factors that affect emissions (
As mentioned above, every 5 years after adopting a MACT standard under Section 129, CAA Section 129(a)(5) requires EPA to review and, if appropriate, revise the incinerator standards. In addition to responding to the Court's remand, today's final action constitutes the first 5-year review of the HMIWI standards.
Today's final response to the remand revises the December 2008 proposed emissions limits for both the NSPS and EG. The emissions limits are being revised in response to a public comment on the December 2008 re-proposal, which requested that EPA adjust the statistical approach used to account for variability in the data and consider the distribution of the emissions data in determining the MACT floor emissions limits. The revised statistical approach results in generally higher limits compared to the December 2008 re-proposal. (
Table 1 of this preamble summarizes the NSPS emissions limits being promulgated in this action in response to the Court remand for new HMIWI.
Table 2 of this preamble summarizes the emissions limits being promulgated in this action in response to the Court remand for existing HMIWI.
We are promulgating our response to the remand in
This final action puts forward the same changes based on information received during implementation of the HMIWI NSPS and EG that were proposed in 2007 and 2008. The changes proposed in 2007 included provisions allowing existing sources to use previous emissions test results to demonstrate compliance with the revised emissions limits; annual inspections of air pollution control devices (APCD); a one-time visible emissions test of ash handling operations; CO continuous emissions monitoring systems (CEMS) and bag leak detection systems for new sources; and several approved monitoring alternatives. The 2008 proposal included changes regarding requirements for NO
The amendments require all HMIWI to demonstrate initial compliance with the revised NO
The amendments require, for existing HMIWI, annual inspections of scrubbers, fabric filters, and other air pollution control devices that may be used to meet the emissions limits. The amendments require a visible emissions test of the ash handling operations using Method 22 in appendix A-7 of this part to be conducted during the next performance test. For new HMIWI, the amendments require CO CEMS; bag leak detection systems for fabric-filter controlled units; annual inspections of scrubbers, fabric filters, and other air pollution control devices that may be used to meet the emissions limits; and Method 22 visible emissions testing of the ash handling operations to be conducted during each compliance test. For existing HMIWI, use of CO CEMS is an approved option, and specific language with requirements for CO CEMS is included in the amendments. For new and existing HMIWI, use of PM, HCl, multi-metals, and Hg CEMS, and integrated sorbent trap Hg monitoring and dioxin monitoring (continuous sampling with periodic sample analysis) also are approved options, and specific language for those options is included in the amendments. HMIWI that install SNCR technology to reduce NO
The EPA must have performance test data to conduct effective 5-year reviews of CAA Section 129 standards, as well as for many other purposes, including compliance determinations, development of emissions factors, and determining annual emissions rates. In conducting 5-year reviews, EPA has found it burdensome and time-consuming to collect emissions test data because of varied locations for data storage and varied data storage methods. One improvement that has occurred in recent years is the availability of stack test reports in electronic format as a replacement for burdensome paper copies.
In this action, we are taking a step to improve data accessibility. HMIWI have the option of submitting to an EPA electronic database an electronic copy of annual stack test reports. Data entry will be through an electronic emissions test report structure used by the staff as part of the emissions testing project. The electronic reporting tool (ERT) was developed with input from stack testing companies who generally collect and compile performance test data electronically. The ERT is currently available, and access to direct data submittal to EPA's electronic emissions database (WebFIRE) will become available December 31, 2011.
Please note that the option to submit source test data electronically to EPA will not require any additional performance testing. In addition, when a facility elects to submit performance test data to WebFIRE, there will be no additional requirements for data compilation. Instead, we believe industry will benefit from development of improved emissions factors, fewer follow-up information requests, and better regulation development, as discussed below. The information to be reported is already required in the existing test methods and is necessary to evaluate the conformance to the test method. One major advantage of electing to submit source test data through the ERT is to provide a standardized method to compile and store all the documentation required to be reported by this rule. Another important benefit of submitting these data to EPA at the time the source test is conducted is that it will substantially reduce the effort involved in data collection activities in the future. Specifically, because EPA would already have adequate source category data to conduct residual risk assessments or technology reviews, there would be fewer data collection requests (
The electronic data base that will be used is EPA's WebFIRE, which is a Web site accessible through EPA's TTN. The WebFIRE Web site was constructed to store emissions test data for use in developing emissions factors. A description of the WebFIRE data base can be found at
The amendments revise the waste management plan provisions for new and existing HMIWI. Commenters on the 2008 re-proposal recommended that EPA minimize or eliminate from the HMIWI waste stream any plastic wastes, Hg and other hazardous wastes (
The amendments revise the definition of “Minimum secondary chamber temperature” to read “
The amendments add definitions for “Bag leak detection system,” “commercial HMIWI,” and “minimum reagent flow rate.” “
The amendments require HMIWI to submit, along with each test report, a description, including sample calculations, of how operating parameters are established during the initial performance test and, if applicable, re-established during subsequent performance tests.
To provide greater clarity, the amendments also include averaging times and EPA reference test methods in the emissions limit tables for existing and new sources. It should be noted that the averaging times and EPA reference test methods added to the emissions limits tables are not new requirements but simply a restating of requirements presented elsewhere in the HMIWI regulations. Also, the inclusion of these additional table columns should not be interpreted as reopening the 1997 standards themselves.
The amendments also incorporate by reference two alternatives to EPA reference test methods (ASME PTC 19.10-1981 and ASTM D6784-02) to provide HMIWI with greater flexibility in demonstrating compliance. These alternative methods are described in greater detail in section VIII.I of this preamble and were first presented in the preamble to the December 1, 2008 re-proposal.
Under the amendments to the EG, and consistent with CAA Section 129, revised State plans containing the revised existing source emissions limits and other requirements in the amendments will be due within 1 year after promulgation of the amendments. That is, revised State plans have to be submitted to EPA on October 6, 2010.
The amendments to the EG then allow existing HMIWI to demonstrate compliance with the amended standards as expeditiously as practicable after approval of a State plan, but no later than 3 years from the date of such approval or 5 years after promulgation of the revised standards, whichever is earlier. Because many HMIWI will find it necessary to retrofit existing emissions control equipment and/or install additional emissions control equipment in order to meet the revised limits, States may wish to consider providing the maximum compliance period allowed by CAA Section 129(f)(2).
In revising the emissions limits in a State plan, a State has two options. First, it could include both the current and the new emissions limits in its revised State plan, which would allow a phased approach in applying the new limits. That is, the State plan would make it clear that the 1997 emissions limits remain in force and apply until the date the revised existing source emissions limits are effective (as defined in the State plan). States whose existing HMIWI do not find it necessary to improve their performance in order to meet the revised emissions limits may want to consider a second approach, where the State would insert the revised emissions limits in place of the 1997 emissions limits, follow procedures in 40 CFR part 60, subpart B, and submit a revised State plan to EPA for approval. If the revised State plan contains only the revised emissions limits (
EPA will revise the existing Federal plan to incorporate the changes to existing source emissions limits and other requirements that EPA is promulgating. The Federal plan applies to HMIWI in any State without an approved State plan. The amendments to the Federal plan for the EG would require existing HMIWI demonstrate compliance with the amended standards not later than 5 years after today's final rule, as required by CAA Section 129(b)(3).
HMIWI are treated differently under the amended standards than they were under the 1997 standards in terms of whether they are “existing” or “new” sources, and there are new dates defining what are “new” sources and imposing compliance deadlines regarding the amended standards. All HMIWI that complied with the NSPS as promulgated in 1997 are “existing” sources under the amended standards and are required to meet the emissions limits under the revised EG or the 1997 NSPS, whichever is more stringent, by the applicable compliance date for the revised EG. (Note that the HCl emissions limit for small HMIWI and the PM emissions limit for medium HMIWI are more stringent under the 1997 NSPS than under the revised EG, and HMIWI that complied with those 1997 NSPS are required to continue to do so.) In the interim, those sources will continue to be subject to the NSPS as promulgated in 1997 until the date for compliance with the revised EG. Units for which construction is commenced after the December 1, 2008 proposal, or for which modification is commenced on or after the date 6 months after today's
Thus, under these specific amendments, units that commenced construction after June 20, 1996, and on or before December 1, 2008, or that are modified before the date 6 months after the date of promulgation of the revised final NSPS, continue to be or would become subject to the 40 CFR part 60, subpart Ec NSPS emissions limits that were promulgated in 1997 until the applicable compliance date for the revised EG, at which time those units must comply with the amended “existing” source EG or 1997 NSPS, whichever is more stringent for each pollutant. Similarly, HMIWI that met the 1997 EG must meet the revised EG by the applicable compliance date for the revised EG. HMIWI that commence construction after December 1, 2008 or that are modified 6 months or more after the date of promulgation of the revised NSPS must meet the revised NSPS emissions limits being added to the subpart Ec NSPS within 6 months after the promulgation date of the amendments or upon startup, whichever is later.
This approach is justified because most HMIWI will have to install additional emissions controls to comply with the revised standards. CAA Sections 129(g)(2) and (3) define “new solid waste incineration unit” and “modified solid waste incineration unit” based on whether construction of the new unit commences after the date of proposed standards under Section 129 and on whether modification occurs after the effective date of a Section 129 standard, respectively. While these definitions might be read as referring to the dates EPA first proposes standards for the source category as a whole and on which such standards first become effective for the source category, we are interpreting and applying them in this rulemaking to refer to the proposal and effective dates for standards under this new rulemaking record. The evident intent of the definitions plus the substantive new unit and modified unit provisions is that it is technically more challenging and potentially more costly to retrofit a control system to an existing unit than to incorporate controls when a unit is initially designed.
The 1997 standards included provisions in 40 CFR 60.56c and 60.37e that exempted HMIWI from the standards during periods of SSM, provided that no hospital waste or medical/infectious waste is charged to the unit during those SSM periods. Neither our 2007 proposal nor our 2008 re-proposal would have changed these provisions. However, soon after the date of our re-proposal, the U.S. Court of Appeals in
A total of 22 separate sets of public comments were received on the December 1, 2008 re-proposal. (One additional comment, received after the deadline for public comments, was an addendum to an earlier comment.
The facility typically burns 50 percent hospital/medical/infectious (HMI) waste and 50 percent municipal waste in its two units. If we were to grant an exemption to the HMIWI rule for this facility due to it being subject to the small MWC rule and the facility were to increase the amount of HMI waste burned to 70 percent and reduce the amount of municipal waste burned to 30 percent, we could create a total compliance loophole for the facility, given that the small MWC rule includes a co-fired exemption for units burning 30 percent or less of municipal waste. This would be an unacceptable outcome.
Another option to address this situation would be to create a hybrid waste subcategory to include the two units, based on the rationale that the units are burning a unique mixture of waste. However, we did not provide an opportunity to comment on such an option in the re-proposal, and have not had the opportunity to develop a record to support such a new approach or its possibly unique regulatory framework. Moreover, it is also not clear that such a hybrid subcategory would fit within the statutory divisions of incinerator categories set forth in Section 129(a)(1) of the CAA. Therefore, we decided not to pursue that option for the final rule.
We believe it is reasonable for the facility to be subject to both the HMIWI and small MWC rules when switching back and forth among the types of waste burned, since this ensures that, when the facility operates as either a HMIWI or small MWC, it is regulated as such and does not avoid compliance obligations that all other incinerators operating continuously as either HMIWI or small MWC must meet. We do not expect that continuing to require the facility to comply with both rules will be overly burdensome. The facility should be able to control to the more stringent of the two rules.
Three commenters stated that EPA must develop a new subcategory for commercial facilities, based on the claimed significant operational differences between commercial and so-called “captive” units that are attached to HMI waste generators. The commenters defined a captive unit as one that is co-owned and co-operated by the generator of the waste, while a commercial operator is in business to receive wastes from third parties. The commenters stated that commercial HMIWI, unlike operators of captive units, cannot use alternative forms of disposal (
The same three commenters also argued that EPA provides no rationale for its retention of the small rural class in the re-proposed rule, and that its prior rationale regarding the unavailability of alternative means of medical waste treatment beyond 50 miles from the nearest standard metropolitan statistical area (SMSA) is unsupported. According to the commenters, EPA's proposed retention of the small rural subcategory is arbitrary and capricious.
Another commenter recommended that EPA establish new size classifications, claiming that the distribution of HMIWI no longer matches the three size categories EPA identified in 1995 when the rule was first being developed. The commenter also noted that current standards are based on subcategories defined in terms of feed rates with no corresponding heating value. According to the commenter, a reference waste heating characteristic must be established to adjust or rate incinerators, given that there is currently no consistency or basis for determining equivalent charging rate.
The same commenter further recommended that, based on its facility's unique attributes—extremely large processing capacity, customer generated waste material variability, waste mix, waste-to-energy heat recovery technology, CEMS, 2+ second combustion gas retention time, and high British thermal unit (BTU) waste content—EPA should place its facility in a separate subcategory for extra-large HMIWI. The commenter provided a list of suggested standards for such a subcategory, based on upper confidence limits (UCLs) calculated using EPA's methodology, that indicate 7 of the 11 promulgated standards applicable to it could be tightened. The commenter noted that residual risk analyses conducted under Maryland's stringent air toxics regulations (provided in the commenter's public comments) show that the resulting ambient emissions would meet all applicable requirements.
We evaluated three different subcategory options to try and address the concerns stated by the commenters. The three options included: (1) Option 1—no change to existing size categories; (2) Option 2—creating a commercial subcategory (as suggested by three commenters) and redistributing the size categories for the captive HMIWI (as suggested by another commenter); and (3) Option 3—redistributing the existing size categories to more evenly distribute the number of HMIWI (also suggested by the other commenter).
Under Option 1, the size distributions would remain the same—large (>500 lb/hr of waste), medium (>200 to ≤500 lb/hr of waste), and small (≤200 lb/hr of waste), with the latter category divided into small rural and non-rural subcategories based on distance from the nearest SMSA.
Under Option 2, commercial HMIWI would be categorized separately from captive HMIWI, and the captive HMIWI further subcategorized as follows—large (>1,000 lb/hr of waste), medium (>500 to ≤1,000 lb/hr of waste), and small (≤500 of waste), with no further subcategorization of the latter category.
Under Option 3, the sizes would be redistributed as follows—large (>1,500 lb/hr of waste), medium (>500 to ≤1,500 lb/hr of waste), and small (≤500 lb/hr of waste), with the latter category divided into small rural and non-rural subcategories as under Option 1.
We conducted MACT floor analyses on all three options, using the following methodology, which is described in more detail later in this notice—(1) Ranking the emissions data from lowest to highest for each pollutant; (2) determining the units in the MACT floor for each pollutant; (3) determining the distribution of test run data for the MACT floor units; and (4) calculating a 99 percent UCL for each pollutant based on that distribution, using Student's t-test statistics. We developed floor-based emissions limits based on these UCL values, rounding up to two significant figures. We compared the emissions limits to average emissions estimates for each HMIWI and determined whether the HMIWI would meet the limits. We estimated the number of HMIWI expected to meet
However, since we did not propose any subcategorization option other than the small, medium and large size subcategories identified in the 1997 rule, and did not provide an opportunity to comment on this issue in the re-proposal, we have concluded that it would not be appropriate at this time to promulgate emissions limits based on Options 2 and 3. Moreover, we do not see a compelling need to make the adjustments of Options 2 or 3, given that similar numbers of HMIWI meet the limits under all three options. Simply re-adjusting the size thresholds to reflect an even distribution of units post-MACT compliance among the subcategories is not necessarily reasonable, whereas the size thresholds from the 1997 rule continue to correspond to the basic distinctions between the subcategories of units as currently operated. Therefore, we selected Option 1 (no change to existing size subcategories) as the best subcategory option on which to base the emissions limits for promulgation.
Two other subcategory options were considered and rejected without further analysis. The two options include (1) an extra-large subcategory for one HMIWI facility (as suggested by one commenter), and (2) a mixed waste subcategory for another HMIWI facility (an outgrowth of a comment by another commenter, as discussed in the previous section). In addition to the fact that we did not provide opportunity to comment on this issue, we found no basis for creating a new subcategory for this particular rulemaking to fit a single facility.
We disagree with the argument by three commenters that EPA's retention of the small rural subcategory is unsupported by any rationale. As we explained in the September 15, 1997 notice of final rulemaking (62 FR 48370), alternative means of medical waste treatment may not be available to some facilities that operate small HMIWI in rural or remote locations. Facilities that operate small HMIWI in remote locations could be faced with unique adverse impacts if required to meet the more stringent emissions limits associated with small non-rural HMIWI. Therefore, we continue to support subcategorizing facilities based on the location of the facility and the amount of waste burned, as allowed under Section 129(a)(2). The only remaining small rural units are in Alaska and Hawaii, and the options are very limited for alternative medical waste treatment in those States. There are a very limited number of landfills and MWC facilities in those States, and there are no commercial HMIWI. (The basis for this information is a 2004 Chartwell Information document entitled
Three of the commenters objected to EPA's arguments for using the post-MACT compliance data, namely that EPA is no longer confident in the regulatory limits used in 1997 (based on a comparison of the regulatory limits and emissions test data in the 1997 record) and that the EPA questions their use as surrogates because they do not account for non-technology factors (based on waste segregation data EPA received after the 2007 proposal). Specifically, the three commenters stated that EPA provides no justification for its change in using the post-MACT
Regarding EPA's claim that it reset the floors in response to the remand of the regulation in
The three commenters also argued that new public comments raising issues with the 1997 floors are out of time and insufficient to require EPA to go beyond the Court's remand order. The commenters pointed out that Section 307(b) of the CAA requires any challenges to regulations to be filed within 60 days, which has been held up in the relevant case law. According to the commenters, any required revisions to address the Court's limited remand does not justify reopening the time period for judicial challenge of the floors. The commenters also argued that another exception to the 60-day jurisdictional bar, that there was a substantive violation of the statute, does not apply since the Court did not find the 1997 floors in conflict with the statute.
In the 2008 re-proposal, we decided to use post-compliance data to recalculate the MACT floors because, based on our analysis, it became impossible to fully address the Court's concerns about the suitability of using regulatory limits and uncontrolled emissions values from the 1997 data set in rationally explaining the MACT floors for the 1997 rule. To respond to those concerns, we conducted an analysis comparing the regulatory limits used in the 1997 data set to actual emissions data for those HMIWI, and we determined that the regulatory limits used to establish the MACT floors were not representative of actual operation and did not account for non-technology factors that affected HMIWI emissions performance. (For further information,
While we agree with the commenters that control technology has a major impact on pollutant emissions from HMIWI, we also acknowledge that factors other than control technology (
Regarding the commenters' arguments about the impact of subsequent case law, we do not expect that we could reasonably respond to the Court's 1999 remand of the HMIWI rule in a manner that knowingly disregards other flaws in EPA's prior MACT methodology that the Court has since identified. In a recent MACT ruling in which the Court found that EPA had failed to follow the rulings issued in other MACT cases, the Court admonished the EPA that if “[EPA] disagrees with the Clean Air Act's requirements for setting emissions standards, it should take its concerns to Congress. If EPA disagrees with this court's interpretation of the Clean Air Act, it should seek rehearing en banc or file a petition for a writ of certiorari. In the meantime, it must obey the Clean Air Act as written by Congress and interpreted by this court.” 479 F.3d at 884. EPA takes this directive seriously and acted consistently with the Court decisions in preparing this response to the remand. We do not believe that the Court would view its own post-1999 MACT rulings as having changed “the law” (namely, the MACT requirement of Sections 112 and 129) such that following those rulings' instructions would reflect retroactive application of “new” law. The commenters' reliance on
As for the comment that EPA could not have relied upon the 2002 compliance data if it had more swiftly responded to the remand, this only suggests that if EPA had acted earlier the EPA would have been forced to take additional steps to require the HMIWI industry to supply emissions data. In no way would this support EPA disregarding the 2002 data we have in-hand and allow us to continue to rely upon data that does not reasonably estimate emissions levels achieved by the best performing units. Based on our analysis of the record, we determined that the 1997 floors did not in all cases meet the requirements of the CAA as interpreted by the DC Circuit. We attempted to explain one set of revisions to the 1997 floors in a subsequent (February 2007)
One commenter argued that Section 129(a)(2) (and the similar Section 112(d)(3)) does not speak in terms of the best performing source for each listed pollutant but the best existing source for all pollutants and what these sources can achieve on an overall basis. The commenter claimed that Congress abandoned Section 112's previous focus on individual pollutant standards in the 1990 CAA Amendments and also adopted the technology-based multi-pollutant approach to regulating toxics in use under the Clean Water Act (CWA).
Two commenters stated that under CAA Sections 129(a)(2) and 112(d)(2) consideration of a higher level of control than the average aggregate levels achieved by the best sources (
Multiple commenters also questioned the technical feasibility of EPA's pollutant-by-pollutant approach. According to the commenters, establishing MACT standards based on the best achievable emissions limits for each type of pollution control equipment assumes that the equipment can be combined in the same system and that the emissions limits of each system are additive. The commenters stated that, in practice, this outcome is likely not achievable due to the challenge of finding pollution control equipment (
Multiple commenters suggested EPA should revisit the MACT floors for HMIWI and choose the best performing sources on an overall basis, so that at least one source can meet all of the new source standards and a certain portion of the existing sources can meet the existing source standards. One commenter suggested that EPA combine the individual pollutants into a single analysis to determine which control provides the best overall control or otherwise determine that the MACT floor resulting from the analysis is actually achieved by those sources identified as the “best controlled.” According to various commenters, one possible way for doing this would be to establish rankings for how a HMIWI performs for each of the regulated pollutants and then sum the individual pollutant rankings to determine the overall ranking for the HMIWI.
We also disagree with the commenters who complain that there may not be any operating unit that currently employs the complete suite of MACT technologies and meets the revised limits. The suite of MACT floor controls identified by the final rule approach (specifically, the combination of dry and wet control systems) is already used by four existing HMIWI that meet most of the MACT floor standards. For example, one HMIWI, equipped with a high-efficiency particulate air (HEPA) filtering system, carbon bed adsorber, and rotary atomizing wet scrubber, is estimated to meet all nine revised emissions limits in the final rule; another HMIWI, equipped with a lime injection system, powdered activated carbon injection system, baghouse, and vertical upflow two-stage multi-microventuri scrubber system, is estimated to meet eight of the nine revised limits. Also, an estimated 42 of the 57 HMIWI are estimated to meet both the CO and NO
We also disagree with commenters claiming that it is inappropriate to consider a suite of floor control techniques that may not be currently in use by the source category. There is no reason not to consider emissions data and controls in use at sources that may be the best performers from some pollutants but not for other pollutants. The MACT floor controls applicable for one pollutant do not preclude the use of MACT floor controls for another pollutant. Therefore, it is appropriate to consider controls at sources employing MACT controls for some pollutants, but not all. For example, floor controls for existing large HMIWI include wet scrubbers for HCl control, dry scrubbers or combination dry/wet systems for PM and metals control, activated carbon injection for CDD/CDF control, and wet scrubbers or dry scrubbers for SO
EPA disagrees strongly with commenters arguing that Congress has directly addressed the issue of whether the MACT floor can be established on a pollutant-by-pollutant basis. With respect to the MACT floor mandate of Section 112, there appears, rather, to be a substantial ambiguity in the statutory language about whether the MACT floor is to be based on the performance of an entire source or on the performance achieved in controlling particular hazardous air pollutants. The language regarding best performing “sources” (or, for new sources, “source”) could apply either to the sources' (or source's) performance as a whole, or performance as to a particular pollutant or pollutants. The same is true of the definition of “emission limitation” in Section 302(k), which refers to “air pollutants,” but does not address whether the limitation must apply to every pollutant emitted by a source, or just some of them. (The same is true of the reference to “air pollutants” (in the plural) in Section 112(d)(2).) In this regard, we note that commenters in other MACT rulemakings have assumed that Section 129, which governs today's rule and which uses language essentially identical to Section 112 in mandating MACT, requires a pollutant-by-pollutant approach to establishing floors, because EPA is commanded to establish standards for enumerated pollutants under Section 129(a)(4). We further note that the DC Circuit, when reviewing the floor determinations we made in 1997 for HMIWI under Section 129 in
EPA also believes that the commenters' reference to basing MACT floors on the performance of a hypothetical or theoretical unit, so that the limits are not based on those achieved in practice, is not only wrong factually (
In short, EPA is not persuaded that the floors must be established on the basis of a unit's performance for all pollutants overall. We continue to believe, as we explained in the 1997 final rule, that such a reading would lead to results that are at odds with evident congressional intent (and with the Court's rulings in NLA II, CKRC and Brick MACT). To argue that Congress compelled this type of result is at odds with both the language of Sections 112 and 129 and common sense. Indeed, it would necessarily suggest that EPA could continue to adopt floors that reflect “no emissions reduction,” even after the DC Circuit so emphatically forbade that approach in the Brick MACT ruling (
As we stated in the preamble to the 1997 regulation (62 FR 48363), we recognize that the pollutant-by-pollutant approach for determining the MACT floor can, as it does in this case, cause the overall cost of the regulation to increase compared to what would result under a unit-based methodology. For example, the pollutant-by-pollutant approach for the HMIWI regulation results in a stringent MACT floor for HCl based on control using a wet scrubber, and stringent MACT floors for PM and metals based on control using a dry scrubber. We interpret Section 129 of the CAA to require that the MACT floor be determined in this manner, and we believe that Congress did in fact intend that sources subject to regulations developed under Section 129 meet emissions limits that are achieved by the best controlled unit for each pollutant, as long as the control systems are compatible with each other. To our knowledge, there is no technical reason why these two air pollution control systems cannot be combined. (62 FR 48363-4) Combined dry/wet scrubber systems are currently in operation on several HMIWI. In response to commenters' concerns regarding the technical feasibility of combined dry/wet systems, available data on the performance of combined dry/wet scrubber systems indicate that the MACT floor emissions levels are achievable and technically feasible. The performance of dry scrubbers with activated carbon injection and the performance of wet scrubbers are well-documented. The available data for combination dry/wet systems provide no indication of operational or emissions problems that occur as a result of combining dry and wet control systems. Regarding the inverse relationship between CO and NO
The MACT floor reflects the least stringent emissions standards that EPA may adopt in accordance with Section 129(a)(2) regardless of costs. Other statutory provisions are relevant, although they also do not decisively address this issue. Section 129(a)(4) requires MACT standards for, at a minimum, PM, opacity, SO
Regarding the commenter's suggestion that EPA choose the best performing sources on an overall basis, so that at least one source can meet all of the new source standards and a certain portion of the existing sources can meet the existing source standards, we reviewed this approach and found that the suggested approach does not consistently result in emissions limits that are at least as stringent as would have resulted in 1997 if we had actual emissions data and used the correct methodology. We estimate that four emissions limits for large and small non-rural HMIWI and five emissions limits for medium and small rural HMIWI calculated using the suggested overall unit-based approach would be higher than the 1997 emissions limits. Further, because not all pollutants are required to be tested (
A unit-based approach would tend to result in least common denominator floors where, as here, multiple pollutants are emitted, whereby floors would no longer be reflecting performance by the best performing sources for those pollutants. For example, if the best performing 12 percent of units for HAP metals did not control acid gases as well as a different 12 percent of units, the floors for acid gases and metals would not reflect best performance. Having separate floors for metals and acid gases in this example certainly promotes the stated purpose of the floor to provide a minimum level of control reflecting what best performing units have demonstrated the ability to do.
Similarly, a unit-based approach that employs ranking of a weighted average of pollutants would require EPA to assume priority for certain pollutants (one unit may have lower NO
Another commenter specifically recommended that EPA gather additional data on emissions of medium HMIWI such as theirs before finalizing the rule to ensure each medium HMIWI has data sufficiently accurate and representative to properly set a MACT standard in accordance with the CAA Amendments. According to the commenter, rigorous quality assurance/quality control (QA/QC) procedures should also be applied to the test data.
One commenter stated that, because the new regulations are solely based on previous stack testing, the actual emissions tests need to be reviewed by EPA for technical accuracy, as well as consistency. Although there may have been insufficient time under the court-ordered schedule, the commenter argued that proposed standards cannot be defended technically in the absence of such an analysis.
The same commenter also stated that revisions to EPA's incinerator test protocol are needed to ensure that the unit is being tested at proper design conditions. At a minimum, the commenter said that incinerator temperature, waste input rate and constituents, auxiliary fuel consumption, quench rates (air and water), and chemical feed rates need to be recorded during an incinerator test to determine whether the operating and testing conditions were representative of the higher emissions rates that can be experienced during normal operations. Given that emissions are determined by waste characteristics, the commenter recommended that a standardized realistic worst-case test waste be used, which includes specific criteria components, as well as moisture content and heating value. Incinerators would be tested with the standard waste and the top 12 percent identified.
We believe that the data quality concerns expressed by the commenters have been addressed in a number of ways. First, EPA test methods incorporate data quality assurance and quality control steps and acceptance criteria at several levels. These provisions assure that the data produced are of quality sufficient for decision making, including compliance, when the methods are followed and the acceptance criteria are met. Second, States further assure that testers adhere to the test methods by providing third party oversight and review of compliance tests conducted by industry, such as that being discussed here. The States also implement the source testing audit program when available, further assuring the high quality of emissions testing data. Third, through internal and contractor support efforts for this regulatory project, EPA conducted additional review of the initial emissions test data to check for completeness and appropriate characterization of process operations. Finally, EPA reviewed and accounted for variability inherent in the emissions data used in establishing the applicable emissions limit including applying statistical confidence intervals.
Regarding the comment about revisions to EPA's incinerator test protocol, the factors cited by the commenter could be considered in setting site-specific compliance conditions. Such an approach may be useful at the next technology review. The commenter's suggestion that EPA use a standardized waste for testing is questionable, unless EPA wanted to establish a certification testing program like the residential wood combustion rule. However, such a program would be cumbersome and could potentially eliminate a majority of the industry.
Regarding the commenter's concerns about the specialty incinerators and the facility that also incinerates municipal waste, we evaluated creating separate subcategories for captive units (which would include the specialty incinerators) and a separate subcategory for mixed waste units, but as noted above, we ultimately rejected both options because we did not provide an opportunity to comment on the issue of subcategorization in the December 2008 re-proposal or a record that would justify such a significant change in categorization. Another option to address the facility incinerating municipal waste would be to use only the emissions data from those tests conducted with 100 percent medical waste, but that would limit the number of tests for that facility. Also, we have found a significant amount of overlap in emissions (including CDD/CDF and Cd) between the different test conditions at the facility (
If non-compliant emissions data from an annual test were substantially higher than the emissions typically seen from the facility or were substantially higher than the emissions limit, this strongly suggested that there was a problem during the test and indicated that the test results would not be representative of the typical operation of the HMIWI. Such data were excluded from the pollutant averages for the particular facility. (It should be noted that the data that were excluded amount to less than 1 percent of the total set of emissions data for the industry.) For example, the emissions data from tests on one unit did not meet the PM or Cd emissions limit during an August 2006 annual test. A subsequent retest of this unit for those same pollutants in November 2006 showed PM emissions results less than 10 percent of those measured earlier, and Cd emissions results about 0.1 percent of the previously measured results. Consequently, we believe that the August 2006 PM and Cd test results were not representative of the typical operation of the HMIWI, and they were not included in the test data database. The PM and Cd retest data from the November 2006 retest were included instead. (
We also excluded test data if we found errors in the calculations or the test methods, or some important elements of the data needed to calculate emissions in the form of the standard were missing. For example, we excluded the TEQ emissions estimates provided for a 2005 annual test at a second HMIWI because the reported TEQ estimates were greater than the total CDD/CDF estimates provided, a clearly incorrect result. The total CDD/CDF estimates were believed to be the correct values because they were well within the applicable emissions limit, while the TEQ estimates were a few times higher than the applicable limit. The 2001 annual test results for HCl at a third HMIWI were deemed invalid because the HCl sample train did not meet the method's ±95 percent sample collection efficiency requirement. There was believed to be some contamination in the sample collection and/or recovery during the 2005 Pb test at a fourth HMIWI, so a retest in February 2006 was conducted. The Pb results from the February 2006 retest were included with the results of the 2005 annual test in the test data database, replacing the 2005 Pb results. The first HCl test run during a 2006 test at a fifth HMIWI was below the detection limit, and the laboratory that analyzed the samples did not provide a detection limit for this test run. In this case, we decided to delete the results for this particular test run and calculated the HCl average for the 2006 test using the results from the other two test runs. Similarly, the second Hg test run during the 2003 test at a sixth HMIWI was reported to be below the detection limit, but the data summary did not include the measured Hg detection limit. Attempts to obtain the detection limit for this test run from the facility were unsuccessful. Consequently, we decided to delete the results for this test run and calculated the Hg average for the 2003 test using the results from the other two test runs. (
A couple of annual compliance tests were excluded from the unit averages because they were conducted under test conditions (
Regarding the argument that EPA improperly excluded data available from HMIWI that subsequently shut down, we believe that it is appropriate in this particular rulemaking to base the MACT floor on emissions data from facilities that are currently operating, since those are the facilities that would be complying with the rule.
EPA's data gathering effort for this rulemaking included not just initial and annual emissions test data obtained from EPA Regions, State/local governments, and HMIWI facilities, but also a waste segregation practices questionnaire sent to nine representative entities in the HMIWI category (six hospitals, one pharmaceutical facility, one university, and one company that owns 8 of the 14 commercial HMIWI). (
The commenters also noted that, since the Brick MACT decision, EPA has determined that there are other ways to rank the best performing sources and set the MACT floors than a straight emissions approach, such as the approach used in the hazardous waste combustor rulemaking, which combined the hazardous waste fed to the source and the source's system removal efficiency (SRE). According to the commenters, the “SRE Feed” methodology better identifies who the lowest emitters will be over time, better assesses their performance (
We do not think the SRE Feed methodology can be successfully adapted to determine MACT floors for HMIWI. This is because the SRE Feed approach requires knowledge of the amount of hazardous materials fed into the system and knowledge of the system's removal efficiency for those specific materials, neither of which is known or measured in the HMIWI industry. Such materials are mixed in with other waste and cannot reasonably be measured separately, especially given the occupational safety regulations to which HMIWI operators are subject.
Three of those commenters supported the conditional use of the 99.9 percent UCL to quantify “emissions limitation achieved” as it applies to variability above average emissions. However, the three commenters had concerns about EPA's methods used to calculate statistical parameters. The commenters stated that EPA should characterize emissions data distributions before calculating statistics, instead of assuming all data are normally distributed. Otherwise, according to the commenters, it is difficult to determine if the statistics are valid. When data are not normally distributed, the commenters recommended that EPA transform the data prior to conducting its statistical calculations. The commenters noted that EPA used the NORMSINV function in Microsoft Excel to calculate the 99.9 percent UCL, which assumes that the actual mean and variance of a data set is known. According to the commenters, when the mean and variance are estimated from random samples or a small subset of the total population, such as stack test runs, the 99.9 percent UCL should be calculated with the Student t-statistic using the TINV function in Excel, not normal statistics.
Two other commenters objected to the use of the 99.9 percent UCL to account for variability in determining emissions limits. One of the commenters argued that EPA provides insufficient explanation or justification of its use of the 99.9 percent UCL. According to the commenter, if the performance of the best performing HMIWI, on average, is estimated to meet the emissions limit 99.9 percent of the time, then it would be expected to exceed the emissions limit 8.76 hours per year, which does not comply with the requirement that each source must meet the specified floor every day and under all operating conditions. Therefore, the commenter argued that the 99.9 percent UCL procedure used by EPA is deficient and must be revised.
The other commenter stated that EPA's use of a 99.9 percent UCL to estimate individual units' variability marks a sharp departure from EPA's approach in other rulemakings (
Two commenters stated that a more realistic assessment of an individual unit's ability to meet an emissions limit during a compliance test would use the 99.9 percent UCL for that unit/pollutant instead of the average value.
Four commenters disagreed with EPA's decision to use individual test run results to account for variability in setting MACT floors for new and existing sources. The commenters urged EPA to use complete performance test results instead. One of the commenters argued that EPA is arbitrarily using different measures of performance for establishing emissions standards on the one hand (using test runs) and measuring compliance with these standards on the other (using whole tests), without explaining why different measurement approaches are appropriate. According to the commenter, it appears likely that disaggregating test results leads to less protective floors by creating false variability in individual units' performance. The commenter recommended that EPA calculate the floors with and without disaggregating individual test runs to ensure that its floors are not less stringent as a result of that approach. The other commenters noted that data limitations may not leave EPA an alternative to using test run results in some cases, but they recommended that EPA use complete test results where enough data exist to characterize emissions variability.
After reviewing the commenters' suggestion that we characterize emissions data distributions before calculating statistics, we took a closer look at our statistical approach. In statistics, skewness is a measure of the degree of asymmetry of a distribution. Normal distributions typically have a skewness of zero. Consequently, to determine whether the emissions test data used in our UCL calculations had a normal or lognormal distribution, we estimated the skewness of the data using the SKEW function in Excel. Except as specified below, those datasets with a skewness value greater than zero (when rounded to a whole number) were categorized as lognormal, and all other datasets were categorized as normal. Those data categorized as lognormal were transformed (by taking the natural log of the data) prior to the calculation of UCL values. When there were only a few data points (
Regarding the commenters' suggestion about using Student's t-statistics in calculating the UCL values, we also decided to revisit our statistical approach. We agree that we have only a relatively small, random sample of emissions data available for our analysis, which calls for the use of the Student's t-test, in accordance with standard statistical practice. Consequently, we have decided to use the TINV function in Excel (specifically the one-tailed t-value), rather than the NORMSINV function, to calculate the UCL values. This approach (using the Student's t-test) is consistent with approaches being taken in other EPA rulemakings, such as Portland Cement.
In response to public comments on the size of the confidence limits used at re-proposal and in light of the aforementioned changes in our statistical approach, we also decided to reevaluate the percentiles used in the UCL values. We evaluated four different percentiles (90, 95, 99, and 99.9 percent). The 99.9 percent UCL values estimated for the 2009 final rule are substantially higher than the highest test runs for the MACT floor units and are frequently higher than the emissions limits in the September 15, 1997 promulgated standards, indicating the 99.9th percentile overcompensates for variability. Lower percentiles (
The 99 percent UCL values are somewhat higher than the emissions limits in the December 1, 2008 re-proposal but are well below the emissions limits in the September 15, 1997 promulgated standards. The 99 percent UCL values are more in line with the highest test runs for the MACT floor units than the other percentiles, indicating that the 99 percent UCL provides a more reasonable compensation for variability. This approach results in standards more representative of the level of emissions reduction that the best performing sources are actually achieving. Accordingly, we have decided to use the 99 percent UCL to estimate emissions limits for the 2009 final rule.
We disagree with one commenter's argument that the 99.9 percent UCL must provide for the floor to be met every day and under all operating conditions. The UCL is not about time, but about the population of data. Accounting for variability using the 99.9 percent UCL goes beyond the absolute
Regarding the comment about our decision to use individual test run results to account for variability, we felt it was necessary to use test run results when we had data limitations (
Nonetheless, we acknowledge that the HCl standards in our re-proposal were very close to the method detection limit for HCl. The changes in statistical approach for the final rule have resulted in increases to the HCl standards above 5 ppmv, which should address some of the concerns listed above. Furthermore, based on reported HCl emissions data for all HMIWI, we estimate that 64 percent of large, 82 percent of medium, and 100 percent of small/small rural HMIWI will be capable of meeting the revised HCl standards, on average, based on their currently used control measures. It should also be noted that HMIWI subject to the 1997 NSPS have been meeting the 15 ppmv HCl standard in that rule, which is below the 20 ppmv threshold level that the commenter cited.
The same commenter also recommended that EPA set beyond-the-floor standards for metals based on removing all metals from the waste stream before combustion, consistent with the requirements under Section 129(a)(2) and (3), which obligate EPA to require the maximum degree of reduction in emissions that is achievable through the use of methods and technologies before, during, and after combustion. The commenter stated that metals do not belong in an incinerator because they cannot be destroyed by incineration and are especially dangerous to public health and deleterious to the environment. As far as the commenter knew, EPA has never disagreed that removing metals from the HMIWI waste stream is achievable technically and economically, and the commenter noted that EPA has data from the MWC rulemaking that show materials separation requirements are effective and cost-effective. (
Given the language of Section 129 that requires the maximum degree of reduction in emissions that is achievable through the use of pre-combustion measures, the commenter argued that EPA has a duty to gather information on these measures and evaluate such measures in its beyond-the-floor analysis. According to the commenter, EPA's failure to gather information about the precise reduction of emissions that will result from such measures and failure to provide any explanation for rejecting such a standard is unlawful and arbitrary. The commenter noted that EPA has committed to set final standards by September 2009, and stated that EPA should not delay issuance of final standards to conduct this data gathering, but should commence data gathering now and revise the HMIWI regulations to include beyond-the-floor standards in the future.
The same three commenters also stated that the proposed CO standard in combination with the 7 percent oxygen (O
Regarding the comment about the 3-hour average basis for the CO limit, it should be noted that the 2008 re-proposal included an amendment to § 60.56c allowing sources using CEMS to demonstrate compliance with the applicable emissions limit on a 24-hour block average, instead of a 12-hour rolling average (as specified in the 1997 final rule). This amended provision should address concerns about the ability of sources equipped with CEMS to demonstrate compliance with emissions limits on a continuous basis (as opposed to a 3-hour annual test) and would be consistent with past rulemakings for incineration units (
Regarding the comment about the application of an O
The same three commenters, plus a fourth commenter, stated that the methodology that EPA used to establish the 2 percent opacity limit fails to account for actual opacity monitoring capabilities and normal operational variability, such as that included in PS-1 (40 CFR part 60, appendix B). According to the commenters, the inherent potential error of a COMS meeting PS-1 could greatly exceed the proposed opacity limit value. The fourth commenter argued that opacity under the worst foreseeable circumstances for the best-performing units would thus easily violate the MACT floor, which the commenter said would violate
All four commenters noted that, similar to COMS accuracy, Method 9 calls for recording visual observations to the nearest 5 percent at 15-second intervals. The commenters stated that using a compliance method with inherent potential accuracy levels exceeding the proposed 2 percent opacity limit appears problematic.
Given the limitations of Method 9 and the variability of all the HMIWI subject to the revised opacity standard, the first three commenters recommended that EPA establish an opacity standard based on Method 9 data instead of COMS data from a single unit. All four commenters argued that the current 10 percent opacity limit is reasonable, and would allow conventional compliance determination methods to be used, accounting for their limitations.
Regarding the commenters' arguments that the inherent potential error of a COMS meeting PS-1 could exceed the proposed opacity limits, the potential error (about 4 percent opacity at the highest) is not the same as expected error (more on the order of 0.5 percent). Nonetheless, the increase in the opacity limit to 6 percent should address the commenters' concerns on this issue.
We disagree with the commenters' argument that a 10 percent opacity limit be used to allow conventional compliance determination methods. While opacity is read in 5 percent increments, average opacity can be any number above 0. Method 9 values are averages of 24 readings, which can include readings of 0 and an occasional 5 or 10 percent.
Regarding the commenters' argument that only Method 9 data should be used to establish the opacity standard because that is the measurement method that would be used to demonstrate compliance, the commenters' argument is moot, since the revised opacity standard is now based on Method 9 results.
Three other commenters argued that the percent reduction compliance option that was available in the 1997 rule and in the 2007 proposed rule should be re-evaluated and retained for commercial HMIWI, since the ability for such units to reduce emissions is due almost exclusively to the effectiveness of the control equipment (and not waste segregation). According to the commenters, commercial HMIWI facilities, unlike captive units, cannot practically control the waste that is put in the containers they process, and applicable regulations from the U.S. Occupational Safety and Health Administration (OSHA) preclude them from practicing waste segregation at the time of treatment. Thus, the commenters noted, they experience extreme variability during stack tests (especially for volatile metals Cd, Pb, and Hg) and will experience higher inlet concentrations than captive units; since they operate at the same control efficiency, they will exhibit higher stack emissions. The commenters stated that the percent reduction option is a better assessment of the performance of the control system for commercial units.
To further address POM and PCB emissions, the final rule also includes revised waste management plan provisions in §§ 60.35e and 60.55c that encourage segregation of the types of wastes that lead to these emissions, such as chlorinated plastics and PCB-containing wastes.
Two other commenters argued that continuous monitoring of CO with a 24-hour block average should be required of all existing incinerators to assure efficient combustion. However, the two commenters stated that continuous air monitoring of metals and other toxics should not be adopted as an alternative to stack testing until CEMS accuracy and reliability has been fully verified by EPA.
For the 1997 final rule, we developed testing and monitoring costs for a range of options. (
Regarding the comment that CEMS for metals and other toxics should not be adopted until their accuracy and reliability has been fully verified, the re-proposal specified that the CEMS options would be available to a facility only when a final performance specification has been published in the
The second commenter also objected to the proposed one-time test requirement for Pb, Cd, Hg, and CDD/CDF, arguing that a single test result does not provide adequate assurance that the emissions standards have been met or are continuously being achieved by operations combusting a non-homogeneous waste stream. According to the commenter, allowing a one-time test also provides a strong disincentive to installing CEMS on HMIWI. The commenter noted that if EPA still wants to reduce testing requirements, it could provide skip testing provisions for these pollutants similar to existing provisions in § 60.56c(c)(2), especially in future rulemaking, once the industry has demonstrated sustained compliance.
Regarding the comment objecting to the one-time test requirement for metals and CDD/CDF, the annual tests are intended to be surrogates for combustion, particulate, and acid gas control, supplementing existing continuous monitoring requirements. We believe that the annual tests for combustion and particulate control and the continuous emissions monitoring of activated carbon injection are sufficient to ensure compliance with the metals and CDD/CDF emissions limits. However, if the State implementing the HMIWI regulations for existing units in its jurisdiction believes that more frequent metals and CDD/CDF testing is a necessary requirement for those units, they have the option to prepare State plans for EPA review that include those requirements, or to simply require a particular source to conduct such testing. Section 116 of the CAA preserves a State's authority to regulate more stringently under Section 111. Given the more stringent requirements in the HMIWI rule (relative to the 1997 rule) being promulgated today, we do not want to impose additional testing requirements that are not necessary to assure compliance with the requirements of this final rule. Also, we did not provide an opportunity to comment on such additional emissions testing in the December 2008 re-proposal, and we would want to develop a fuller record on any such requirements and provide an opportunity to comment on those requirements before imposing them in a final rule. However, we would be willing to consider such a change at the next technology review, if such a change is necessary to reliably demonstrate compliance.
Five other commenters noted the disadvantages associated with incineration alternatives such as autoclaving. One of the commenters noted that EPA's supporting documents for the proposed rule seem to endorse such alternatives but fail to recognize that some facilities generate waste types for which autoclaving and landfilling is not adequate treatment. As examples, another of the commenters noted that numerous research facilities insist that all of their waste be incinerated, and three of the commenters noted that most States and many local governments have imposed requirements on the disposal of these types of wastes and identified incineration as an authorized means of disposal; further, some States expressly require incineration of pathological wastes and/or prohibit autoclaving or landfilling of such wastes. With the proposed emissions limits, the same three commenters expected that HMI waste incineration capacity will disappear, and captive units will be limited by permit from accepting wastes from off-site; as a result, the commenters concluded, some waste generators will be left with a State requirement to incinerate waste, with little or no available HMIWI treatment options and capacity. One commenter noted that that sterilized waste is often transferred to regional MWC facilities for incineration, especially in their metropolitan area, and noted that MWC emissions limits are less stringent than the current and proposed limits for HMIWI. Thus, the commenter concluded, if the HMIWI regulation increases autoclaving and reduces use of their facility, it will have a significant adverse effect on air quality.
One of the commenters stated that EPA's studies for the proposed rule also fail to recognize the environmental impacts of transporting autoclaved medical wastes to regional landfills, such as depletion of landfill space, landfill gas emissions, landfill leachate issues, and impacts of waste transportation traffic. Another commenter noted that autoclaving does not achieve the 90 percent volume reduction that can be achieved with incineration and, with many landfills at or approaching capacity, volume reduction prior to landfilling is a much preferred option.
One commenter also noted that steam sterilization can result in the release of uncontrolled Hg vapors from the autoclaving process, so any medical waste displaced from their facility to autoclaves would result in an increase in Hg emissions from the autoclaves or the MWC. The commenter said that these potential impacts need to be assessed before any standard is adopted.
We agree with the commenters that it is appropriate to address the disadvantages and environmental impacts associated with incineration alternatives such as autoclaving in background documentation for the HMIWI rule, even though the revised standards in today's rule are floor-based (for which we cannot consider costs) rather than beyond-the-floor-based (where costs are to be considered). We also agree that incineration is sometimes insisted upon or even required by some research facilities and State and local governments, and we have incorporated those comments into the revised background documentation for the final rule.
Regarding the comment that some metropolitan areas require autoclaved waste to be sent to MWC units, while the commenter is correct that MWC limits are currently higher than the 1997 promulgated HMIWI limits and the 2008 re-proposed HMIWI limits, the MWC standards are on remand to the Agency, and EPA will be reviewing those standards. At this juncture, we cannot predict the outcome of that remand response.
To ensure effective waste segregation by commercial facilities, one of the commenters further recommended that EPA revise the regulation to state that incinerator operators are responsible for all of the waste in their possession and the emissions that result, and should clarify for all incinerator operators that the term “affected source” in § 60.55c refers to them.
Four commenters noted that the proposed new rule for emissions from HMIWI does not address pharmaceutical drugs, nor does it address how hazardous pharmaceuticals are segregated from non-hazardous. The commenters stated that not all incinerators, such as those in North Carolina, are licensed to burn pharmaceuticals classified as hazardous. The commenters recommended that EPA require each State to develop and implement programs to ensure that hazardous and non-hazardous pharmaceuticals are being segregated.
According to one of the three commenters, the CAA makes clear that EPA may not exempt sources from compliance with Section 129 emissions standards during SSM events and that the current exemptions (found in §§ 60.56c(a) and 60.37e(a)) are unlawful. The commenter noted that EPA restricted the current SSM exemption to periods when no hospital or medical/infectious waste is being charged to HMIWI. However, the commenter said this does not bring EPA's regulations into compliance with the CAA or suffice to protect the public from toxic emissions during periods of SSM, because HMIWI could stop charging HMI waste during an SSM event but still emit toxic pollution through a bypass valve directly to the environment. To the extent EPA is not soliciting comment on the SSM exemption as part of its response to the remand in
A fourth commenter argued that if the SSM court decision is upheld, this would substantially impact the approach for establishing “worst reasonable foreseeable circumstances” and the approach for establishing emissions limits based on available data. According to the commenter, emissions and controllability during periods of SSM are different than “normal operation,” and the commenter noted that EPA currently sets limits by reviewing data taken during “normal operation,” since no one generally conducts stack tests during SSM.
One commenter requested that emissions from SSM events be included in the calculations of a facility's potential to emit, which in turn determines the applicability of some Federal requirements. The commenter also recommended that emissions from SSM events should be included in modeling to ensure that new or expanded sources do not cause ambient air quality to exceed health-based levels. In lieu of modeling, the commenter said there should be actual monitoring of SSM events to accurately determine the individual types of toxic air pollutants and amounts of toxic air pollutant releases. The commenter recommended that there be mandatory penalties for SSM events based on the amounts and toxicity of the emissions. To illustrate the point, the commenter included documentation about bypass events at a local HMIWI. Two additional commenters also requested that EPA conduct modeling to assess the types and amounts of pollutants released during bypass events and take appropriate steps to regulate these “fugitive” emissions. All three commenters recommended that pollution control equipment be required for bypass events, whether the event is operator error or violation.
Another commenter recommended that EPA revise the General Provisions or the specific standards to subject SSM periods to appropriate work practice standards, including procedures to minimize emissions during those periods, rather than establish MACT emissions limits that are impossible to meet during SSM. According to the commenter, CAA Section 112(h) allows the Administrator to promulgate a design, equipment, work practice, or operational standard, or combination thereof, in lieu of an emissions standard where it is not feasible to prescribe or enforce an emissions standard. The commenter said that emissions measurement is not practicable during SSM periods.
To our knowledge, no HMIWI facilities have ever done any testing during an SSM event, except perhaps the few that have CO CEMS (although under the definition of “malfunction” in § 60.51c, operators are directed to monitor all applicable operating parameters during malfunctions until all waste had been combusted or until the malfunction ceases, whichever comes first). It would be very difficult to do any meaningful testing during such an event because the exhaust flow rates, temperatures, and other stack conditions would be highly variable and could foul up the isokinetic emissions test methods (thus invalidating the testing).
The 1997 rule excused exceedance of emissions standards during SSM events only in instances where “no hospital waste or medical/infectious waste is charged to the affected facility.” 40 CFR 60.56c(a). This means that in any SSM periods where such waste is being charged and an exceedance of the standards occurs, the source is in violation of the requirements of the standards. Based on the 1997 HMIWI rule's definitions of the terms “startup” and “shutdown,” no waste should be combusted during these periods, so emissions should be low during them—essentially the emissions from burning natural gas. Under § 60.51c, startup is defined as the period of time between the activation of the system and the first charge to the unit. For batch HMIWI, startup means the period of time between activation of the system and ignition of the waste. Shutdown is defined as the period of time after all waste has been combusted in the primary chamber. Shutdown must start no less than 2 hours after the last charge to the incinerator for continuous HMIWI, and no less than 4 hours for intermittent HMIWI. For batch HMIWI, shutdown must commence no less than 5 hours after the high-air phase of combustion has been completed. Consequently, it should not be possible for HMIWI to exceed the applicable emissions limits during startup and shutdown periods. This suggests that the exemption from standards during startup and shutdown is of virtually no utility to HMIWI, such that there is any need for EPA to retain the exemption in today's final rule.
Malfunctions present a similar situation in terms of how the 1997 rule functioned, if a slightly different situation factually. Again, the SSM exemption of § 60.56c(a) applied only where no hospital waste and no medical/infectious waste was being charged. Under §§ 60.56c(a) and 60.37e(a) of the HMIWI rules, facilities are required to stop charging waste as soon as a malfunction is identified and not charge any additional waste. “Malfunction” is defined in § 60.51c as any sudden, infrequent and not reasonably preventable failure of air pollution control equipment, process equipment, or a process to operate in a normal or usual manner, but does not include failures caused, in part, by poor maintenance or careless operation. During malfunction periods, operators must operate within established parameters as much as possible and continue to monitor all applicable operating parameters. So, there should be low emissions during such periods, but how low is not known. In any case, the rule as promulgated in 1997 did not excuse exceedances of emissions standards during malfunctions if hospital waste or medical/infectious waste was being charged during the malfunction. Moreover, our final standards established today are based on the best data available to the Agency, and we have no data to support modifying the floors for malfunction periods.
While EPA is still in the relatively early process of formulating its strategy for addressing the SSM court decision and the numerous Section 112 and 129 rules that contain varying provisions regarding SSM events, we are revising the HMIWI rules in today's final rulemaking to delete the 1997 rule's narrow exemption from emissions limits during periods of SSM. As explained above, the exemption and definitions as promulgated in 1997 provided virtually no utility, and we, therefore, expect that today's deletion of the SSM exemption will have very little, if any, impact on HMIWI units' compliance status. In the event that sources, despite their best efforts, fail to comply with applicable standards during SSM events (as defined by the rule), EPA will determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during SSM periods, including preventative and corrective
For the reasons discussed above, we disagree with the commenter who claimed that, in the context of this rulemaking, removal of the SSM exemption would substantially impact the MACT floor approach. Deletion of the exemption should have no impact on the use and analysis of the MACT compliance data upon which the revised standards are based in this rule. This is because the 1997 rule's exemption provisions already had a very limited focus, in excusing compliance with standards only when HMI waste was not being charged to the incinerator; even under the 1997 rules, if HMI waste was being charged during an SSM event, the standards continued to apply. Moreover, the commenter provided no information to support its position. Therefore, it is similarly unnecessary to accept other commenters' recommendations to specify mandatory penalties during SSM events or impose unique pollution controls for bypass events—these concerns should be adequately addressed by today's removal of the SSM exemption, which includes removal of the 1997 rule's exemption during SSM periods to the prohibition of using a bypass stack.
We also disagree that it is necessary to revise the CAA Section 112 General Provisions of 40 CFR part 63 to impose work practice requirements that apply in lieu of numeric emissions standards during SSM periods, in the context of this CAA Section 129 rulemaking. The commenter who suggested this approach cited CAA Section 112(h) as the basis of authority for such a change, but neither that section of the Act nor the part 63 General Provisions apply to standards promulgated under Section 129, which by its terms requires numeric emissions standards for the pollutants specified in Section 129(a)(4).
A third commenter argued that this sort of rule could also have severe adverse consequences on other industries, as well as the economy, energy and natural resources, and environment. A fourth commenter stated that the level of source shutdowns that has occurred in the HMIWI industry should not be allowed to occur in other Section 112 or 129 source categories, as it would severely cripple the manufacturing base of this country. The commenter urged EPA to consider costs and other impacts when developing rules, as required under Section 129. According to the commenter, the current financial crisis demonstrates the tremendous impact on jobs and the broader economy due to increased operational costs and facility shutdowns.
The commenter recommended that the economic analysis be revised to reflect the realistic economic impacts on their company. The commenter noted that EPA's estimate of their gross sales ($12 million) is greater than they have averaged in recent years, qualifying them as a small business. The commenter also noted that there are no data or analysis to justify EPA's estimate of their company's profits (greater than $30 million) after adoption of the proposed regulations. According to the commenter, they will in fact be forced out of business.
Three other commenters noted that the economic analysis does not mention the restrictions imposed by State and local governments in resorting to alternative waste treatment methods.
Although today's final rule will not have a significant economic impact on a substantial number of small entities, we nonetheless have tried to reduce the impact of this rule on small entities, to the extent allowed under this CAA MACT floor rulemaking. For each subcategory of HMIWI, we are promulgating emissions limits that are based on the MACT floor level of control, which is the minimum level of stringency that can be considered in establishing MACT standards. Under the CAA and the case law, EPA can set standards no less stringent than the MACT floor and, therefore, we were unable to eliminate the impact of the emissions limits on the small entity that would be regulated by the final rule. We nevertheless worked to minimize the costs of testing and monitoring requirements to the extent possible under the statute, in light of our final impacts analysis.
Over the last three years, about 25 percent (19 of 76 units) of the existing HMIWI have ceased operation. This trend is not surprising, and supports EPA's analysis, which shows that even in the absence of increased regulatory requirements, less expensive alternative waste disposal options are available for almost all facilities that operate HMIWI. Therefore, EPA expects this trend of unit closures to continue even in the absence of the regulatory changes. The additional costs imposed by this action are likely to accelerate the trend towards alternative waste disposal options. Our analysis suggests that sources are likely to respond to the increased regulatory requirements by choosing to minimize the current cost of on-site incineration (
The EPA's objective is not to discourage continued use of HMIWI; EPA's objective is to adopt EG for existing HMIWI that fulfill the requirements of CAA Section 129. In doing so, the primary outcome associated with adoption of these EG may be an increase in the use of alternative waste disposal and a decrease in the use of HMIWI. Consequently, EPA's impact analyses of the final rule include complete analyses of two potential scenarios. The first scenario, which will be referred to as the “MACT compliance” option for the remainder of this preamble, assumes that all units continue operation and take the necessary steps to achieve compliance. The second scenario, which will be referred to as the “alternative disposal” option for the remainder of this preamble, assumes that all facilities choose to discontinue operation of their HMIWI in favor of an alternative waste disposal option. While several different disposal options, such as sending waste to a municipal waste combustor or commercial HMIWI or using chemical treatment (
As explained in section IV.A.2 of this preamble, the revised emissions limits for existing HMIWI are based on the average of the best performing 12 percent of sources for each pollutant in each subcategory. This final action requires varying degrees of improvements in performance by most HMIWI. Depending on the current configuration of each unit and air pollution controls, the improvements could be achieved either through the addition of add-on APCD, improvement of existing add-on APCD, increase in sorbent usage rates, and various combustion improvements. More specifically, the improvements anticipated include: Most wet scrubber-controlled units adding a fabric filter-based system for improved control of PM and metals; most units with fabric filter-based systems adding a packed-bed wet scrubber for improved control of HCl; adding activated carbon injection or increasing activated carbon usage rate for improved Hg and dioxin control; upgrading fabric filter performance for improved control of PM and metals; increasing lime or caustic
EPA estimates that reductions of approximately 393,000 pounds per year (lb/yr) of the regulated pollutants would be achieved if all existing HMIWI improved performance to meet the revised emissions limits. If all HMIWI selected an alternative disposal method, reductions of approximately 1.52 million lb/yr would be achieved. Table 4 shows the estimated reductions by pollutant for the two scenarios for the 57 HMIWI currently operating.
EPA estimates that, based on the MACT compliance option, approximately 3,840 tons per year (tpy) of additional solid waste and 86,000 gallons per year (gpy) of additional wastewater would be generated as a result of operating additional controls or using increased amounts of various sorbents.
EPA estimates that, based on the alternative disposal option, approximately 15,100 tpy of additional solid waste would be sent to landfills. This option would result in an estimated 5.40 million gpy in wastewater impacts.
EPA estimates that approximately 9,530 megawatt-hours per year (MWh/yr) of additional electricity would be required to support the increased control requirements associated with the MACT compliance option.
For the alternative disposal option, EPA estimates that approximately 12,400 MWh/yr of additional electricity would be required to operate the autoclaves.
Secondary air impacts associated with the MACT compliance option are direct impacts that result from the increase in natural gas and/or electricity use that we estimate may be required to enable facilities to achieve the revised emissions limits. We estimate that the adjustments could result in emissions of 279 lb/yr of PM; 3,260 lb/yr of CO; 2,650 lb/yr of NO
For the alternative disposal option, EPA estimates secondary air impacts of 692 lb/yr of PM; 5,040 lb/yr of CO; 2,550 lb/yr of NO
EPA estimates that for the MACT compliance option, the national total costs for the 57 existing HMIWI to comply with this final action would be approximately $15.5 million in each of the first 3 years of compliance. This estimate includes the costs that would be incurred based on the anticipated performance improvements (
EPA estimates that for the alternative disposal option, the national total costs for the 57 existing HMIWI to dispose of their solid waste by autoclaving and landfilling would be approximately $10.6 million per year. This estimate includes the costs that would be incurred based on the purchase and operation of autoclaves and the projected landfill tipping fees that would be incurred based on the volume of waste to be landfilled.
Owners of captive HMIWI may choose to incur the costs of complying with the revised HMIWI standards or close the HMIWI and switch to another disposal technology like autoclaving and landfilling or have their waste handled by a commercial disposal service. EPA's estimate of autoclaving and landfilling costs indicate that even without additional regulatory costs, the costs of autoclaving and landfilling may be lower than the costs of incinerating. However, even if all owners of captive HMIWI choose to continue to operate with the additional regulatory cost, the cost-to-sales ratios for firms owning captive HMIWI are low. This reflects the relatively small share of overall costs that are associated with hospital/medical/infectious waste management at these firms. Of the 35 firms owning captive HMIWI, 22 have costs of compliance that are less than 0.1 percent of firm sales. Of the 13 with costs exceeding 0.1 percent of sales, the largest cost-to-sales ratio is at a captive hospital HMIWI, and is equal to 0.995 percent. Therefore, EPA expects no significant impact on the prices and quantities of the underlying services of the owners of the captive HMIWI, whether the costs are passed on or absorbed.
Impacts on commercial HMIWI are analyzed using the simplifying assumption that they operate as regional monopolists (in general, only one HMIWI is considered as a treatment option by generators located nearby). The approach to modeling the impact for commercial HMIWI seems very appropriate for all of the facilities except for one. The other commercial HMIWI facilities have costs of compliance that are no more than 2.0 percent of revenues. That one facility has a ratio of approximately 45 percent. As noted previously, this facility is a regional monopolist and is able to raise the price by more than the per unit cost increase. We expect there to be a reduction in the amount of its services demanded due to the price change. Because of closures of captive HMIWI, there may also be an increase in the demand for its services that may reduce the decrease in revenues associated with the price increase. For more details regarding EPA's analysis of the economic impacts,
Information provided to EPA indicates that negative growth has been the trend for HMIWI for the past several years. While existing units continue to shut down, since promulgation of the HMIWI NSPS in 1997, four new units have been constructed and one unit has been reconstructed. This information indicates that in the absence of further regulation, new HMIWI may be built. However, based on the stringency of revisions being promulgated for the NSPS, sources would likely respond to the final rule by choosing not to construct new HMIWI and would utilize alternative waste disposal options rather than incur the costs of compliance.
Considering this information, EPA does not anticipate any new HMIWI, and therefore, no impacts of the revised NSPS for new units. For purposes of demonstrating that emissions reductions would result from the NSPS in the unlikely event that a new unit is constructed, EPA estimated emissions reductions and other impacts expected for each of three HMIWI model plants.
EPA estimated emissions reductions for each of the model plants to demonstrate that the NSPS would, if a new unit were built, reduce emissions compared to a HMIWI meeting the current NSPS. Table 5 of this preamble presents the emissions reductions for the HMIWI model plants. The three model plants (with capacities of 100 lb/hr, 400 lb/hr, and 4,000 lb/hr) represent typical HMIWI. For pollutants where a “zero” value is shown, the model plant performance estimate meets the revised new source limit, which is not surprising since the models are based on the performance of the newest sources, which are among the best performers in the industry.
While EPA believes it is unlikely that any new HMIWI will be constructed, we estimated the following water or solid waste impacts associated with the revised NSPS for three different HMIWI model sizes: For large units, we estimate 7,120 gpy of additional wastewater and 50.8 tpy of additional solid waste; for medium units, we estimate no additional wastewater and 23.6 tpy of additional solid waste; and, for small units, we estimate 29.7 gallons per year of additional wastewater and 2.68 tpy of additional solid waste.
While EPA believes it is unlikely that any new HMIWI will be constructed, we estimated the following energy impacts associated with the revised NSPS for three different HMIWI model sizes: for large units, we estimate that 280 MWh/yr of additional electricity would be
Secondary air impacts for new HMIWI are direct impacts that would result from the increase in natural gas and/or electricity use that we estimate may be required to enable facilities to achieve the revised emissions limits. While EPA believes it is unlikely that any new HMIWI will be constructed, we estimated the secondary air impacts associated with the revisions to the NSPS for three different HMIWI model sizes. For large units, we estimate that the adjustments could result in emissions of 15.6 lb/yr of PM; 114 lb/yr of CO; 57.4 lb/yr of NO
For the alternative disposal option, EPA estimated secondary air impacts from the additional electricity that would be required to operate autoclaves in lieu of each size of HMIWI. For large units, we estimate secondary emissions of 65.5 lb/yr of PM; 478 lb/yr of CO; 241 lb/yr of NO
While EPA projects that three new HMIWI would be constructed in the absence of the promulgated revisions, we believe that, in response to the promulgated revisions, sources may decide against constructing new HMIWI. Nevertheless, we estimated the following costs associated with installation and operation of air pollution controls needed to meet the revisions to the NSPS: for new large units, $1.08 million per year; for new medium units, $116,000 per year; and, for new small units, $118,000 per year.
EPA's analysis of impacts of the revisions to the HMIWI standards on potential new HMIWI compares the with-regulation estimated prices that would be charged by new large, medium, and small HMIWI to the range of with-regulation prices estimated to be charged by existing commercial HMIWI in various regional markets. This comparison indicates that new large and medium commercial HMIWI may be viable, but new small commercial HMIWI probably would not be viable. On the other hand, generators of hospital/medical/infectious waste could have overarching reasons to purchase and install a new small HMIWI. Comparison of autoclave treatment coupled with off-site landfill disposal shows that, for new facilities as for existing ones, autoclave/landfill treatment and disposal is generally less costly than incineration. Thus, the motivation to improve waste segregation to minimize the waste that must be incinerated is likely to continue, although HMIWI treatment of some wastes will continue to be required by regulation.
Section 112(c)(6) of the CAA requires EPA to identify categories of sources of seven specified pollutants to assure that sources accounting for not less than 90 percent of the aggregate emissions of each such pollutant are subject to standards under CAA Section 112(d)(2) or 112(d)(4). EPA has identified HMIWI as a source category that emits five of the seven CAA Section 112(c)(6) pollutants: POM, dioxins, furans, Hg, and PCBs. (The POM emitted by HMIWI is composed of 16 polyaromatic hydrocarbons (PAH) and extractable organic matter (EOM).) In the
As required by the statute, the CAA Section 129 HMIWI standards include numeric emissions limits for the nine pollutants specified in Section 129(a)(4). The combination of waste segregation, good combustion practices, and add-on air pollution control equipment (dry sorbent injection fabric filters, wet scrubbers, or combined fabric filter and wet scrubber systems) effectively reduces emissions of the pollutants for which emissions limits are required under CAA Section 129: Hg, CDD/CDF, Cd, Pb, PM, SO
In lieu of establishing numerical emissions limits for pollutants such as PCBs and POM, CAA Section 129(a)(4) allows EPA to regulate surrogate substances. While we have not identified specific numerical limits for POM and PCB, we believe CO serves as an effective surrogate for those pollutants, because CO, like POM and PCBs, is formed as a byproduct of combustion. We believe that dioxins/furans also serve as an effective surrogate for PCBs, because the compounds act similarly and, thus, are expected to be controlled similarly using HMIWI emissions control technology—
To further address POM and PCB emissions, the final rule also includes revised waste management plan provisions that encourage segregation of the types of wastes that lead to these emissions, such as chlorinated plastics and PCB-containing wastes.
Under Executive Order 12866 (58 FR 51735; October 4, 1993), this action is a “significant regulatory action” because it is likely to raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. Accordingly, EPA submitted this action to the Office of Management and Budget (OMB) for review under Executive Order 12866, and any changes made in response to OMB recommendations have been documented in the docket for this action.
The information collection requirements in this rule have been submitted for approval to OMB under the Paperwork Reduction Act, 44 U.S.C. 3501
The requirements in this final action result in industry recordkeeping and reporting burden associated with review of the amendments for all HMIWI, EPA Method 22 of appendix A-7 testing for all HMIWI, and inspections of scrubbers, fabric filters, and other air pollution control devices that may be used to meet the emissions limits for all HMIWI. Stack testing and development of new parameter limits would be necessary for HMIWI that need to make performance improvements in order to meet the emissions limits and for HMIWI that, prior to this final action, have not been required to demonstrate compliance with certain pollutants. Any new HMIWI would also be required to continuously monitor CO emissions. New HMIWI equipped with fabric filters would also be required to purchase bag leak detectors.
The annual average burden associated with the EG over the first 3 years following promulgation of this final action is estimated to be 44,229 hours at a total annual labor cost of $1,871,571. The total annualized capital/startup costs and operation and maintenance (O&M) costs associated with the monitoring requirements, EPA Method 22 of appendix A-7 testing, storage of data and reports, and photocopying and postage over the three year period of the ICR are estimated at $1,410,168 and $641,591 per year, respectively. (The annual inspection costs are included under the recordkeeping and reporting labor costs.) The annual average burden associated with the NSPS over the first three years following promulgation of this final action is estimated to be 2,705 hours at a total annual labor cost of $102,553. The total annualized capital/startup costs are estimated at $137,658, with total operation and maintenance costs of $116,192 per year. Burden is defined at 5 CFR 1320.3(b).
EPA may not conduct or sponsor, and a person is not required to, a collection of information unless it displays a valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is approved by OMB, the EPA will publish a technical amendment to 40 CFR part 9 in the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedures Act or any other statute unless the EPA certifies that the final action will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small government organizations, and small government jurisdictions.
After considering the economic impacts of this final rule on small entities, I certify that this action will not
Although the final rule will not have a significant economic impact on a substantial number of small entities, EPA nonetheless conducted an analysis of the impacts of the final rule on the directly regulated small entity and has tried to reduce the impact of this rule on small entities, to the extent allowed under the CAA MACT floor rulemaking. Our impacts analysis is contained in the docket for today's final rulemaking. For each subcategory of HMIWI, we are promulgating emissions limits that are based on the MACT floor level of control, which is the minimum level of stringency that can be considered in establishing MACT standards. Under the CAA and the case law EPA can set standards no less stringent than the MACT floor. Therefore, we were unable to reduce the impact of the emissions limits on the small entity that would be regulated by the final rule. However, we worked to minimize the costs of testing and monitoring requirements in light of our final impacts analysis, to the extent possible under the statute.
This final action contains no Federal mandates under the provisions of Title II of the Unfunded Mandates Reform Act (UMRA), 2 U.S.C. 1531-1538 for State, local, or Tribal governments or the private sector. This final action imposes no enforceable duty on any State, local or Tribal governments or the private sector. Therefore, this final action is not subject to the requirements of Section 202 or 205 of the UMRA.
This final action is also not subject to the requirements of Section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. This final action contains no requirements that apply to such governments, imposes no obligations upon them, and will not result in expenditures by them of $100 million or more in any one year or any disproportionate impacts on them.
This action does not have Federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This final action will not impose substantial direct compliance costs on State or local governments, and will not preempt State law. Thus, Executive Order 13132 does not apply to this action.
This action does not have Tribal implications, as specified in Executive Order 13175 (65 FR 67249; November 9, 2000). EPA is not aware of any HMIWI owned or operated by Indian Tribal governments. Thus, Executive Order 13175 does not apply to this action.
EPA interprets Executive Order 13045 (62 FR 19885; April 23, 1997) as applying to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Order has the potential to influence the regulation. This final action is not subject to Executive Order 13045 because it is based solely on technology performance.
This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355; May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. EPA estimates that the requirements in this final action would cause most HMIWI to modify existing air pollution control devices (
Given the negligible change in energy consumption resulting from this final action, EPA does not expect any significant price increase for any energy type. The cost of energy distribution should not be affected by this final action at all since the action would not affect energy distribution facilities. We also expect that any impacts on the import of foreign energy supplies, or any other adverse outcomes that may occur with regards to energy supplies would not be significant. We, therefore, conclude that if there were to be any adverse energy effects associated with this final action, they would be minimal.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113 (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards (VCS) in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This final rulemaking involves technical standards. EPA has decided to use two VCS in this final rule. One VCS, ASME PTC 19.10-1981, “Flue and Exhaust Gas Analyses,” is cited in this final rule for its manual method of measuring the content of the exhaust gas as an acceptable alternative to EPA Method 3B of appendix A-2. This standard is available from the American Society of Mechanical Engineers (ASME), P.O. Box 2900, Fairfield, NJ 07007-2900; or Global Engineering Documents, Sales Department, 15 Inverness Way East, Englewood, CO 80112.
Another VCS, ASTM D6784-02, “Standard Test Method for Elemental, Oxidized, Particle-Bound and Total Mercury Gas Generated from Coal-Fired Stationary Sources (Ontario Hydro Method),” is cited in this final rule as an acceptable alternative to EPA Method 29 of appendix A-8 (portion for mercury only) for measuring mercury. This standard is available from the 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.
While the EPA has identified 16 VCS as being potentially applicable to this final rule, we have decided not to use these VCS in this rulemaking. The use of these VCS would be impractical because they do not meet the objectives of the standards cited in this rule.
Under 40 CFR 60.13(i) of the NSPS General Provisions, a source may apply to EPA for permission to use alternative test methods or alternative monitoring requirements in place of any required testing methods, performance specifications, or procedures in the final rule and any amendments.
Executive Order 12898 (59 FR 7629) (February 16, 1994) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it increases the level of environmental protection for all affected populations without having any disproportionately high and adverse human health or environmental effects on any population, including any minority or low-income populations.
This action would establish national standards that would result in reductions in emissions of HCl, CO, Cd, Pb, Hg, PM, CDD/CDF, NO
The Congressional Review Act, 5 U.S.C. 801,
Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements.
42 U.S.C. 7401,
(a) * * *
(90) 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 and § 60.56c(b)(13) of subpart Ec of this part.
(h) * * *
(4) ANSI/ASME PTC 19.10-1981, Flue and Exhaust Gas Analyses [Part 10, Instruments and Apparatus], IBR approved for § 60.56c(b)(4) of subpart Ec, § 60.106(e)(2) of subpart J, §§ 60.104a(d)(3), (d)(5), (d)(6), (h)(3), (h)(4), (h)(5), (i)(3), (i)(4), (i)(5), (j)(3), and (j)(4), 60.105a(d)(4), (f)(2), (f)(4), (g)(2), and (g)(4), 60.106a(a)(1)(iii), (a)(2)(iii), (a)(2)(v), (a)(2)(viii), (a)(3)(ii), and (a)(3)(v), and 60.107a(a)(1)(ii), (a)(1)(iv), (a)(2)(ii), (c)(2), (c)(4), and (d)(2) of subpart Ja, tables 1 and 3 of subpart EEEE, tables 2 and 4 of subpart FFFF, table 2 of subpart JJJJ, and §§ 60.4415(a)(2) and 60.4415(a)(3) of subpart KKKK of this part.
(a) Except as provided in paragraphs (b) through (h) of this section, the designated facility to which the guidelines apply is each individual HMIWI:
(1) For which construction was commenced on or before June 20, 1996, or for which modification was commenced on or before March 16, 1998.
(2) For which construction was commenced after June 20, 1996 but no later than December 1, 2008, or for which modification is commenced after March 16, 1998 but no later than April 6, 2010.
(j) The requirements of this subpart as promulgated on September 15, 1997, shall apply to the designated facilities defined in paragraph (a)(1) of this section until the applicable compliance
(a) For approval, a State plan shall include the requirements for emissions limits at least as protective as the following requirements, as applicable:
(1) For a designated facility as defined in § 60.32e(a)(1) subject to the emissions guidelines as promulgated on September 15, 1997, the requirements listed in Table 1A of this subpart, except as provided in paragraph (b) of this section.
(2) For a designated facility as defined in § 60.32e(a)(1) subject to the emissions guidelines as amended on October 6, 2009, the requirements listed in Table 1B of this subpart, except as provided in paragraph (b) of this section.
(3) For a designated facility as defined in § 60.32e(a)(2), the more stringent of the requirements listed in Table 1B of this subpart and Table 1A of subpart Ec of this part.
(b) For approval, a State plan shall include the requirements for emissions limits for any small HMIWI constructed on or before June 20, 1996, which is located more than 50 miles from the boundary of the nearest Standard Metropolitan Statistical Area (defined in § 60.31e) and which burns less than 2,000 pounds per week of hospital waste and medical/infectious waste that are at least as protective as the requirements in paragraphs (b)(1) and (b)(2) of this section, as applicable. The 2,000 lb/week limitation does not apply during performance tests.
(1) For a designated facility as defined in § 60.32e(a)(1) subject to the emissions guidelines as promulgated on September 15, 1997, the requirements listed in Table 2A of this subpart.
(2) For a designated facility as defined in § 60.32e(a)(1) subject to the emissions guidelines as amended on October 6, 2009, the requirements listed in Table 2B of this subpart.
(c) For approval, a State plan shall include the requirements for stack opacity at least as protective as the following, as applicable:
(1) For a designated facility as defined in § 60.32e(a)(1) subject to the emissions guidelines as promulgated on September 15, 1997, the requirements in § 60.52c(b)(1) of subpart Ec of this part.
(2) For a designated facility as defined in § 60.32e(a)(1) subject to the emissions guidelines as amended on October 6, 2009 and a designated facility as defined in § 60.32e(a)(2), the requirements in § 60.52c(b)(2) of subpart Ec of this part.
(a) For approval, a State plan shall require each small HMIWI subject to the emissions limits under § 60.33e(b) and each HMIWI subject to the emissions limits under § 60.33e(a)(2) and (a)(3) to undergo an initial equipment inspection that is at least as protective as the following within 1 year following approval of the State plan:
(b) For approval, a State plan shall require each small HMIWI subject to the emissions limits under § 60.33e(b) and each HMIWI subject to the emissions limits under § 60.33e(a)(2) and (a)(3) to undergo an equipment inspection annually (no more than 12 months following the previous annual equipment inspection), as outlined in paragraph (a) of this section.
(c) For approval, a State plan shall require each small HMIWI subject to the emissions limits under § 60.33e(b)(2) and each HMIWI subject to the emissions limits under § 60.33e(a)(2) and (a)(3) to undergo an initial air pollution control device inspection, as applicable, that is at least as protective as the following within 1 year following approval of the State plan:
(1) At a minimum, an inspection shall include the following:
(i) Inspect air pollution control device(s) for proper operation, if applicable;
(ii) Ensure proper calibration of thermocouples, sorbent feed systems, and any other monitoring equipment; and
(iii) Generally observe that the equipment is maintained in good operating condition.
(2) Within 10 operating days following an air pollution control device inspection, all necessary repairs shall be completed unless the owner or operator obtains written approval from the State agency establishing a date whereby all necessary repairs of the designated facility shall be completed.
(d) For approval, a State plan shall require each small HMIWI subject to the emissions limits under § 60.33e(b)(2) and each HMIWI subject to the emissions limits under § 60.33e(a)(2) and (a)(3) to undergo an air pollution control device inspection, as applicable, annually (no more than 12 months following the previous annual air pollution control device inspection), as outlined in paragraph (c) of this section.
(a) Except as provided in paragraph (b) of this section, for approval, a State plan shall include the requirements for compliance and performance testing listed in § 60.56c of subpart Ec of this part, with the following exclusions:
(1) For a designated facility as defined in § 60.32e(a)(1) subject to the emissions limits in § 60.33e(a)(1), the test methods listed in § 60.56c(b)(7) and (8), the fugitive emissions testing requirements under § 60.56c(b)(14) and (c)(3), the CO CEMS requirements under § 60.56c(c)(4), and the compliance requirements for monitoring listed in § 60.56c(c)(5)(ii) through (v), (c)(6), (c)(7), (e)(6) through (10), (f)(7) through (10), (g)(6) through (10), and (h).
(2) For a designated facility as defined in § 60.32e(a)(1) and (a)(2) subject to the emissions limits in § 60.33e(a)(2) and (a)(3), the annual fugitive emissions testing requirements under § 60.56c(c)(3), the CO CEMS requirements under § 60.56c(c)(4), and the compliance requirements for monitoring listed in § 60.56c(c)(5)(ii) through (v), (c)(6), (c)(7), (e)(6) through (10), (f)(7) through (10), and (g)(6) through (10). Sources subject to the emissions limits under § 60.33e(a)(2) and (a)(3) may, however, elect to use CO CEMS as specified under § 60.56c(c)(4) or bag leak detection systems as specified under § 60.57c(h).
(b) Except as provided in paragraphs (b)(1) and (b)(2) of this section, for approval, a State plan shall require each small HMIWI subject to the emissions limits under § 60.33e(b) to meet the performance testing requirements listed
(1) For a designated facility as defined in § 60.32e(a)(1) subject to the emissions limits under § 60.33e(b)(1), the test methods listed in § 60.56c(b)(7), (8), (12), (13) (Pb and Cd), and (14), the annual PM, CO, and HCl emissions testing requirements under § 60.56c(c)(2), the annual fugitive emissions testing requirements under § 60.56c(c)(3), the CO CEMS requirements under § 60.56c(c)(4), and the compliance requirements for monitoring listed in § 60.56c(c)(5) through (7), and (d) through (k) do not apply.
(2) For a designated facility as defined in § 60.32e(a)(2) subject to the emissions limits under § 60.33e(b)(2), the annual fugitive emissions testing requirements under § 60.56c(c)(3), the CO CEMS requirements under § 60.56c(c)(4), and the compliance requirements for monitoring listed in § 60.56c(c)(5)(ii) through (v), (c)(6), (c)(7), (e)(6) through (10), (f)(7) through (10), and (g)(6) through (10) do not apply. Sources subject to the emissions limits under § 60.33e(b)(2) may, however, elect to use CO CEMS as specified under § 60.56c(c)(4) or bag leak detection systems as specified under § 60.57c(h).
(c) For approval, a State plan shall require each small HMIWI subject to the emissions limits under § 60.33e(b) that is not equipped with an air pollution control device to meet the following compliance and performance testing requirements:
(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, ensure that the designated facility does not operate above the maximum charge rate or below the minimum secondary chamber temperature measured as 3-hour rolling averages (calculated each hour as the average of the previous 3 operating hours) at all times. Operating parameter limits do not apply during performance tests. Operation above the maximum charge rate or below the minimum secondary chamber temperature shall constitute a violation of the established operating parameter(s).
(3) Except as provided in paragraph (c)(4) of this section, operation of the designated facility above the maximum charge rate and below the minimum secondary chamber temperature (each measured on a 3-hour rolling average) simultaneously shall constitute a violation of the PM, CO, and dioxin/furan emissions limits.
(4) The owner or operator of a designated facility may conduct a repeat performance test within 30 days of violation of applicable operating parameter(s) to demonstrate that the designated facility is not in violation of the applicable emissions limit(s). Repeat performance tests conducted pursuant to this paragraph must be conducted under process and control device operating conditions duplicating as nearly as possible those that indicated a violation under paragraph (c)(3) of this section.
(d) For approval, a State plan shall include the requirements for monitoring listed in § 60.57c of subpart Ec of this part for HMIWI subject to the emissions limits under § 60.33e(a) and (b), except as provided for under paragraph (e) of this section.
(e) For approval, a State plan shall require small HMIWI subject to the emissions limits under § 60.33e(b) that are not equipped with an air pollution control device to meet the following monitoring requirements:
(3) The owner or operator of a designated facility shall obtain monitoring data at all times during HMIWI operation except during periods of monitoring equipment malfunction, calibration, or repair. At a minimum, valid monitoring data shall be obtained for 75 percent of the operating hours per day for 90 percent of the operating hours per calendar quarter that the designated facility is combusting hospital waste and/or medical/infectious waste.
(f) The owner or operator of a designated facility as defined in § 60.32e(a)(1) or (a)(2) subject to emissions limits under § 60.33e(a)(2), (a)(3), or (b)(2) may use the results of previous emissions tests to demonstrate compliance with the emissions limits, provided that the conditions in paragraphs (f)(1) through (f)(3) of this section are met:
(1) The designated facility's previous emissions tests must have been conducted using the applicable procedures and test methods listed in § 60.56c(b) of subpart Ec of this part. Previous emissions test results obtained using EPA-accepted voluntary consensus standards are also acceptable.
(2) The HMIWI at the designated facility shall currently be operated in a manner (
(3) The previous emissions test(s) must have been conducted in 1996 or later.
(a) Except as provided in paragraphs (a)(1) and (a)(2) of this section, for approval, a State plan shall include the reporting and recordkeeping requirements listed in § 60.58c(b) through (g) of subpart Ec of this part.
(1) For a designated facility as defined in § 60.32e(a)(1) subject to emissions limits under § 60.33e(a)(1) or (b)(1), excluding § 60.58c(b)(2)(ii) (fugitive emissions), (b)(2)(viii) (NO
(2) For a designated facility as defined in § 60.32e(a)(1) or (a)(2) subject to emissions limits under § 60.33e(a)(2), (a)(3), or (b)(2), excluding § 60.58c(b)(2)(xviii) (bag leak detection system alarms), (b)(2)(xix) (CO CEMS data), and (b)(7) (siting documentation).
(b) For approval, a State plan shall require the owner or operator of each HMIWI subject to the emissions limits under § 60.33e to:
(1) As specified in § 60.36e, maintain records of the annual equipment inspections that are required for each HMIWI subject to the emissions limits under § 60.33e(a)(2), (a)(3), and (b), and the annual air pollution control device inspections that are required for each HMIWI subject to the emissions limits under § 60.33e(a)(2), (a)(3), and (b)(2), any required maintenance, and any repairs not completed within 10 days of an inspection or the timeframe established by the State regulatory agency; and
(a) Each State in which a designated facility is operating shall submit to the Administrator a plan to implement and enforce the emissions guidelines as specified in paragraphs (a)(1) and (a)(2) of this section:
(1) Not later than September 15, 1998, for the emissions guidelines as promulgated on September 15, 1997.
(2) Not later than October 6, 2010, for the emissions guidelines as amended on October 6, 2009.
(c) State plans that specify measurable and enforceable incremental steps of progress towards compliance for designated facilities planning to install the necessary air pollution control equipment may allow compliance on or before the date 3 years after EPA approval of the State plan (but not later than September 16, 2002), for the emissions guidelines as promulgated on September 15, 1997, and on or before the date 3 years after approval of an amended State plan (but not later than October 6, 2014), for the emissions guidelines as amended on October 6, 2009). Suggested measurable and enforceable activities to be included in State plans are:
(1) Date for submitting a petition for site-specific operating parameters under § 60.56c(j) of subpart Ec of this part.
(d) * * *
(3) If an extension is granted, require compliance with the emissions guidelines on or before the date 3 years after EPA approval of the State plan (but not later than September 16, 2002), for the emissions guidelines as promulgated on September 15, 1997, and on or before the date 3 years after EPA approval of an amended State plan (but not later than October 6, 2014), for the emissions guidelines as amended on October 6, 2009.
(f) The Administrator shall develop, implement, and enforce a plan for existing HMIWI located in any State that has not submitted an approvable plan within 2 years after September 15, 1997, for the emissions guidelines as promulgated on September 15, 1997, and within 2 years after October 6, 2009 for the emissions guidelines as amended on October 6, 2009. Such plans shall ensure that each designated facility is in compliance with the provisions of this subpart no later than 5 years after September 15, 1997, for the emissions guidelines as promulgated on September 15, 1997, and no later than 5 years after October 6, 2009 for the emissions guidelines as amended on October 6, 2009.
(a) Except as provided in paragraphs (b) through (h) of this section, the affected facility to which this subpart applies is each individual hospital/medical/infectious waste incinerator (HMIWI):
(1) For which construction is commenced after June 20, 1996 but no later than December 1, 2008; or
(2) For which modification is commenced after March 16, 1998 but no later than April 6, 2010.
(3) For which construction is commenced after December 1, 2008; or
(4) For which modification is commenced after April 6, 2010.
(i) * * *
(1) * * *
(2) Approval of alternative methods of demonstrating compliance under § 60.8 including:
(i) Approval of CEMS for PM, HCl, multi-metals, and Hg where used for purposes of demonstrating compliance,
(ii) Approval of continuous automated sampling systems for dioxin/furan and Hg where used for purposes of demonstrating compliance, and
(iii) Approval of major alternatives to test methods;
(3) Approval of major alternatives to monitoring;
(4) Waiver of recordkeeping requirements; and
(5) Performance test and data reduction waivers under § 60.8(b).
(m) The requirements of this subpart as promulgated on September 15, 1997, shall apply to the affected facilities defined in paragraph (a)(1) and (2) of this section until the applicable compliance date of the requirements of subpart Ce of this part, as amended on October 6, 2009. Upon the compliance date of the requirements of the amended subpart Ce of this part, affected facilities as defined in paragraph (a) of this section are no longer subject to the requirements of this subpart, but are subject to the requirements of subpart Ce of this part, as amended on October 6, 2009, except where the emissions limits of this subpart as promulgated on September 15, 1997 are more stringent than the emissions limits of the amended subpart Ce of this part. Compliance with subpart Ce of this part, as amended on October 6, 2009 is required on or before the date 3 years after EPA approval of the State plan for States in which an affected facility as defined in paragraph (a) of this section is located (but not later than the date 5 years after promulgation of the amended subpart).
(n) The requirements of this subpart, as amended on October 6, 2009, shall become effective April 6, 2010.
(a) 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 shall cause to be discharged into the atmosphere:
(1) From an affected facility as defined in § 60.50c(a)(1) and (2), any gases that contain stack emissions in excess of the limits presented in Table 1A to this subpart.
(2) From an affected facility as defined in § 60.50c(a)(3) and (4), any gases that contain stack emissions in excess of the limits presented in Table 1B to this subpart.
(b) 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 shall cause to be discharged into the atmosphere:
(1) From an affected facility as defined in § 60.50c(a)(1) and (2), any gases that exhibit greater than 10 percent opacity (6-minute block average).
(2) From an affected facility as defined in § 60.50c(a)(3) and (4), any gases that exhibit greater than 6 percent opacity (6-minute block average).
(c) 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 as defined in § 60.50c(a)(1) and (2) and utilizing a large HMIWI, and in § 60.50c(a)(3) and (4), shall cause to be discharged into the atmosphere visible emissions of combustion ash from an ash conveying system (including conveyor transfer points) in excess of 5 percent of the observation period (
The owner or operator of an affected facility shall prepare a waste management plan. The waste management plan shall identify both the feasibility and the approach to separate certain components of solid waste from the health care waste stream in order to reduce the amount of toxic emissions from incinerated waste. A waste management plan may include, but is not limited to, elements such as segregation and recycling of paper, cardboard, plastics, glass, batteries, food waste, and metals (
(a) The emissions limits apply at all times.
(b) The owner or operator of an affected facility as defined in § 60.50c(a)(1) and (2), shall conduct an initial performance test as required under § 60.8 to determine compliance with the emissions limits using the procedures and test methods listed in paragraphs (b)(1) through (b)(6) and (b)(9) through (b)(14) of this section. The owner or operator of an affected facility as defined in § 60.50c(a)(3) and (4), shall conduct an initial performance test as required under § 60.8 to determine compliance with the emissions limits using the procedures and test methods listed in paragraphs (b)(1) through (b)(14). The use of the bypass stack during a performance test shall invalidate the performance test.
(4) EPA Reference Method 3, 3A, or 3B of appendix A-2 of this part shall be used for gas composition analysis, including measurement of oxygen concentration. EPA Reference Method 3, 3A, or 3B of appendix A-2 of this part shall be used simultaneously with each of the other EPA reference methods. As an alternative to EPA Reference Method 3B, ASME PTC-19-10-1981-Part 10 may be used (incorporated by reference,
(6) EPA Reference Method 5 of appendix A-3 or Method 26A or Method 29 of appendix A-8 of this part shall be used to measure the particulate matter emissions. As an alternative, PM CEMS may be used as specified in paragraph (c)(5) of this section.
(7) EPA Reference Method 7 or 7E of appendix A-4 of this part shall be used to measure NO
(8) EPA Reference Method 6 or 6C of appendix A-4 of this part shall be used to measure SO
(9) EPA Reference Method 9 of appendix A-4 of this part shall be used to measure stack opacity. As an alternative, demonstration of compliance with the PM standards using bag leak detection systems as specified in § 60.57c(h) or PM CEMS as specified in paragraph (c)(5) of this section is considered demonstrative of compliance with the opacity requirements.
(10) EPA Reference Method 10 or 10B of appendix A-4 of this part shall be used to measure the CO emissions. As specified in paragraph (c)(4) of this section, use of CO CEMS are required for affected facilities under § 60.50c(a)(3) and (4).
(11) EPA Reference Method 23 of appendix A-7 of this part shall be used to measure total dioxin/furan emissions. As an alternative, an owner or operator may elect to sample dioxins/furans by installing, calibrating, maintaining, and operating a continuous automated sampling system for monitoring dioxin/furan emissions as specified in paragraph (c)(6) of this section. For Method 23 of appendix A-7 sampling, the minimum sample time shall be 4 hours per test run. If the affected facility has selected the toxic equivalency standards for dioxins/furans, under § 60.52c, the following procedures shall be used to determine compliance:
(12) EPA Reference Method 26 or 26A of appendix A-8 of this part shall be used to measure HCl emissions. As an alternative, HCl CEMS may be used as specified in paragraph (c)(5) of this section.
(13) EPA Reference Method 29 of appendix A-8 of this part shall be used to measure Pb, Cd, and Hg emissions. As an alternative, Hg emissions may be measured using ASTM D6784-02 (incorporated by reference,
(14) The EPA Reference Method 22 of appendix A-7 of this part shall be used to determine compliance with the fugitive ash emissions limit under § 60.52c(c). The minimum observation time shall be a series of three 1-hour observations.
(c) * * *
(2) Except as provided in paragraphs (c)(4) and (c)(5) of this section, determine compliance with the PM, CO, and HCl emissions limits by conducting an annual performance test (no more than 12 months following the previous performance test) using the applicable procedures and test methods listed in paragraph (b) of this section. If all three performance tests over a 3-year period indicate compliance with the emissions limit for a pollutant (PM, CO, or HCl), the owner or operator may forego a performance test for that pollutant for the subsequent 2 years. At a minimum, a performance test for PM, CO, and HCl shall be conducted every third year (no more than 36 months following the previous performance test). If a performance test conducted every third year indicates compliance with the emissions limit for a pollutant (PM, CO, or HCl), the owner or operator may forego a performance test for that pollutant for an additional 2 years. If any performance test indicates noncompliance with the respective emissions limit, a performance test for that pollutant shall be conducted annually until all annual performance tests over a 3-year period indicate compliance with the emissions limit. The use of the bypass stack during a performance test shall invalidate the performance test.
(3) For an affected facility as defined in § 60.50c(a)(1) and (2) and utilizing a large HMIWI, and in § 60.50c(a)(3) and (4), determine compliance with the visible emissions limits for fugitive emissions from flyash/bottom ash storage and handling by conducting a performance test using EPA Reference Method 22 of appendix A-7 on an annual basis (no more than 12 months following the previous performance test).
(4) For an affected facility as defined in § 60.50c(a)(3) and (4), determine compliance with the CO emissions limit using a CO CEMS according to paragraphs (c)(4)(i) through (c)(4)(iii) of this section:
(i) Determine compliance with the CO emissions limit using a 24-hour block average, calculated as specified in section 12.4.1 of EPA Reference Method 19 of appendix A-7 of this part.
(ii) Operate the CO CEMS in accordance with the applicable procedures under appendices B and F of this part.
(iii) Use of a CO CEMS may be substituted for the CO annual performance test and minimum secondary chamber temperature to demonstrate compliance with the CO emissions limit.
(5) Facilities using CEMS to demonstrate compliance with any of the emissions limits under § 60.52c shall:
(i) For an affected facility as defined in § 60.50c(a)(1) and (2), determine compliance with the appropriate emissions limit(s) using a 12-hour rolling average, calculated each hour as the average of the previous 12 operating hours.
(ii) For an affected facility as defined in § 60.50c(a)(3) and (4), determine compliance with the appropriate emissions limit(s) using a 24-hour block average, calculated as specified in section 12.4.1 of EPA Reference Method 19 of appendix A-7 of this part.
(iii) Operate all CEMS in accordance with the applicable procedures under appendices B and F of this part. For those CEMS for which performance specifications have not yet been promulgated (HCl, multi-metals), this option for an affected facility as defined in § 60.50c(a)(3) and (4) takes effect on the date a final performance specification is published in the
(iv) For an affected facility as defined in § 60.50c(a)(3) and (4), be allowed to substitute use of an HCl CEMS for the HCl annual performance test, minimum HCl sorbent flow rate, and minimum scrubber liquor pH to demonstrate compliance with the HCl emissions limit.
(v) For an affected facility as defined in § 60.50c(a)(3) and (4), be allowed to substitute use of a PM CEMS for the PM annual performance test and minimum pressure drop across the wet scrubber, if applicable, to demonstrate compliance with the PM emissions limit.
(6) An affected facility as defined in § 60.50c(a)(3) and (4) using a continuous automated sampling system to demonstrate compliance with the dioxin/furan emissions limits under § 60.52c shall record the output of the system and analyze the sample according to EPA Reference Method 23 of appendix A-7 of this part. This option to use a continuous automated sampling system takes effect on the date a final performance specification applicable to dioxin/furan from monitors is published in the
(7) An affected facility as defined in § 60.50c(a)(3) and (4) using a continuous automated sampling system to demonstrate compliance with the Hg emissions limits under § 60.52c shall record the output of the system and analyze the sample at set intervals using any suitable determinative technique that can meet appropriate performance criteria. This option to use a continuous automated sampling system takes effect on the date a final performance specification applicable to Hg from monitors is published in the
(d) Except as provided in paragraphs (c)(4) through (c)(7) of this section, the owner or operator of an affected facility equipped with a dry scrubber followed by a fabric filter, a wet scrubber, or a dry scrubber followed by a fabric filter and wet scrubber shall:
(e) Except as provided in paragraph (i) of this section, for affected facilities equipped with a dry scrubber followed by a fabric filter:
(5) Use of the bypass stack shall constitute a violation of the PM, dioxin/furan, HCl, Pb, Cd and Hg emissions limits.
(6) Operation of the affected facility as defined in § 60.50c(a)(3) and (4) above the CO emissions limit as measured by the CO CEMS specified in paragraph (c)(4) of this section shall constitute a violation of the CO emissions limit.
(7) For an affected facility as defined in § 60.50c(a)(3) and (4), failure to initiate corrective action within 1 hour of a bag leak detection system alarm; or failure to operate and maintain the fabric filter such that the alarm is not engaged for more than 5 percent of the total operating time in a 6-month block reporting period shall constitute a violation of the PM emissions limit. If inspection of the fabric filter demonstrates that no corrective action is required, no alarm time is counted. If corrective action is required, each alarm is counted as a minimum of 1 hour. If it takes longer than 1 hour to initiate corrective action, the alarm time is counted as the actual amount of time taken to initiate corrective action. If the bag leak detection system is used to demonstrate compliance with the opacity limit, this would also constitute a violation of the opacity emissions limit.
(8) Operation of the affected facility as defined in § 60.50c(a)(3) and (4) above the PM, HCl, Pb, Cd, and/or Hg emissions limit as measured by the CEMS specified in paragraph (c)(5) of this section shall constitute a violation of the applicable emissions limit.
(9) Operation of the affected facility as defined in § 60.50c(a)(3) and (4) above the dioxin/furan emissions limit as measured by the continuous automated sampling system specified in paragraph (c)(6) of this section shall constitute a violation of the dioxin/furan emissions limit.
(10) Operation of the affected facility as defined in § 60.50c(a)(3) and (4) above the Hg emissions limit as measured by the continuous automated sampling system specified in paragraph (c)(7) of this section shall constitute a violation of the Hg emissions limit.
(f) Except as provided in paragraph (i) of this section, for affected facilities equipped with a wet scrubber:
(6) Use of the bypass stack shall constitute a violation of the PM, dioxin/furan, HCl, Pb, Cd and Hg emissions limits.
(7) Operation of the affected facility as defined in § 60.50c(a)(3) and (4) above the CO emissions limit as measured by the CO CEMS specified in paragraph (c)(4) of this section shall constitute a violation of the CO emissions limit.
(8) Operation of the affected facility as defined in § 60.50c(a)(3) and (4) above the PM, HCl, Pb, Cd, and/or Hg emissions limit as measured by the CEMS specified in paragraph (c)(5) of this section shall constitute a violation of the applicable emissions limit.
(9) Operation of the affected facility as defined in § 60.50c(a)(3) and (4) above the dioxin/furan emissions limit as measured by the continuous automated sampling system specified in paragraph (c)(6) of this section shall constitute a violation of the dioxin/furan emissions limit.
(10) Operation of the affected facility as defined in § 60.50c(a)(3) and (4) above the Hg emissions limit as measured by the continuous automated sampling system specified in paragraph (c)(7) of this section shall constitute a violation of the Hg emissions limit.
(g) Except as provided in paragraph (i) of this section, for affected facilities equipped with a dry scrubber followed by a fabric filter and a wet scrubber:
(5) Use of the bypass stack shall constitute a violation of the PM, dioxin/furan, HCl, Pb, Cd and Hg emissions limits.
(6) Operation of the affected facility as defined in § 60.50c(a)(3) and (4) above the CO emissions limit as measured by the CO CEMS specified in paragraph (c)(4) of this section shall constitute a violation of the CO emissions limit.
(7) For an affected facility as defined in § 60.50c(a)(3) and (4), failure to initiate corrective action within 1 hour of a bag leak detection system alarm; or failure to operate and maintain the fabric filter such that the alarm is not engaged for more than 5 percent of the total operating time in a 6-month block reporting period shall constitute a violation of the PM emissions limit. If inspection of the fabric filter demonstrates that no corrective action is required, no alarm time is counted. If corrective action is required, each alarm is counted as a minimum of 1 hour. If it takes longer than 1 hour to initiate corrective action, the alarm time is counted as the actual amount of time taken to initiate corrective action. If the bag leak detection system is used to demonstrate compliance with the opacity limit, this would also constitute a violation of the opacity emissions limit.
(8) Operation of the affected facility as defined in § 60.50c(a)(3) and (4) above the PM, HCl, Pb, Cd, and/or Hg emissions limit as measured by the CEMS specified in paragraph (c)(5) of this section shall constitute a violation of the applicable emissions limit.
(9) Operation of the affected facility as defined in § 60.50c(a)(3) and (4) above the dioxin/furan emissions limit as measured by the continuous automated sampling system specified in paragraph (c)(6) of this section shall constitute a violation of the dioxin/furan emissions limit.
(10) Operation of the affected facility as defined in § 60.50c(a)(3) and (4) above the Hg emissions limit as measured by the continuous automated sampling system specified in paragraph (c)(7) of this section shall constitute a violation of the Hg emissions limit.
(h) The owner or operator of an affected facility as defined in
(1) Establish the maximum charge rate, the minimum secondary chamber temperature, and the minimum reagent flow rate as site specific operating parameters during the initial performance test to determine compliance with the emissions limits;
(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, ensure that the affected facility does not operate above the maximum charge rate, or below the minimum secondary chamber temperature or the minimum reagent flow rate measured as 3-hour rolling averages (calculated each hour as the average of the previous 3 operating hours) at all times. Operating parameter limits do not apply during performance tests.
(3) Except as provided in paragraph (i) of this section, operation of the affected facility above the maximum charge rate, below the minimum secondary chamber temperature, and below the minimum reagent flow rate simultaneously shall constitute a violation of the NO
(i) The owner or operator of an affected facility may conduct a repeat performance test within 30 days of violation of applicable operating parameter(s) to demonstrate that the affected facility is not in violation of the applicable emissions limit(s). Repeat performance tests conducted pursuant to this paragraph shall be conducted using the identical operating parameters that indicated a violation under paragraph (e), (f), (g), or (h) of this section.
(j) The owner or operator of an affected facility using an air pollution control device other than a dry scrubber followed by a fabric filter, a wet scrubber, a dry scrubber followed by a fabric filter and a wet scrubber, or selective noncatalytic reduction technology to comply with the emissions limits under § 60.52c shall petition the Administrator for other site-specific operating parameters to be established during the initial performance test and continuously monitored thereafter. The owner or operator shall not conduct the initial performance test until after the petition has been approved by the Administrator.
(a) Except as provided in § 60.56c(c)(4) through (c)(7), the owner or operator of an affected facility shall install, calibrate (to manufacturers' specifications), maintain, and operate devices (or establish methods) for monitoring the applicable maximum and minimum operating parameters listed in Table 3 to this subpart (unless CEMS are used as a substitute for certain parameters as specified) such that these devices (or methods) measure and record values for these operating parameters at the frequencies indicated in Table 3 of this subpart at all times.
(b) The owner or operator of an affected facility as defined in § 60.50c(a)(3) and (4) that uses selective noncatalytic reduction technology shall install, calibrate (to manufacturers' specifications), maintain, and operate devices (or establish methods) for monitoring the operating parameters listed in § 60.56c(h) such that the devices (or methods) measure and record values for the operating parameters at all times. Operating parameter values shall be measured and recorded at the following minimum frequencies:
(1) Maximum charge rate shall be measured continuously and recorded once each hour;
(2) Minimum secondary chamber temperature shall be measured continuously and recorded once each minute; and
(3) Minimum reagent flow rate shall be measured hourly and recorded once each hour.
(d) The owner or operator of an affected facility using an air pollution control device other than a dry scrubber followed by a fabric filter, a wet scrubber, a dry scrubber followed by a fabric filter and a wet scrubber, or selective noncatalytic reduction technology to comply with the emissions limits under § 60.52c shall install, calibrate (to manufacturers' specifications), maintain, and operate the equipment necessary to monitor the site-specific operating parameters developed pursuant to § 60.56c(j).
(e) The owner or operator of an affected facility shall obtain monitoring data at all times during HMIWI operation except during periods of monitoring equipment malfunction, calibration, or repair. At a minimum, valid monitoring data shall be obtained for 75 percent of the operating hours per day for 90 percent of the operating days per calendar quarter that the affected facility is combusting hospital waste and/or medical/infectious waste.
(f) The owner or operator of an affected facility as defined in § 60.50c(a)(3) and (4) shall ensure that each HMIWI subject to the emissions limits in § 60.52c undergoes an initial air pollution control device inspection that is at least as protective as the following:
(1) At a minimum, an inspection shall include the following:
(i) Inspect air pollution control device(s) for proper operation, if applicable;
(ii) Ensure proper calibration of thermocouples, sorbent feed systems, and any other monitoring equipment; and
(iii) Generally observe that the equipment is maintained in good operating condition.
(2) Within 10 operating days following an air pollution control device inspection, all necessary repairs shall be completed unless the owner or operator obtains written approval from the Administrator establishing a date whereby all necessary repairs of the designated facility shall be completed.
(g) The owner or operator of an affected facility as defined in § 60.50c(a)(3) and (4) shall ensure that each HMIWI subject to the emissions limits under § 60.52c undergoes an air pollution control device inspection annually (no more than 12 months following the previous annual air pollution control device inspection), as outlined in paragraphs (f)(1) and (f)(2) of this section.
(h) For affected facilities as defined in § 60.50c(a)(3) and (4) that use an air pollution control device that includes a fabric filter and are not demonstrating compliance using PM CEMS, determine compliance with the PM emissions limit using a bag leak detection system and meet the requirements in paragraphs (h)(1) through (h)(12) of this section for each bag leak detection system.
(1) Each triboelectric bag leak detection system may be installed, calibrated, operated, and maintained according to 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 (D-243-02), Research Triangle Park, NC 27711. This
(2) The bag leak detection system shall be certified by the manufacturer to be capable of detecting PM emissions at concentrations of 10 milligrams per actual cubic meter (0.0044 grains per actual cubic foot) or less.
(3) The bag leak detection system sensor shall provide an output of relative PM loadings.
(4) The bag leak detection system shall be equipped with a device to continuously record the output signal from the sensor.
(5) The bag leak detection system shall be equipped with an audible alarm system that will sound automatically when an increase in relative PM emissions over a preset level is detected. The alarm shall be located where it is easily heard by plant operating personnel.
(6) For positive pressure fabric filter systems, a bag leak detector shall be installed in each baghouse compartment or cell.
(7) For negative pressure or induced air fabric filters, the bag leak detector shall be installed downstream of the fabric filter.
(8) Where multiple detectors are required, the system's instrumentation and alarm may be shared among detectors.
(9) The baseline output shall be established by adjusting the range and the averaging period of the device and establishing the alarm set points and the alarm delay time according to section 5.0 of the “Fabric Filter Bag Leak Detection Guidance.”
(10) Following initial adjustment of the system, the sensitivity or range, averaging period, alarm set points, or alarm delay time may not be adjusted. In no case may the sensitivity be increased by more than 100 percent or decreased more than 50 percent over a 365-day period unless such adjustment follows a complete fabric filter inspection that demonstrates that the fabric filter is in good operating condition. Each adjustment shall be recorded.
(11) Record the results of each inspection, calibration, and validation check.
(12) Initiate corrective action within 1 hour of a bag leak detection system alarm; operate and maintain the fabric filter such that the alarm is not engaged for more than 5 percent of the total operating time in a 6-month block reporting period. If inspection of the fabric filter demonstrates that no corrective action is required, no alarm time is counted. If corrective action is required, each alarm is counted as a minimum of 1 hour. If it takes longer than 1 hour to initiate corrective action, the alarm time is counted as the actual amount of time taken to initiate corrective action.
(a) * * *
(2) * * *
(iv) If applicable, the petition for site-specific operating parameters under § 60.56c(j).
(b) * * *
(2) * * *
(viii) For affected facilities as defined in § 60.50c(a)(3) and (4), amount and type of NO
(xvi) For affected facilities complying with § 60.56c(j) and § 60.57c(d), the owner or operator shall maintain all operating parameter data collected;
(xvii) For affected facilities as defined in § 60.50c(a)(3) and (4), records of the annual air pollution control device inspections, any required maintenance, and any repairs not completed within 10 days of an inspection or the timeframe established by the Administrator.
(xviii) For affected facilities as defined in § 60.50c(a)(3) and (4), records of each bag leak detection system alarm, the time of the alarm, the time corrective action was initiated and completed, and a brief description of the cause of the alarm and the corrective action taken, as applicable.
(xix) For affected facilities as defined in § 60.50c(a)(3) and (4), concentrations of CO as determined by the continuous emissions monitoring system.
(6) The results of the initial, annual, and any subsequent performance tests conducted to determine compliance with the emissions limits and/or to establish or re-establish operating parameters, as applicable, and a description, including sample calculations, of how the operating parameters were established or re-established, if applicable.
(11) Records of calibration of any monitoring devices as required under § 60.57c(a) through (d).
(c) The owner or operator of an affected facility shall submit the information specified in paragraphs (c)(1) through (c)(4) of this section no later than 60 days following the initial performance test. All reports shall be signed by the facilities manager.
(1) The initial performance test data as recorded under § 60.56c(b)(1) through (b)(14), as applicable.
(2) The values for the site-specific operating parameters established pursuant to § 60.56c(d), (h), or (j), as applicable, and a description, including sample calculations, of how the operating parameters were established during the initial performance test.
(4) For each affected facility as defined in § 60.50c(a)(3) and (4) that uses a bag leak detection system, analysis and supporting documentation demonstrating conformance with EPA guidance and specifications for bag leak detection systems in § 60.57c(h).
(d) An annual report shall be submitted 1 year following the submissions of the information in paragraph (c) of this section and subsequent reports shall be submitted no more than 12 months following the previous report (once the unit is subject to permitting requirements under title V of the Clean Air Act, the owner or operator of an affected facility must submit these reports semiannually). The annual report shall include the information specified in paragraphs (d)(1) through (11) of this section. All reports shall be signed by the facilities manager.
(1) The values for the site-specific operating parameters established
(2) The highest maximum operating parameter and the lowest minimum operating parameter, as applicable, for each operating parameter recorded for the calendar year being reported, pursuant to § 60.56(d), (h), or (j), as applicable.
(3) The highest maximum operating parameter and the lowest minimum operating parameter, as applicable, for each operating parameter recorded pursuant to § 60.56(d), (h), or (j) for the calendar year preceding the year being reported, in order to provide the Administrator with a summary of the performance of the affected facility over a 2-year period.
(9) For affected facilities as defined in § 60.50c(a)(3) and (4), records of the annual air pollution control device inspection, any required maintenance, and any repairs not completed within 10 days of an inspection or the timeframe established by the Administrator.
(10) For affected facilities as defined in § 60.50c(a)(3) and (4), records of each bag leak detection system alarm, the time of the alarm, the time corrective action was initiated and completed, and a brief description of the cause of the alarm and the corrective action taken, as applicable.
(11) For affected facilities as defined in § 60.50c(a)(3) and (4), concentrations of CO as determined by the continuous emissions monitoring system.
(g) For affected facilities, as defined in § 60.50c(a)(3) and (4), that choose to submit an electronic copy of stack test reports to EPA's WebFIRE data base, as of December 31, 2011, the owner or operator of an affected facility shall enter the test data into EPA's data base using the Electronic Reporting Tool located at
Environmental Protection Agency (EPA).
Final rule.
We are revising the regulations governing State and Federal operating permit programs required by title V of the Clean Air Act (CAA or the Act) to promote flexible air permitting (FAP) approaches that provide greater operational flexibility and, at the same time, ensure environmental protection and compliance with applicable laws.
The revisions to our title V regulations consist of adding definitions for alternative operating scenario (AOS) and approved replicable methodology (ARM) and codifying some clarifications to existing provisions. These revisions are intended to clarify and reaffirm opportunities for accessing operational flexibility under existing regulations. We are not finalizing any revisions to our existing minor or major New Source Review (NSR) regulations. In particular, we are withdrawing that portion of the proposal which relates to Green Groups and their potential inclusion in NSR programs required by parts C and D of title I of the Act. Instead, we are encouraging States and sources to investigate in more depth the flexibilities currently available under the major NSR regulations.
This final rule is effective on November 5, 2009.
The EPA established a docket for this action under Docket ID No. EPA-HQ-OAR-2004-0087. All documents in the docket are listed on the
For general issues concerning this action, please contact Michael Trutna, Air Quality Policy Division (C504-01), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone (919) 541-5345; fax number (919) 541-4028; or electronic mail at
For specific issues concerning the pilot permits used to support this rulemaking, contact David Beck, Office of Policy, Economics, and Innovation, Innovative Pilots Division (C304-05), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone (919) 541-5421; fax number (919) 541-2664; or electronic mail at
For issues relating to monitoring, recordkeeping, and reporting for FAPs, contact Barrett Parker, Sector Policies and Programs Division, Measurement Policy Group (D243-03), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone 919-541-5635; fax number (919) 541-1039; or electronic mail at
For other part 70 issues, contact Juan Santiago, Operating Permits Group, Air Quality Policy Division (C504-05), U.S. Environmental Protection Agency, Research Triangle Park, NC 27711; telephone (919) 541-1084; fax number (919) 541-5509; or electronic mail at
The information in this Supplementary Information section of this preamble is organized as follows:
Entities potentially affected by this final action are facilities currently required to obtain title V permits under State, local, Tribal, or Federal operating permits programs, and State, local, and Tribal governments that are authorized by EPA to issue such operating permits. Potentially affected sources are found in a wide variety of industry groups. In particular, we believe based on the collective experience in implementing the pilot permit activity that these groups will include, but are not limited to, the following:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. If you have any questions regarding the applicability of this action to a particular entity, contact the person listed in the preceding
In addition to being available in the docket, an electronic copy of this final rule will also be available on the World Wide Web. Following signature by the EPA Administrator, a copy of this final rule will be posted in the regulations and standards section of our NSR home page located at
The purpose of this rulemaking is to clarify and reaffirm opportunities within the existing regulatory framework to encourage the wider use of the FAP approaches. The Agency has learned a great deal over the past decade through the implementation and evaluation of pilot permits. In light of that experience and the comments we received on the proposed FAP rulemaking (72 FR 52206, September 12, 2007),
A FAP is a title V permit that by its design facilitates flexible operations at a source, allowing it to be market-responsive while ensuring equal or greater environmental protection than that achieved by conventional permits. In particular, a FAP contains one or more approaches that allow the source, under protection of the permit shield, to make certain types or categories of physical and/or operational changes without further review or approval of the individual changes by the permitting authority as they subsequently occur. Flexible air permit approaches, as discussed in this notice, include advance approvals of minor NSR, AOSs, and ARMs. In pursuing a FAP, the source must propose one or more of these approaches to the permitting authority who then would accept those which are judged to be appropriate in a particular situation. In order to be effective, the combination of FAP approaches contained in the title V permit must address all applicable requirements and requirements of part 70 relevant to the anticipated changes being authorized.
For more than a decade, we participated in a pilot permit activity with certain title V sources and permitting authorities through which were tested and evaluated various
When Congress amended the Act in 1990, it established an operating permit program in title V of the Act for major (and certain other) stationary sources of air pollution. Title V mandates that each State develop and implement an operating permit program, and requires EPA to establish minimum standards for these programs. The purpose of the program is to improve the enforceability, and thus the effectiveness, of the Act's requirements by issuing to every covered source a permit that lists all the requirements applicable to the source under the Act and contains other terms as necessary to assure compliance with those requirements. States may delegate program responsibility to local agencies, and eligible Tribes may develop and implement a program at their option. In 1992, EPA promulgated regulations setting forth minimum requirements for State, local, and Tribal operating permit programs in part 70 of title 40 of the Code of Federal Regulations (40 CFR part 70). Currently all States and many local agencies administer operating permit programs approved by EPA pursuant to the part 70 requirements. There are 112 such State, territorial, and local operating permit programs. These programs are typically referred to interchangeably as “title V programs” or “part 70 programs.”
In addition, title V requires EPA to implement an operating permit program in areas lacking an approved or adequately administered State, local, or Tribal program. Accordingly, in 1996 EPA promulgated the Federal operating permit program at 40 CFR part 71. In 1999, EPA amended part 71 specifically to address Indian country. Currently, EPA administers the part 71 program in Indian country, for sources located on the outer continental shelf, and for deep water ports.
The concept of operational flexibility in title V permits is not a new one. Since they were initially promulgated in 1992, the part 70 State operating permit program regulations have included operational flexibility provisions. One of these is the AOS provision found at 40 CFR 70.6(a)(9), which is one subject of this rulemaking.
Shortly after we promulgated part 70, we initiated and/or supported pilot permit activities with interested States.
To evaluate the pilot permit activity, we conducted a thorough review of the six pilot permits for which at the time there was significant implementation experience.
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The NSR program is a preconstruction permitting program that applies when a source is constructed or modified. The NSR program is composed of three different programs:
• Prevention of Significant Deterioration (PSD);
• Nonattainment major NSR (NA NSR); and
• Minor NSR.
We often refer to the PSD and NA NSR programs together as the major NSR program because these programs regulate only major sources.
Part C contains the PSD provisions. The PSD program applies when a major source that is located in an area that is designated as attainment or unclassifiable for any criteria pollutant is constructed or undergoes a major modification.
As noted above, parts C and D set forth the statutory requirements for the PSD and NA NSR programs, and the implementing regulations include requirements for State major NSR programs. As a result, major NSR programs generally are similar across the States.
The PSD requirements include but are not limited to:
• Installation of Best Available Control Technology (BACT);
• Air quality monitoring and modeling analyses to ensure that a project's emissions will not cause or contribute to a violation of any national ambient air quality standards (NAAQS) or maximum allowable pollutant increase (PSD increment);
• Notification of Federal Land Manager of nearby Class I areas; and
• Thirty-day public comment period and opportunity for a public hearing on the permit.
Nonattainment NSR requirements include but are not limited to:
• Installation of Lowest Achievable Emission Rate (LAER) control technology;
• Offsetting new emissions with creditable emissions reductions;
• Certification that all major sources owned and operated in the State by the same owner are in compliance with all applicable requirements under the Act;
• An alternative siting analysis demonstrating that the benefits of the proposed source significantly outweigh the environmental and social costs imposed as a result of its location, construction, or modification; and
• Thirty-day public comment on the permit.
Based on our pilot permit evaluation and our 1996 proposed modifications to the major NSR program, in December 2002 we finalized the NSR Improvement rule. In that rule, we promulgated regulations for PALs in the PSD and NA NSR programs. As explained in the preamble to the December 2002 final rule, a PAL is an alternative approach for determining NSR applicability on a plantwide basis.
Under section 110(a)(2)(C) of the Act, States are required to have “minor” NSR programs, which apply to new and modified sources that do not meet the emissions thresholds for the NSR programs that apply to major sources, as well as permit programs to meet parts C and D of the Act. In addition, section 110(j) requires all applicants for permits issued under title I of the Act to show that they will comply with standards of performance and all other requirements of the Act. The minor NSR program is part of each State's “State implementation plan” (SIP) and is designed to ensure that the construction or modification of any stationary source does not interfere with the attainment of the NAAQS. Aside from this requirement, which is stated in broad terms, the Act includes no specifics regarding the structure or functioning of minor NSR programs. The implementing regulations, which are found at 40 CFR 51.160 through 51.164, also are stated in very general terms. As a result, SIP-approved minor NSR programs can vary quite widely from State to State.
This final action is primarily a reaffirmation of currently available flexibility options and the process for accessing them. This action adds some new definitions and clarifications to existing parts 70 and 71 provisions in order to promote greater certainty and reasonable consideration of these options. This notice discusses each of the FAP approaches (
Commenters have generally found these options to be available to the extent needed and appropriate under existing authorities. Commenters have also found the common process to be sufficient and effective in the reasonable consideration of the particular options proposed for a FAP. These commenters have convinced the Agency that more prescriptive approaches proposed to assure greater consistency may well be counterproductive to our objective for greater consideration and appropriate use of FAP approaches. While deciding not to prescribe specific approaches to the design and implementation of FAPs, EPA does intend to monitor State activities in these areas, to evaluate the effectiveness of various FAP approaches periodically, and to assess, on the basis of new experiences and other information, whether any additional rulemaking would be appropriate in the future.
We are finalizing a proposed revision to the title V permit application requirements at 40 CFR 70.5(c)(3)(iii) to facilitate the use of emissions caps, including those for advance approvals of minor NSR and for PALs, although
With respect to AOSs, after considering the comments we received on the proposed rules, we are finalizing only those aspects of our proposal that would preserve the current levels of flexibility and add no new administrative burden. In particular, we are revising the rules to:
• Add a definition of AOS, but eliminating the reference to “physical and operational changes” from the proposed definition.
• Clarify that the permitting authority shall require the source to supplement its application with additional information when necessary to define permit terms and conditions to implement a proposed AOS as requested by the source.
• Clarify that the compliance plan requirements for applications must address proposed AOSs when an application includes them.
• Clarify that applications must contain documentation that the source has obtained all authorizations required under the applicable requirements relevant to a proposed AOS or a certification the source has submitted all relevant materials for obtaining such authorizations.
• Clarify that permits must contain all authorizations as required under the applicable requirements relevant to an AOS.
• Use consistent terminology wherever the rules refer to AOSs.
We are not finalizing other proposed requirements relating to the specific content of AOSs in logs and permits and to the need to report AOS implementation every 6 months. We have been persuaded by the commenters on the proposal that these potential new requirements would not be necessary and may, in fact, be counterproductive.
In the final rules with respect to ARMs, we are adding the proposed definition of ARM and supplementing it with two clarifications added in 40 CFR 70.6(a)(1): (1) As is currently the case for AOSs, the source must identify in its application a potential ARM and the permitting authority must then choose to approve it before the ARM can be effective; and (2) an ARM cannot be used to circumvent any other applicable requirement. Although ARMs can reduce the number of potential permit revisions that a source must otherwise request, an ARM must be consistent with and implement an applicable requirement or requirement of part 70. We are not finalizing the proposed requirement for sources to identify in the 6-month monitoring report any ARMs implemented during the reporting period. Instead, we are clarifying that implementation records for all ARMs use must be kept on-site by the source.
Because the final rules represent clarifications to the existing part 70 regulations, we believe that many States will be able to implement the final rules without revising their regulations. This belief is further based on the pilot experience and on the comments received from States who affirmed that their current authority was sufficient to implement both AOSs and ARMs (
However, since the AOS provisions are impacted by the rule and are one of the part 70 program minima, and State part 70 programs differ, some States may revise their current part 70 program to add sufficient authority to implement the final rule or opt to make current authority on flexible permits more explicit.
With respect to AOSs, for those States that believe they lack authority under their current part 70 programs to implement the final rule, or that chose to make current authority more explicit, such States should submit proposed revisions to their title V operating permits program to their EPA Regional Offices pursuant to 40 CFR 70.4(i). For other States if, based on their subsequent efforts to implement the final rule, we determine in writing that a particular part 70 program does not provide sufficient authority to implement the final rule or is inconsistent with the final rule, then the relevant State must revise the program pursuant to 40 CFR 70.4(i). Accordingly, the State will have, from the date of our written determination, 180 days, or such other period as the Administrator may specify following notification by the Administrator, or within 2 years if the State demonstrates that additional legal authority is necessary to make the required program revisions, to submit a proposed operating permit program revision consistent with the final rule to us for review and approval.
With respect to ARMs, States may choose to send us specific revisions to their current programs at any time. There is no mandate for part 70 programs to contain provisions specific to ARMs. Thus, States are not obligated to revise their part 70 programs in this regard as a result of this final rule. However, optional rule changes may be useful to some States in implementing the final rule more effectively and to achieve the anticipated administrative benefits attributed to ARM implementation.
Regardless of whether States revise their rules to incorporate the part 70 rule changes that are being finalized in this action, the Agency wishes to reiterate that inclusion of AOSs or ARMs in a title V permit remains an essentially voluntary activity. A source owner in deciding whether to propose one must first determine that an AOS and/or ARM would be useful in increasing certainty and flexibility and then the permitting authority must determine whether or not to grant the source's request for an AOS and/or ARM. The permitting authority, on a case-by-case basis, may reject source proposals as inadequate to assure compliance with the underlying applicable requirements or otherwise inappropriate, depending on the specific facts of the situation.
We are not finalizing any changes to the NSR program in parts 51 and 52. We did not propose any changes to the regulations for minor NSR based on our experience with several pilot States. Comments received on the proposal affirmed that the relevant pilot experience was broadly applicable and that States, in general, have sufficient existing authority to advance approve minor NSR, where they determine it appropriate to do so, and to incorporate the permit terms accomplishing this approval into title V permits as applicable requirements. As a result, we continue to believe revisions to our part 51 minor NSR regulations are not necessary. Where States are considering revisions to their current minor NSR programs to provide more explicit authority for authorizing advance approvals, EPA is willing to discuss possible revisions and to review any rule changes proposed by the State, consistent with 40 CFR 51.160 through 51.164.
We have also decided to terminate our rulemaking proposal for Green Groups. As discussed more fully later in this preamble, we instead intend to support States and sources who wish to explore the flexibilities available under the existing major NSR regulations. Upon request to do so, EPA is willing to assist States in an evaluation of their current SIPs and to discuss possible
The final actions relative to parts 70 and 71 and to parts 51 and 52 are subsequently discussed in four sections entitled: V. Advance Approval of Minor NSR; VI. Alternative Operating Scenarios (AOSs); VII. Approved Replicable Methodologies (ARMs); and VIII. Green Groups. Each of these sections first summarizes what we proposed and the significant reactions of commenters to our proposal, and then describes what EPA is finalizing as a result. A more comprehensive summary and analysis of the written comments received can be found in our Response to Comments document, which is available in the public docket for this rulemaking as described in the
Based on our experience with pilot permits, we believe that FAPs provide at least as much environmental protection as conventional permits and often promote superior environmental performance. Nevertheless, we also recognize that FAPs will contain features, such as AOSs, ARMs, or advance approval of minor NSR, that may not be familiar to the reviewing public at least until these approaches are more widely used. For this reason, we encourage permitting authorities to consider using their discretion to enhance the relevant public participation process (as currently required in both title V and NSR regulations), as appropriate, for a particular FAP. Some recommendations which we found to work well in the context of the pilot permits are described below.
During the permitting process, permitting authorities could consider making the permit application available to the public soon after receipt. We found in pilot permits that early outreach to the community, rather than waiting until the draft permit was prepared, was an effective public participation strategy. Some permitting authorities have also found it useful to issue a local press release (in addition to a conventional notice in the newspaper) when a permit containing innovative approaches is released for comment. Press releases have potential to reach more people and raise local awareness of FAP approaches.
The minimum public comment period required for a title V permit renewal or significant permit modification is 30 days. Where a significant amount of a permit's content consists of terms to incorporate operational flexibility, we suggest that permitting authorities consider expanding the comment period to 45 days or more. Note, however, that for some pilot permits, an up-front outreach to the public was sufficient to resolve community questions and comments early in the process, so that by the time of the public hearing and comment period no adverse comments were received.
Finally, in order to ensure adequate technical support and accessibility for the public in their efforts to understand and comment upon FAPs, we suggest that permitting authorities provide a principal point of contact for responding to technical questions and ensure the availability of draft permits, applications, and technical support documents on an Internet Web site. We believe that any additional costs here will be offset by the subsequent administrative cost savings to the permitting authority resulting from the reduced need to process permit revisions for sources with FAPs.
The Agency anticipates that the effort by States and sources to investigate FAPs will involve a potentially wide spectrum of sources (
Pursuant to section 110(a)(2)(C) of the Act and its implementing part 51 regulations (
We refer to up-front, categorical authorizations as “advance approvals” under minor NSR.
Upon examining the provisions of their minor NSR programs, most of the States in which pilot permits were conducted (“pilot States”) found that they could issue advance approvals under existing minor NSR authority for a wide spectrum of changes, provided that certain boundary conditions were established in the minor NSR permit. The conditions established in the minor NSR permit to accomplish such approvals varied depending upon the requirements of the different State minor NSR programs and the specific facts of the particular situation.
The pilot permits employed several types of techniques to authorize, in a practicably enforceable manner, a category of changes under minor NSR. These techniques, while not necessarily transferable in all aspects to other permitting situations, do represent field-tested reference points from which similar advance approval approaches can be considered by other permitting authorities. Ultimately, as with all FAP approaches, in order for a minor NSR project proposing use of an advance approval to be viable, the source must first propose it to the permitting authority, and the permitting authority must then agree to pursue it in the context of its own SIP-approved minor NSR rules and the case-specific facts.
Permitting authorities in pilot States employed the following approaches and safeguards when authorizing the advance approval of minor NSR:
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To augment initial application information, pilot States, as part of authorizing advance approvals under their existing minor NSR programs, frequently decided to require sources to send a notice to the permitting authority contemporaneous with the operation of any entirely new emissions unit relying upon the advance approval. Pilot States were also able to add other permit terms, where necessary, to make enforceable any advance approvals of minor NSR that were authorized.
Often the permitting authorities were able in pilot permits to streamline various permit terms so as to accomplish multiple objectives and to simplify the overall permit. For example, the pilot source frequently requested its permitting authority to establish in the minor NSR permit a plantwide VOC emissions cap at a particular level for two purposes. First, the level was requested to prevent the applicability of major NSR. In cases where the existing plantwide VOC emissions were below the major source threshold, the permitting authority approved an emissions cap to constrain the PTE of the source in a practicably enforceable fashion so that it would not be a major source of VOC emissions for purposes of PSD. In other cases, where the source was an existing major stationary source for its VOC emissions, the source requested a plantwide cap level to function as a PAL. In response, the permitting authority approved the requested PAL consistent with the PAL provisions of the major NSR regulations (
Under the current part 70 regulations, any permit terms accomplishing an advance approval pursuant to a SIP-approved minor NSR program must be incorporated into the title V permit as applicable requirements, and combined with other permit terms established in the part 70 permit as necessary to assure compliance with all requirements that will apply when the approved changes are subsequently implemented. Thus, the part 70 permit would include the requirements directly addressed in the minor NSR permit, as well as other requirements that the minor NSR permit did not address, if any. Changes advance approved under minor NSR can then be implemented without any further review or approval by the permitting authority, provided that the terms of the authorizing minor NSR permit are effective upon its issuance and are incorporated into the title V
In our evaluation of pilot permits,
As mentioned above, pilot permit experience indicates that obtaining advance approval under minor NSR is often a critical element in the design of a FAP. This experience also suggests that many State minor NSR programs may already provide, in situations judged to be appropriate by the permitting authority, the legal authority necessary to issue minor NSR permits that accommodate various types of operational flexibility, which can be readily incorporated into title V permits. Although we did not propose any revisions to the minor NSR regulations at 40 CFR 51.160 through 51.164, we used the proposal preamble to encourage States to implement advance approvals in response to requests by sources under their existing minor NSR programs, as appropriate, and to seek additional authority to consider source proposals where they do not currently have such discretion. Based on pilot experience, we also expressed our belief that permitting authorities can often advance approve changes with respect to other applicable requirements that require a specific authorization without regulatory changes.
We proposed one revision to part 70 to facilitate the use of advance approvals under minor NSR, which, as mentioned, often rely upon one or more emissions caps to accomplish their authorizations.
As explained in the proposal preamble (72 FR 52219), the introductory text in 40 CFR 70.5(c) states generally that the application must include information for each emissions unit. Existing 40 CFR 70.5(c)(3)(iii) further requires that the application provide the emissions rate in tons per year and in such terms as are necessary to establish compliance consistent with the applicable reference test method. We proposed to clarify this regulatory requirement as it applies to sources subject to title V permitting requirements that employ an annual emissions cap (
We noted in the proposal preamble that under the proposed approach, an emissions cap could be thought of as a constraint on annual emissions from each emissions unit under the cap as well as on the aggregated emissions from the group of units. That is, in the extreme, a unit could emit up to the full amount of the cap if all other units under the cap had zero emissions. Thus, for a group of emissions units under an annual emissions cap, the 40 CFR 70.5(c)(3)(iii) requirement for unit-by-unit emissions figures could be met by reporting in the permit application that the emissions cap represents the upper limit on emissions both from each unit in the group and from the entire group. The proposed revision to 40 CFR 70.5(c)(3)(iii) would simply clarify that in this particular situation, more specificity is not needed in the title V permit application (unless additional specificity is necessary to determine applicability or to assure compliance with one or more potentially applicable requirements). Reporting emissions data in this manner would be permissible except where the permitting authority determined that more specific emissions information was needed (
We did not propose any other revisions to part 70 related to advance approvals under minor NSR. Part 70 already requires incorporation into a title V permit of the terms of any State minor NSR permit, including those issued to advance approved changes. These permit terms are themselves applicable requirements as defined in 40 CFR 70.2. Sometimes, however, the permitting authority may need to include other terms in the title V permit, in addition to the terms of a minor NSR permit authorizing advance approved changes, so that the changes can be made without further review or approval. This would be the case if there were other applicable requirements also implicated by the advance approved changes that were not addressed in the minor NSR permit. In such cases, the part 70 permit must assure compliance with these applicable requirements as well.
We pointed out in the proposal preamble that an advance approval that is incorporated into a part 70 permit remains subject to all the conditions of the underlying authorization. For example, if an underlying minor NSR permit is contingent upon the source commencing construction of the authorized change(s) within a certain period, the part 70 permit must contain terms to ensure that the part 70 permit does not authorize operation if the source fails to meet the required deadline. The source is responsible for obtaining any extensions or additional authorizations as necessary to keep the advance approval in the part 70 permit in effect.
In the proposal preamble we also noted that an advance approval under minor NSR may be added to a title V permit through permit issuance or renewal or through the permit revision process. When an existing permit is to be revised to incorporate an advance approval of minor NSR, the appropriate revision track depends on the nature of the proposed advance approval and the process under which it was established (
Commenters generally agreed that no Federal rulemaking is needed on the advance approval of changes under minor NSR because States currently can,
Several industry commenters urged EPA to further encourage States to issue advance approvals under minor NSR. On the other hand, an association of State and local air agencies indicated that States do not need our encouragement to use their minor NSR programs for advance approvals as appropriate, and objected that the discussion in the proposal preamble could be misinterpreted as having regulatory force. This commenter believed that advance approvals cannot be issued under some minor NSR programs.
We received few comments on our proposal to revise 40 CFR 70.5(c)(3)(iii). One State agency indicated that for a combined NSR/title V permit program unit-specific information is often needed for several purposes, including control technology assessment, modeling, compliance assessment, determining the appropriate level and frequency of monitoring,
Consistent with our proposal, we are not revising any part 51 requirement in order to require or facilitate advance approvals under minor NSR (or under any other applicable requirement). We continue to believe that many States are able to advance approve changes under their existing minor NSR programs, to the extent that they believe it is appropriate to do so. As mentioned by a commenter, EPA recognizes, however, that certain minor NSR rules are not as amenable to advance approval as are others. In particular, advance approvals under State rules that require sources to employ best available technology (where such rules are judged to be open to advance approval by the permitting authority and appropriate for use in a particular case) may require additional permit terms as necessary to assure that best available technology will be used.
We would also like to emphasize that permitting authorities, operating under their existing minor NSR regulations and authorities, must include terms as necessary to ensure the practical enforceability of advance approvals. For example, for purposes of tracking compliance with an emissions cap established in minor NSR, the minor NSR permit should contain sufficient terms that collectively act to monitor and quantify the relevant emissions at the site over the applicable time period.
We are finalizing the proposed revision to the title V permit application requirements at 40 CFR 70.5(c)(3)(iii) with minor changes. As proposed, the final revisions clarify that for emissions units subject to an annual emissions cap, the application may report the units' emissions as part of the aggregate emissions associated with the cap, except where the permitting authority determines that more specific information is needed. The EPA agrees with the commenter who wanted to assure that permitting authorities retained the ability to require more unit-specific information as needed to develop permit terms needed to determine or to assure compliance with all applicable requirements relevant to emissions units included under the emissions cap. As a result, the final rule language now indicates that unit-specific information must be provided whenever it is needed, including where necessary to determine or assure compliance with an applicable requirement.
We believe that the revised 40 CFR 70.5(c)(3)(iii) will facilitate the use of advance approvals under emissions caps. This combination of FAP tools was repeatedly validated in our evaluation of pilot permits. In addition, emissions caps were clearly shown to promote emissions reductions as sources sought to create “head room” under their caps to allow for additional growth. No other changes to part 70 are being made for the purposes of accomplishing advance approvals under minor NSR or incorporating them into part 70 permits. However, we again stress that an advance approval which is incorporated into a part 70 permit must include all the conditions of the underlying authorization. The source is responsible for obtaining any extensions or additional authorizations as necessary to keep the advance approval in the part 70 permit in effect.
While we believe that appropriately crafted advance approvals of minor NSR can, in certain cases, facilitate operational flexibility while protecting the environment (at least as effectively as would the individual review of each change as it occurs), we do not intend to imply that States should issue such advance approvals in any cases that would be inconsistent with their existing rules or, in their judgment, would be inappropriate. As a general matter, the permitting authorities have authority to decide, on a case-by-case basis, the merits of granting an advance approval of minor NSR to a particular requesting source. Additionally we do not intend to imply that States must revise their current rules to facilitate advance approvals in the future. Rather, where existing rules may limit advance approval opportunities, EPA simply encourages States to consider the adoption of more flexible minor NSR rules under the broad governing regulations in 40 CFR 51.160-51.164. It is EPA's policy to support State use of advance approvals under minor NSR, where they deem them appropriate, and particularly where States expect benefits similar to those found in our evaluation of pilot permits to occur.
We also acknowledge that States, in order to respond to requests by sources for advance approval of minor NSR, may incur additional up-front development costs for which they may have to charge additional service fees. However, based on the pilot permit experience, annual administrative costs associated with FAPs should decline over time and, over the life of the permit, be less than those for conventional permits.
Since they were initially promulgated in 1992, the part 70 State operating permit program regulations have included the AOS provisions found at 40 CFR 70.6(a)(9).
The Agency outlined broad policy on the design and implementation of AOSs in our final part 70 rule and then further explained our policy in the September 12, 2007 proposal. In the final part 70 rule, we emphasized the importance of 40 CFR 70.6(a)(9), noting that a permit that contains approved AOSs “will be a more complete representation of the operation at the permitted facility.”
In the September 12, 2007 proposal, the Agency explained that, when deciding to approve an AOS, the permitting authority must ensure that the proposed operating scenarios are adequately described for each relevant emissions unit such that all applicable requirements
As with advance approvals, we noted in the proposal preamble that an AOS may be added to a title V permit through permit issuance or renewal or through the permit revision process. When an existing permit is to be modified, the appropriate modification track (significant or minor) depends on the nature of the proposed AOS (or the proposed revision to an AOS) and whether it would qualify for treatment as a minor permit modification under existing 40 CFR 70.7(e)(2)(i). We noted also that the permit shield (where available and granted by the permitting authority) can be extended to AOSs added during permit issuance or renewal or through a significant permit modification, but not to those added through minor permit modification procedures (per existing 40 CFR 70.7(e)(2)(vi)).
In addition, we pointed out in the proposal preamble that the contents of the AOS log, such as its description of requirements that apply to a particular AOS, are not permit provisions for purposes of the permit shield. Thus, a source would not be deemed to be in compliance with the applicable requirements of the Act simply because it was in compliance with the description of applicable requirements contained in the log, if that description were inaccurate.
On a few occasions prior to our September 2007 proposal, we proposed rulemaking and guidance on AOSs. These proposals focused primarily on how AOSs might relate to advance approvals. We did not finalize our proposals.
In the preamble to our September 2007 proposed rulemaking we also proposed several specific revisions to the existing part 70 and part 71 regulations as they apply to AOSs. The Agency stated that the primary purpose of these revisions to parts 70 and 71 is to build upon the existing regulatory framework and to ensure that the flexible permitting approaches with which we have experience are more readily and widely used.
We specifically proposed to define the term “alternative operating scenario (AOS)” in 40 CFR 70.2 and to codify certain related requirements to promote consistency and a common understanding of AOSs. The proposed definition read as follows:
The other proposed revisions included the following:
• Revisions to 40 CFR 70.5(c)(7) to clarify that the permitting authority may require the source to include in its application additional information as necessary to define permit terms and conditions implementing any AOS;
• Additional revisions to 40 CFR 70.5(c)(7) to clarify that the application must include a demonstration that the source has obtained all authorizations required under the applicable requirements that apply to any AOS, or a certification that the source has submitted a complete application for such authorizations;
• Revisions to the compliance plan requirements for applications under 40 CFR 70.5(c)(8) to clarify that such plans must address AOSs when an application includes them;
• Revisions to 40 CFR 70.6(a)(3)(iii)(A) to require the source to identify in the 6-month monitoring report any AOSs implemented during the reporting period;
• Revisions to 40 CFR 70.6(a)(9)(i) to clarify what specific information must be included in the AOS log (already required under the existing regulations) when an AOS is implemented;
• Revisions to 40 CFR 70.6(a)(9)(iii) to clarify what constitutes an acceptable description in a title V permit for an AOS;
• Additional revisions to 40 CFR 70.6(a)(9)(iii) to make clear that the permitting authority cannot grant final approval of an AOS until the source has obtained all the authorizations required under the applicable requirements relevant to that AOS; and
• Revisions to use consistent terminology wherever the rules refer to AOSs.
The commenters on our proposal generally indicated an overall consensus that the proposed additional requirements for AOSs are not necessary or useful. They pointed out that AOSs are already provided for in part 70, and that permitting authorities have been implementing these provisions without difficulty for years. On the other hand, some commenters believe that use of AOS provisions, in their experience, has not been necessary in some States. In these States, commenters assert that permitting authorities have been able to address prospective operating scenarios identified by the source by simply including in the title V permit the applicable requirements and corresponding compliance assurance terms (
We also received a number of comments specific to our proposed definition of AOS. Most of these commenters objected to the inclusion of the phrase “physical or operational change” in the definition, believing that this will cause confusion with the similar phrase “physical change or change in the method of operation” used in the NSR program.
Based on the comments received, the States' current approach to implementing existing AOS rules (described above) has proven to be fundamentally sound and effective. We are persuaded that the proposed specific revisions which would be new requirements would not promote more widespread use of AOSs and other effective strategies than does the current process-based approach and that these revisions might instead be counterproductive. The Agency has therefore decided to not impose any additional requirements onto an already working approach. Rather, we intend to preserve the flexibility available under existing rules by codifying a definition of “AOS” (as modified in response to comments received) and promulgating a few minor clarifications to the existing rules intended to improve certainty. The Agency believes that these actions, in light of the comments received, are appropriate and consistent with the basic streamlining tenets of section 502(b)(6) of the Act on which the provisions for AOSs are based.
Commenters have convinced us that permitting authorities are currently able, in response to a request by a source for more operational flexibility, to develop title V permits which allow the source to shift among identified operating scenarios. Commenters correctly point out that, under the current rule, in lieu of using an AOS, this result might be achieved by relying on the authority and provisions contained in the applicable requirements implicated by the anticipated scenario. This would be true where the applicable monitoring and/or reporting requirements assure compliance (including requirements for records that effectively identify when the scenario operates) or where the source and permitting authority have opted to streamline the relevant applicable requirements consistent with White Paper Number 2.
As explained in White Paper Number 2, sources that seek to streamline applicable requirements should submit their request as part of their title V permit application, identifying the proposed streamlined requirements and providing a demonstration that the streamlined requirements assure compliance with all the underlying, subsumed applicable requirements. Upon approval of the streamlined requirements, the permitting authority would place the requirements in the title V permit (
In finalizing these limited revisions, the Agency wishes to make some additional observations relative to AOSs. First, as in the past, an AOS is essentially defined through the process used to establish it. This allows AOSs to encompass situations in which the relevant applicable requirements might be sufficient with respect to monitoring and/or recordkeeping to determine the compliance status of the unit at a given time but the source and permitting authority have nonetheless opted to use an AOS for greater certainty. We continue to believe that this result is acceptable if the source and permitting authority choose to pursue it. Although a log is required to record
We have decided to finalize a definition for “alternative operating scenario (AOS)” and to revise the various references to AOSs to use consistent terminology. We believe that the term “AOS” should be defined and used consistently in the regulations.
The final definition reads as follows:
The final definition is different from the proposed definition in that we no longer define an AOS as involving a “physical or operational change.” We agree with the commenters that inclusion of the phrase “physical or operational change” invites confusion with the major NSR provisions.
The deletion of this phrase also helps to clarify the interface between the concepts of advance approvals (
While AOSs and advance approvals of minor NSR are typically used as separate FAP approaches, sources and permitting authorities are not precluded from relying upon AOS authority to establish an advance approval of minor NSR in a title V permit. For example, an AOS might be appropriate where a different control approach would not be effective until and unless a particular change were made to an existing emissions unit.
The deletion of the phrase “physical or operational” is also consistent with our previously stated decision to preserve the scope and operation of the current rule regarding AOSs. That is, the Agency believes, in light of comments received, it is not necessary to constrain the scope of AOSs by limiting them to those triggered by a “physical or operational” change when the current approach only restricts the establishment of AOSs to those which both the source and permitting authority must agree are appropriate and are consistent with all underlying applicable requirements, including those involving NSR. The existing process to establish an AOS in a title V permit also addresses any potential concerns that too many AOSs might be proposed, including, for example, those involving a switch from one compliance option to another as provided for under a MACT (or other) standard. We do not believe that the population of AOSs actually approved will be impacted by the deletion. First, the deletion just preserves the status quo. Moreover, sources and permitting authorities are unlikely to establish alternative MACT compliance options as one or more AOSs, since the extensive monitoring and recordkeeping requirements typically found in MACT standards can themselves authorize shifts in compliance options after being incorporated into a title V permit.
In addition to adding a revised definition of AOS and standardizing the part 70 references to AOSs to use consistent terminology, we have decided to finalize three other aspects of our proposed rules which we believe will also preserve the basic operation of the current rule while improving certainty. First, we are essentially finalizing the proposed revisions to 40 CFR 70.5(c)(7) to clarify that the permitting authority shall require the source to include in its application additional information as necessary to define permit terms and conditions to implement any AOS. Note that the final version obligates the permitting authority to require, as contained in the proposal, additional information to develop and implement AOSs, but this requirement only extends to situations where the permitting authority believe such information is necessary. We believe that this obligation has always been implicit in the previously existing language of the section, but that an explicit clarification is appropriate. Second, we are finalizing our proposed revisions to the compliance plan requirements for applications under 40 CFR 70.5(c)(8) to clarify that such plans must address proposed AOSs when an application includes them. We believe that this clarification also merely codifies existing policy and is appropriate to ensure that all applicants understand what is required for AOSs when a source chooses to request one.
Finally, we are finalizing our proposed revisions to 40 CFR 70.5(c)(7) to specify that the application must include a demonstration that the source has obtained all authorizations required under the applicable requirements that apply to any AOS being requested for approval by the source, or a certification that the source has submitted a complete application for such authorizations, and additional revisions
As noted above, we have been convinced by numerous commenters from both State and local permitting agencies and industry that the other more specific requirements proposed for AOSs are unnecessary and potentially could undermine the streamlining objectives of the AOS provisions. We have, therefore, elected to not finalize them. In particular, proposed revisions that we are not finalizing are the following:
• Revisions to 40 CFR 70.6(a)(3)(iii)(A) to require additionally that the source identify in the 6-month monitoring report any AOSs implemented during the reporting period;
• Revisions to 40 CFR 70.6(a)(9)(i) to clarify the type of information that must be included in the AOS log when an AOS is implemented; and
• Revisions to 40 CFR 70.6(a)(9)(iii) to clarify what constitutes an acceptable description in a title V permit for an AOS.
Based on comments received, the Agency is persuaded that the new reporting requirements, as proposed for inclusion in the 6-month monitoring report, would not be necessary or useful. We generally believe that sufficient information about AOSs and their use already exists from the combination of the AOS provisions contained in the permit and the required reports concerning annual compliance certification and the prompt reporting of deviations from achieving compliance with the AOS terms of the permit. In addition, pursuant to 40 CFR 70.6(a)(9)(i), permits must require the source to keep an on-site log that contemporaneously records the implementation of any AOS which occurred during the duration of the title V permit. Pursuant to 40 CFR 70.6(a)(3)(ii)(B), the source owner must keep these records at their site for at least 5 years. Under 40 CFR 70.6(a)(6)(v) the source must submit to the permitting authority, upon their request, this and any other on-site information which is required to be kept by the permit or is needed by the permitting authority to determine compliance with the permit.
The Agency also agrees with commenters that there is no need to standardize the content of AOS logs and permit provisions. While not finalizing any specific content or format requirements for permits or logs involving AOSs, the Agency notes that there remains an overall obligation that the information which is required by the permitting authority for AOSs must be adequate to assure compliance with all applicable requirements. Thus, the structure of the AOS implementation log required by the permitting authority is relatively flexible, provided that the required records are, in total, sufficient to verify the requirements applicable to a particular operating scenario and whether the source was in compliance with them.
Under the Act, title V permits are required to assure compliance with all applicable requirements. Sometimes, circumstances change for a source that bring about the need to recalculate or update a value used either in determining the compliance status of the source with an applicable requirement or in determining the applicability of a requirement. An advance approval under minor NSR or an AOS can incorporate flexibility into a permit, but the scope of changes that can be authorized in them can be severely limited with respect to a particular applicable requirement, if such recalculations or updates are involved and require case-by-case review/approval and a permit revision to ensure ongoing implementation. To facilitate such implementation, and to encourage additional permitting techniques that reduce the need for permit revisions (in a manner consistent with part 70), we proposed the use of ARMs.
In our September 12, 2007 proposal on flexible air permitting, EPA included provisions dealing with ARMs. Therein we stated our belief that ARMs are available now as one type of permit term described in 40 CFR 70.6(a)(1) that can assure compliance with all applicable requirements at the time of permit issuance. In order to establish an ARM, a source would first propose one to the permitting authority who would then consider the appropriateness of authorizing it on a case-by-case basis, depending on the specific facts of the situation. In all cases, the implementation of the proposed ARM must be consistent with all underlying applicable requirements.
While we believed that ARMs as proposed are generally available without any rulemaking (depending on the structure and content of individual part 70 programs, as approved for States), we proposed to codify certain additions to 40 CFR parts 70 and 71 in order to promote greater certainty and use of ARMs, where the permitting authority decides it is appropriate to do so.
As proposed, the terms of an ARM must specify when the ARM is to be used, the applicable methodology (
We emphasized that an ARM, like any provision of a part 70 permit, cannot modify, supersede, or replace an applicable requirement, including, but not limited to, any monitoring, recordkeeping, or reporting required under applicable requirements.
We further explained that the protocol to obtain information under an ARM must be objective and scientifically valid and reliable—such as an EPA test method or monitoring method (usually specified in the applicable requirement itself). We noted that an ARM also includes the instructions governing how the results of the protocol are to be used. For example, an ARM could specify that firebox temperature measurements taken during a performance test of a thermal oxidizer be used to: (1) Define a temperature level that assures compliance with a particular applicable requirement; and (2) revise and update the minimum firebox operating temperature of the oxidizer previously relied upon to assure compliance.
We found permit terms containing ARMs to be useful in maintaining the effect of the advance approvals found in the pilot permits. Pervasively, all the pilot permits contained ARMs as the quantification methodology by which the source would sum VOC emissions from individual emissions units on an ongoing basis. These ARMs also included requirements governing when the aggregation procedures for determining total actual VOC emissions for the site would be compared to the relevant plantwide emissions cap(s) in order to assess source compliance. In some cases, the aggregation ARM relied on other ARMs to assure that certain input values were replicably determined. For example, two of the pilot permits contained replicable testing procedures. These procedures, once implemented, determined the control device operating parameter values that the source must monitor to demonstrate compliance with capture and destruction efficiency requirements (
In addition to proposing a definition of an ARM, we also proposed that the 6-month monitoring reports (required under existing 40 CFR 70.6(a)(3)(iii)) must identify any ARMs implemented during the reporting period, and that for ARMs generating values related to parametric monitoring (
As with advance approvals and AOSs, we noted in the proposal preamble that an ARM may be added to a title V permit through permit issuance or renewal or through the permit revision process. When an existing permit is to be modified, the appropriate modification track (significant or minor) depends on the nature of the proposed ARM (or a proposed change to an ARM which requires a permit revision) and whether it would qualify for treatment as a minor permit modification under existing 40 CFR 70.7(e)(2)(i). We also noted that the permit shield (where available and granted by the permitting authority) can be extended to ARMs added through a significant permit modification, but not to those added through minor permit modification procedures (per existing 40 CFR 70.7(e)(2)(vi)). In addition, we pointed out in the proposal preamble that a source that incorrectly applies the procedures and criteria for an ARM will be considered not to be in compliance with the terms of the permit (and therefore not in compliance with the Act).
In proposing ARMs, we stated our belief that ARMs are authorized under title V of the Act and its implementing regulations. Section 502 sets forth the minimum elements for a State operating permit program. Among other things, section 502 provides that for a State operating permit program to be approved, the permitting authority must have adequate authority to “issue permits and assure compliance by all sources required to have a permit * * * with each applicable standard, regulation or requirement” under the Act.
Several State commenters indicated that the rulemaking on ARMs is unnecessary because States already issue permits with these sorts of terms under existing authority, as evidenced by EPA's discussion of ARM-like permit terms in some of the pilot permits. These commenters also expressed concern that this Federal rulemaking on ARMs might have the unintended consequence of stifling innovative approaches to operational flexibility by prescribing a rigid approach to ARMs. Some commenters expressed concern
Several industry commenters indicated that the rulemaking and EPA's expression of support for ARMs would help to clarify for States that ARMs are supported by the Act and viewed favorably by EPA. However, none of these commenters expressed support for the proposed 6-month reporting requirements for ARMs, and one industry commenter objected to the proposed 6-month reporting requirement for ARMs on the basis that no additional reporting is warranted for what is simply a method for showing compliance.
In response to these commenters, EPA has decided to finalize the proposed definition with minor changes and to add certain additional clarifications to § 70.6(a)(1). In doing so, we reaffirm the proposal as summarized in the preceding section, except as described below in this section. As previously mentioned, these final rules with respect to ARMs do not affect any specific minima for part 70 programs, and, due to their clarifying nature, we do not expect many States to opt to revise their operating permit programs (
While we agree that States currently have authority to issue ARMs in title V permits, we do not agree that placing a definition for ARM in our part 70 rules will stifle innovation by the States. On the contrary, we believe that finalizing the ARM definition will clarify the availability of this aid to flexible permitting to those States and sources that are not aware of it or have had prior issues concerning its use.
The final definition is nearly identical to the one proposed (
(1) Specify a protocol which is consistent with and implements an applicable requirement, or requirement of this part, such that the protocol is based on sound scientific and/or mathematical principles and provides reproducible results using the same inputs; and
(2) Require the results of that protocol to be recorded and used for assuring compliance with such applicable requirement, any other applicable requirement implicated by implementation of the ARM, or requirement of this part, including where an ARM is used for determining applicability of a specific requirement to a particular change.
We wish to emphasize that, under the final definition, an ARM may be used as a means to determine the applicability of a requirement, not just as an aid for assuring compliance. The EPA has included other ARM-like mechanisms in several of our national standards for MACT and NSPS. If a source proposes an ARM to delineate which changes are subject to one requirement instead of another, examples should be provided to the permitting authority and to the record supporting proposed approval of the ARM illustrating the prospective use of the ARM (if approved). We believe that the permitting process is the best forum for clarifying how a proposed ARM would work in the relevant situations reasonably expected to occur over the duration of the permit. However, in the case where the permitting authority has significant concerns over how an applicability ARM would operate in certain situations, the permitting authority should not authorize the ARM for those situations.
We are also revising 40 CFR 70.6(a)(1) to acknowledge that ARMs may be considered as one type of part 70 permit term that assures compliance with applicable requirements. We are also adding two clarifications that appropriately focus ARM implementation. The Agency believes that these clarifications in combination with the mentioned final definition will promote increased consideration of ARMs, where appropriate.
This final version of 40 CFR 70.6(a)(1) incorporates existing policy that a source must first request an ARM in its part 70 permit application before it can be considered by the permitting authority. Note that this request could appear as part of the originally submitted application or in the later submittal of supplemental application material (
Relevant to the first element of the final “ARM” definition, sources will identify candidate protocols that if judged to be replicable could be considered further as a potential ARM by the permitting authority. Candidates for such protocols would frequently arise from already established applicable requirements, such as MACT standards, NSPS, or preconstruction permits (
The second clarification to 40 CFR 70.6(a)(1) was added in response to those commenters who were concerned that ARM implementation of one applicable requirement might circumvent the applicability of another applicable requirement. We believe that this final clarification adequately conveys appropriately that an ARM created under part 70 to streamline the implementation of one applicable requirement cannot be used to contravene compliance with another requirement under the Act or to circumvent its applicability as a result of implementing an ARM. Accordingly, the terms of an NSR permit, which are applicable requirements that must be incorporated into a title V permit, cannot subsequently be changed using an ARM created under different authority. Approved replicable methodologies can be used to update values only when the applicable requirement allows for this to occur. For example, if an existing NSR permit includes specific parametric monitoring levels as compliance indicators, to automate the updating of such levels the NSR permit would need to be revised to establish an ARM. The title V process could not create an ARM to revise the NSR conditions directly. Similarly, the potential applicability of other requirements implicated by the implementation of an ARM (
As noted above, no commenters specifically supported our proposed reporting requirements for ARMs, and one commenter specifically opposed the reporting requirement. In addition, numerous States opposed the ARM proposal in general as being unnecessary and likely to reduce, rather than expand, the flexibility available under the existing rules. Although these commenters did not specifically refer to the reporting portion of the ARM
We proposed to modify the major NSR regulations in order to create an alternative means to comply with major NSR. Specifically, we proposed to allow a new pathway that would treat a number of emissions activities as a single emissions unit (which we termed, a “Green Group”) where the emissions from each of these activities would be routed to a common emissions control device meeting BACT/LAER, and future emissions increases and other changes within the Green Group would be approved for a 10-year period in a major NSR permit. The proposed approach was described as an extension of our December 2002 NSR reform regulations (67 FR 80186, December 31, 2002). In particular, Green Groups would complement the use of plantwide emissions caps (termed, plantwide applicability limitations, or PALs) by providing a flexible permitting option for a section of a plant. Like PALs, we proposed that Green Groups would be a mandatory minimum element of a State NSR program, but the permitting authorities would retain discretion as to when to approve individual Green Groups requested by sources.
The Green Group provisions were proposed to encourage a wide spectrum of sources to construct specified types of changes for a 10-year period with greater certainty and flexibility in exchange for implementing BACT/LAER, regardless of whether or to what extent the source may have been subject to the current major NSR regulations. That is, the Green Group provisions, as an alternative means to comply with major NSR, did not require an evaluation of whether conventional major NSR would otherwise apply.
In its permit application, the source would be required to describe the new and existing emissions activities to be included in a Green Group in sufficient detail to allow the permitting authority to determine BACT or LAER (as applicable) for the Green Group taken as a whole and to conduct an ambient air impact analysis to safeguard relevant ambient increments and standards (including the determination of any offsets necessary in nonattainment areas) or to safeguard air quality values in any relevant Class I areas. We further proposed that the type of detail required in a permit to describe the authorized changes in the Green Group must be sufficient to allow the permitting authority to determine, when a change subsequently was implemented, whether the permitting authority contemplated that change in the scope of the advance approval contained in the major NSR permit.
We proposed that, in general, two types of emissions limits must be set in the major NSR permit for Green Groups: (1) An emissions limit to constrain the overall emissions of the Green Group; and (2) a limit to ensure that BACT/LAER technology is being employed and is effective across the Green Group (
The major NSR review process must determine the level of monitoring, recordkeeping, reporting, and testing (MRRT) to assure compliance with the control technology requirement and any other emissions limit(s) imposed by the permitting authority on emissions unit(s) as necessary to meet major NSR. We proposed specifically for Green Groups that a source would be required to monitor all emissions activities that comprise the Green Group to ensure compliance with the Green Group limit using essentially the same approaches that would meet our requirements for tracking emissions associated with a PAL. These monitoring, recordkeeping, and reporting requirements would be incorporated into the NSR permit that established the Green Group.
We proposed that all NSR projects using a Green Group be of a 10-year duration, for two reasons. First, we stated that this time frame represents a balance between the useful life of the emissions control system and the time frame in which additional major NSR review is likely to result in little, if any, added environmental benefit. Second, we stated that a 10-year duration for a Green Group is supported by the same rationale we used in choosing a 10-year period for the duration of PALs. For PALs we concluded that a 10-year period was necessary to ensure that the normal business cycle would be captured generally for any industry; to balance the need for regulatory certainty with the administrative burden; and to align the PAL renewal with the title V permit renewal.
The Agency further proposed to exclude from application to a Green Group the existing PSD part 52 requirements in 40 CFR 52.21(r)(2) for timely construction and in paragraph (j)(4) of both parts 51 and 52 PSD requirements for the BACT reevaluation of later independent phases of phased construction projects. We also clarified, albeit without proposing specific rule language, that the provisions of 40 CFR 52.21(r)(4), 51.166(r)(2), and 51.165(a)(5)(ii), which subject a source to major NSR upon the relaxation of certain permit terms that had previously allowed the source to avoid major NSR, are met during any major NSR process like one that would establish a Green Group. Finally, we noted that, under the
In our proposal, we based the legal rationale for Green Groups on the premise that the changes and emissions activities within a Green Group are specifically authorized to occur as a result of undergoing, not avoiding, major NSR. Conversely, other changes that a source seeks to implement, but that are not authorized in the Green Group, cannot occur without first obtaining all necessary preconstruction approvals that would apply to such changes. The determination of whether the newly proposed, but unauthorized changes trigger NSR would be made using the “actual-to-projected-actual test” under, for example, 40 CFR 52.21(a)(2)(iv). The Agency noted that this legal rationale for Green Groups differs from the legal rationale for Clean Units, a provision in the 2002 NSR reform rules that employed an allowable emissions test for netting purposes which the U.S. Court of Appeals for the DC Circuit vacated.
Finally, as discussed in the proposal preamble, we believe that the environment and the public would potentially benefit from Green Groups for several reasons. First, we believe that substantial environmental benefits could occur because a Green Group would require all included emissions activities to be controlled to the level of BACT or LAER. The BACT or LAER limits would apply to existing emissions activities (which otherwise would remain uncontrolled or be subject to less stringent control requirements), as well as to emissions activities that are modified or added pursuant to the Green Group authorization. In addition, absent a Green Group, some modifications and new emissions activities might not be subject to major NSR because their emissions would be below applicability thresholds or because they would “net out” of review. Even when individual changes would prove to be subject to major NSR, the resulting BACT might in some cases be less stringent than that required for a Green Group, given the economies of scale in evaluating BACT at the same time for all the activities and authorized changes making up a Green Group. Moreover, we expect that environmental benefits would accrue from the better and more frequent type and amount of monitoring proposed to be required for Green Groups. Finally, we believe that Green Groups would also promote greater administrative efficiency for permitting authorities and sources, because a Green Group would eliminate iterations of permitting processes that produce little or no environmental benefit.
The commenters, while mixed in their overall reaction to the Green Group concept, generally did not support the specifics of the Green Group proposal. State commenters indicated that the proposed 10-to-15-year term of the Green Group is inappropriate because the Act and good environmental stewardship require BACT/LAER reviews and air quality analyses to be conducted contemporaneously with the time of each change at a facility. These commenters disagreed with our assertion that BACT and LAER typically do not advance significantly over the proposed 10- or 15-year period. They added that such permits would unfairly reserve PSD increments for projects that might never be built and that the air quality status in the area of a Green Group could also change due to, for example, transported pollution, revisions to the NAAQS, and natural events. State commenters also questioned the environmental benefits of Green Groups and did not believe that the pilot permits contained in the docket supported the Green Group approach. They also asserted that Green Groups share the legal flaws of Clean Units. State commenters further conveyed that many permitting authorities already offer considerable flexibility and that it is the permitting authorities who can best decide the structure of their own programs in this regard. The State commenters generally believe that the Green Group proposal should be abandoned, but if it is finalized it should be a voluntary element of the major NSR program, rather than mandatory as proposed.
The environmental group that commented on the proposal asserted that the proposed 10-to-15-year term of the Green Group is inconsistent with the Act's requirements for contemporaneous BACT/LAER and air quality reviews. The environmental group also indicated that Green Groups suffer from the same legal flaws as Clean Units. Like most State commenters, the environmental group believes that the Green Group proposal should be abandoned, but if it is finalized it should be voluntary for the States.
Industry commenters, on the other hand, typically favored some aspects of the proposal and believe the Green Group to be a real incentive for sources to control beyond their legal requirements in exchange for greater regulatory certainty and operational flexibility. These commenters often argued that a term of 10 to 15 years would be necessary to justify the expenditure for state-of-the-art controls for a Green Group. They agreed with the proposal that Green Groups should be a mandatory element of the major NSR program and attributed real benefits such as those associated with lower administrative costs. They believe that Green Groups are legally defensible and clearly different from Clean Units. However, industry commenters asserted that the proposal did not reflect how manufacturing facilities are constructed and operated. In particular, they stated Green Groups should not be limited to a single control device and that pollution prevention should be allowed as the primary Green Group control approach. In addition, they indicated that the proposed monitoring, recordkeeping, and reporting requirements are unnecessarily detailed and prescriptive.
Primarily for certain policy reasons raised by commenters and on our belief that the current major NSR regulations already provide considerable flexibility to States, EPA has decided to withdraw our proposal on Green Groups. As described below, the Agency will consider initiating another rulemaking related to flexibility under the major NSR regulations if new data becomes available after additional field experience that supports such an approach. Any such rulemaking would be an entirely new rulemaking separate and distinct from the Green Group proposal being withdrawn in this action.
Notwithstanding our withdrawal of the Green Group proposal, we wish to note that certain statements we made in support of the proposal are not affected by the Green Group withdrawal. First, the requirements of 40 CFR 51.165(a)(5)(ii), 51.166(r)(2), and 52.21(r)(4) are met when an emissions unit with emissions limits previously taken to avoid major NSR subsequently undergoes major NSR review.
Our decision to withdraw the Green Group proposal is in large part based on the significant new information and policy perspectives conveyed in certain comments received on this proposal. Based on the varying types of concerns raised by commenters, EPA no longer believes that promulgation of the Green Group approach—which was EPA's effort to develop a single, nationally uniform approach for Green Groups to achieving advance approval under major NSR—is appropriate. While an approach like that proposed for Green Groups might be effective in certain situations, several commenters pointed out serious reservations about initial air quality and technology reviews becoming stale over the 10-year life of a Green Group. Others were concerned that the proposed Green Group approach was not flexible enough to encompass already tested approaches involving emissions units serviced by multiple control approaches. These commenters also persuaded the Agency that a mandatory, one-size-fits-all approach under the major NSR rules could be counterproductive as well as too inflexible. Many of the same commenters believed that national rules requiring a specific template for Green Groups across all States could instead stifle future innovation and flexibility while adding complexity and unnecessary administrative burden.
The Agency is also not finalizing our proposal on Green Groups because we believe that the current major NSR regulations already provide States considerable ability to design and implement their SIPs in ways that provide operational flexibility while addressing the types of concerns raised by commenters. The major NSR regulations, in general, are quite detailed and prescriptive as to what changes are subject to review, but afford considerable flexibility to determine specifically how subject NSR projects must be permitted. The inherent flexibility for States to design and implement their SIP provisions with respect to NSR projects arises from the structure and content of the part 51 PSD and the nonattainment (“NA”) NSR regulations.
First, the definition of “project” can accommodate a wide spectrum of physical and operational changes, provided such changes are authorized by the permitting authority.
Moreover, the other provisions of the part 51 PSD and NA NSR regulations do not impose limitations on the scope or implementation of NSR projects once they are defined by the permitting authority. The NA NSR regulations do not contain any specific provisions that restrict how the permitting authority might define the scope, duration, and timeliness of an NSR project. The part 51 PSD regulations only indirectly affect the acceptable scope of an NSR project in their requirements and the BACT reevaluations of certain phases of phased construction projects.
As a result, under the current major NSR regulations, with the exception of the relatively narrow class of construction projects with independent phases for PSD purposes,
The same part 51 flexibility has allowed states to adopt voluntarily some additional PSD regulatory constraints into their SIPs similar to those contained in paragraphs (r)(2) and (n)(1) of the 40 CFR part 52 regulations, which regulate the timeliness of construction and the required level of information for reviewing proposed NSR projects.
The EPA believes that States which have opted to include these additional regulatory constraints in their SIPs retain considerable discretion to interpret and implement them within the meaning of their SIP approved language. Affected States may choose to implement their programs consistent with policies that EPA has developed in our implementation of these provisions or to explore the adoption of different policies through their own administrative procedures. In addition, in accordance with their plans for preserving PSD increments and for protecting the NAAQS, States may maintain their current SIPs or opt to revise them as appropriate consistent with the applicable part 51 and/or part D requirements in order to allow greater flexibility to the permitting authority in reasonably determining how NSR projects can be approved on a case-by-case basis. The Agency is willing to work with States to evaluate their
The EPA is interested in learning more as to whether the flexibility under existing major NSR regulations to sources and permitting authorities is sufficient and appropriate. In order to gain additional perspectives about the currently available level of flexibility—including the need for it; the benefits, costs, and/or impediments associated with its use; and any lack of safeguards to assure its effectiveness—the Agency is encouraging States and sources to explore how projects subject to major NSR might be more flexibly permitted and administratively managed. Where a State would agree to investigate such possibilities with a requesting source, we ask that the State give us an advance notice of the project before any permit is released for comment. In addition, EPA requests that the State make available relevant information about both the development of the permit and its subsequent implementation so as to facilitate any future analysis on our part. We also intend to collect other information that would be useful to informing us as to whether a new rulemaking should be initiated in the future.
In summary, the concerns of commenters on the potential inflexibility of the proposed Green Group affirms the need, at least for now, to maintain the relative openness of the current major NSR rules. These rules essentially defer to the States as to whether to adopt more specific requirements or to resolve flexibility needs on a case-by-case basis. This outcome is entirely consistent with the stated preference contained in State comments received on the proposal that States be allowed to structure their own SIP programs with respect to NSR flexibility.
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.
The information collection requirements in this rule have been submitted for approval to the Office of Management and Budget (OMB) under the
The information collection requirements resulting from this final rule are associated with obtaining FAPs under minor or major NSR (pursuant to the requirements of title I of the Act and the implementing regulations at 40 CFR 51.160 through 51.166, appendix S to 40 CFR part 51, and 40 CFR 52.21) and/or under the title V operating permit program (pursuant to the requirements of title V of the Act and the implementing regulations at 40 CFR parts 70 and 71). The NSR and title V programs are established programs with approved information collection requests (ICRs). This final rule will encourage permitting authorities and sources to work together to create FAPs, which will eliminate the need for some subsequent permits and permit revisions and thereby reduce the burden on both the permitting authorities and sources.
The NSR program requires a permit to be obtained by the owner or operator prior to constructing a new stationary source of air pollutants or modifying an existing source in such a way that air pollution emissions increase or a new air pollutant is emitted. The minor NSR program applies to minor sources and minor modifications, while the major NSR program applies to major sources and major modifications. The information collection for sources under NSR results from the requirement for owners or operators to submit applications for NSR permits. In some cases, sources must conduct preconstruction monitoring to determine the existing ambient air quality. For permitting authorities, the information collection results from the requirement to process permit applications and issue permits, and to transmit associated information to EPA. The EPA oversees the NSR program, and the information collected by sources and permitting authorities is used to ensure that the program is properly implemented.
The title V program requires major sources and certain other sources of air pollutants to obtain an operating permit that contains all the requirements that apply to the source under the Act. The information collection for sources under the title V program results from the requirement for owners or operators to submit applications for title V permits and to submit deviation reports, semi-annual monitoring reports, and annual compliance certifications. For permitting authorities, the information collection results from the requirement to process permit applications and issue permits, to review the reports submitted by sources, and to transmit associated information to EPA. The EPA oversees the title V program, and the information collected by sources and permitting authorities is used to ensure that the program is properly implemented.
Flexible air permits are innovative permits that authorize sources to make certain anticipated changes to their operations without being required to obtain new or revised permits at the times these changes are implemented, while assuring that all applicable requirements of the Act are met and that the environment is protected at least as well as it would have been under conventional permitting procedures. The initial burden to apply for and issue a FAP is greater than for a conventional permit, but this increase in burden is more than compensated for by the subsequent burden reduction for foregone new permits and permit revisions. Thus, the net effect of this final FAP rule is a reduction in the burden the approved ICRs for the NSR and title V programs.
As a result of this final rule, we estimate that 845 sources will obtain FAPs each year over the 3-year period of this ICR, with a total annual burden reduction averaging approximately 251,000 hours, or almost 300 hours per source. We do not expect a burden increase or reduction in capital costs, operation and maintenance costs, or purchase-of-services costs. For the 112 permitting authorities over the 3-year period of this ICR, we estimate a total annual burden reduction averaging about 197,000 hours, or nearly 1,800 hours per permitting authority and 234 hours per permit. Burden is defined at 5 CFR 1320.3(b).
An agency may not conduct or sponsor, and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9. When this ICR is approved by OMB, the Agency will publish a technical amendment to 40 CFR part 9 in the
The Regulatory Flexibility Act (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the Agency certifies that the rule will not have a significant economic impact on a substantial
For purposes of assessing the impacts of this rule on small entities, “small entity” is defined as: (1) A small business as defined by the Small Business Administration's 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 final rule on small entities, I certify that this action will not have a significant economic impact on a substantial number of small entities. In determining whether a rule has a significant economic impact on a substantial number of small entities, the impact of concern is any significant adverse economic impact on small entities, since the primary purpose of the regulatory flexibility analyses is to identify and address regulatory alternatives “which minimize any significant economic impact of the rule on small entities.” 5 U.S.C. 603 and 604. Thus, an agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, or otherwise has a positive economic effect on all of the small entities subject to the rule.
This final rule merely clarifies existing requirements and allows regulated entities to seek additional flexibility for their Clean Air Act permits. It does not create a new burden for regulated entities. Because FAPs are voluntary on the part of all permittees, including any small entities that are subject to permitting requirements, only those permittees who expect to reduce their permitting burden will seek FAPs. We have determined there will be cost savings for small entities associated with this final rule. We have therefore concluded that this final rule will relieve regulatory burden for all affected small entities.
This action contains no Federal mandate under the provisions of Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), 2 U.S.C., 1531-1538 State, local, and Tribal governments, in the aggregate, or the private sector. This action imposes no enforceable duty on any State, local or Tribal governments or the private sector. As discussed previously, we estimate that this rule will save State, local, and Tribal permitting authorities an average of $11.5 million per year over the first 3 years of implementation and result in an administrative burden reduction averaging 197,000 hours per year over that period. Similarly, we estimate that this rule will save permittees an average of $20.6 million per year and reduce their administrative burden by an average of 251,000 hours per year over the first 3 years. Therefore, this action is not subject to the requirements of sections 202 or 205 of UMRA.
This rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments. As discussed earlier, this rule is expected to result in cost savings and an administrative burden reduction for all permitting authorities and permittees, including small governments to the extent that they fall in either category.
Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”
This final rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132. This rule is projected to result in cost savings and administrative burden reductions for States and will not alter the overall relationship or distribution of powers between governments for the part 70 and part 71 operating permits programs or for the part 51 and part 52 NSR programs. Thus, Executive Order 13132 does not apply to this rule.
In spirit of Executive Order 13132 and consistent with EPA policy to promote communications between EPA and State and local governments, EPA solicited comment on the proposed rule from State and local officials. We believe that this final rule is generally responsive to the comments received from these and other groups.
This action does not have Tribal implications, as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This action merely clarifies existing requirements and allows regulated entities to seek additional flexibility for their CAA permits. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets EO 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of the Executive Order has the potential to influence the regulation. This action is not subject to Executive Order 13045 because it does not establish an environmental standard intended to mitigate health or safety risks.
This action is not a “significant energy action” as defined in Executive Order 13211 “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This action merely clarifies existing requirements and allows regulated entities to seek additional flexibility for their CAA permits.
Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (“NTTAA”), Public Law 104-113, 12(d) (15 U.S.C. 272 note) directs EPA to use voluntary consensus standards in its regulatory activities unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (
This action does not involve technical standards. Therefore, EPA did not consider the use of any voluntary consensus standards.
Executive Order (EO) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.
The EPA has determined that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. This final rule merely clarifies existing requirements and allows regulated entities to seek additional flexibility for their CAA permits. Such FAPs achieve equal or better environmental protection than that achieved using more conventional permits.
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the District of Columbia Circuit by December 7, 2009. Any such judicial review is limited to only those objections that are raised with reasonable specificity in timely comments. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Under section 307(b)(2) of the Act, the requirements of this final action may not be challenged later in civil or criminal proceedings brought by us to enforce these requirements.
Pursuant to section 307(d)(1)(V) of the Act, the Administrator determines that this action is subject to the provisions of section 307(d). Section 307(d)(1)(V) provides that the provisions of section 307(d) apply to “such other actions as the Administrator may determine.” This action finalizes some, but not all, elements of a previous proposed action—the Flexible Air Permitting Rule proposed on September 12, 2007 (72 FR 52206). That action included proposed revisions to the PSD regulations under part C of title I of the Act and was, therefore, subject to section 307(d) pursuant to section 307(d)(J). Consequently, although the proposed PSD revisions are not being finalized in this action, the procedural requirements of section 307(d) have been complied with for purposes of this action.
Environmental protection, Administrative practice and procedures, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
Environmental protection, Administrative practice and procedures, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements.
42 U.S.C. 7401,
(1) Specify a protocol which is consistent with and implements an applicable requirement, or requirement of this part, such that the protocol is based on sound scientific and/or mathematical principles and provides reproducible results using the same inputs; and
(2) Require the results of that protocol to be recorded and used for assuring compliance with such applicable requirement, any other applicable requirement implicated by implementation of the ARM, or requirement of this part, including where an ARM is used for determining applicability of a specific requirement to a particular change.
(d) * * *
(3) * * *
(xi)
The additions and revisions read as follows:
(c) * * *
(2) A description of the source's processes and products (by Standard Industrial Classification (SIC) Code) including those associated with any proposed AOS identified by the source.
(3) * * *
(iii) Emissions rate in tpy and in such terms as are necessary to establish compliance consistent with the applicable standard reference test method. For emissions units subject to an annual emissions cap, tpy can be reported as part of the aggregate emissions associated with the cap, except where more specific information is needed, including where necessary to determine and/or assure compliance with an applicable requirement.
(7) Additional information as determined to be necessary by the permitting authority to define proposed AOSs identified by the source pursuant to § 70.6(a)(9) of this part or to define permit terms and conditions implementing any AOS under § 70.6(a)(9) or implementing § 70.4(b)(12) or § 70.6(a)(10) of this part. The permit application shall include documentation demonstrating that the source has obtained all authorization(s) required under the applicable requirements relevant to any proposed AOSs, or a certification that the source has submitted all relevant materials to the appropriate permitting authority for obtaining such authorization(s).
(8) * * *
(ii) * * *
(D) For applicable requirements associated with a proposed AOS, a statement that the source will meet such requirements upon implementation of the AOS. If a proposed AOS would implicate an applicable requirement that will become effective during the permit term, a statement that the source will meet such requirements on a timely basis.
(iii) * * *
(D) For applicable requirements associated with a proposed AOS, a statement that the source will meet such requirements upon implementation of the AOS. If a proposed AOS would implicate an applicable requirement that will become effective during the permit term, a statement that the source will meet such requirements on a timely basis. A statement that the source will meet in a timely manner applicable requirements that become effective during the permit term will satisfy this provision, unless a more detailed schedule is expressly required by the applicable requirement.
(a) * * *
(1) Emissions limitations and standards, including those operational requirements and limitations that assure compliance with all applicable requirements at the time of permit issuance. Such requirements and limitations may include ARMs identified by the source in its part 70 permit application as approved by the permitting authority, provided that no ARM shall contravene any terms needed to comply with any otherwise applicable requirement or requirement of this part or circumvent any applicable requirement that would apply as a result of implementing the ARM.
(9) Terms and conditions for reasonably anticipated AOSs identified by the source in its application as approved by the permitting authority. Such terms and conditions:
(i) Shall require the source, contemporaneously with making a change from one operating scenario to another, to record in a log at the permitted facility a record of the AOS under which it is operating;
(ii) May extend the permit shield described in paragraph (f) of this section to all terms and conditions under each such AOS; and
(iii) Must ensure that the terms and conditions of each AOS meet all applicable requirements and the requirements of this part. The permitting authority shall not approve a proposed AOS into the part 70 permit until the source has obtained all authorizations required under any applicable requirement relevant to that AOS.
42 U.S.C. 7401,
(1) Specify a protocol which is consistent with and implements an applicable requirement, or requirement of this part, such that the protocol is based on sound scientific and/or mathematical principles and provides reproducible results using the same inputs; and
(2) Require the results of that protocol to be recorded and used for assuring compliance with such applicable requirement, any other applicable requirement implicated by implementation of the ARM, or requirement of this part, including where an ARM is used for determining applicability of a specific requirement to a particular change.
The additions and revisions read as follows:
(c) * * *
(2) A description of the source's processes and products (by SIC Code) including those associated with any proposed AOS identified by the source.
(3) * * *
(iii) Emissions rates in tpy and in such terms as are necessary to establish compliance consistent with the applicable standard reference test method. For emissions units subject to an annual emissions cap, tpy can be reported as part of the aggregate emissions associated with the cap, except where more specific information is needed, including where necessary to determine and/or assure compliance with an applicable requirement.
(7) Additional information as determined to be necessary by the permitting authority to define proposed AOSs identified by the source pursuant to § 71.6(a)(9) or to define permit terms and conditions implementing any AOS
(8) * * *
(ii) * * *
(D) For applicable requirements associated with a proposed AOS, a statement that the source will meet such requirements upon implementation of the AOS. If a proposed AOS would implicate an applicable requirement that will become effective during the permit term, a statement that the source will meet such requirements on a timely basis.
(iii) * * *
(D) For applicable requirements associated with a proposed AOS, a statement that the source will meet such requirements upon implementation of the AOS. If a proposed AOS would implicate an applicable requirement that will become effective during the permit term, a statement that the source will meet such requirements on a timely basis. A statement that the source will meet in a timely manner applicable requirements that become effective during the permit term will satisfy this provision, unless a more detailed schedule is expressly required by the applicable requirement.
(a) * * *
(1) Emissions limitations and standards, including those operational requirements and limitations that assure compliance with all applicable requirements at the time of permit issuance. Such requirements and limitations may include ARMs identified by the source in its part 71 permit application as approved by the permitting authority, provided that no ARM shall contravene any terms needed to comply with any otherwise applicable requirement or requirement of this part or circumvent any applicable requirement that would apply as a result of implementing the ARM.
(9) Terms and conditions for reasonably anticipated AOSs identified by the source in its application as approved by the permitting authority. Such terms and conditions:
(i) Shall require the source, contemporaneously with making a change from one operating scenario to another, to record in a log at the permitted facility a record of the AOS under which it is operating;
(ii) May extend the permit shield described in paragraph (f) of this section to all terms and conditions under each such AOS; and
(iii) Must ensure that the terms and conditions of each AOS meet all applicable requirements and the requirements of this part. The permitting authority shall not approve a proposed AOS into the part 71 permit until the source has obtained all authorizations required under any applicable requirement relevant to that AOS.