Economic Development Administration
International Trade Administration
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Federal Energy Regulatory Commission
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Food and Drug Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Federal Emergency Management Agency
Indian Affairs Bureau
Land Management Bureau
National Park Service
Office of Government Information Services
Federal Aviation Administration
Federal Highway Administration
Saint Lawrence Seaway Development Corporation
Internal Revenue Service
Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.
In rule document 2019-10051, appearing on pages 22331 through 22362, in the issue of Friday, May 17, 2019 make the following correction:
On page 22332, spanning all three columns, in the middle of the page, the equation should read as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action amends Class E airspace extending upward from 700 feet above the surface in Isbell Field Airport, Fort Payne, AL, to accommodate airspace reconfiguration due to the decommissioning of the Fort Payne non-directional radio beacon and cancellation of the NDB approach. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at this airport. This action also updates the airport name and geographic coordinates. In addition, this action updates the name and geographic coordinates of Dekalb Regional Medical Center Heliport, which is contained within the legal description of the Isbell Field Airport airspace.
Effective 0901 UTC, August 15, 2019. The Director of the Federal Register approves this incorporation by reference action under Title 1 Code of Federal Regulations part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.
FAA Order 7400.11C, Airspace Designations and Reporting Points, and subsequent amendments can be viewed on line at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Ave., College Park, GA 30337; telephone (404) 305-6364.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is
The FAA published a notice of proposed rulemaking in the
Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.
Class E airspace designations are published in Paragraph 6005 of FAA Order 7400.11C, dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR part 71.1. The Class E airspace designation listed in this document will be published subsequently in the Order.
This document amends FAA Order 7400.11C, Airspace Designations and Reporting Points, dated August 13, 2018, and effective September 15, 2018. FAA Order 7400.11C is publicly available as listed in the
This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 amends Class E airspace extending upward from 700 feet above the surface at Isbell Field Airport, Fort Payne, AL, by increasing the airport radius to 10.6 miles (increased from 7.4 miles), eliminating the northwest extension of the airport, and creating a 13.5-mile extension southwest of the airport, to accommodate airspace reconfiguration due to the decommissioning of the Fort Payne NDB and cancellation of the NDB approach. This action also removes the city name below the description header, to comply with FAA Order 7400.2M, Procedures for Handling Airspace Matters; removing the city associated with the airport from the airspace legal description. These changes are necessary for continued safety and management of IFR operations at this airport.
The geographic coordinates of the airport are adjusted to coincide with the FAA's aeronautical database. Also, the name and geographic coordinates of Dekalb Regional Medical Center Heliport, (formerly Dekalb Medical Center) are updated to coincide with the FAA's aeronautical database.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that only affects air traffic procedures and air navigation, it is certified that this rule, when promulgated, does not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.
Airspace, Incorporation by reference, Navigation (air).
In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g); 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 10.6-mile radius of the Isbell Field Airport, and within 4 miles each side of the 220° bearing from the airport, extending from the 10.6-mile radius to 13.6 miles southwest of the airport, and that airspace within a 6-mile radius of Dekalb Regional Medical Center Heliport.
Coast Guard, DHS.
Final rule.
The Coast Guard is adding a special local regulation to increase
This regulation is effective July 13, 2019.
To view documents mentioned in this preamble as being available in the docket go to
If you have questions on this rule, call or email MST2 Blackledge, Waterways Management, Coast Guard Sector Sault Sainte Marie, U.S. Coast Guard; telephone 906-253-2443, email
The Annual Boyne Thunder Poker Run is a charity marine event occurring in the month of July with a route that runs from Boyne City out to Lake Michigan and back to Boyne City. This event, occurring annually for the past 15 years, includes approximately 100 participants in offshore type power vessels. Round Lake and Pine River Channel are small restricted waterways that normally have a variety of recreational users and a commercial ferry that provides service to Beaver Island. This mix of vessels in close proximity to the event warrants additional safety measures. In response, the Coast Guard published a notice of proposed rulemaking (NPRM) on March 11, 2019 (84 FR 8641). There, we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this Special Local Regulation. During the comment period that ended May 10th 2019, we received no comments.
The regulation will be enforced during the day of the event. The date and time will be announced via a Notice of Enforcement published in the
The legal basis for this final rulemaking is found at 46 U.S.C. 70041; 33 CFR 1.05-1.
We received no comments from the NPRM published March 11, 2019. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM. The Captain of the Port Sault Sainte Marie (COTP) has determined that adding the Annual Boyne City Poker Run to the list of Special Local Regulations in the navigable waters of Round Lake and Pine River Channel in Charlevoix, MI is the most practical way to ensure the safety of the boating public.
We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
This regulatory action determination is based on the size, location, duration, and time-of-day for the Special Local Regulation. Vessel traffic will be able to safely transit through the regulated area, with the permission of the Patrol Commander, which will impact a small designated area within the COTP zone for a short duration of time. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the special local area.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the regulated area may be small entities, for the reasons stated in section IV.A. above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule prohibits vessels from entering, transiting through, or anchoring within the regulated area without the permission of the Coast Guard Patrol Commander. Normally such actions are categorically excluded from further review under paragraph L61 in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:
46 U.S.C. 70041; 33 CFR 1.05-1.
(a)
(b)
(c)
Office of Elementary and Secondary Education, Department of Education.
Final definitions and requirements.
The Assistant Secretary for Elementary and Secondary Education (Assistant Secretary) announces definitions and requirements under the ANE program. The Assistant Secretary may use one or more of these definitions and requirements for competitions in fiscal year (FY) 2019 and later years. We are establishing these definitions and requirements to clarify the eligibility requirements for the program, based upon changes that the Every Student Succeeds Act (ESSA) made to the Elementary and Secondary Act of 1965 (ESEA).
These definitions and requirements are effective July 5, 2019.
Almita Reed, U.S. Department of Education, 400 Maryland Avenue SW, Room 3E222, Washington, DC 20202. Telephone: (202) 260-1979. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
We published a notice of proposed definitions and requirements for this program (NPP) in the
There is one change to the proposed definitions and requirements in the final definitions and requirements. We are allowing “experience operating programs that fulfill the purposes of this part” to include experience operating either Federal or non-Federal grants serving Alaska Natives. In addition, we have clarified the definition of “official charter or sanction,” the Group Application Requirement, and the definition of “experience operating programs that fulfill the purposes of the ANE program.”
The Assistant Secretary establishes the following definitions for the purposes of the ANE program. We may apply one or more of these definitions in any year in which this program is in effect.
The Assistant Secretary establishes the following requirements for the purposes of the ANE program. We may apply one or both of these requirements in any year in which this program is in effect.
An applicant that applies as part of a partnership must meet this requirement.
(1) An ANO that applies for a grant in partnership with a State educational agency (SEA) or local educational agency (LEA) must serve as the fiscal agent for the project.
(2) Group applications under the ANE program must include a partnership agreement that includes a Memorandum of Understanding or a Memorandum of Agreement (MOU/MOA) between the members of the partnership identified and discussed in the grant application. Each MOU/MOA must—
(i) Be signed by all partners, and dated within 120 days prior to the date of the submission of the application;
(ii) Clearly outline the work to be completed by each partner that will participate in the grant in order to accomplish the goals and objectives of the project; and
(iii) Demonstrate an alignment between the activities, roles, and responsibilities described in the grant application for each of the partners in the partnership agreement.
For an entity that does not meet the eligibility requirements for an ANO, established in sections 6304-(a)(1) and 6306(2) of the ESEA and the definitions in this notice, and that seeks to establish eligibility through a charter or sanction provided by an Alaska Native Tribe or ANO as required under section 6304(a)(1)(C)(ii) of the ESEA, the following documentation is required:
(1) Written documentation demonstrating that the entity is physically located in the State of Alaska.
(2) Written documentation demonstrating that the entity has experience operating programs that fulfill the purposes of the ANE program.
(3) Written documentation demonstrating that the entity is predominately governed by Alaska Natives, including the total number, names, and Tribal affiliations of members of the governing board.
(4) A copy of the official charter or sanction provided to the entity by an Alaska Native Tribe or ANO.
This notice does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
This notice does
Under Executive Order 12866, it must be determined whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive Order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment, or otherwise promulgates, that is a significant regulatory action under Executive Order 12866 and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2019, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. Because the final regulatory action is not significant, the requirements of Executive Order 13771 do not apply.
We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these final definitions and requirements only on a reasoned determination that their benefits would justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that would maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this final regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.
In accordance with these Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs are those resulting from statutory requirements and those we have determined as necessary for administering the Department's programs and activities.
We have determined that these final definitions and requirements will impose minimal costs on eligible applicants. Program participation is voluntary, and the costs imposed on applicants by these definitions and requirements are limited to paperwork burden related to preparing an application. The potential benefits of implementing the program outweighs any costs incurred by applicants, and the costs of actually carrying out activities associated with the application would be paid for with program funds. For these reasons, we have determined that the costs of implementation are not excessively burdensome for eligible applicants, including small entities.
Although some of the ANOs, LEAs, and other entities that receive ANE program funds qualify as small entities under this definition, the final definitions and requirements will not have a significant economic impact on these small entities. The Department believes that the costs imposed on an applicant by the final definitions and requirements is limited to the costs related to providing the documentation outlined in the final definitions and requirements when preparing an application and that those costs will not be significant. Participation in the ANE program is voluntary.
You may also access documents of the Department published in the
Federal Emergency Management Agency, DHS.
Final rule; correction.
The Federal Emergency Management Agency (FEMA) is correcting a final rule that published in the
Effective June 1, 2019.
Mark Millican, FEMA, Individual Assistance Division, 500 C Street SW, Washington, DC 20472-3100, (phone) 202-212-3221 or (email)
In FR Doc. 2019-05388 appearing on page 10632 in the
1. On page 10647, in the third column, in the first full paragraph, “highlight” is corrected to read “highly”. that shows that TTR and population are highly correlated.”
2. On page 10653, in the first column, in footnote 61, in the first sentence, “Table 6” is corrected to read “Table 5”.
Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 through 5207; Homeland Security Act of 2002, 6 U.S.C. 101
Federal Communications Commission.
Final rule.
In this document, the Commission took steps to provide new opportunities for innovators and experimenters to develop new equipment and applications for spectrum between 95 GHz and 3 THz, frequencies that only recently are becoming well-suited for the development and deployment of new active communications services and applications. The Commission adopt rules for a new class of experimental licenses available for the spectrum above 95 GHz that provide for increased flexibility. In addition, the Commission will make 21.2 gigahertz of spectrum in the 116-123 GHz band, the 174.8-182 GHz band, the 185-190 GHz band, and the 244-246 GHz bands for unlicensed use under rules with technical parameters similar to those currently in place for unlicensed operation in the 57-71 GHz band.
Effective July 5, 2019, except for §§ 5.59, 5.77, 5.121, 5.702, 5.703, 5.704, 5.705 and 15.258, which are delayed. We will publish a document in the
Federal Communications Commission, 445 12th Street SW, Washington, DC 20554.
Mr. Brian Butler of the Office of Engineering and Technology, Policy and Rules Division, at (202) 418-2702, or
This is a summary of the Commission's
The Commission adopt rules for a new experimental radio license, the Spectrum Horizons Experimental Radio License (Spectrum Horizons License), that will be available for experiments and demonstrations of equipment designed to operate exclusively on any frequency above 95 GHz. The Spectrum Horizons License rules will incorporate the proposals that the Commission made in the Notice of Proposed Rulemaking (NPRM) in this proceeding (83 FR 13888). Specifically, the Spectrum Horizons License will differ from other experimental radio licenses by providing for, among other things, broad eligibility, a longer term, and additional flexibility to market devices. The Commission expects that, collectively, these Spectrum Horizons License features should promote a more rapid development of new products and services that will reach a larger number and wider variety of users than it would be possible under the existing experimental licensing rules.
1.
2. All bands between 95 GHz and 275 GHz are allocated on a shared basis for federal and non-federal use. Above 275 GHz, while there are no allocations, a number of bands are identified for use by passive services in footnote US 565. Accordingly, Spectrum Horizons Licenses, will only be granted on a non-interfering basis (as is the case with all experimental radio licenses), only following coordination with federal users through the National Telecommunications and Information Administration (NTIA) and the Interdepartment Radio Advisory Committee (IRAC) process. Unless a sufficient methodology for preventing harmful interference is detailed, such operations will not be permitted. In this regard, the Commission also note that certain parameters of any experimental license applications will require to be disclosed publicly, including frequency(s), types of emissions, power, and location. Thus, interested Federal parties will have full information available to evaluate whether propose experimental licenses are compatible with existing federal operations.
3. Moreover, Spectrum Horizons License applicants that propose to use spectrum exclusively allocated for passive use(s), must provide an explanation why nearby bands with non-passive allocations are not appropriate or adequate for the experiment and acknowledge that they intend to transition any potential long-term use to a band with appropriate allocations. The Commission adopt this approach rather than prohibiting use of the passive bands because it does not want to unnecessarily hobble valuable research in situations that pose no significant risk to incumbent operations. The coordination of experimental use of the passive frequencies through the IRAC process will provide an opportunity for dialogue between affected parties and applicants which in many cases will provide a path for coexistence with the passive services.
4. As with the passive bands, the Commission did not adopt a rule precluding experimental use of the bands allocated for amateur use or impose blanket special coordination procedures in such bands. Given that both the amateur radio service and the experimental licensing program are designed to contribute to the advancement of radio knowledge, the Commission see value in continuing to allow licensed operations under both parts 5 and 97 of its rules because doing so supports the objectives that are common to both rule parts.
5. Finally, the rules provide that the Commission may, at any time without notice or hearing, modify or cancel a Spectrum Horizons License, if, in its discretion the need for such action arises. The Commission note that cancelling a license is an action of “last resort” and the Commission routinely works with parties to resolve potential or actual issues prior to issuing an experimental license or in rare instances of actual interference, by authorizing modifications that allow for interference-free operations.
6.
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8. The Commission also adopt a requirement that Spectrum Horizons licensees submit an interim report on the progress of the experiment no later than five years from the date of grant. Given the expected wide variety of innovative experiments in the bands above 95 GHz, the Commission finds that interim reports will provide it with an awareness of ongoing technological developments as it contemplates rulemaking proposals and will enable the public to better assess innovative uses of the bands, thus encouraging further experimentation.
9.
10.
11. The Commission adopts measures to ensure that licensees are able to exhibit control over their equipment. Specifically, the Commission will require licensees to ensure that trial devices are either render inoperable or retrieve at the conclusion of the trial. Additionally, each device sold under this program must be labeled as “Authorized Under An Experimental License and May be Subject to Further Conditions Including Termination of Operation” and carry with it a licensee-assigned equipment ID number. While the rules do not include a specific format for the identifying data, licensees who take advantage of these marketing provisions must uniquely identify each device (
12. While the Commission acknowledged the concerns of some, such as Boeing and the National Radio Astronomy Observatory (NRAO) that the widespread marketing of experimental devices could lead to interference and other difficulties related to unauthorized devices, it believed that, when considered as a whole, the various requirements imposed on Spectrum Horizon licensees and its application review process would ensure the integrity of experimental operations above 95 GHz.
13. As with other experimental license applications, applicants for a Spectrum Horizons License will require to show how the experimental operations (and any related devices) will be controlled so that they do not cause harmful interference to other services. Further, as with all experimental licenses, Spectrum Horizons License operations will not be entitled to exclusive use; will not be protected from harmful interference from allocated services; and will be prohibited from causing harmful interference to stations of allocated services. In addition, the Commission has broad authority to place specific conditions on experimental licenses to minimize the risk of causing harmful interference to incumbent spectrum users. Similarly, NTIA's Interdepartment Radio Advisory Committee (IRAC) may recommend license conditions to the extent the frequencies in question are shared as part of a co-primary allocation for federal and non-federal use. The Commission will not impose specific requirements by rule on Spectrum Horizons licensees regarding how to control their experiment, but we do point out that the licensee remains responsible to ensure compliance with our rules.
14. The Commission adopts rules designating 21.2 gigahertz of the Spectrum Horizons bands for unlicensed device use: the 116-123 GHz band, the 174.8-182 GHz band, the 185-190 GHz band, and the 244-246 GHz band. In keeping with the Commission's unlicensed device rules, devices using these bands will operate on a non-interference basis while protecting both passive and active services. The Commission asserted that these multiple bands of spectrum for unlicensed use should be sufficient to enable development of new unlicensed devices and applications and it did not believe that providing additional frequency bands for unlicensed device operation above 95 GHz was necessary at this time. However, it did indicate a willingness to reassess the spectrum allocations based on how uses develop and revisit this issue at a later date.
15.
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18. To assess unlicensed device compatibility in bands adjacent to Earth exploration-satellite bands, the Commission's analysis shows that a nadir scan sensor can coexist with up to 3.38 billion simultaneously operating unlicensed devices per square kilometer in each of the 174.8-182 GHz and 185-190 GHz bands without causing harmful interference to EESS operations in the 182-185 GHz band. Similarly, for limb sounder sensing, the Commission's analysis shows that up to 2.42x10
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21.
22. The Commission adopts, with certain modifications, technical rules for unlicensed operations in the bands 116-123 GHz, 174.8-182 GHz, 185-190 GHz, and 244-246 GHz, under technical parameters similar to those for unlicensed operation in the 57-71 GHz band, consistent with the rules proposed in the NPRM. While a number of commenters supported unlicensed operation in these bands at the power levels proposed in the NPRM, the Commission did acknowledge several parties' concerns about the potential for unlicensed operation to cause interference. However, it ultimately concluded that unlicensed devices can operate in these frequency bands at the power levels proposed in the NPRM without causing harmful interference to services in these or adjacent bands.
23. As proposed in the NPRM, the new § 15.258 adopted by the Commission permits device operation in these bands with a maximum EIRP of 40 dBm (average) and 43 dBm (peak), measured with a detection bandwidth that encompasses the band of operation. The adopted rule also permits outdoor fixed point-to-point devices to operate with a higher maximum EIRP of 82 dBm (average) and 85 dBm (peak), also measured with a detection bandwidth that encompasses the band of operation. In order to operate under the higher power limits, devices must utilize antennas with a minimum gain of 51 dBi, with a 2 dB reduction in the maximum permissible EIRP for each dB the antenna gain falls below 51 dBi. The Commission determined that these highly directional antennas with very narrow beamwidths will ensure that the likelihood of harmful interference is minimized. The Commission will not at this time permit even higher power levels as suggested by IEEE 802, concluding that the adopted power levels will allow it to make additional spectrum available for new and innovative unlicensed devices while protecting other uses of the bands.
24. The Commission specified power limits for devices operating in these bands in terms of EIRP and did not specify a maximum conducted power limit. Devices operating in frequency bands above 95 GHz will likely not have a detachable antenna or port that could be used for measuring conducted power, making such measurements difficult. In addition, because the interference potential of a device is a function of its EIRP, rather than the transmitter conducted power, it is necessary to only specify EIRP limits. Further, because devices are unlikely to have interchangeable antennas, a conducted output power limit is not necessary to reduce the likelihood that a user could install a higher-gain antenna and substantially raise the EIRP, and interference potential, of a device. The Commission also required devices that operate with an emission bandwidth of less than 100 megahertz to reduce their maximum power to achieve a power spectral density no greater than that of a device operating with a bandwidth of 100 megahertz.
25. As proposed, the Commission adopts an out-of-band emission limit of 90 picowatts per square centimeter at a distance of three meters applicable at frequencies above 40 GHz, finding this emission limit sufficient to protect radio astronomy and other services operating in adjacent bands. While the Commission initially proposed specifying 200 GHz as the upper limit for measuring compliance with the out-of-band emission requirements, the Commission recognizes the concerns of parties that note such a limit would be below the highest frequency band (244-246 GHz) being designated for unlicensed operation. In this regard, the Commission agreed with Underwriters Laboratory that out-of-band emissions measurements of unlicensed devices operating above 95 GHz should be required up to the third harmonic of the fundamental frequency of operation in order to ensure that at least one even order and one odd order harmonic are measured. The Commission also agreed with Underwriters Laboratory that it should specify an upper frequency limit for making measurements that corresponds to the upper frequency limit,
26. The Commission also adopted other operational restrictions for devices in the 116-123 GHz, 174.8-182 GHz, 185-190 GHz, and 244-246 GHz bands that are similar to those for unlicensed devices in the 57-71 GHz band. Specifically, the Commission will not permit equipment to operate on satellites or onboard aircraft. This restriction, consistent with the requests of IEEE and CORF, will limit the potential for unlicensed devices to cause interference to radio astronomy and other passive services. Additionally, the Commission, recognizing that the 182-185 GHz band is a critical band for passive sensing and transmissions in the band are prohibited under footnote US 246, adopted the requirement that equipment operating in the 174.8-182 GHz and 185-190 GHz bands should not be designed to operate in the 182-185 GHz band. Additionally, because devices operating above 95 GHz are a new technology, the Commission
27. In the NPRM the Commission kept the door open on whether to broaden this proceeding to consider a proposal in a rulemaking petition filed by James Edwin Whedbee to allow unlicensed operations throughout the 95-1000 GHz range. With the exception of the petitioner himself, no other parties addressed this proposal. Given the apparent lack of interest and the Commission's decision to make 21.2 gigahertz of spectrum available for unlicensed use, the Commission was not persuaded that Whedbee's petition, to the extent it remains pending, warrants further consideration, and denied it.
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34.
Radio, Reporting and recordkeeping requirements, Telecommunications.
Radio, Reporting and recordkeeping requirements.
Communications equipment, Radio.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 parts 2, 5, and 15 as follows:
47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
(c) * * *
(1) Activities conducted under market trials pursuant to subpart H of part 5 of this chapter or in accordance with a Spectrum Horizons experimental radio license issued pursuant to subpart I of part 5.
(c) * * *
(2) Unlicensed personal communications service devices, unlicensed millimeter-wave devices, and unlicensed NII devices authorized under §§ 15.255(g), 15.257(g), 15.258, 15.319(i), and 15.407(f) of this chapter are also subject to routine environmental evaluation for RF exposure prior to equipment authorization or use if their ERP is 3 watts or more or if they meet the definition of a portable device as specified in § 2.1093(b) requiring evaluation under the provisions of that section.
(c) * * *
(1) Portable devices that operate in the Cellular Radiotelephone Service pursuant to part 22 of this chapter; the Personal Communications Service (PCS) pursuant to part 24 of this chapter; the Satellite Communications Services pursuant to part 25 of this chapter; the Miscellaneous Wireless Communications Services pursuant to part 27 of this chapter; the Upper Microwave Flexible Use Service pursuant to part 30 of this chapter; the Maritime Services (ship earth station devices only) pursuant to part 80 of this chapter; the Specialized Mobile Radio Service, the 4.9 GHz Band Service, and
47 U.S.C. 154, 301, 302, 303, 307, 336.
(l) Marketing of equipment designed to operate only on frequencies above 95 GHz.
(m) Types of experiments that are not specifically covered under paragraphs (a) through (l) of this section will be considered upon demonstration of need for such additional types of experiments.
(f)
(c) Each application for station authorization shall be specific and complete with regard to the information required by the application form and this part.
(1) Conventional and Spectrum Horizons license and STA applications shall be specific as to station location, proposed equipment, power, antenna height, and operating frequencies.
(2) Broadcast license applicants shall comply with the requirements in subpart D of this part; Program license applicants shall comply with the requirements in subpart E of this part; Medical Testing license applicants shall comply with the requirements in subpart F of this part; Compliance Testing license applicants shall comply with the requirements in subpart G of this part; and Spectrum Horizons license applicants shall comply with the requirements in subpart I of this part.
(d) Filing conventional, program, medical, compliance testing, and Spectrum Horizons experimental radio license applications:
(1) Applications for radio station authorization shall be submitted electronically through the Office of Engineering and Technology website
(2) Applications for special temporary authorization shall be filed in accordance with the procedures of § 5.61.
(3) Any correspondence relating thereto that cannot be submitted electronically shall instead be submitted to the Commission's Office of Engineering and Technology, Washington, DC 20554.
(a)
(d)
(a) The licensee of a conventional, broadcast, or Spectrum Horizons experimental radio station may make any changes in equipment that are deemed desirable or necessary provided:
(b) For conventional or Spectrum Horizons experimental radio stations, the changes permitted in paragraph (a) of this section may be made without prior authorization from the Commission provided that the licensee supplements its application file with a description of such change. If the licensee wants these emission changes to become a permanent part of the license, an application for modification must be filed.
(a) A station authorization for a conventional experimental radio license or Spectrum Horizons experimental radio license, the frequencies authorized to be used by the grantee of such authorization, and the rights therein granted by such authorization shall not be transferred, assigned, or in any manner either voluntarily or involuntarily disposed of, unless the Commission decides that such a transfer is in the public interest and gives its consent in writing.
(f)
(a)(1) For conventional, program, medical testing, compliance testing experimental radio stations, the current original authorization or a clearly legible photocopy for each station shall be retained as a permanent part of the station records but need not be posted. Station records are required to be kept for a period of at least one year after license expiration.
(2) For Spectrum Horizons experimental radio stations, the licensee is solely responsible for retaining the current authorization as a permanent part of the station records but need not be posted. Station records are required
In addition to the rules in this subpart, Spectrum Horizons experimental radio station applicants and licensees shall follow the rules in subparts B and C of this part. In case of any conflict between the rules set forth in this subpart and the rules set forth in subparts B and C of this part, the rules in this subpart shall govern.
Each application must include a narrative statement describing in detail how its experiment could lead to the development of innovative devices and/or services on frequencies above 95 GHz and describe, as applicable, its plans for marketing such devices. This statement must sufficiently explain the proposed new technology/potential new service and incorporate an interference analysis that explains how the proposed experiment would not cause harmful interference to other services. The statement should include technical details, including the requested frequency band(s), maximum power, emission designators, area(s) of operation, and type(s) of device(s) to be used.
(a) Each Spectrum Horizons experimental radio applicant must identify a single point of contact responsible for all experiments conducted under the license and ensuring compliance with all applicable FCC rules.
(b) The responsible individual will serve as the initial point of contact for all matters involving interference resolution and must have the authority to discontinue any and all experiments being conducted under the license, if necessary.
(c) The license application must include the name of the responsible individual and contact information at which the person can be reached at any time of the day; this information will be listed on the license. Licensees are required to keep this information current.
Unless otherwise stated in the instrument of authorization, devices operating in accordance with a Spectrum Horizons experimental radio license may be marketed subject to the following conditions:
(a) Marketing of devices (as defined in § 2.803 of this chapter) and provision of services for hire is permitted before the radio frequency device has been authorized by the Commission.
(b) Licensees are required to ensure that experimental devices are either rendered inoperable or retrieved by them from trial participants at the conclusion of the trial. Licensees are required to notify experiment participants in advance of the trial that operation of the experimental device is subject to this condition. Each device sold under this program must be labeled as “Authorized Under An Experimental License and May be Subject to Further Conditions Including Termination of Operation” and carry a licensee assigned equipment ID number.
(c) The size and scope of operations under a Spectrum Horizons experimental license are subject to limitations as the Commission shall establish on a case-by-case basis.
Licensee must submit to the Commission an interim progress report 5 years after grant of its license. If a licensee requests non-disclosure of proprietary information, requests shall follow the procedures for submission set forth in § 0.459 of this chapter.
47 U.S.C. 154, 302a, 303, 304, 307, 336, 544a, and 549.
(a) * * *
(4) If the intentional radiator operates at or above 95 GHz: To the third harmonic of the highest fundamental frequency or to 750 GHz, whichever is lower, unless specified otherwise elsewhere in the rules.
(5) If the intentional radiator contains a digital device, regardless of whether this digital device controls the functions of the intentional radiator or the digital device is used for additional control or function purposes other than to enable the operation of the intentional radiator, the frequency range shall be investigated up to the range specified in paragraphs (a)(1) through (4) of this section or the range applicable to the digital device, as shown in paragraph (b)(1) of this section, whichever is the higher frequency range of investigation.
(d) * * *
(4) Any equipment operated under the provisions of §§ 15.255 and 15.256 in the frequency band 75-85 GHz, § 15.257 in the 92-95 GHz band or § 15.258.
(a) Operation on board an aircraft or a satellite is prohibited.
(b) Emission levels within the 116-123 GHz, 174.8-182 GHz, 185-190 GHz and 244-246 GHz bands shall not exceed the following equivalent isotropically radiated power (EIRP) limits as measured during the transmit interval:
(1) The average power of any emission shall not exceed 40 dBm and the peak power of any emission shall not exceed 43 dBm; or
(2) For fixed point-to-point transmitters located outdoors, the average power of any emission shall not exceed 82 dBm and shall be reduced by 2 dB for every dB that the antenna gain is less than 51 dBi. The peak power of any emission shall not exceed 85 dBm and shall be reduced by 2 dB for every dB that the antenna gain is less than 51 dBi. The provisions in this paragraph (b)(2) for reducing transmit power based on antenna gain shall not require that the power levels be reduced below the limits specified in paragraph (b)(1) of this section.
(3) The peak power shall be measured with a detection bandwidth that encompasses the entire occupied bandwidth within the intended band of operation,
(4) Transmitters with an emission bandwidth of less than 100 MHz must
(c) Spurious emissions shall be limited as follows:
(1) The power density of any emissions outside the band of operation,
(2) Radiated emissions below 40 GHz shall not exceed the general limits in § 15.209.
(3) Between 40 GHz and the highest frequency specified in § 15.33, the level of these emissions shall not exceed 90 pW/cm
(4) The levels of the spurious emissions shall not exceed the level of the fundamental emission.
(d) Fundamental emissions must be contained within the frequency bands specified in this section during all conditions of operation. Equipment is presumed to operate over the temperature range −20 to + 50 degrees Celsius with an input voltage variation of 85% to 115% of rated input voltage, unless justification is presented to demonstrate otherwise.
(e) Regardless of the power density levels permitted under this section, devices operating under the provisions of this section are subject to the radiofrequency radiation exposure requirements specified in §§ 1.1307(b), 2.1091, and 2.1093 of this chapter, as appropriate. Applications for equipment authorization of devices operating under this section must contain a statement confirming compliance with these requirements for both fundamental emissions and unwanted emissions. Technical information showing the basis for this statement must be submitted to the Commission upon request.
(f) Any transmitter that has received the necessary FCC equipment authorization under the rules of this chapter may be mounted in a group installation for simultaneous operation with one or more other transmitter(s) that have received the necessary FCC equipment authorization, without any additional equipment authorization. However, no transmitter operating under the provisions of this section may be equipped with external phase-locking inputs that permit beam-forming arrays to be realized.
(g) Measurement procedures that have been found to be acceptable to the Commission in accordance with § 2.947 of this chapter may be used to demonstrate compliance.
Federal Communications Commission.
Final rule.
In this Fourth Report and Order, the Federal Communications Commission (Commission) completes its implementation of the Improving Rural Call Quality and Reliability Act of 2017 (RCC Act) by adopting service quality standards for intermediate providers; and an exception to those standards for intermediate providers that qualify for the covered provider safe harbor in our existing rules. We also set forth procedures to enforce our intermediate provider requirements. Moreover, we sunset the rural call completion data recording and retention requirements adopted in the
Effective July 5, 2019.
Federal Communications Commission, 445 12th Street SW, Washington, DC 20554.
Zach Ross, FCC Wireline Competition Bureau, Competition Policy Division, Room 5-C211, 445 12th Street SW, Washington, DC 20554, at (202) 418-1033 or
This is a summary of the Commission's Fourth Report and Order, in WC Docket No. 13-39, adopted and released March 15, 2019. A full text version of this document may be obtained at the following Internet Address:
1. In 2019, all Americans should have confidence that when a phone call is made to them, they will receive it. Yet, that is not always the case for those living in rural or remote areas of the country. Rural call completion problems persist and they can have significant impacts on quality of life, economic opportunity, and public safety in rural communities. Additional work remains to be done to fix this vexing problem. Today, we take up that charge, furthering the Commission's ongoing efforts to ensure that calls are indeed completed to
2. Prior to 2018, the Commission relied on data recording, retention, and reporting rules to address rural call completion issues. These rules, adopted in the 2013
3. In the April 2018
4. Second, the Commission eliminated the rural call completion data reporting requirement for covered providers that was established in the
5. On February 26, 2018, the RCC Act was signed into law. It directs the Commission to establish an intermediate provider registry, and stipulates that (1) certain intermediate providers must register with the Commission, and (2) covered providers may only use registered intermediate providers to transmit covered voice communications. In addition, the RCC Act directs the Commission to establish service quality standards for the transmission of covered voice communications by intermediate providers, and requires intermediate providers to comply with such standards.
6. In the April 2018
7. In the
8. In the August 2018
9. The
10. As the RCC Act mandates, we adopt service quality standards for intermediate providers.
11. The service quality standards we adopt in this Order further the Commission's efforts to ensure that all calls to rural areas are completed and they further Congress's explicit purpose in passing the RCC Act: To “ensure the integrity of the transmission of covered voice communications to all customers in the United States” and “prevent unjust or unreasonable discrimination among areas of the United States in the delivery of covered voice communications.” By requiring intermediate providers to take steps reasonably calculated to ensure that all calls reach their intended destination, these service quality standards prevent intermediate providers from routing calls in a manner that results in persistent call completion problems. Where intermediate providers know, or should know, of a call completion issue,
12. As discussed above, the RCC Act charges the Commission with the duty to promulgate rules to “ensure the integrity of the transmission of covered voice communications to all customers in the United States.” To ensure that the intermediate provider service quality requirements are meeting this charge and serving their intended purpose, we direct the Wireline Competition Bureau to seek comment, one year from the effective date of the intermediate provider service quality standards we adopt today, on the effectiveness of those standards in preventing intermediate providers, both those that also operate as covered providers and those that do not, from engaging in behavior that leads to call competition problems and on whether the rural call completion problems that these rules were intended to address have improved or changed.
13. Based on the record in this proceeding, we decline to mandate compliance with the three ATIS best practices as proposed in the
14. We agree with commenters who argue that mandating compliance with the three ATIS best practices may be impractical or unduly burdensome for some intermediate providers, particularly those relying on older network technologies to provide service. Due to the differences among providers and their underlying networks, adoption of the ATIS best practices as the service quality standards applicable to all intermediate providers might impose unnecessary costs on some intermediate providers. As Verizon observes, “[s]ome providers may find certain [ATIS] best practices useful, while others may prefer different best practices based on their particular networks, technologies, and call patterns. Requiring intermediate providers to implement the best practices outlined in the
15. We also agree with commenters who argue that we should adopt a flexible regulatory approach to intermediate provider service quality standards, and that we should seek to align our service quality standards for intermediate providers with those call completion rules that already apply to covered providers. As ATIS notes, “many providers are both `covered providers' and `intermediate providers,' changing roles on a call to call basis.” USTelecom further submits that “these entities generally utilize the same network facilities, the same business processes, and the same vendors to process calls” regardless of whether they operate as a covered provider or intermediate provider, and that each category of provider has the same fundamental obligation to ensure that calls traversing their networks are completed. We have found that the monitoring rule applicable to covered providers “encourages covered providers to ensure that calls are completed, assigns clear responsibility for call completion issues, and enhances our ability to take enforcement action where needed to address persistent problems.” Moreover, we agree with commenters that application of a similar approach to intermediate providers should provide similar benefits and avoid unnecessary costs. For these reasons, the rules we adopt today for intermediate providers closely parallel those that currently apply to covered providers.
16. We therefore reject the arguments from several commenters urging adoption of the Commission's proposal to require compliance with the three ATIS best practices listed in the
17. In addition to the shortcomings discussed above, the adoption of the proposed ATIS best practices framework could raise other practical issues that might limit its utility. For example, West Telecom, while supporting the use of the ATIS best practices as a general regulatory framework in lieu of “Commission micro-management,”
18. Notwithstanding these issues, we agree with commenters that the ATIS best practices provide an effective roadmap for mitigating call completion issues, and we reaffirm our finding in the
19. Building on the regulatory approach for ensuring rural call completion that we have previously applied to covered providers, in this Order we require intermediate providers to take steps reasonably calculated to ensure that all covered voice communications that traverse their networks are delivered to their destinations. An intermediate provider may violate this general duty to complete calls if it knows, or should know, that calls are not being completed to certain areas, and it engages in acts or omissions that allow or effectively allow these conditions to persist.
20. As is true for covered providers under the
21. We note that nothing in this rule should be construed to dictate how intermediate providers must route their traffic, nor does the general duty to deliver covered voice communications impose strict liability upon intermediate providers who fail to complete calls. As we specified in the context of our monitoring rule for covered providers, “[w]e do not impose strict liability on . . . providers for a call completion failure; rather, we may impose a penalty where a . . . provider fails to take actions to prevent reasonably foreseeable problems or, if it knows or should know that a problem has arisen, where it fails to investigate or take appropriate remedial action.” Similarly, the rules we adopt today for intermediate providers focus on addressing persistent call completion issues; thus, strict liability under our service quality rules for isolated call failures is not contemplated. Rather, we require all intermediate providers to take steps reasonably calculated to ensure that covered voice communications reach their destination, utilizing the tools available to each provider, recognizing that these tools may vary depending on the size of the provider, their network configuration, and other variables.
22. As we found in the
23. In addition to the general duty to deliver all covered voice communications, we adopt the
24. These requirements parallel the monitoring obligations the Commission
25. As was true of our covered provider monitoring requirements, the rural call completion performance monitoring obligation “entails both prospective evaluation to prevent problems and retrospective investigation of any problems that arise.” Prospective monitoring “includes regular observation of intermediate provider performance and call routing decision-making; periodic evaluation to determine whether to make changes to improve rural call completion performance; and actions to promote improved call completion performance where warranted.” Retrospective monitoring requires intermediate providers to take steps reasonably calculated to correct any identified performance problems. Where intermediate providers detect persistent problems routing covered voice traffic to rural areas, we require intermediate providers to develop a solution that is reasonably calculated to be effective, and specifically require intermediate providers to remove a contracted intermediate provider from a route after sustained inadequate performance, except in situations where an intermediate provider can demonstrate that no alternative routes exist. Intermediate providers that do not effectively correct problems with delivery of covered voice communications to rural areas may be subject to enforcement action for violations of our service quality standards, including the general duty to deliver covered voice traffic to its destination and the monitoring requirement. Together, these rules satisfy Congress's direction to the Commission to “ensure the integrity of the transmission of covered voice communications to all customers in the United States” and “prevent unjust or unreasonable discrimination among areas of the United States in the delivery of covered voice communications.”
26. We also require intermediate providers to ensure that any additional intermediate providers to which they hand off calls are registered with the Commission pursuant to § 64.2115 of the Commission's rules. As is true of the general duty to complete calls and the rural call completion performance monitoring obligations discussed above, we adopt this rule pursuant to the authority granted to the Commission by Congress in the RCC Act, which directs us to develop service quality standards for intermediate providers. The RCC Act requires that all intermediate providers register with the Commission and prohibits covered providers from using any unregistered intermediate providers. We find that extending this prohibition to intermediate providers as well will further the aims of the RCC Act by making all participants in the call path responsible for ensuring the registration of any subsequent intermediate providers. We also note that the RCC Act expressly requires the rules we promulgate pursuant to the statute to ensure the integrity of the transmission of covered voice communications “to all customers in the United States” and to “prevent unjust or unreasonable discrimination among areas of the United States” in the delivery of such communications. Accordingly, we clarify that the registry requirements in § 64.2115 as well as the intermediate service quality standards we adopt today do not apply to non-U.S. intermediate providers on calls terminating outside of the United States. This requirement aligns with the prohibition on covered provider use of unregistered intermediate providers pursuant to the RCC Act and § 64.2117 of the Commission's rules, and will promote compliance with the registry provisions of the RCC Act by making intermediate providers jointly responsible for ensuring the registration status of directly contracted downstream intermediate providers in their call path.
27. The RCC Act requires that all intermediate providers must maintain a registration with the Commission in order to transmit covered voice communications, and the
28. In order to further reduce the compliance burdens associated with this rule, we decline to require intermediate providers to submit a certification to the Commission stating that they do not transmit covered voice communications to other unregistered intermediate providers. As we noted with respect to the monitoring rule for covered providers, “[w]e expect all entities subject to our rules to comply at all times,” and we decline to impose a certification requirement absent a clear public interest benefit. Although some parties believe a certification, for example on an annual basis, is useful to ensure intermediate providers are taking reasonable steps to comply with Commission requirements, we find consistent with other commenters that the RCC Act and Commission rules provide sufficient methods to monitor and enforce non-compliance. For example, as discussed below, the Commission has authority to take enforcement actions against covered and intermediate providers that are not registered such as forfeitures and deregistration. We therefore decline to require intermediate providers to certify that they do not transmit covered voice communications to other intermediate providers that are not registered with the Commission. Nor do we require intermediate providers to take responsibility for ensuring the registration status of downstream intermediate providers with which they do not share a direct relationship, as we do for covered providers. Compared with covered providers, which must exceed a minimum size threshold and determine the initial long-distance path of a call, intermediate providers may have less ability to modify call routing paths. And, because each intermediate provider in the path of a given call is responsible for determining the registration of any other intermediate provider to which it hands off calls, we find that such a requirement would be duplicative and, thus, unnecessary.
29.
30.
31.
32.
33. The RCC Act provides that the service quality standards established by the Commission pursuant to the RCC Act “shall not apply to a covered provider” that has certified as a safe harbor provider under § 64.2107(a) on or before February 26, 2019 (which is one year after the enactment of the RCC Act) and that continues to maintain eligibility for the safe harbor. To implement this provision of the RCC Act, we adopt an exception to the service quality standards described above for intermediate providers that qualify for our covered provider safe harbor established in new § 64.2109 of the Commission's rules, similar to the Commission's existing § 64.2107 safe harbor from the rural call completion recording and retention requirements.
34. As the Commission proposed in the
35. We note that the service quality standards we adopt today under the RCC Act apply only to intermediate providers; however, the exemption established by the RCC Act is, like the safe harbor in our existing rules, limited to covered providers. We note that we did not receive comments about this disparity. We therefore clarify that covered providers qualifying for our safe harbor on or before February 26, 2019 will be exempt from our service quality standards when serving as intermediate providers, provided they maintain their safe harbor certification with the Commission.
36. In the
37. Under subsection (a)(2) of the RCC Act, once the service quality standards we adopt here take effect, registered intermediate providers, and providers
38. When the Commission seeks to remove an intermediate provider from the registry, the procedures specified in Section 558 of the Administrative Procedure Act apply. Except in cases of willfulness or where public health, interest, or safety requires otherwise, deregistration may occur after the intermediate provider has been given written notice of the facts or conduct at issue and an opportunity to demonstrate or achieve compliance with the service quality standards. Such notice will take the form of a publicly issued order to show cause. Intermediate providers that do not present a response with written evidence of their compliance with the requirements identified in the notice for this reason, we find it unnecessary to establish a separate requirement that intermediate providers “maintain records of how they are complying” with the service quality standards, as NTCA suggests or a detailed plan on how they intend to achieve compliance within thirty days will be removed from the registry. A hearing will not be required unless the intermediate provider's response presents a substantial and material question of fact. In any case where a hearing proceeding is conducted, the hearing shall be based on written evidence only. Deregistration orders will be subject to judicial review under Section 402(a) of the Communications Act. We note that, if a proceeding results in deregistration, the order to show cause will afford affected covered providers ample notice to explore alternative arrangements, in order to migrate their traffic to other, compliant, intermediate providers if necessary.
39. Moreover, a covered provider that becomes aware that an intermediate provider it uses is violating the service quality standards may also be subject to enforcement action, even if the intermediate provider is properly registered. Because covered providers must know or be capable of knowing the identity of all intermediate providers in the path of a given call, monitor the performance of their intermediate providers in completing calls to rural destinations, and take steps to correct performance problems, when a provider learns that its intermediate provider is violating service quality standards, it is responsible for removing that provider from all affected call paths until the provider demonstrates compliance. A failure to do so may result in enforcement action.
40. We sunset the rural call completion data recording and retention requirements established in the
41. The call data recording, retention, and reporting requirements were intended to improve the Commission's ability to monitor rural call completion, and to aid enforcement action when necessary. These requirements, instituted by the 2013
42. The Bureau recommended in its resulting 2017 RCC Data Report that the Commission consider eliminating the recording, retention, and reporting rules. The Bureau reached this recommendation after finding significant data reliability issues—including inconsistent covered provider categorization methodologies for the four call types, and failure by some covered providers to exclude autodialer, wholesale, and intermediate provider traffic because of technical inabilities to do so. The RCC Data Report noted that even if the Commission were to modify the recording, retention, and reporting requirements, “it is not clear that that the benefits of such modifications would outweigh the costs.” In the
43. We sunset the recording and retention rules as the burden of continuing to mandate that covered providers collect and retain data, especially as prescribed by those rules, outweighs any benefit or usefulness of the data. We agree with USTelecom that it makes “little sense for the Commission to continue to require providers to record and retain data that neither the Commission nor the carriers use, or find useful for analysis of, rural call completion issues.” For the same reason, we disagree with NTCA's argument that “the Commission should retain the record keeping requirement for covered providers until such time as there is an affirmative determination that the rules are effective and records are no longer necessary.” Because the data as prescribed by the
44. We disagree with NTCA that maintaining the recording and retention rules will inform us of the efficiency of the monitoring requirements, intermediate provider service quality standards, and intermediate provider registry. Because the monitoring rule permits covered providers “
45. We also disagree with NTCA's argument that eliminating the recording and retention rules “may lead to an increase in the number of intermediate providers being used in the call path for providers who now have a good record of completing calls.” We find it unlikely that covered providers with a good track record of completing calls would suddenly assume bad call completion practices, and risk violating the Commission's call completion rules, as a result of the removal of the recording and retention requirements. Nor does NTCA point to any evidence suggesting such an outcome. For these same reasons, we disagree with NTCA's assertion that removal of the recording and retention rules will reduce the appeal of the safe harbor for covered providers and thereby lead to diminished rural call completion performance by safe harbor covered providers. Moreover, as we stated above and in the
46. The
47. This sunset period will allow covered and intermediate providers to come into full compliance with the rural call completion rules adopted pursuant to the RCC Act before the recording and retention requirements are removed. The
48. The recording and retention safe harbor will also thus remain concurrently, without change, until the recording and retention requirements expire one year after the service quality standards are in effect. Accordingly, we sunset the remaining call data recording and retention requirements established in the
49. On June 11, 2018, NTCA filed a Petition for Reconsideration (Petition) of a portion of the
50. In the
51. Our rules allow interested persons to file petitions for reconsideration of final actions in rulemaking proceedings, and provides that petitions for reconsideration relying on “facts or arguments which have not previously been presented to the Commission will be granted” only under certain circumstances. Where the petition presents no new facts or arguments, the Commission has full discretion to grant such petitions in “whole or in part or may deny or dismiss the petition.”
52. Although we agree that NTCA is an interested party to a final action, the Commission has already considered and rejected NTCA's arguments, and NTCA presents no new facts or arguments to explain why the Commission should reconsider its decision on covered provider monitoring documentation. As Sprint points out, NTCA's Petition is a near verbatim restatement of the facts and arguments NTCA submitted in its two April 2018
53. Under such discretionary authority, we deny the Petition. Beyond its editorialization of our decisions, NTCA does not present new arguments or facts warranting a discretionary change in the Commission's decision to not require covered providers to file or publish their monitoring processes. NTCA specifically challenges the Commission's “conclusion” of expecting covered providers to document their monitoring procedures without requiring covered providers to file those procedures with the Commission “or otherwise make them publicly available.” The Commission indeed specifically and fully addressed NTCA's identical argument in the
54. We also dismiss and deny a petition for reconsideration filed by USTelecom seeking review of rules adopted in the
55. On June 11, 2018, USTelecom filed a petition for reconsideration of certain aspects of the covered provider monitoring rule adopted in the
56. USTelecom seeks reconsideration of the requirement that covered providers exercise responsibility for the call completion performance of downstream intermediate providers with which there is no direct contractual relationship, arguing that this requirement “poses severe practical issues” and “creates an unreasonable compliance trap for originating providers.” NCTA—The internet & Television Association (NCTA) and ITTA—The Voice of America's Broadband Providers (ITTA) filed comments in support of USTelecom's petition for reconsideration, while NTCA—The Rural Broadband Association filed comments in opposition.
57. As an initial matter, we note that the Petition and supporting commenters rely on several substantive arguments previously submitted to the Commission prior to the adoption of the monitoring rule. Under § 1.429 of the Commission rules, petitions which “[r]ely on arguments that have been fully considered and rejected by the Commission within the same proceeding” “plainly do not warrant consideration by the Commission” and may be dismissed or denied.
58. As one of their primary arguments for reconsideration, USTelecom, NCTA, and ITTA claim that compliance with the monitoring rule necessitates modification of existing vendor agreements, which, they allege, “poses severe practical issues.” However, as NTCA observes, “this same argument was raised in the notice-and-comment phase of the rulemaking and rightly and squarely rejected by the Commission.” In the
59. Although USTelecom claims that “many originating providers will be unable to modify their vendor agreements” because “revisions [to contracts] can generally be made only during the vendor contract renewal terms,” it offers no evidence to support these assertions, nor do any other commenters supporting the Petition. On the contrary, as NTCA notes, the
60. We also disagree with ITTA's assertion that the monitoring rule “[c]ontravene[s] the RCC Act” because it “fl[ies] in the face of the statutory balancing crafted by Congress.” ITTA has previously advanced similar arguments in this proceeding, which we rejected in the
61. ITTA argues that the RCC Act's adoption of service quality and registry standards for intermediate providers suggests that Congress intended to focus responsibility for call completion issues
62. ITTA also argues that the Commission's finding in the
63. For the foregoing reasons, to the extent that USTelecom and commenters supporting its Petition rely on arguments concerning the costs associated with contractual negotiations that may be necessitated by the monitoring rule, we dismiss these arguments as having been previously considered and rejected by the Commission. To the extent that the Petition and supporting comments raise novel arguments in this proceeding, we dismiss these arguments on the merits, as discussed above.
64. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the
65. In this
66. First, we establish service quality standards for intermediate providers. Specifically, we require intermediate providers to take steps reasonably calculated to ensure that any calls that they handle are in fact completed. If an intermediate provider knows, or should know, that calls are not being completed to certain areas, the intermediate provider may be in violation of this general duty if it engages in acts or omissions that allow or effectively allow these conditions to persist. Intermediate providers must also ensure that any additional intermediate providers to which they hand off calls are registered with the Commission.
67. In addition, with respect to traffic destined for rural areas, intermediate providers must actively monitor the performance of any directly contracted downstream intermediate provider and, based on the results of such monitoring, take steps to address any identified performance issues with that provider. The Commission believes these rules will effectuate Congress's intent in passing the RCC Act, and further the Commission's efforts to ensure that all calls to rural areas are completed.
68. Due to the variety of providers and network technologies that may be subject to the Commission's service quality standards, the rules set forth in the
69. Second, we add a covered provider safe harbor to comply with the RCC Act. The service quality standards adopted in the
70. Third, as proposed by the
71. The Commission did not receive comments specifically addressing the rules and policies proposed in the IRFA.
72. The Chief Counsel did not file any comments in response to this proceeding.
73. The RFA directs agencies to provide a description of, and where feasible, an estimate of the number of small entities that may be affected by the proposed rules and by the rule revisions on which the NPRM seeks comment, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small-business concern” under the Small Business Act. A “small-business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.
74.
75.
76.
77.
78. Competitive Local Exchange Carriers (Competitive LECs), Competitive Access Providers (CAPs), Shared-Tenant Service Providers, and Other Local Service Providers. Neither the Commission nor the SBA has developed a small business size standard specifically for these service providers. The appropriate NAICS Code category is Wired Telecommunications Carriers, as defined above. Under that size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census data for 2012 indicate that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. Based on this data, the Commission concludes that the majority of Competitive LECS, CAPs, Shared-Tenant Service Providers, and Other Local Service Providers, are small entities. According to Commission data, 1,442 carriers reported that they were engaged in the provision of either competitive local exchange services or competitive access provider services. Of these 1,442 carriers, an estimated 1,256 have 1,500 or fewer employees. In addition, 17 carriers have reported that they are Shared-Tenant Service Providers, and all 17 are estimated to have 1,500 or fewer employees. Also, 72 carriers have reported that they are Other Local Service Providers. Of this total, 70 have 1,500 or fewer employees. Consequently, based on internally researched FCC data, the Commission estimates that most providers of competitive local exchange service, competitive access providers, Shared-Tenant Service Providers, and Other Local Service Providers are small entities.
79. We have included small incumbent LECs in this present RFA analysis. As noted above, a “small business” under the RFA is one that,
80.
81.
82.
83.
84.
85.
86. The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by our actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service, and Specialized Mobile Radio Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, we estimate that the majority of wireless firms can be considered small.
87.
88.
89.
90.
91.
92.
93. In implementing the RCC Act, first, the
94. Second, the
95. The
96. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rules for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.
97. In the
98. As the RCC Act mandates, this
99. One alternative considered—and declined—is mandating compliance with the with the three ATIS best practices as proposed in the
100. Second, we add the covered provider safe harbor to comply with the RCC Act. The service quality standards adopted in the
101.
102.
103.
104.
105. Accordingly,
106.
107.
108.
109.
110.
111.
Communications and common carriers, Reporting and recordkeeping requirements, Telecommunications, Telephone.
For the reasons discussed in the preamble, the Federal Communications Commission amends part 64 of title 47 of the Code of Federal Regulations as follows:
47 U.S.C. 154, 201, 202, 217, 218, 220, 222, 225, 226, 227, 228, 251(a), 251(e), 254(k), 262, 403(b)(2)(B), (c), 616, 620, 1401-1473, unless otherwise noted.
(g) The provisions of this section shall expire on September 15, 2020.
(d) The provisions of this section shall expire on September 15, 2020.
(a)(1) A covered provider may qualify as a safe harbor provider under this subpart if it files, in WC Docket No. 13-39, one of the following certifications, signed under penalty of perjury by an officer or director of the covered provider regarding the accuracy and completeness of the information provided:
“I __(name), __(title), an officer of __(entity), certify that __(entity) uses no intermediate providers;” or
“I __(name), __(title), an officer of __(entity), certify that __(entity) restricts by contract any intermediate provider to which a call is directed by __(entity) from permitting more than one additional intermediate provider in the call path before the call reaches the terminating provider or terminating tandem. I certify that any nondisclosure agreement with an intermediate provider permits __(entity) to reveal the identity of the intermediate provider and any additional intermediate provider to the Commission and to the rural incumbent local exchange carrier(s) whose incoming long-distance calls are affected by the intermediate provider's performance. I certify that __(entity) has a process in place to monitor the performance of its intermediate providers.”
(2) The certification in paragraph (a)(1) of this section must be submitted:
(i) For the first time on or before February 26, 2019; and
(ii) Annually thereafter.
(b) The requirements of § 64.2119 shall not apply to intermediate provider traffic transmitted by safe harbor qualifying covered providers functioning as intermediate providers.
Any intermediate provider that offers or holds itself out as offering the capability to transmit covered voice communications from one destination to another and that charges any rate to any other entity (including an affiliated entity) for the transmission must abide by the following service quality standards:
(a)
(b)
(1) Monitor the intermediate provider's performance in the completion of call attempts to rural telephone companies; and
(2) Based on the results of such monitoring, take steps that are reasonably calculated to correct any identified performance problem with the intermediate provider, including removing that provider for sustained poor performance.
(c)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule.
NMFS closes the Gulf of Mexico Angling category incidental fishery for large medium and giant (“trophy” (
Effective 11:30 p.m., local time, May 31, 2019 through December 31, 2019.
Sarah McLaughlin, 978-281-9260 or Larry Redd, 301-427-8503.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971
NMFS is required, under § 635.28(a)(1), to file a closure notice with the Office of the Federal Register for publication when a BFT quota is reached or is projected to be reached. On and after the effective date and time of such notification, for the remainder of the fishing year or for a specified period as indicated in the notification, retaining, possessing, or landing BFT under that quota category is prohibited until the opening of the subsequent quota period or until such date as specified in the notice.
The 2019 BFT fishing year, which is managed on a calendar-year basis and subject to an annual calendar-year quota, began January 1, 2019. The Angling category season opened January 1, 2019, and continues through December 31, 2019. The currently codified Angling category quota is 232.4 metric tons (mt), of which 5.3 mt is allocated for the harvest of large medium and giant (trophy) BFT by vessels fishing under the Angling category quota, with 1.8 mt allocated for each of the following areas: North of 39°18′ N lat. (off Great Egg Inlet, NJ); south of 39°18′ N lat. and outside the Gulf of Mexico (the “southern area”); and in the Gulf of Mexico. Trophy BFT measure 73 inches (185 cm) curved fork length or greater.
Based on reported landings from the NMFS Automated Catch Reporting System, NMFS has determined that the codified Angling category Gulf of Mexico trophy BFT subquota of 1.8 mt has been reached and that a closure of the Gulf of Mexico trophy BFT fishery is warranted. Therefore, retaining, possessing, or landing large medium or giant BFT in the Gulf of Mexico by persons aboard vessels permitted in the HMS Angling category and the HMS Charter/Headboat category (when fishing recreationally) must cease at 11:30 p.m. local time on May 31, 2019. This closure will remain effective through December 31, 2019. This action is intended to prevent overharvest of the Angling category Gulf of Mexico trophy BFT subquota, and is taken consistent with the regulations at § 635.28(a)(1).
If needed, subsequent Angling category adjustments will be published in the
HMS Charter/Headboat and Angling category vessel owners are required to report the catch of all BFT retained or discarded dead, within 24 hours of the landing(s) or end of each trip, by accessing
The Assistant Administrator for NMFS (AA) finds that it is impracticable and contrary to the public interest to provide prior notice of, and an opportunity for public comment on, this action for the following reasons:
The regulations implementing the 2006 Consolidated HMS FMP and amendments provide for inseason retention limit adjustments and fishery closures to respond to the unpredictable nature of BFT availability on the fishing grounds, the migratory nature of this species, and the regional variations in the BFT fishery. The closure of the Angling category Gulf of Mexico trophy fishery is necessary to prevent overharvest of the Gulf of Mexico trophy fishery subquota. NMFS provides notification of closures by publishing the notice in the
These fisheries are currently underway, and delaying this action would be contrary to the public interest as it could result in excessive trophy BFT landings that may result in future potential quota reductions for the Angling category, depending on the magnitude of a potential Angling category overharvest. NMFS must close the Gulf of Mexico trophy BFT fishery before additional landings of these sizes of BFT occur. Therefore, the AA finds good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment. For all of the above reasons, there is good cause under 5 U.S.C. 553(d) to waive the 30-day delay in effectiveness.
This action is being taken under 50 CFR 635.28(a)(1), and is exempt from review under Executive Order 12866.
16 U.S.C. 971
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; inseason adjustments to biennial groundfish management measures.
This final rule announces routine inseason adjustments to management measures in commercial and recreational groundfish fisheries. This action is intended to allow commercial and recreational fishing vessels to access more abundant groundfish stocks while protecting overfished and depleted stocks.
This final rule is effective June 4, 2019.
Karen Palmigiano, phone: 206-526-4491 or email:
This rule is accessible via the internet at the Office of the Federal Register website at
The Pacific Coast Groundfish Fishery Management Plan (PCGFMP) and its implementing regulations at title 50 in the Code of Federal Regulations (CFR), part 660, subparts C through G, regulate fishing for over 90 species of groundfish off the coasts of Washington, Oregon, and California. The Pacific Fishery Management Council (Council) develops groundfish harvest specifications and management measures for two-year periods (
At its March 6-12, and April 10-16, 2019, meetings, the Council recommended seven adjustments to the 2019-2020 PCGFMP management measures, including: (1) Increasing the limited entry fixed gear (LEFG) and open access (OA) trip limits for the Minor Nearshore Rockfish complex from 42° North Latitude (N lat.) to 40°10′ N lat.; (2) increasing the LEFG and OA trip limits for the deeper nearshore rockfish complex south of 40°10′ N lat.; (3) increasing the LEFG and OA trip limits for blackgill rockfish south of 40°10′ N lat.; (4) increasing the LEFG and OA trip limits and recreational bag limit for lingcod south of 40°10′ N lat.; (5) increasing the California recreational canary rockfish bag limit; (6) increasing the California recreational black rockfish bag limit, and (7) transferring lingcod south of 40°10′ N lat. from the research and incidental open access (IOA) set-asides to the set asides for exempted fishing permits (EFPs).
Pacific Coast groundfish fisheries are managed using harvest specifications developed biennially and based on the best scientific information available at that time. Through the harvest specifications, the Council specifies annual catch limits (ACLs). Every species will either have its own designated ACL or be included in a multi-species ACL. Deductions from the ACL are then made to account for research, Pacific Coast treaty Indian tribal fisheries, scientific research, incidental open access (IOA) fisheries, and exempted fishing permits, resulting in the fishery harvest guideline. The fishery harvest guideline for most species is then allocated between the trawl and non-trawl fisheries based on percentages adopted under Amendment 21 to the PCGFMP (
The Minor Nearshore Rockfish complex north of 40°10′ N lat. includes 13 species of rockfish. The ACLs for the Minor Nearshore Rockfish complex north of 40°10′ N lat. are 81 mt in 2019 and 82 mt in 2020 with a 79 mt fishery harvest guideline in both years. Unlike other species, the coastwide harvest guideline is not allocated between trawl and non-trawl sectors because the trawl impacts are so minor. Instead, Washington, Oregon, and California have a sharing agreement and divide the federal harvest guideline for each of the species in the complex into state landing targets. The States then divide their shares between their commercial fixed gear and recreational sectors. Using the harvest guidelines along with catch information, the Council designates management measures to maximize catch within these state target limits while also limiting impacts to co-occurring rebuilding species such as yelloweye rockfish.
Most vessels fishing in California's nearshore fishery do not hold a federal limited entry permit and are considered federal OA fixed gear vessels. California restricts participation in the nearshore fishery by requiring a state limited entry permit to harvest nearshore groundfish species. Trip limits for these fisheries are designed to keep catch within nearshore species state and federal limits while providing a year-round fishing opportunity, if possible. The total California share of the coastwide harvest guideline the Minor Nearshore Rockfish complex is 36.6 mt for 2019 and 37.9 mt for 2020.
When the Council developed the 2019 and 2020 management measures for California's Minor Nearshore Rockfish
Based on this updated information the Council recommended adjusting the commercial sector trip limits for period 2 through period 6 from 7,000 lb (3,175 kg) per two months, no more than 1,200 lb (544 kg) of which may be species other than black rockfish to 7,000 lb (3,175 kg) per two months, no more than 1,500 lb (680 kg) of which may be species other than black rockfish. Under the current trip limits, the current catch for period 1 (January through February) in 2019 for the Minor Nearshore Rockfish complex between 42° N lat. and 40°10′ N lat. is 0.5 mt. Without an increase to the Minor Nearshore Rockfish complex trip limit for the remainder of 2019, projected attainment of the California share of the harvest guideline is 68.4 percent (25 mt total, including 12.4 mt from the recreational sector and 12.5 mt from the commercial sector, of the 36.6 mt) and projected attainment of the coastwide harvest guideline is 31.9 percent (79 mt). Projections based on increasing the trip limits suggest attainment may increase catch for Minor Nearshore Rockfish north of 40°10′ N lat. by 2.71 mt, from 12.6 mt to 14.7 mt, for the commercial sector. Total mortality of the complex for the commercial and recreational sectors may increase to 27.71 mt or 74 percent of the California share of the harvest guideline (36.6 mt).
Therefore, in March 2019 the Council recommended and NMFS is implementing increases to LEFG and OA fixed gear trip limits by modifying Table 2 (North) to part 660, subpart E, and Table 3 (North) to part 660, subpart F. The trip limits for period 2 through period 6 for minor nearshore rockfish for LEFG and OA fixed gear will increase from 7,000 lb (3,175 kg) per two months, no more than 1,200 lb (544 kg) of which may be species other than black rockfish to 7,000 lb (3,175 kg) per two months, no more than 1,500 lb (680 kg) of which may be species other than black rockfish beginning June 4, 2019.
The Minor Nearshore Rockfish complex south of 40°10′ N lat. is subdivided into two management categories: (1) Shallow nearshore rockfish (black-and-yellow rockfish, China rockfish, gopher rockfish, grass rockfish, and kelp rockfish), and (2) deeper nearshore rockfish (comprised of brown rockfish, calico rockfish, copper rockfish, olive rockfish, quillback rockfish, and treefish). California restricts participation in the nearshore fishery by requiring vessels have a shallow or a deeper nearshore permit which correspond to the type of permit needed in California to fish those species. At the March 2018 meeting, members of industry requested the Council consider increasing the LEFG and OA trip limits for vessels targeting species in the deeper nearshore rockfish complex only; no requests were received in regard to the shallow nearshore rockfish complex. The ACL for the Minor Nearshore Rockfish complex south of 40°10′ N lat. is 1,300 mt in 2019 with a 1,138 mt harvest guideline and 1,322 mt for 2020 with a 1,159 mt harvest guideline. The harvest guideline is shared between vessels targeting shallow and deeper nearshore rockfish.
When the Council developed the 2019-2020 management measures for California's deeper nearshore rockfish in 2018, commercial catch data through the end of the 2017 fishing year was not available. Instead, the analysis used data from previous fishing years and assumptions were made about fishing effort in the 2017 fishing year based on this data to project impacts through the remainder of 2017. Based on this information, trip limits for deeper nearshore rockfish for LEFG and OA fixed gear were set in 2019 and 2020 at the same levels used in the 2017-2018 harvest specifications. The current trip limit for Period 1 (January-February) is 1,000 lb (454 kg) per two months. Period 2 (March-April) is closed. The current trip limit for Period 3 through Period 6 is 1,000 lb (454 kg) per two months.
In March 2019, the GMT updated the projections for the nearshore rockfish species south of 40°10′ N lat. with commercial fishing data through the end of 2018. Estimated mortality for 2018 for these species was 682.5 mt, or 58 percent, of a 1,179 mt harvest guideline. Under the current trip limits, projected landings for the commercial sector in 2019 for nearshore rockfish south of 40°10′ N lat. is 584.5 mt of 1,138 mt harvest guideline, or 51.37 percent. Of that vessels are estimated to take 46 mt of deeper nearshore rockfish species, which is 10 mt less than the 2019-20 biennial harvest specifications analysis projected for 2019. Increasing the commercial trip limits for deeper nearshore rockfish is expected to increase commercial landings by 2 mt to 48 mt resulting in 0.17 percent increase in overall attainment of the harvest guideline from 51.37 percent (584.5 mt) to 51.54 percent (586.5 mt) of the harvest guideline.
For these reasons, the Council recommended and NMFS is implementing an increase to the LEFG and OA fixed gear trip limits for deeper nearshore rockfish south of 40°10′ N lat. NMFS is modifying Table 2 (South) part 660, subpart E, and Table 3 (South) part 660, subpart F, trip limits for deeper nearshore minor rockfish. The trip limits will increase from 1,000 lb (454 kg) per two months to 1,200 lb (544 kg) per two months beginning June 4, 2019 with Period 3 (May-June) and extending through Period 6. Period 2 will remain closed.
The primary objective of nearshore fisheries north and south of 40°10′ N lat. has been to maximize opportunity for target stocks while staying within the overfishing/rebuilding species limits, in particular yelloweye rockfish. Therefore, any time the Council considers an increase to trip limits for vessels targeting nearshore rockfish, impacts to yelloweye rockfish must also be considered. The 2019 yellow rockfish ACL is 48 mt and the harvest guideline is 42 mt. The nearshore harvest
Blackgill rockfish is a component stock that is managed within the Slope Rockfish complexes north and south of 40°10′ N lat. The 2017 blackgill rockfish update assessment indicated the stock was at 39.4 percent depletion at the start of 2017 and is estimated to be at 40 percent in 2019. The 2019 blackgill rockfish south of 40°10′ N lat. harvest guideline is 158.9 mt, based on the blackgill rockfish contribution to the Slope Rockfish complex.
At its April 2019 Council meeting, under Agenda Item G.4., the Council rescinded their original final action for removing blackgill rockfish from the Slope Rockfish complex as was selected at the November 2015 Council meeting (Agenda Item D.7.a, Supplemental GMT Report 2, June 2015). Instead, the Council selected the No Action Alternative, resulting in blackgill rockfish south of 40°10′ N lat. remaining in the southern Slope Rockfish complex and maintaining the Amendment 21 formal sector allocation of 63 percent of the annual harvestable surplus (as defined by the fishery harvest guideline) of southern Slope Rockfish to trawl sectors and 37 percent of the annual harvestable surplus to non-trawl sectors. This results in allocating 100.1 mt to the trawl sector and 58.8 mt to the non-trawl sector in 2019, an increase of 13.3 mt over the 2018 non-trawl allocation (45.5 mt).
Once the Council selected the No Action Alternative, they recommended the GMT investigate the possibility of increasing the current trip limits for blackgill rockfish for LEFG and OA south of 40°10′ N lat. Increases to the current trip limits, which have been in place since 2015, had not been considered until now as constituents waited for implementation of Amendment 26 and removal of blackgill rockfish from the Slope Rockfish complex. Under the current slope and blackgill rockfish trip limits south of 40°10′ N lat., during periods 1-3 (January-June) LEFG vessels are allowed to harvest 40,000 lb (18,143 kg) per two months of slope rockfish, of which no more than 1,375 lb (624 kg) may be blackgill rockfish. During periods 3 through 6 (July through December), those limits increase to 40,000 lb (18,143 kg) per two months of slope rockfish, of which no more than 1,600 lb (726 kg) may be blackgill rockfish. Estimated mortality for the LEFG fishery under these limits is 20 mt. Vessels fishing in the OA fishery south of 40°10′ N lat. during periods 1-3 (January through June) are allowed to harvest 10,000 lb (4,536 kg) per two months, of which no more than 475 lb (215 kg) may be blackgill rockfish; for periods 4-6 (July through December) those limits increase to 10,000 lb (4,536 kg) per two months, of which no more than 550 lb (249 kg) may be blackgill rockfish. Estimated mortality for the OA fishery under these limits is 1.9 mt. Combined impacts to blackgill rockfish from the LEFG and OA sector are likely to be 21.9 mt or 37 percent of the 58.8 mt non-trawl allocation.
The GMT further investigated trip limit alternatives and found the limits for blackgill rockfish could be increased to 4,000 lb (1,814 kg) per two months for the LEFG vessels and up to 900 lb (408 kg) for the OA vessels. The estimated blackgill rockfish mortality for the LEFG fishery would be 41.7 mt and for the OA fishery it would be 2.6 mt. The cumulative impacts to blackgill rockfish would be 44.3 mt, 14.5 mt less than the non-trawl allocation of blackgill rockfish south of 40°10′ N lat. (58.8 mt).
Therefore, the Council recommended and NMFS is implementing increases to the blackgill rockfish trip limits for the LEFG and OA fisheries south of 40°10′ N lat. as follows. On June 4, 2019, the LEFG trip limits for periods 3-6 (May through December) would increase to 40,000 lb (18,143 kg) per two months of slope rockfish, of which no more than 4,000 lb (1,814 kg) may be blackgill rockfish, and the OA trip limits for period 3-6 (May through December) would increase to 10,000 lb (4,536 kg) per two months, of which no more than 800 lb (363 kg) may be blackgill rockfish.
During development of the 2019-2020 harvest specifications, the Council recommended deviating from the default harvest control rules for lingcod north and south of 40°10′ N lat., reflecting greater confidence in the current stock assessment. The 2019 ACL for the northern stock is 4,871 mt with a fishery harvest guideline of 4,593 mt. The ACL for the southern stock is 1,039 mt with a fishery harvest guideline of 1,028 mt. The fishery harvest guideline is split between the trawl and non-trawl sectors according to the Amendment 21 allocations as specified at § 660.55(c) and Chapter 6 of the PCGFMP. Under this split, the trawl sector received 462.5 mt, or 45 percent, of the 2019 harvest guideline for lingcod south of 40°10′ N lat. and the non-trawl sector received 565.2 mt, or 55 percent, of the 2019 harvest guideline. The non-trawl percentage is shared between the limited entry fixed gear, open access, and recreational fisheries.
Between 2013 and 2018, the trawl sector had harvested less than 10 percent annually of their lingcod south allocation, while the non-trawl sector has harvested between 70 and 125 percent of their allocation annually during the same 5-year period. The non-trawl sector exceeded their allocation in 2015 and 2016 by at least 24 percent or 120 mt each year resulting in a less optimistic outlook for lingcod south of 40°10′ N lat. in 2017. The analysis completed in January 2018 for the 2019-2020 harvest specifications used fishery data through the 2016 fishing year which suggested a more precautionary approach for the recreational bag limit and OA trip limits was necessary to prevent the non-trawl allocation from being exceeded again.
At the April 2019 Council meeting, CDFW presented updated catch projections for 2019 and 2020 based on updated commercial and recreational catch information through 2018. Under the current trip limits for LEFG south of 40°10′ N lat. (Period 1: 200 lb [91 kg] per 2 months, Period 2: closed, Period 3: 800 lb [363 kg] per two months, Periods 4 and 5: 1,200 lb [544 kg], Period 6-November: 600 lb [272 kg], and Period 6-December: 300 lb [136 kg]) and OA fisheries (Period 1: 300 lb [136 kg] per two months, Period 2: closed, and Periods 3 through 6: 300 lb [136 kg]) commercial impacts are projected to be 40 mt. Under the one lingcod bag limit for recreational fisheries projected impacts for the recreational sector are 315 mt in 2019. Combined lingcod impacts for both LEFG and OA sectors is 365.4 mt or 65 percent of the 2019
Based on the GMT's analysis, increasing the trip limits for LEFG vessels targeting lingcod south of 40°10′ N lat. to 1,200 lb (544 kg) per two months for all remaining periods (assuming a June 1, 2019 implementation date) would increase the impacts to lingcod from 6.1 mt to 8.2 mt. Increasing the trip limits for OA vessels targeting lingcod south of 40°10′ N lat. to 500 lb (227 kg) for all remaining periods (assuming a June 1, 2019 implementation date) would increase the impacts to lingcod from 33.9 mt to 49.3 mt. Cumulative impacts for both sectors would increase from 40 mt to 58 mt. Increasing the recreational bag limit from one lingcod to two lingcod in 2019 would increase the impacts to lingcod from 223 mt to 411 mt. Total non-trawl impacts for both sectors would increase from 264 mt to 456 mt or from 47 percent of the non-trawl harvest guideline (565.2 mt) to 81 percent.
Therefore, the Council recommended and NMFS is implementing increases to commercial trip limits for LEFG and OA vessels beginning, June 4, 2019. LEFG trip limits will increase to 1,200 lb (544 kg) for all remaining periods and OA fishery trip limits will increase to 500 lb (227 kg) for all remaining periods. The recreational bag limit for vessels targeting lingcod south of 40°10′ N lat. in the recreational fishery will increase from one lingcod to two lingcod. The increase to the recreational bag limit for lingcod south of 40°10′ N lat. is effective upon publication of this notice.
At the March 2019 Council meeting, the GMT received a request from recreational fishing representatives to analyze an increase to the bag and sub-bag limits south of 40°10′ N lat. for lingcod, canary rockfish, and black rockfish. During development of the 2019-2020 harvest specifications, recreational catch information from 2018 was not yet available and limits were established based on recreational data from 2016 and preliminary data from the 2017 fishing year. The California Department of Fish and Wildlife (CDFW) provided updated recreational catch data through 2018 at the March 2019 Council meeting. Based on the following updated information and analysis, the Council recommended NMFS increase the lingcod, canary rockfish and black rockfish bag limits for the recreational sector. The Council's recommended recreational bag limit changes for Lingcod south of 40°10′ N lat. from the April 2019 meeting are discussed above.
New data from 2018 show canary rockfish mortality was below the 2017 and 2018 California recreational harvest guidelines of 135 mt for each year. Estimated attainment was 61 percent (82.1 mt) of the recreational harvest guideline in 2017, and 43 percent (58.4 mt) in 2018. Using the full year of 2018 recreational data to project attainment in 2019 under the current two fish bag limit, vessels are expected to attain 81 percent (103 mt) of the 127.3 mt harvest guideline in 2019. Attainment is expected to increase to 86 percent in 2020 under a smaller harvest guideline (119.7 mt). Under a three fish bag limit for canary rockfish, expected attainment would be 117.4 mt, which is 92 percent of 2019 California recreational harvest guideline (127.3 mt) and 98 percent of the 2020 harvest guideline (119.7 mt). The GMT also considered projected attainment under a four fish bag limit, but did not recommend the Council take this option as it would likely result in exceeding the recreational harvest guideline in 2020.
Therefore, the Council recommend and NMFS is implementing an increase to the recreational bag limit for canary rockfish from two fish to three fish. Increasing the bag limit for canary rockfish will allow vessel operators to access healthy canary rockfish stock that had previously been off-limit to recreational fishing due to their overfished status. CDFW monitors canary rockfish catch weekly through its California Recreational Fisheries Survey. For these reasons, the Council recommended and NMFS is implementing an increase to the recreational sub-bag limit for canary rockfish from two to three fish at § 660.360 for the California recreational fishery.
In 2015, state-specific stock assessments were conducted for black rockfish which allowed the Council to consider state harvest limits beginning with the next biennium. In 2017, as part of the biennial harvest specifications, the Council recommended and NMFS established a California-specific ACL and harvest guideline for black rockfish (see Table 1a to part 660, subpart C) which is split north and south of 40°10′ N lat. Unlike other species, the harvest guideline is not allocated between the trawl and non-trawl sectors, but it is shared between the recreational and commercial fixed gear fisheries. Black rockfish is managed in the recreational sector through the use of a sub-bag limit which is part of the overall rockfish, cabezon, and greenling bag limit. In the commercial sector, black rockfish is part of the deeper nearshore fishery, and bimonthly trip limits are set separately north and south of 40°10′ N lat. (See the section above on the deeper nearshore fishery for more information on those commercial trip limits.)
Updated catch information for black rockfish from 2017 shows the combined commercial and recreational catch was 155 mt of a 333 mt harvest guideline or 46 percent. Combined commercial and recreational catch for black rockfish in 2018 was 140 mt of a 331 mt harvest guideline or 42 percent. The current recreational bag limit is three fish. Under the current three-fish sub-bag limit for black rockfish projected total commercial and recreational catch is 204.3 mt each year in 2019 and 2020, assuming the commercial sector catches their full 100 mt share (95 mt between 42° and 40°10′ N lat.; 5 mt south of 40°10′ N lat.). The projected attainment of black rockfish is 62 percent of the 328 mt harvest guideline in 2019 and 63 percent of the 325 mt harvest guideline in 2020.
In March 2019, the GMT projected total catch under four and five fish bag limits for black rockfish. Assuming the commercial sector takes their full share (100 mt), under a four fish bag limit, total catch of black rockfish increases to 265.1 mt or 81 percent of the 328 mt harvest guideline in 2019 and 82 percent of the 325 mt harvest guideline in 2020. Under a five fish bag limit, assuming the same commercial catch, total harvest increases to 327.4 mt or 100 percent of the harvest guideline in 2019 and 101 percent of the harvest guideline in 2020.
Increasing the bag limit for black rockfish will allow vessel operators to access healthy black rockfish stocks. CDFW monitors black rockfish catch weekly through its California Recreational Fisheries Survey. In the unlikely event that a state-specific harvest guideline is attained or projected to be attained prior to a Council meeting, NMFS has the regulatory authority at § 660.60(c)(4) to restrict catch of black rockfish. Therefore, the Council recommended and NMFS is implementing an increase to the black rockfish sub-bag limit from three to four fish at § 660.360 for the California recreational fishery. The Council did not select the higher five-fish sub-bag limit due to the potential for high catch around the San Francisco
NMFS sets ACLs for non-whiting groundfish stocks and stock complexes as part of biennial harvest specifications and management measures. Deductions are made “off-the-top” from the ACL to “set-aside” an amount for various sources of mortality, including non-groundfish fisheries that catch groundfish incidentally, also called incidental open access (IOA) fisheries, as well as for research, tribal harvest, and recreational catch.
During development of the 2019-2020 harvest specifications the GMT made recommendations to the Council for off-the-top deductions from the ACLs, including deductions for EFPs for the 2019-2020 fishing years. On March 18, 2019, participants in the San Francisco Community Fishing Association EFP, also known as the Emley/Platt EFP, notified NMFS of an error in the allocation amount for lingcod south of 40°10′ N lat. At the Council's June 2018 meeting, the participants had requested a 1.5 mt set-aside each of lingcod north and south of 40°10′ N lat. for 2019 but had only received an amount for lingcod north. NMFS reviewed the GMT recommendations as well as the application and Council discussion on this topic and found the set-aside for lingcod south of 40°10′ N lat. for the Emley/Platt EFP was mistakenly left off the GMT recommendations to the Council. Therefore, in order to provide some relief to the participants in the Emley/Platt EFP, the GMT recommended the Council redistribute 1 mt of lingcod south of 40°10′ N lat. research catch and 0.5 mt of incidental open access catch. This redistribution results in an incidental open access amount of 7.6 mt, a research catch amount of 2.2 mt, and an EFP catch amount of 1.5 mt. Total mortality in both the IOA and research sectors has been less than their set-aside amounts between 2014 and 2017. The average research catch for lingcod south of 40°10′ N lat. during that time was 2.0 mt of out of a 3.2 mt set-aside. The average IOA catch for lingcod south of 40°10′ N lat. between 2014 and 2017 was 6.9 mt out of an 8.1 mt set-aside.
Therefore, NMFS is implementing the Council's recommendation to redistribute a total of 1.5 mt of lingcod south of 40°10′ N lat. from the set-asides for IOA and research catch to the set-aside for EFPs to be used by the participants in the Emley/Platt EFP.
This final rule makes routine inseason adjustments to groundfish fishery management measures, based on the best scientific information available, consistent with the PCGFMP and its implementing regulations.
This action is taken under the authority of 50 CFR 660.60(c) and is exempt from review under Executive Order 12866.
The aggregate data upon which these actions are based are available for public inspection by contacting Karen Palmigiano in NMFS West Coast Region (see
Pursuant to 5 U.S.C. 553(b), NMFS finds good cause to waive prior public notice and an opportunity for public comment on this action, as notice and comment would be impracticable and contrary to the public interest. The adjustments to management measures in this document affect commercial and recreational fisheries in California. No aspect of this action is controversial, and changes of this nature were anticipated in the final rule for the 2019-2020 harvest specifications and management measures which published on December 12, 2018 (83 FR 63970).
At its March and April 2019 meetings, the Council recommended increases to the commercial trip limits and recreational bag limits be implemented as soon as possible. Each of the adjustments to commercial and recreational management measures in this rule will create more harvest opportunity and allow fishermen to better attain species that are currently under attained without causing any additional impacts to the fishery, including to rebuilding stocks. Each of these recommended adjustments also rely on new catch data that were not available and thus not considered during the 2019-2020 biennial harvest specifications process. New catch information through the end of the 2018 fishing year shows that attainment of these target species (canary, black, blackgill rockfish, and lingcod south of 40°10′ N lat., and Nearshore Rockfish complexes north and south of 40°10′ N lat.) has been below 60 percent of their respective management points (
Therefore, the NMFS finds reason to waive the 30-day delay in effectiveness pursuant to 5 U.S.C. 553(d)(1) so that this final rule may become effective upon publication in the
Fisheries, Fishing, and Indian fisheries.
For the reasons set out in the preamble, 50 CFR part 660 is amended as follows:
16 U.S.C. 1801
(c) * * *
(3) * * *
(ii) * * *
(B)
(iii) * * *
(B) * * *
(
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone for certain navigable waters of the Cooper River in North Charleston, SC. This action is necessary to provide for the safety of the general public, spectators, vessels, and the marine environment from potential hazards during a fireworks display. This proposed rulemaking would prohibit persons and vessels from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port Charleston (COTP) or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before June 19, 2019.
You may submit comments identified by docket number USCG-2019-0371 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Lieutenant Justin Heck, Sector Charleston Office of Waterways Management, Coast Guard; telephone (843) 740-3184, email
On April 23, 2019, the City of North Charleston notified the Coast Guard that it will be conducting a fireworks display from 9 p.m. to 10 p.m. on July 4, 2019. The fireworks are to be launched from a barge along the bank of the Cooper River at River Front Park in North Charleston, SC. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Charleston (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within a 500-yard radius of the barge.
The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 500-yard radius of the fireworks barge before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 46 U.S.C. 70034.
The COTP proposes to establish a temporary safety zone from 8:45 p.m. to 10:15 p.m. on July 4, 2019. The safety zone would cover all navigable waters within 500 yards of the fireworks barge located at River Front Park on the Cooper River in North Charleston, SC. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9 p.m. to 10 p.m. fireworks display. No vessel or person would be permitted to enter, transit through, anchor in, or remain within the safety zone without obtaining permission from the COTP or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives. The proposed regulatory text appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
The economic impact of this rule is not significant for the following reasons: (1) The safety zone will only be enforced for an hour and a half; (2) although persons and vessels may not enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Charleston or a designated representative, they may operate in the surrounding area during the enforcement period; and (3) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety
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. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, 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. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a temporary safety zone lasting an hour and a half that would prohibit entry within 500 yards of a barge from which fireworks will be launched. Normally such actions are categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at 843-740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative.
(3) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Coast Guard, DHS.
Notice of proposed rulemaking.
The Coast Guard proposes to establish a temporary safety zone for certain navigable waters of the Cooper River at Patriot's Point in Charleston, SC. This action is necessary to provide for the safety of the general public, spectators, vessels, and the marine environment from potential hazards during a fireworks display. This proposed rulemaking would prohibit persons and vessels from entering, transiting through, anchoring in, or remaining within the safety zone unless authorized by the Captain of the Port Charleston (COTP) or a designated representative. We invite your comments on this proposed rulemaking.
Comments and related material must be received by the Coast Guard on or before June 19, 2019.
You may submit comments identified by docket number USCG-2019-0372 using the Federal eRulemaking Portal at
If you have questions about this proposed rulemaking, call or email Lieutenant Justin Heck, Sector Charleston Office of Waterways Management, Coast Guard; telephone (843) 740-3184, email
On April 10, 2019, the Patriots Point Naval and Maritime Museum notified the Coast Guard that it would be conducting a fireworks display from 8 p.m. to 9 p.m. on July 4, 2019. The fireworks are to be launched from a barge along the bank of the Cooper River at Patriot's Point in Charleston, SC. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Charleston (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within a 500-yard radius of the barge.
The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 500-yard radius of the fireworks barge before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 46 U.S.C. 70034.
The COTP proposes to establish a temporary safety zone from 7:45 p.m. to 9:15 p.m. on July 4, 2019. The safety zone would cover all navigable waters within 500 yards of the fireworks barge located at Patriot's Point on the Cooper River in Charleston, SC. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 8 p.m. to 9 p.m. fireworks display. No vessel or person would be permitted to enter, transit through, anchor in, or remain within the safety zone without obtaining permission from the COTP or a designated representative. The Coast Guard will provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives. The proposed regulatory text appears at the end of this document.
We developed this proposed rule after considering numerous statutes and Executive orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13771 directs agencies to control regulatory costs through a budgeting process. This NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.
The economic impact of this rule is not significant for the following reasons: (1) The safety zone will only be enforced for an hour and a half; (2) although persons and vessels may not enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Charleston or a designated representative, they may operate in the surrounding area during the enforcement period; and (3) the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this proposed rule would not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A. above, this proposed rule would not have a significant economic impact on any owner or operator.
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. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
This proposed rule would not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, 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. If you believe this proposed rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this proposed rule under Department of Homeland Security Management Directive 023-01 and Environmental Planning COMDTINST 5090.1 (series), which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a temporary safety zone lasting an hour and a half that would prohibit entry within 500 yards of a barge from which fireworks will be launched. Normally such actions are categorically excluded from further review under paragraph L60(a) in Table 3-1 of U.S. Coast Guard Environmental Planning Implementing Procedures 5090.1. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.
We encourage you to submit comments through the Federal eRulemaking Portal at
We accept anonymous comments. All comments received will be posted without change to
Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard proposes to amend 33 CFR part 165 as follows:
46 U.S.C. 70034, 70051; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5;
(a)
(b)
(c)
(2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at 843-740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative.
(3) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Environmental Protection Agency (EPA).
Proposed rule; notice of intent.
The Environmental Protection Agency (EPA) Region 7 is issuing a Notice of Intent to Delete the Operable Unit 1—Chemical Fill and Contaminated Soil (OU1) of the Shaw Avenue Dump Superfund Site (Site) located in Charles City, Floyd County, Iowa, from the National Priorities List, or NPL, and requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan, or NCP. The EPA and the state of Iowa, through the Iowa Department of Natural Resources, have determined that all appropriate response actions at these identified parcels under CERCLA, other than operations and maintenance and five-year reviews, have been completed. However, this deletion does not preclude future actions under Superfund.
This partial deletion pertains to the Operable Unit 1—Chemical Fill and Contaminated Soil. The Operable Unit 2—Groundwater will remain on the NPL and is not being considered for deletion as part of this action.
Comments must be received on or before July 5, 2019.
You may send comments, identified by Docket ID No. EPA-HQ-SFUND-1987-0002, by one of the following methods:
Elizabeth Hagenmaier, Remedial Project Manager, U.S. Environmental Protection Agency Region 7, SEMD/LMSE, 11201 Renner Boulevard, Lenexa, KS 66219, telephone (913) 551-7939, email:
Throughout this document “we,” “us,” or “our” refer to the EPA. This section provides additional information by addressing the following:
Submit your comments, identified by Docket ID No. EPA-HQ-SFUND-2003-0010, at
The EPA Region 7 announces its intent to delete the OU1—Chemical Fill and Contaminated Soil of the Shaw Avenue Dump Superfund Site (Site), from the National Priorities List, or NPL, and requests public comment on this proposed action. The NPL constitutes appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan, or NCP, and which the EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. The EPA maintains the NPL as those sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the Shaw Avenue Dump Superfund Site is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List. 60 FR 55466 (Nov. 1, 1995). As described in 300.425(e)(3) of the NCP, a portion of a site deleted from the NPL remains eligible for Fund-financed remedial action if future conditions warrant such actions.
The EPA will accept comments on the proposal to partially delete this site for thirty (30) days after publication of this document in the
Section III of this document explains the criteria for deleting sites from the NPL. Section IV discusses procedures that the EPA is using for this action. Section V discusses the OU1—Chemical Fill and Contaminated Soil of the Shaw Avenue Dump Superfund Site and demonstrates how it meets the deletion criteria.
The NCP establishes the criteria that the EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), the EPA will consider, in consultation with the state, whether any of the following criteria have been met:
i. Responsible parties or other persons have implemented all appropriate response actions required;
ii. All appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or
iii. The remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.
Pursuant to CERCLA section 121(c) and the NCP, the EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. The EPA conducts such five-year reviews even if a site is deleted from the NPL. The EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.
The following procedures apply to deletion of the OU1—Chemical Fill and Contaminated Soil of the Site:
(1) The EPA consulted with the state Iowa, through the Iowa Department of Natural Resources, before developing this Notice of Intent for Partial Deletion.
(2) The EPA has provided the state thirty working days for review of this document prior to publication of it today.
(3) In accordance with the criteria discussed above, the EPA has determined that no further response is appropriate.
(4) The state of Iowa, through the Iowa Department of Natural Resources, has concurred with the deletion of the OU1—Chemical Fill and Contaminated Soil of the Shaw Avenue Dump Superfund Site, from the NPL.
(5) Concurrently, with the publication of this Notice of Intent for Partial Deletion in the
(6) The EPA placed copies of documents supporting the proposed partial deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.
If comments are received within the 30-day comment period on this document, the EPA will evaluate and respond appropriately to the comments before making a final decision to delete the OU1—Chemical Fill and Contaminated Soil of the Shaw Avenue Dump Superfund Site. If necessary, the EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if the EPA determines it is still appropriate to delete the OU1—Chemical Fill and Contaminated Soil, the Regional Administrator will publish a final Notice of Partial Deletion in the
Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.
The following information provides EPA's rationale for deleting the OU1—Chemical Fill and Contaminated Soil of the Shaw Avenue Dump Superfund Site from the NPL.
The Shaw Avenue Dump Superfund Site (Site), CERCLIS ID #IAD980630560 is located on the southeastern edge of Charles City, Floyd County, Iowa, approximately 600 feet from the Cedar River, near the intersection of Shaw Avenue and Clark Street. The Site is owned by Charles City, occupies approximately 24 acres of the Cedar River 100-year floodplain, and was operated as a municipal disposal site from prior to 1949 to 1964.
Charles City purchased the northern area of the Site in 1899 and continued to acquire adjoining property until 1964. The Site had been used for an unknown amount of time prior to 1949 as a landfill/dump and continued to be used as such through 1964.
Two areas in the northern half of the Site were used from 1949 to 1953 to dispose of an estimated 14,000 to 28,000 cubic feet of arsenic-contaminated solid waste generated by Salsbury Laboratories, Inc. (later Solvay Animal
The Site was identified as a potentially hazardous waste site by the Iowa Department of Natural Resources, or IDNR in 1977. IDNR studied the Site and documented arsenic contamination in surface water in an abandoned gravel pit near the Site, issuing several reports between 1977 and 1981. No removal actions have been implemented at the Site. A preliminary assessment was conducted in 1984.
The Site was proposed for the NPL on September 18, 1985 (50 FR 37950) and listed as final on the NPL on July 22, 1987 (52 FR 27620). A remedial investigation, or RI, addressing soil contamination was initiated in 1988 and completed in 1990. A second RI addressing groundwater was initiated in 1992 and completed in 1999. In 1997, separate from the Record of Decision, or ROD, or consent order requirements discussed in the Selected Remedy section below, Charles City closed/abandoned two private residential wells located near the Site and provided these residences with connections to municipal water.
Forty individual compounds, in addition to a group of similar polyaromatic hydrocarbons, were identified as contaminants of potential concern in the soil, surface water, groundwater, and chemical fill at the Site. Major contaminants of concern include arsenic and cadmium. The chemical fill and the adjacent contaminated soil were considered the source of contamination for the groundwater. Using the characterization data collected during the 1990 RI, a human health baseline risk assessment was completed in 1991. Toxicity information for all chemicals of concern were evaluated and exposures were assumed based on reasonable assumptions about current and future uses of the Site. A Risk Assessment Addendum was completed in 1998 in support of the OU2 ROD. Human health risks were posed by a future residential use of the Site, including ingestion, inhalation, and dermal contact from surface water, ground water, and soil. Based on the cancer risk levels and hazard indices presented in the risk assessment addendum and the institutional controls subsequently implemented prohibiting the location of a residence or installation of a groundwater well, no unacceptable risk to human health or the environment from exposure to contaminated groundwater exists at the Shaw Avenue Dump site, assuming no on-site well is installed for residential use.
Ecological risks were also evaluated as part of the risk assessment. In the 1991 human health baseline risk assessment, it was determined that there were no critical habitats or endangered species affected by the contamination at the Site and the impact on the Cedar River was minimal. It was identified in the 2015 Five-Year Review, or FYR, that ecological exposures to aquatic receptors in the Cedar River were not adequately characterized in the 1991 human health baseline risk assessment. Data was collected to support a 2017 FYR Addendum that provided the necessary characterization to assess the protectiveness of the remedy for the FYR.
The Site consists of two operable units, each having a separate Record of Decision, or ROD. OU1 addresses the chemical fill and contaminated soil at the Site, and OU2 addresses groundwater contamination.
The OU1 ROD was signed on September 26, 1991. Remedy selection was based on the following OU1 ROD Remedial Action Objectives:
• Eliminate or reduce to an acceptable level the risks posed by exposure to the contaminated soil and chemical fill.
• Eliminate or reduce the potential migration of contaminants into groundwater.
Major components of the selected remedy, as described by the ROD, are:
• Fixation/stabilization of chemical fill and contaminated soil;
• Installation of a low-permeability cap to protect the fixated/stabilized material, consisting of either a two-foot clay layer covered by a two-foot fill and vegetated layers, or an eight-inch thick reinforced concrete slab placed over the stabilized waste;
• Implementation of deed restrictions placed upon the landfill property, which would prohibit the construction, installation, maintenance, or use of any wells on the Site for the purposes of extracting water for human drinking, bathing, or swimming purposes, or for the irrigation of food or feed crops, as well as any construction or intrusive activities at the Site;
• Installation of a fence and markers around the capped fill;
• Removal of an underground gasoline tank associated with the Charles City maintenance facility; and
• Groundwater monitoring during and after implementation of the fixation/stabilization remedy to determine the effectiveness of the remedy in preventing leaching of contaminants to groundwater.
The ROD recognized that the full effectiveness of the fixation/stabilization technology employed by the selected remedy would not be known until treatability studies were conducted, and that the possibility existed that the selected technology might not achieve remediation objectives. For this possibility, the ROD selected excavation and off-site removal as the contingency remedy. If needed, the decision to change the remedy from fixation/stabilization to excavation/removal would be explained in an Explanation of Significant Differences, or ESD.
The EPA entered into a Consent Decree on May 26, 1992, with Solvay Animal Health, Inc., and Charles City, Iowa.
Treatability studies yielded unacceptable results, and therefore, an ESD was signed on March 24, 1992, which notified the public of the decision to implement the contingency remedy of excavation and off-site disposal. The ESD identified that “the only difference from the contingency remedy described in the ROD is that prior to disposal of the chemical fill and contaminated soil at the offsite landfill, the contaminated material will be stabilized/fixated to the best practicable level if the contaminated material were to fail the Toxicity Characteristic Leaching Procedure test.”
The major components of the contingency remedy, as described by the ESD, are:
• Excavation of chemical fill and waste materials exceeding the following levels, or performance standards: Arsenic at 50 parts per million, or ppm and cadmium at 20 ppm;
• Horizontal excavation to extend a minimum of two feet beyond the limit of the chemical fill, subject to modification based upon results of soil sampling conducted in February 1992;
• Confirmation sampling conducted at 14-foot intervals along the perimeter of the excavation;
• Verification testing to assure that the performance standard is met;
• Excavation backfilled with clean fill placed in 12-inch lifts, compacted to a minimum of 90% standard Proctor density, and the upper six inches to be backfilled with clean topsoil over which a vegetated cover will be placed; and
• Excavation and removal of an underground gasoline tank pursuant to Underground Storage Tank regulations.
Requirements for establishing institutional controls, as described in the OU1 ROD remained. The ESD identifies contaminants of potential concern for the chemical fill, surface soil, and subsurface soil.
The OU1 remedial design was approved by the EPA in March 1992, and remedial action, or RA, fieldwork activities were completed on May 15, 1992, when demobilization from the Site occurred. The remedial design and construction of the RA were conducted in accordance with the statement of work provided by the Consent Decree. Implementation of the RA is reported by the Conestoga-Rovers & Associates-authored Remedial Action Report dated October 1993.
Excavation is reported to have extended vertically from the ground surface to the top of bedrock. Excavation depths ranged from approximately 14 feet below ground surface, or bgs, at the excavation's northern extent to about six feet bgs at its southern extent.
A significant portion of the excavation is depicted as being approximately six to eight feet bgs. Field determinations of the extent of chemical fill are reported to have been made based upon its distinctive visual characteristics. Stockpiled topsoil was later characterized as contaminated soil and managed as such, due to having produced a yellowish leachate after precipitation events, which yielded a result of 142 ppm arsenic. The estimated total volume of excavated chemical fill and contaminated soil, based upon excavation cross-section surveys, is 2,220 cubic yards.
Confirmation and verification sampling were conducted at approximate 14-foot intervals along the perimeter of the excavation, as specified in the RA Work Plan, except that discrete samples were used for confirmation analysis as opposed to composite samples. Three discrete samples were collected along the sidewall of the excavation from depths of one-third and two-thirds of the sidewall's height, and at the excavation's base. Each discrete sample was split, and if the analysis confirmed that the performance standard was met, the remains of the split sample were prepared and sent to a different lab for confirmation analysis. Additional excavation was conducted when verification samples did not meet the performance standard.
The EPA Preliminary Close Out Report, documenting construction completion for the Site, was signed on March 30, 2001. The PCOR states that all physical construction associated with the remedy has been completed in accordance with the RODs dated September 28, 2000, and September 26, 1991; the ESD dated March 20, 1992; and the Consent Decree dated May 26, 1992.
Operation and maintenance of the implemented remedy is occurring as intended. Inspection of the monitoring well network, and the Site in general, is conducted on an annual basis. The inspections address monitoring well access, external/internal conditions of the ground cover at the former chemical fill area, and flood damage, if any. Maintenance recommendations are also identified, as needed. The Site completed the criteria for the Sitewide Ready for Anticipated Use Government Performance and Results Act Measure and EPA Region 7 signed the Superfund Property Reuse Evaluation Checklist for Reporting on July 7, 2006.
The ROD requires implementation of institutional controls in the form of deed restrictions to be placed upon the landfill property. A restrictive covenant was recorded on February 21, 2001, with the Floyd County Recorder of Deeds that satisfies the institutional control provision of the ROD and Consent Decree. Currently, the following individual institutional controls exist at the Site:
• An existing groundwater restrictive covenant in accordance with the 1992 Consent Decree;
• Regulatory restrictions against residential construction because the Site is within the 100-year flood plain of the Cedar River;
• Restrictions on groundwater use because it is within the Charles City limits. City ordinance (City of Charles City Restriction on Groundwater Use, Article 90.03) precludes the use of groundwater for consumption, stating “all residences and business establishments within the city limits using water for human habitation or occupancy shall connect to the public water system.” The ordinance also stipulates that “No new wells shall be drilled and no repairs requiring permits shall be made to a well within an area that is contaminated or that may become contaminated due to contamination in the vicinity of the well site;”
• Regulatory restrictions against changing site use because the Site is included in the registry of hazardous waste or hazardous substance disposal sites under the Iowa Environmental Act. Any use change would require approval from the State of Iowa.
The existing Site-specific institutional controls in combination provide ample limitations of land and groundwater use at the Site. The EPA will continue to review the need for an environmental covenant during the Five-Year Review process.
Statutory five-year reviews are required at the Shaw Avenue Dump Superfund Site since hazardous substances remain at the Site above levels that allow for unlimited use and unrestricted exposure. Five-year reviews were completed for the Site in 2005, 2010, and 2015. The 2015 Five-Year Review, or FYR, identified issues and recommendations including the change in toxicity values for polyaromatic hydrocarbons, benzene, xylene, toluene, and 2-nitroaniline and deferred protectiveness until this information could be obtained. The 2015 FYR also identified the potential change in exposure assumptions in the Cedar River and an off-site recreational pond. Required sampling and analysis was completed by the responsible parties to address issues and recommendations from the 2015 FYR, and to support the required FYR addendum.
The 2015 FYR was amended by the EPA under a FYR Addendum in 2017 and found that the remedies at OU1 and OU2 were protective of human health and the environment. The sitewide protectiveness statement is that the sitewide remedy is protective of human health and the environment. The next Five-Year Review report will be completed by August 21, 2020.
Throughout the process from development of the remedy to completion of the remedial activities, all phases of the Site remediation have been an open process with input from Federal and state regulators, Charles City, and members of the public. Over the life of the project, there have been public comment periods and public meetings to ensure that the local residents were able to contribute to the process and express their opinions.
Public involvement has been included throughout the remediation process at this Site and has been memorialized in operation documents including the Consent Decree, proposed plans, and EPA Five-Year Reviews. Public comments are also solicited during this partial deletion with a notice in the local newspaper, the Charles City Press.
In accordance with 40 CFR 300.425(e), the EPA Region 7 finds that the OU1—Chemical Fill and Contaminated Soil of the Shaw Avenue Dump Superfund Site (the subject of this deletion) meets the substantive criteria for deletion from the NPL. The EPA has consulted with and has the concurrence of the State of Iowa. All responsible parties or other persons have implemented all appropriate response actions required. All appropriate Fund-financed response under CERCLA was implemented, and no further response action by responsible parties is appropriate.
The implemented remedy at the OU1—Chemical Fill and Contaminated Soil has achieved the degree of cleanup specified in the ROD for all pathways of exposure. All selected remedial action objectives and associated cleanup levels are consistent with agency policy and guidance. No further Superfund response is needed to protect human health and the environment.
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
Department of Commerce.
Notice and request for comments.
In March 2018, President Trump launched the President's Management Agenda (PMA). It lays out a long-term vision for modernizing the Federal Government in key areas that will improve the ability of agencies to deliver mission outcomes, provide excellent service, and effectively steward taxpayer dollars on behalf of the American people. The PMA established a Cross-Agency Priority (CAP) goal of
Comments on this notice must be received by July 5, 2019.
Submit comments through either the Federal eRulemaking Portal or the Strategy website at
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William Hawk, Economist, U.S. Census Bureau,
The Deputy Secretary of the U.S. Department of Commerce, along with the Federal Chief Information Officer, the Chief Statistician of the United States, and executives from the U.S. Small Business Administration and the White House Office of Science and Technology Policy, is charged with developing a comprehensive Federal Data Strategy to achieve the President's Management Agenda CAP goal of
The Federal Data Strategy for the U.S. Government establishes a balanced and holistic approach to leveraging data as a strategic asset. The Strategy articulates a vision for the Federal Government to accelerate the use of data to support the foundations of democracy, deliver on mission, serve customers, and steward resources while protecting security, privacy, and confidentiality. Consistent with this vision, Executive Branch agencies will routinely leverage data in support of Federal Government mission priorities to better inform decision-making and improve accountability and will securely share and provide access to data for commercialization, innovation, and public use.
The Strategy consists of three components to guide federal data management and use.
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Executive Branch agencies will implement the Strategy in accordance with OMB guidance and by adhering to the requirements of annual Federal Data Strategy Action Plans. These plans will identify a subset of action steps related to practices that are the priority for a given year, along with targeted timeframes for implementation and identified actors. This approach allows for continuous innovation with focused, measured progress, along with opportunities to improve and adapt plans for future actions. OMB may assess agencies on their progress in implementing these practices through the Federal Data Strategy Action Plans and any of its existing oversight and coordination mechanisms.
The 2019-20 Federal Data Strategy Action Plan will be published in 2019.
The Draft 2019-2020 Federal Data Strategy Action Plan is available at
1. Identify additional actions needed to implement the Federal Data Strategy that are not included in the draft Action Plan and explain why.
2. Identify additional actions that would align with or complement ongoing Federal data initiatives or the implementation of new legislation, such as the Foundations for Evidence-based Policy Making Act of 2018 and explain why.
3. Identify any actions in the draft Action Plan that should be considered for omission and explain why.
4. For each action, provide any edits and additional detail to ensure that they accurately and effectively describe needed activities, responsible entities, metrics for assessing progress, and timelines for completion.
5. For each action, provide information about the implementation resources necessary to ensure success of the action steps.
This guidance for submitting documents is offered to facilitate the analysis and full consideration of the comments. If responding on behalf of an organization or agency, please include the name and address of your institution or affiliation, and your name, title, email addresses, and telephone number. No specific information about you is required, other than that necessary for self-identification, for full consideration of the comment.
Comments should be informative for the Draft 2019-2020 Federal Data Strategy Action Plan. Comments on issues not related to the draft Action Plan will not be considered.
Please submit comments either through the
Please specify the number of the question to which your comment applies. If possible, structure your comments on specific actions in the draft Action Plan so that they refer to the number of the relevant action. If you have multiple comments on one action, please organize them together by action number.
If possible, provide comments in a Microsoft Word or plain text file and avoid using footnotes, end notes, images, graphics, or tables. If you refer to reference material (documents, websites, research), please quote or paraphrase the specific content from referenced material.
Economic Development Administration, U.S. Department of Commerce.
Notice and opportunity for public comment.
The Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of the firms contributed importantly to the total or partial separation of the firms' workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.
Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice. These petitions are received pursuant to section 251 of the Trade Act of 1974, as amended.
Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.
The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collections of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).
On February 13, 2019, the Economic Development Administration (EDA) published a 60-day notice in the
This information collection request may be viewed at
Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that mattresses from the People's Republic of China (China) are being, or are likely to be, sold in the United States at less than fair value (LTFV) for the period of investigation (POI) January 1, 2018, through June 30, 2018. Interested parties are invited to comment on this preliminary determination.
Applicable June 4, 2019.
Stephen Bailey at (202) 482-0193 or Jonathan Hill at (202) 482-3518, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended
The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
The products covered by this investigation are mattresses from China. For a complete description of the scope of this investigation,
In accordance with the preamble to Commerce's regulations,
Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce has calculated export prices in accordance with section 772 of the Act. Because China is a non-market economy country within the meaning of section 771(18) of the Act, Commerce has calculated normal value (NV) in accordance with section 773(c) of the Act. Furthermore, pursuant to sections 776(a) and (b) of the Act, Commerce preliminarily has relied upon facts otherwise available, with adverse inferences, for the China-wide entity, which includes Aishu; Apex Maritime Xiamen; Beijing Kang Jie Kong; EON Living; Foshan City Deepsung Home Furniture; Foshan Shunde Yong Heng Package Products Co., Ltd.; Gold Gulf International Trade; Guangdong Silique International; Guangdong Silique International GP Win Company; Hangzhou Lintex; Hangzhou Yuchun Home Textile Company; Hangzhou Yudi Hometextile; Hangzhou Samsung Down Products; Honour Lane Shipping; Hubei Lianle Bedding Group Co., Ltd.; Jiangsu Tianma Textile; Jiaxing Yuanchang Furniture Supplier; King Koil; Nantong Mengjini Home Textiles; Ningbo Shida; Relux Mattress Co. Ltd.; Royal HK Bedding; SCM Home Zhejiang; Shenzhen Changding Industries Co. Ltd.; Shanghai Foamemo Furniture; Shenzhen Shenbao Industrial Co Limited; Union Capital Enterprises; Warm Universe Home Products Company; Wong Hau Plastic Works and Trading; Wuxi JHT Textiles; Zhejiang Crafts and Textile; Zhejiang Huaweimei Group Co., Ltd.; and Zhejiang Shiguanghomewaare and Tex. For a full description of the methodology underlying Commerce's preliminary determination,
In accordance with section 733(e) of the Act and 19 CFR 351.206, Commerce preliminarily determines that critical circumstances do not exist with respect to imports of mattresses from China for the mandatory respondents, Healthcare Co., Ltd. (Healthcare) and Zinus (Xiamen) Inc. (Zinus), but that critical circumstances do exist with respect to all non-individually-examined companies receiving a separate rate and the China-wide entity. For a full description of the methodology and results of Commerce's critical circumstances analysis, see the Preliminary Affirmative Determination of Critical Circumstances Memorandum and the Preliminary Decision Memorandum.
In the
Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of subject merchandise as described in the scope of the investigation section entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Section 733(e)(2) of the Act provides that, given an affirmative determination of critical circumstances, any suspension of liquidation shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the later of (a) the date which is 90 days before the date on which the suspension of liquidation was first ordered, or (b) the date on which notice of initiation of the investigation was published. Commerce preliminarily finds that critical circumstances do not exist for imports of subject merchandise from Healthcare and Zinus, but that critical circumstances do exist for all non-individually-examined companies receiving a separate rate and the China-wide entity. In accordance with section 733(e)(2)(A) of the Act, the suspension of liquidation shall apply to all unliquidated entries of merchandise from the exporter/producer combinations identified above that were entered, or withdrawn from warehouse, for consumption on or after the date which is 90 days before the publication of this notice.
These suspension of liquidation will remain in effect until further notice.
Commerce intends to disclose to interested parties the calculations performed in connection with this preliminary determination within five days of its public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
As provided in section 782(i)(1) of the Act, Commerce intends to verify information relied upon in making its final determination.
Case briefs or other written comments, on all issues other than scope issues, may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last final verification report is issued in this investigation, unless the Secretary alters the time limit. Rebuttal case briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Interested parties may address Commerce's preliminary scope determination in scope briefs which may be submitted to the Assistant Secretary for Enforcement and Compliance no later than 30 days after the publication of the preliminary AD determination in the
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Pursuant to 19 CFR 351.210(e)(2), Commerce requires that requests by respondents for postponement of a final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On March 29, 2019, pursuant to 19 CFR 351.210(e)(1), Zinus requested that Commerce postpone the final determination, and that provisional measures be extended to a period not to exceed six months.
In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination of sales at LTFV. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether imports of the subject merchandise are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The scope of this investigation covers all types of youth and adult mattresses. The term “mattress” denotes an assembly of materials that at a minimum includes a “core,” which provides the main support system of the mattress, and may consist of innersprings, foam, other resilient filling, or a combination of these materials. Mattresses may also contain (1) “upholstery,” the material between the core and the top panel of the ticking on a single-sided mattress, or between the core and the top and bottom panel of the ticking on a double-sided mattress; and/or (2) “ticking,” the outermost layer of fabric or other material (
The scope of this investigation is restricted to only “adult mattresses” and “youth mattresses.” “Adult mattresses” have a width exceeding 35 inches, a length exceeding 72 inches, and a depth exceeding 3 inches on a nominal basis. Such mattresses are frequently described as “twin,” “extra-long twin,” “full,” “queen,” “king,” or “California king” mattresses. “Youth mattresses” have a width exceeding 27 inches, a length exceeding 51 inches, and a depth exceeding 1 inch (crib mattresses have a depth of 6 inches or less from edge to edge) on a nominal basis. Such mattresses are typically described as “crib,” “toddler,” or “youth” mattresses. All adult and youth mattresses are included regardless of actual size description.
The scope encompasses all types of “innerspring mattresses,” “non-innerspring mattresses,” and “hybrid mattresses.” “Innerspring mattresses” contain innersprings, a series of metal springs joined together in sizes that correspond to the dimensions of mattresses. Mattresses that contain innersprings are referred to as “innerspring mattresses” or “hybrid mattresses.” “Hybrid mattresses” contain two or more support systems as the core, such as layers of both memory foam and innerspring units.
“Non-innerspring mattresses” are those that do not contain any innerspring units. They are generally produced from foams (
Mattresses covered by the scope of this investigation may be imported
Excluded from the scope of this investigation are “futon” mattresses. A “futon” is a bi-fold frame made of wood, metal, or plastic material, or any combination thereof, that functions as both seating furniture (such as a couch, love seat, or sofa) and a bed. A “futon mattress” is a tufted mattress, where the top covering is secured to the bottom with thread that goes completely through the mattress from the top through to the bottom, and it does not contain innersprings or foam. A futon mattress is both the bed and seating surface for the futon.
Also excluded from the scope are airbeds (including inflatable mattresses) and waterbeds, which consist of air- or liquid-filled bladders as the core or main support system of the mattress.
Further, also excluded from the scope of this investigation are any products covered by the existing antidumping duty order on uncovered innerspring units.
Additionally, also excluded from the scope of this investigation are “mattress toppers.” A “mattress topper” is a removable bedding accessory that supplements a mattress by providing an additional layer that is placed on top of a mattress. Excluded mattress toppers have a height of four inches or less.
The products subject to this investigation are currently properly classifiable under Harmonized Tariff Schedule for the United States (HTSUS) subheadings: 9404.21.0010, 9404.21.0013, 9404.29.1005, 9404.29.1013, 9404.29.9085, and 9404.29.9087. Products subject to this investigation may also enter under HTSUS subheadings: 9404.21.0095, 9404.29.1095, 9404.29.9095, 9401.40.0000, and 9401.90.5081. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that refillable stainless steel kegs (kegs) from the Federal Republic of Germany (Germany) are being, or are likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is July 1, 2017, through June 30, 2018. Interested parties are invited to comment on this preliminary determination.
Applicable June 4, 2019.
Michael A. Romani, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Ave. NW, Washington, DC 20230; telephone: (202) 482-0198.
Commerce published the notice of initiation of this investigation on October 16, 2018.
The products covered by this investigation are refillable stainless steel kegs from Germany. For a complete description of the scope of this investigation,
In accordance with the
Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce calculated export prices in accordance with section 772(a) of the Act. Constructed export prices have been calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying the preliminary determination,
Sections 733(d)(1)(A)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination, Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise, as described in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).
As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.
Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last final verification report is issued in this investigation.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Section 351.210(e)(2) of Commerce's regulations requires that a request by exporters for postponement of the final determination be accompanied by a
On April 28, 2019, pursuant to 19 CFR 351.210(e), Blefa requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation are kegs, vessels, or containers with bodies that are approximately cylindrical in shape, made from stainless steel (
“Unassembled” or “unfinished” refillable stainless steel kegs include drawn stainless steel cylinders that have been welded to form the body of the keg and attached to an upper (top) chime and/or lower (bottom) chime. Unassembled refillable stainless steel kegs may or may not be welded to a neck, may or may not have a valve assembly attached, and may be otherwise complete except for testing, certification, and/or marking.
Subject merchandise also includes refillable stainless steel kegs that have been further processed in a third country, including but not limited to, attachment of necks, collars, spears or valves, heat treatment, pickling, passivation, painting, testing, certification or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope refillable stainless steel keg.
Specifically excluded are the following:
(1) Vessels or containers that are not approximately cylindrical in nature (
(2) stainless steel kegs, vessels, or containers that have either a “ball lock” valve system or a “pin lock” valve system (commonly known as “Cornelius,” “corny” or “ball lock” kegs);
(3) necks, spears, couplers or taps, collars, and valves that are not imported with the subject merchandise; and
(4) stainless steel kegs that are filled with beer, wine, or other liquid and that are designated by the Commissioner of Customs as Instruments of International Traffic within the meaning of section 332(a) of the
The merchandise covered by this investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7310.10.0010, 7310.10.0050, 7310.29.0025, and 7310.29.0050.
These HTSUS subheadings are provided for convenience and customs purposes; the written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that refillable stainless steel kegs (kegs) from Mexico are being, or are likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is July 1, 2017, through June 30, 2018. Interested parties are invited to comment on this preliminary determination.
Applicable June 4, 2019.
Allison Hollander at (202) 482-2805 or Minoo Hatten at (202) 482-1690, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.
Commerce published the notice of initiation of this investigation on October 16, 2018.
For a complete description of the events that followed the initiation of this investigation,
The products covered by this investigation are refillable stainless steel kegs from Mexico. For a complete description of the scope of this investigation,
In accordance with the
Commerce is conducting this investigation in accordance with section 731 of the Act. Pursuant to section 776(a)-(b) of the Act, Commerce has preliminarily used an adverse inference when selecting from among the facts otherwise available for THIELMANN Mexico S.A. de C.V. (THIELMANN), Portinox Mexico S.A. de C.V. (Portinox)
On December 10, 2019, the petitioner filed a timely critical circumstances allegation with respect to imports of the subject merchandise from Mexico. Section 733(e)(1) of the Act provides that Commerce will preliminarily determine that critical circumstances exist in a LTFV investigation if there is a reasonable basis to believe or suspect that: (A) There is a history of dumping and material injury by reason of dumped imports in the United States or elsewhere of the subject merchandise, or the person by whom, or for whose account, the merchandise was imported knew or should have known that the exporter was selling the subject merchandise at less than its fair value and that there was likely to be material injury by reason of such sales; and (B) there have been massive imports of the subject merchandise over a relatively short period. On May 2, 2019, we published our preliminary determination that critical circumstances exist with respect to imports of kegs exported from Mexico.
Sections 733(d)(1)(A)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination, Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
Pursuant to section 735(c)(5)(B) of the Act, if the estimated weighted-average dumping margins established for all exporters and producers individually examined are zero,
Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise, as described in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Further, pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin or the estimated all-others rate, as follows: (1) The cash deposit rate for the respondents listed above will be equal to the company-specific estimated weighted-average dumping margins determined in this preliminary determination; (2) if the exporter is not a respondent identified above, but the producer is, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin established for that producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will be equal to the all-others estimated weighted-average dumping margin. These suspension of liquidation instructions will remain in effect until further notice.
Normally, Commerce discloses to interested parties the calculations performed in connection with a preliminary determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of the notice of preliminary determination in the
Because THIELMANN did not provide information requested by Commerce, and Commerce preliminarily determines that THIELMANN has been uncooperative within the meaning of section 776(b) of the Act, we will not conduct verification.
Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than 30 days after the date of publication of the preliminary determination. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Section 351.210(e)(2) of Commerce's regulations requires that a request by exporters for postponement of the final determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration, and 19 CFR 351.210(e)(1) further provides that Commerce may grant the request, unless Commerce finds compelling reasons to deny the request.
On April 29, 2019, pursuant to 19 CFR 351.210(e), THIELMANN requested that Commerce postpone the final determination and that provisional measures be extended to a period not to
In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation are kegs, vessels, or containers with bodies that are approximately cylindrical in shape, made from stainless steel (
“Unassembled” or “unfinished” refillable stainless steel kegs include drawn stainless steel cylinders that have been welded to form the body of the keg and attached to an upper (top) chime and/or lower (bottom) chime. Unassembled refillable stainless steel kegs may or may not be welded to a neck, may or may not have a valve assembly attached, and may be otherwise complete except for testing, certification, and/or marking.
Subject merchandise also includes refillable stainless steel kegs that have been further processed in a third country, including but not limited to, attachment of necks, collars, spears or valves, heat treatment, pickling, passivation, painting, testing, certification or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope refillable stainless steel keg.
Specifically excluded are the following:
(1) Vessels or containers that are not approximately cylindrical in nature (
(2) stainless steel kegs, vessels, or containers that have either a “ball lock” valve system or a “pin lock” valve system (commonly known as “Cornelius,” “corny” or “ball lock” kegs);
(3) necks, spears, couplers or taps, collars, and valves that are not imported with the subject merchandise; and
(4) stainless steel kegs that are filled with beer, wine, or other liquid and that are designated by the Commissioner of Customs as Instruments of International Traffic within the meaning of section 332(a) of the
The merchandise covered by this investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7310.10.0010, 7310.10.0050, 7310.29.0025, and 7310.29.0050.
These HTSUS subheadings are provided for convenience and customs purposes; the written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
In accordance with the Tariff Act of 1930, as amended (the Act), the Department of Commerce (Commerce) is automatically initiating the five-year reviews (Sunset Reviews) of the antidumping and countervailing duty (AD/CVD) order(s) listed below. The International Trade Commission (the Commission) is publishing concurrently with this notice its notice of
Applicable June 1, 2019.
Commerce official identified in the
Commerce's procedures for the conduct of Sunset Reviews are set forth in its
In accordance with section 751(c) of the Act and 19 CFR 351.218(c), we are initiating the Sunset Reviews of the following antidumping and countervailing duty order(s):
With respect to the antidumping and countervailing duty orders on Oil Country Tubular Goods from India, Vietnam, Republic of Korea and Turkey, we have advanced the initiation date of these Sunset Reviews upon determining that initiation of the Sunset Reviews for these antidumping and countervailing duty orders on the same date would promote administrative efficiency.
As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Commerces's regulations, Commerce's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on Commerce's website at the following address:
Any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.
On April 10, 2013, Commerce modified two regulations related to AD/CVD proceedings: The definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information (19 CFR 351.301).
Pursuant to 19 CFR 351.103(d), Commerce will maintain and make available a public service list for these proceedings. Parties wishing to
Domestic interested parties, as defined in section 771(9)(C), (D), (E), (F), and (G) of the Act and 19 CFR 351.102(b), wishing to participate in a Sunset Review must respond not later than 15 days after the date of publication in the
If we receive an order-specific notice of intent to participate from a domestic interested party, Commerce's regulations provide that
This notice of initiation is being published in accordance with section 751(c) of the Act and 19 CFR 351.218(c).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On February 26, 2019, the United States Court of International Trade (the Court) issued final judgment in
Applicable March 8, 2019.
Michael J. Heaney or Daniel Deku, AD/CVD Operations, Office VI, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4475 or (202) 482-5075, respectively.
Commerce published the
After review, the Court sustained Commerce's determination that Hyundai Steel failed to demonstrate that the affiliated parties who supplied Hyundai Steel with home market movement, home market warehousing, U.S. international freight, and U.S. inland freight expenses did so on an arm's-length basis.
However, the Court remanded to Commerce for further explanation or reconsideration whether it intended to apply AFA to those U.S. sales where: (1) Hyundai Steel used an unaffiliated freight provider to supply domestic inland freight; or (2) Hyundai Steel incurred no domestic inland freight charges in the U.S.
Additionally, the Court determined that the AFA adjustment applied to
The Court also directed Commerce to reconsider its denial of a CEP offset concerning Hyundai Steel's constructed export price (CEP) sales.
Finally, the Court directed Commerce to reconsider whether to correct ministerial errors which Commerce had previously found to have no effect on the margin calculation and, thus, declined to correct in the LTFV investigation.
On October 16, 2018, we filed our
On February 26, 2019, the Court sustained Commerce's
In its decision in
Because there is now a final court decision, Commerce amends the
In accordance with section 735(c)(1)(B) of the Act, Commerce will instruct CBP to collect a cash deposit of 28.42 percent for entries of subject merchandise exported by Hyundai Steel, effective March 8, 2019, in accordance with the
This notice is issued and published in accordance with sections 516(A)(e), 751(a)(1), and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that refillable stainless steel kegs (kegs) from the People's Republic of China (China) are being, or are likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is January 1, 2018, through June 30, 2018. Interested parties are invited to comment on this preliminary determination.
Applicable June 4, 2019.
Thomas Schauer or Aimee Phelan, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-0410 or (202) 482-0697, respectively.
Commerce published the notice of initiation of this investigation on October 16, 2018.
For a complete description of the events that followed the initiation of this investigation,
The product covered by this investigation are refillable stainless steel kegs from China. For a complete description of the scope of this investigation,
In accordance with the
Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce calculated export prices in accordance with section 772(a) of the Act. Constructed export prices were calculated in accordance with section 772(b) of the Act. Because China is a non-market economy country within the meaning of section 771(18) of the Act, Commerce calculated normal value (NV) in accordance with section 773(c) of the Act. In addition, pursuant to section 776(a) and (b) of the Act, Commerce preliminarily relied on facts otherwise available, with adverse inferences, for the China-wide entity. For a full description of the methodology underlying Commerce's preliminary determination,
On May 2, 2019, the petitioner filed a timely critical circumstances allegation with respect to imports of the subject merchandise from China.
In the
Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:
In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise as described in Appendix I entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the
Further, pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the weighted-average amount by which NV exceeds U.S. price, as indicated in the chart above as follows: (1) For the exporter/producer combinations listed in the table above, the cash deposit rate is equal to the estimated weighted-average dumping margin listed for that combination in the table; (2) for all combinations of China producers/exporters of merchandise under consideration that have not established eligibility for their own separate rates, the cash deposit rate will be equal to the estimated weighted-average dumping margin established for the China -wide entity; and (3) for all third-county exporters of merchandise under consideration not listed in the table above, the cash deposit rate is the cash deposit rate applicable to the China exporter/producer combination (or the China-wide entity) that supplied that third-country exporter. These suspension of liquidation instructions will remain in effect until further notice.
Commerce discloses to interested parties the calculations performed in connection with this preliminary determination within five days of its public announcement or, if there is no public announcement, within five days of the date of publication of the notice of preliminary determination in the
As provided in section 782(i)(1) of the Act, Commerce intends to verify information relied upon in making its final determination.
Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last final verification report is issued in this investigation.
Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and
Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Section 351.210(e)(2) of Commerce's regulations requires that a request by exporters for postponement of the final antidumping determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.
On April 24, 2019, pursuant to 19 CFR 351.210(e), Ningbo Master International Trade Co., Ltd., requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.
In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether imports of the subject merchandise are materially injuring, or threaten material injury to, the U.S. industry.
This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
The merchandise covered by this investigation are kegs, vessels, or containers with bodies that are approximately cylindrical in shape, made from stainless steel (
“Unassembled” or “unfinished” refillable stainless steel kegs include drawn stainless steel cylinders that have been welded to form the body of the keg and attached to an upper (top) chime and/or lower (bottom) chime. Unassembled refillable stainless steel kegs may or may not be welded to a neck, may or may not have a valve assembly attached, and may be otherwise complete except for testing, certification, and/or marking.
Subject merchandise also includes refillable stainless steel kegs that have been further processed in a third country, including but not limited to, attachment of necks, collars, spears or valves, heat treatment, pickling, passivation, painting, testing, certification or any other processing that would not otherwise remove the merchandise from the scope of the investigation if performed in the country of manufacture of the in-scope refillable stainless steel keg.
Specifically excluded are the following:
(1) Vessels or containers that are not approximately cylindrical in nature (
(2) stainless steel kegs, vessels, or containers that have either a “ball lock” valve system or a “pin lock” valve system (commonly known as “Cornelius,” “corny” or “ball lock” kegs);
(3) necks, spears, couplers or taps, collars, and valves that are not imported with the subject merchandise; and
(4) stainless steel kegs that are filled with beer, wine, or other liquid and that are designated by the Commissioner of Customs as Instruments of International Traffic within the meaning of section 332(a) of the
The merchandise covered by this investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7310.10.0010, 7310.10.0050, 7310.29.0025, and 7310.29.0050.
These HTSUS subheadings are provided for convenience and customs purposes; the written description of the scope of this investigation is dispositive.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable June 4, 2019.
The Department of Commerce (Commerce) is rescinding the administrative review of the antidumping duty order on steel wire garment hangers from Taiwan for the period of review (POR), December 1, 2017, through November 30, 2018.
Annathea Cook, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-0250.
On December 3, 2018, Commerce published in the
On March 14, 2019, Commerce published in the
Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, “in whole or in part, if the party that requested a review withdraws the request within 90 days of the date of publication of notice of initiation of the requested review.” The petitioner withdrew its request for review within the 90-day deadline. No other party requested an administrative review of the antidumping duty order. Therefore, in response to the timely withdrawal request and in accordance with 19 CFR 351.213(d)(1), Commerce is rescinding the administrative review of the antidumping duty order on steel wire garment hangers from Taiwan in its entirety.
Commerce intends to instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of steel wire garment hangers from Taiwan during the POR. Antidumping duties shall be assessed at rates equal to the cash deposit rate of estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions to CBP 15 days after the publication of this notice in the
This notice serves as the only reminder to importers, whose entries will be liquidated as a result of this rescission, of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement may result in the presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.
This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This notice is published in accordance with sections 751(a) and 777(i)(1) of the Act and 19 CFR 351.213(d)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable June 4, 2019.
Nicholas Czajkowski, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-1395.
On April 5, 2019, the Department of Commerce (Commerce) published the preliminary determination in the countervailing duty (CVD) investigation of imports of refillable stainless steel kegs (kegs) from the People's Republic of China.
In accordance with 19 CFR 351.206(c)(2)(ii), if the petitioner submits an allegation of critical circumstances later than 20 days before the scheduled date of the preliminary determination, Commerce must issue a
Section 703(e)(1) of the Act provides that Commerce, upon receipt of a timely allegation of critical circumstances, will preliminarily determine that critical circumstances exist in CVD investigations if there is a reasonable basis to believe or suspect that: (A) “the alleged countervailable subsidy” is inconsistent with the Subsidies and Countervailing Measures (SCM) Agreement of the World Trade Organization; and (B) there have been massive imports of the subject merchandise over a relatively short period. Sections 351.206(h)(2) and (i) of Commerce's regulations provide that imports must increase by at least 15 percent during the “relatively short period” to be considered “massive” and defines a “relatively short period” as normally being the period beginning on the date the proceeding begins (
To determine whether an alleged countervailable subsidy is inconsistent with the SCM Agreement, in accordance with section 703(e)(1)(A) of the Act, Commerce considered the evidence on the record of this CVD investigation. Specifically, as reflected in the
In determining whether there are “massive imports” over a “relatively short period,” pursuant to section 703(e)(1)(B) of the Act, Commerce normally compares the import volumes of the subject merchandise for at least three months immediately preceding the filing of the petition (
Accordingly, to determine preliminarily whether there has been a massive surge in imports for Ningbo Master International Trade Co., Ltd. (Ningbo Master), the mandatory respondent in this investigation, which provided shipment data, Commerce compared the total volume of shipments from October 2018 through April 2019, the comparison period (
As detailed in the
To determine whether imports were massive for all other producers/exporters, Commerce's normal practice is to subtract shipments reported by the cooperating mandatory respondents from shipment data of subject merchandise compiled by the ITC.
We will issue our final determinations concerning critical circumstances when we issue our final CVD determination. All interested parties will have the opportunity to address this determination. Case briefs, addressing critical circumstances only, may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the publication date of this notice. Rebuttal briefs, limited to issues raised in these critical circumstances-only case briefs, may be
In accordance with section 703(f) of the Act, we will notify the ITC of this preliminary determination of critical circumstances.
In accordance with section 703(e)(2)(A) of the Act, for the 19 companies that chose not to participate in this investigation, we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of any unliquidated entries of subject merchandise from China entered, or withdrawn from warehouse for consumption, on or after January 5, 2019, which is 90 days prior to the date of publication of the
This determination is issued and published pursuant to section 777(i) of the Act.
International Trade Administration, U.S. Department of Commerce.
Notice of Federal Advisory Committee meeting.
This notice sets forth the schedule and proposed agenda for a meeting of the Civil Nuclear Trade Advisory Committee (CINTAC).
The meeting is scheduled for Monday, June 24, 2019, from 2:00 p.m. to 4:00 p.m. Eastern Daylight Time (EDT). The deadline for members of the public to register to participate, including requests to make comments during the meeting and for auxiliary aids, or to submit written comments for dissemination prior to the meeting, is 5:00 p.m. Eastern Daylight Time (EDT) on Thursday, June 20, 2019.
The meeting will be held via conference call. The call-in number and passcode will be provided by email to registrants. Requests to register to participate (including to speak or for auxiliary aids) and any written comments should be submitted to: Mr. Devin Horne, Office of Energy & Environmental Industries, International Trade Administration, Room 28018, 1401 Constitution Ave. NW, Washington, DC 20230. (Fax: 202-482-5665; email:
Mr. Devin Horne, Office of Energy & Environmental Industries, International Trade Administration, Room 28018, 1401 Constitution Ave. NW, Washington, DC 20230. (Phone: 202-482-0775; Fax: 202-482-5665; email:
The CINTAC was established under the discretionary authority of the Secretary of Commerce and in accordance with the Federal Advisory Committee Act (5 U.S.C. App.), in response to an identified need for consensus advice from U.S. industry to the U.S. Government regarding the development and administration of programs to expand United States exports of civil nuclear goods and services in accordance with applicable U.S. laws and regulations, including advice on how U.S. civil nuclear goods and services export policies, programs, and activities will affect the U.S. civil nuclear industry's competitiveness and ability to participate in the international market.
The Department of Commerce renewed the CINTAC charter on August 10, 2018. This meeting is being convened under the sixth charter of the CINTAC.
Members of the public wishing to attend the meeting must notify Mr. Devin Horne at the contact information above by 5:00 p.m. EDT on Thursday, June 20, 2019 in order to pre-register to participate. Please specify any requests for reasonable accommodation at least five business days in advance of the meeting. Last minute requests will be accepted but may not be possible to fill. A limited amount of time will be available for brief oral comments from members of the public attending the meeting. To accommodate as many speakers as possible, the time for public comments will be limited to two (2) minutes per person, with a total public comment period of 20 minutes. Individuals wishing to reserve speaking time during the meeting must contact Mr. Horne and submit a brief statement of the general nature of the comments and the name and address of the proposed participant by 5:00 p.m. EDT on Thursday, June 20, 2019. If the number of registrants requesting to make statements is greater than can be reasonably accommodated during the meeting, ITA may conduct a lottery to determine the speakers.
Any member of the public may submit written comments concerning the CINTAC's affairs at any time before and after the meeting. Comments may be submitted to the Civil Nuclear Trade Advisory Committee, Office of Energy & Environmental Industries, Room 28018, 1401 Constitution Ave. NW, Washington, DC 20230. For consideration during the meeting, and to ensure transmission to the Committee prior to the meeting, comments must be received no later than 5:00 p.m. EDT on Thursday, June 20, 2019. Comments received after that date will be distributed to the members but may not be considered at the meeting.
Copies of CINTAC meeting minutes will be available within 90 days of the meeting.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On December 20, 2018, the Department of Commerce (Commerce) published the preliminary results of the administrative review of the antidumping duty order on certain cut-to-length carbon-quality steel plate products (CTL plate) from the Republic of Korea (Korea). Based on our analysis of the comments received, we continue to find that subject merchandise has been sold at less than normal value.
Applicable June 4, 2019.
Yang Jin Chun or Thomas Schauer, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5760 or (202) 482-0410, respectively.
On December 20, 2018, Commerce published the
Commerce exercised its discretion to toll all deadlines affected by the partial federal government closure from December 22, 2018, through the resumption of operations on January 29, 2019.
Commerce conducted this review in accordance with section 751 of the Tariff Act of 1930, as amended (the Act).
The products covered by the antidumping duty order are certain CTL plate. Imports of CTL plate are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 7208.40.30.30, 7208.40.30.60, 7208.51.00.30, 7208.51.00.45, 7208.51.00.60, 7208.52.00.00, 7208.53.00.00, 7208.90.00.00, 7210.70.30.00, 7210.90.90.00, 7211.13.00.00, 7211.14.00.30, 7211.14.00.45, 7211.90.00.00, 7212.40.10.00, 7212.40.50.00, 7212.50.00.00, 7225.40.30.50, 7225.40.70.00, 7225.50.60.00, 7225.99.00.90, 7226.91.50.00, 7226.91.70.00, 7226.91.80.00, and 7226.99.00.00. While the HTSUS subheadings are provided for convenience and customs purposes, the written description is dispositive. A full description of the scope of the order is contained in the Issues and Decision Memorandum.
All issues raised in the case and rebuttal briefs by parties in this review are addressed in the Issues and Decision Memorandum. A list of the issues raised is attached in the Appendix to this notice. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at
Based on our analysis of comments received, we made no changes to the margins for the final results of this review.
We determine that the following weighted-average dumping margins exist for the respondents for the period February 1, 2017, through January 31, 2018.
Pursuant to section 751(a)(2)(A) of the Act and 19 CFR 351.212(b)(1), Commerce will determine, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review.
For Dongkuk Steel Mill Co., Ltd., and Hyundai Steel Company, we calculated importer-specific assessment rates on the basis of the ratio of the total amount of antidumping duties calculated for each importer's examined sales and the total entered value of the sales in accordance with 19 CFR 351.212(b)(1).
The following deposit requirements will be effective upon publication of this notice for all shipments of CTL plate from Korea entered, or withdrawn from warehouse, for consumption on or after the date of publication, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for the
This notice serves as a final reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping duties occurred and the subsequent assessment of double antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a violation subject to sanction.
This notice is published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.221(b)(5).
Enforcement & Compliance, International Trade Administration, Department of Commerce.
June 4, 2019.
For the final results of this review the Department of Commerce (Commerce) continues to find that the selected respondents Ingenio El Higo S.A. de C.V., Ingenio Melchor Ocampo S.A. de C.V., and Zucarmex S.A. de C.V. (and its affiliates) (collectively, Grupo Zucarmex), and Ingenio San Miguel Del Naranjo S.A. de C.V. (and its affiliates) (collectively, Grupo Beta San Miguel), are in compliance with the Agreement Suspending the Antidumping Duty Investigation on Sugar from Mexico (AD Agreement), as amended on June 30, 2017 (collectively, amended AD Agreement), for the period October 1, 2017, through November 30, 2017, and that the amended AD Agreement is meeting the statutory requirements under sections 704(c) and (d) of the Tariff Act of 1930, as amended (the Act).
Sally C. Gannon or David Cordell, Enforcement & Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-0162 or (202) 482-0408, respectively.
On December 20, 2018, Commerce published its
Commerce exercised its discretion to toll all deadlines affected by the partial federal government closure from December 22, 2018, through the resumption of operations on January 29, 2019.
Merchandise covered by this amended AD Agreement is typically imported under the following headings of the HTSUS: 1701.12.1000, 1701.12.5000, 1701.13.1000, 1701.13.5000, 1701.14.1000, 1701.14.5000, 1701.91.1000, 1701.91.3000, 1701.99.1010, 1701.99.1025, 1701.99.1050, 1701.99.5010, 1701.99.5025,
In the
The issues raised in the case briefs and rebuttal briefs are addressed in the Issues and Decision Memorandum and the accompanying business proprietary memorandum.
This notice also serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation that is subject to sanction.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213 and 19 CFR 351.221(b)(5).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Based on affirmative final determinations by the Department of Commerce (Commerce) and the International Trade Commission (ITC), Commerce is issuing the antidumping duty (AD) and countervailing duty (CVD) orders on laminated woven sacks (LWS) from the Socialist Republic of Vietnam (Vietnam).
Applicable June 4, 2019.
Drew Jackson (AD order), Celeste Chen (AD order), Thomas Martin (CVD order), or Ariela Garvett (CVD order), AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4406, (202) 482-0890, (202) 482-3936, or (202) 482-3609, respectively.
In accordance with sections 705(d) and 735(d) of the Tariff Act of 1930, as amended (the Act), on April 11, 2019, Commerce published its affirmative final determination of sales at less-than-fair-value (LTFV) and its affirmative final determination that countervailable subsidies are being provided to producers and exporters of LWS from Vietnam.
The products covered by these orders are LWS from Vietnam. For a complete description of the scope of the orders,
On May 23, 2019, in accordance with section 735(d) of the Act, the ITC notified Commerce of its final determination that an industry in the United States is materially injured within the meaning of section 735(b)(1)(A)(i) of the Act by reason of imports of LWS from Vietnam that are sold in the United States at LTFV.
As a result of the ITC's final determination, in accordance with section 736(a)(1) of the Act, Commerce will direct U.S. Customs and Border
In accordance with section 736 of the Act, Commerce will instruct CBP to reinstitute suspension of liquidation on all relevant entries of LWS from Vietnam, effective on the date of publication of the ITC's final affirmative injury determination in the
Accordingly, effective on the date of publication of the ITC's final affirmative injury determination, CBP will require, at the same time as an importer of record would normally deposit estimated duties on the subject merchandise, cash deposits based on the rates listed below.
Section 733(d)
Therefore, in accordance with section 733(d) of the Act, Commerce instructed CBP to terminate the suspension of liquidation and to liquidate, without regard to antidumping duties, unliquidated entries of LWS from Vietnam entered, or withdrawn from warehouse, for consumption after April 9, 2019, the date on which the provisional measures expired, through the day preceding the date of publication of the ITC's final affirmative injury determination in the
On May 23, 2019, in accordance with section 705(d) of the Act, the ITC notified Commerce of its final determination that an industry in the United States is materially injured within the meaning of section 705(b)(1)(A)(i) of the Act by reason of subsidized imports of LWS from Vietnam.
As a result of the ITC's final determination, in accordance with section 706(a)(1) of the Act, Commerce will direct CBP to assess, upon further instruction by Commerce, countervailing duties on all relevant entries of LWS from Vietnam entered, or withdrawn from warehouse, for consumption on or after August 13, 2018, the date of publication of the
In accordance with section 706 of the Act, Commerce will instruct CBP to reinstitute suspension of liquidation on all relevant entries of LWS from Vietnam, effective on the date of publication of the ITC's final affirmative injury determination in the
Section 703(d) of the Act states that suspension of liquidation instructions issued pursuant to an affirmative preliminary determination may not remain in effect for more than four months. Commerce published its
Therefore, in accordance with section 703(d) of the Act, Commerce instructed CBP to terminate the suspension of liquidation and to liquidate, without regard to countervailing duties, unliquidated entries of LWS from Vietnam entered, or withdrawn from warehouse, for consumption on or after December 11, 2018, the date on which the provisional measures expired, through the day preceding the date of publication of the ITC's final affirmative injury determination in the
This notice constitutes the AD and CVD orders with respect to LWS from Vietnam pursuant to sections 706(a) and 736(a) of the Act. Interested parties can find an updated list of orders currently in effect by either visiting
These orders are published in accordance with sections 706(a) and 736(a) of the Act, and 19 CFR 351.211(b).
The merchandise covered by these orders is laminated woven sacks. Laminated woven sacks are bags consisting of one or more plies of fabric consisting of woven polypropylene strip and/or woven polyethylene strip, regardless of the width of the strip; with or without an extrusion coating of polypropylene and/or polyethylene on one or both sides of the fabric; laminated by any method either to an exterior ply of plastic film such as biaxially-oriented polypropylene (BOPP), polyester (PET), polyethylene (PE), nylon, or any film suitable for printing, or to an exterior ply of paper; printed; displaying, containing, or comprising three or more visible colors (
The scope of these orders excludes laminated woven sacks having each of the following physical characteristics: (1) No side greater than 24 inches, (2) weight less than 100 grams, (3) an open top that is neither sealable nor closable, the rim of which is hemmed or sewn around the entire circumference, (4) carry handles sewn on the open end, (5) side gussets, and (6) either a bottom gusset or a square or rectangular bottom. The excluded items with the above-mentioned physical characteristics may be referred to as reusable shopping bags.
Subject laminated woven sacks are currently classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 6305.33.0040 and 6305.33.0080. If entered with plastic coating on both sides of the fabric consisting of woven polypropylene strip and/or woven polyethylene strip, laminated woven sacks may be classifiable under HTSUS subheadings 3923.21.0080, 3923.21.0095, and 3923.29.0000. If entered not closed on one end or in roll form (including, but not limited to, sheets, lay-flat tubing, and sleeves), laminated woven sacks may be classifiable under other HTSUS subheadings, including 3917.39.0050, 3921.90.1100, 3921.90.1500, and 5903.90.2500. If the polypropylene strips and/or polyethylene strips making up the fabric measure more than 5 millimeters in width, laminated woven sacks may be classifiable under other HTSUS subheadings including 4601.99.0500,4601.99.9000, and 4602.90.0000. Although HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope is dispositive.
Enforcement & Compliance, International Trade Administration, Department of Commerce.
June 4, 2019.
For the final results of this review the Department of Commerce (Commerce) continues to find that the Government of Mexico (GOM) and selected respondents Ingenio El Higo S.A. de C.V., Central El Potrero S.A. de C.V., Ingenio Melchor Ocampo S.A. de C.V., and Zucarmex S.A. de C.V. (and their affiliates) are in compliance with the Agreement Suspending the Countervailing Duty Investigation on Sugar from Mexico (CVD Agreement), as amended on June 30, 2017 (collectively, amended CVD Agreement), for the
Sally C. Gannon or David Cordell, Enforcement & Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-0162 or (202) 482-0408, respectively.
On December 20, 2018, Commerce published its
Merchandise covered by this amended CVD Agreement is typically imported under the following headings of the HTSUS: 1701.12.1000, 1701.12.5000, 1701.13.1000, 1701.13.5000, 1701.14.1000, 1701.14.5000, 1701.91.1000, 1701.91.3000, 1701.99.1010, 1701.99.1025, 1701.99.1050, 1701.99.5010, 1701.99.5025, 1701.99.5050, and 1702.90.4000. The tariff classification is provided for convenience and customs purposes; however, the written description of the scope of this amended CVD Agreement is dispositive.
In the
This notice also serves as a reminder to parties subject to administrative protective orders (APOs) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305, which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return/destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation that is subject to sanction.
We are issuing and publishing these results in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213 and 19 CFR 351.221(b)(5).
National Institute of Standards and Technology, U.S. Department of Commerce.
Notice; extension of comment period.
The National Institute of Standards and Technology (NIST) extends the period for submitting written comments on the request for information (RFI) entitled “Artificial Intelligence Standards,” published on May 1, 2019. The public comment period was originally scheduled to close on May 31, 2019; the public comment period is extended to now close on June 10, 2019. NIST is taking this action to provide additional time to submit comments in response to multiple requests from interested parties to extend the original deadline.
Comments must be received on or before June 10, 2019 at 5:00 p.m. Eastern Time.
Written comments in response to this RFI may be submitted by mail to AI-Standards, National Institute of Standards and Technology, 100 Bureau Drive, Stop 2000, Gaithersburg, MD 20899. Online submissions in electronic form may be sent to
For questions about this RFI contact: Elham Tabassi, NIST, MS 8900, 100 Bureau Drive, Gaithersburg, MD 20899, telephone (301) 975-5292, email
On May 1, 2019, NIST published a notice and RFI in the
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed incidental harassment authorization (IHA); request for comments.
NMFS has received a request from the Washington State Department of Transportation (WSDOT) for authorization to take marine mammals incidental to the Seattle Multimodal Project at Colman Dock in Seattle, Washington. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS is also requesting comments on a possible 1-year renewal that could be issued under certain circumstances and if all requirements are met, as described in
Comments and information must be received no later than July 5, 2019.
Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to
Shane Guan, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the application and supporting documents, as well as a list of the references cited in this document, may be obtained online at:
The MMPA prohibits the “take” of marine mammals, with certain exceptions. Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s) and will not have an unmitigable adverse impact on the availability of the species or stock(s) for taking for subsistence uses (where relevant). Further, NMFS must prescribe the permissible methods of taking and other “means of effecting the least practicable adverse impact” on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stocks for taking for certain subsistence uses (referred to in shorthand as “mitigation”); and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.
The NDAA (Pub. L. 108-136) removed the “small numbers” and “specified geographical region” limitations indicated above and amended the definition of “harassment” as it applies to a “military readiness activity.” The definitions of all applicable MMPA statutory terms cited above are included in the relevant sections below.
To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321
This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review.
We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.
On February 7, 2019, WSDOT submitted a request to NMFS requesting an IHA for the possible harassment of small numbers of marine mammal species incidental to Seattle Multimodal Project at Colman Dock in Seattle, Washington, from August 1, 2019 to July 31, 2020. After receiving the revised project description and the revised IHA application, NMFS determined that the IHA application is adequate and
This proposed IHA would cover one year of a larger project for which WSDOT obtained prior IHAs (82 FR 21579; July 7, 2017; 83 FR 35226; July 25, 2018) and intends to request take authorization for subsequent facets of the project. The larger 5-year project involves reconfiguring the Colman Dock of the Seattle Ferry Terminal while maintaining the same vehicle holding capacity as current conditions. WSDOT complied with all the requirements (
The purpose of the Seattle Multimodal Project at Colman Dock is to preserve the transportation function of an aging, deteriorating and seismically deficient facility to continue providing safe and reliable service. The project will also address existing safety concerns related to conflicts between vehicles and pedestrian traffic and operational inefficiencies.
Due to NMFS and the U.S. Fish and Wildlife Service (USFWS) in-water work timing restrictions to protect ESA-listed salmonids, planned WSDOT in-water construction is limited each year to July 16 through February 15. In-water pile driving work will be conducted in daylight hours only. It is expected that a total of 146 pile driving days will be needed for the 2019/2020 construction work.
The Seattle Ferry Terminal at Colman Dock, serving State Route 519, is located on the downtown Seattle waterfront, in King County, Washington. The terminal services vessels from the Bainbridge Island and Bremerton routes, and is the most heavily used terminal in the Washington State Ferry system. The Seattle terminal is located in Section 6, Township 24 North, Range 4 East, and is adjacent to Elliott Bay, tributary to Puget Sound (Figure 1-2 of the IHA application). Land use in the area is highly urban, and includes business, industrial, the Port of Seattle container loading facility, residential, the Pioneer Square Historic District and local parks.
The project will reconfigure the Colman Dock while maintaining approximately the same vehicle holding capacity as current conditions. The construction began in August 2017. In the 2017-2018 season, the construction activities were focused on the South Trestle, Terminal Building Foundation, and the temporary and permanent Passenger Offloading Facility. In the 2018-2019 season, the construction activities were focused on the North Trestle, and Slip 3 bridge seat, overhead loading, wingwall, and inner dolphin.
In the 2019-2020 season, WSDOT plans to work on Slip 2 bridge seat, Center Trestle, Slip 2 wingwall extension, and Slips 2 and 3 inner dolphins. Both impact pile driving and vibratory pile driving and pile removal would be conducted. A total of 58 days are estimated for pile driving and 88 days for pile removal.
In-water construction activities include:
Permanently install 36-inch (in) steel piles with a vibratory hammer, and then proof with an impact hammer for the last 5-10 feet.
Permanently install 24-in steel piles with a vibratory hammer.
Removal of various piles with a vibratory hammer.
Install and removal of 24-in steel piles with a vibratory hammer.
A list of pile driving and removal activities is provided in Table 1.
Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see
Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SARs;
Table 2 lists all species with expected potential for occurrence in lower Puget Sound area and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2016). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.
Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's 2018 U.S. Pacific Draft Marine Mammal SARs (Carretta
All species that could potentially occur in the proposed survey areas are included in Table 2. Although the Southern Resident killer whale (SRKW) could occur in the vicinity of the project area, WSDOT proposes to implement strict monitoring and mitigation measures with assistance from local marine mammal researchers and observers. Thus, the take of this marine mammal stock can be avoided (see details in Proposed Mitigation section).
In addition, the sea otter may be found in Puget Sound area. However, this species is managed by the U.S. Fish and Wildlife Service and are not considered further in this document.
More detailed descriptions of marine mammals in the WSDOT's Seattle Multimodal project area is provided below.
Within Washington waters, gray whale sightings reported to Cascadia Research and the Whale Museum between 1990 and 1993 totaled over 1,100 (Calambokidis
Although typically seen during their annual migrations on the outer coast, a regular group of gray whales annually comes into the inland waters at Saratoga Passage and Port Susan (south Whidbey Island area) from March through May to feed on ghost shrimp (Weitkamp
The occurrence of gray whale in the WSDOT's Seattle Multimodal project area is rare. There was no sighting of gray whale during the 1-day 2012 Seattle Slip 2 Batter Pile project (WSDOT 2012) or the 10-day 2016 Seattle Test Pile project (WSDOT 2016). During the 99-day marine mammal monitoring of the previous Seattle Multimodal Project in 2017/2018 season, no gray whale was sighted (WSDOT 2019).
Historically, humpback whales were common in inland waters of Puget Sound and the San Juan Islands (Calambokidis
Cascadia Research Collective has been studying humpback whales along the U.S. West Coast since 1986. In the early 2000s, increasing numbers of humpback whales were sighted in Washington inland waters, and this trend increased in 2014 (CRC 2017).
The occurrence of humpback whale in the WSDOT's Seattle Multimodal project area is rare. There was no sighting of humpback whale during the 1-day 2012 Seattle Slip 2 Batter Pile project (WSDOT 2012) or the 10-day 2016 Seattle Test Pile project (WSDOT 2016). During the 99-day marine mammal monitoring of the previous Seattle Multimodal Project in 2017/2018 season, no humpback whale was sighted (WSDOT 2019).
The California-Oregon-Washington (CA-OR-WA) stock of Minke whale is considered a resident stock (NMFS 2016), and includes Minke whales within the inland Washington waters of Puget Sound and the San Juan Islands.
Information on Minke whale population and abundance is limited due to difficulty in detection. Over a 10-year period, 30 individuals were photo-identified in the U.S./Canada trans-boundary area around the San Juan Islands and demonstrated high site fidelity (Dorsey
Minke whales are reported in Washington inland waters year-round, although few are reported in the winter (Calambokidis and Baird 1994). Minke whales are relatively common in the San Juan Islands and Strait of Juan de Fuca (especially around several of the banks in both the central and eastern Strait), but are relatively rare in Puget Sound.
There was no sighting of minke whale during the 1-day 2012 Seattle Slip 2 Batter Pile project (WSDOT 2012) or the 10-day 2016 Seattle Test Pile project (WSDOT 2016). During the 99-day marine mammal monitoring of the previous Seattle Multimodal Project in 2017/2018 season, no minke whale was sighted (WSDOT 2019).
The Eastern North Pacific Southern Resident (SRKW) and West Coast Transient stocks of killer whale are both found within Washington inland waters. Individuals of both stocks have long-ranging movements and regularly leave the inland waters (Calambokidis and Baird 1994a).
Southern Residents are documented in coastal waters ranging from central California to the Queen Charlotte Islands, British Columbia (NMFS 2008a). They occur in all inland marine waters. SRKWs generally spend more time in deeper water and only occasionally enter water less than 15 feet deep (Baird 2000). Distribution is strongly associated with areas of greatest salmon abundance, with heaviest foraging activity occurring over deep open water and in areas characterized by high-relief underwater topography, such as subsurface canyons, seamounts, ridges, and steep slopes (Wiles 2004).
In fall, all three pods occur in areas where migrating salmon are concentrated such as the mouth of the Fraser River. They may also enter areas in Puget Sound where migrating chum and Chinook salmon are concentrated (Osborne 1999). In the winter months, the K and L pods spend progressively less time in inland marine waters and depart for coastal waters in January or February. The pods spend will over 50 percent of the winter months on the outer coast (NMFS 2014). The J pod is most likely to appear year-round near the San Juan Islands, and in the fall/winter, in the lower Puget Sound and in Georgia Strait at the mouth of the Fraser River. In 2017, the Southern Residents spent less time in inland marine waters than previously recorded, which may be related to lack of prey (Orca Network 2017).
On November 29, 2006, NMFS published a final rule designating critical habitat for the SRKR. Both Puget Sound and the San Juan Islands are designated as core areas of critical habitat under the ESA, excluding areas less than 20 feet deep relative to extreme high water (71 FR 69054).
The Southern Residents live in three pod groups known as the J, K and L pods. As of January 2019, the stock collectively numbered 75 individuals (J Pod: 22, K Pod: 18, L Pod: 35) (Orca Network 2019), though the NMFS latest SAR estimates the population to be 77.
There was no sighting of Southern Resident killer whale during the 1-day 2012 Seattle Slip 2 Batter Pile project (WSDOT 2012) or the 10-day 2016 Seattle Test Pile project (WSDOT 2016). During the 99-day marine mammal monitoring of the previous Seattle Multimodal Project in 2017/2018 season, 148 SRKW (multiple sightings of some members of the population) were observed in the project area, with an average of 1.5/day (WSDOT 2019).
The West Coast Transient stock occurs in California, Oregon, Washington, British Columbia, and southeastern Alaskan waters. Within the inland waters, they may frequent areas near seal rookeries when pups are weaned (Baird and Dill 1995). West Coast Transients are documented year-round in Washington inland waters.
Transient killer whales generally occur in smaller (less than 10 individuals), less structured pods, though pods as large as 12 have occasionally been observed in Puget
The California stock of Long-beaked common dolphins are present off the California coast. The California-Oregon-Washington stock of bottlenose dolphins are found off the coasts of California, Oregon, and Washington, though they are more prevalent off the California coast (NMFS 2017).
The occurrence of these two dolphin species in the WSDOT's Seattle Multimodal project area is rare. There was no sighting of common and bottlenose dolphins during the 1-day 2012 Seattle Slip 2 Batter Pile project (WSDOT 2012) or the 10-day 2016 Seattle Test Pile project (WSDOT 2016). During the 99-day marine mammal monitoring of the previous Seattle Multimodal Project in 2017/2018 season, 2 common dolphins (an average of 0.02/day) and 4 bottlenose dolphins (an average of 0.04/day) were observed in the project area (WSDOT 2019).
Harbor porpoises are common in the Strait of Juan de Fuca and south into Admiralty Inlet, especially during the winter, and are becoming more common south of Admiralty Inlet. Little information exists on harbor porpoise movements and stock structure near the Seattle area, although it is suspected that in some areas harbor porpoises migrate (based on seasonal shifts in distribution). Hall (2004) found harbor porpoises off Canada's southern Vancouver Island to peak during late summer, while the Washington State Department of Fish and Wildlife's (WDFW) Puget Sound Ambient Monitoring Program (PSAMP) data show peaks in Washington waters to occur during the winter. Hall (2004) found that the frequency of sighting of harbor porpoises decreased with increasing depth beyond 150 m with the highest numbers observed at water depths ranging from 61 to 100 m. Although harbor porpoises have been spotted in deep water, they tend to remain in shallower shelf waters (<150 m) where they are most often observed in small groups of one to eight animals (Baird 2003). Water depths within the Seattle Multimodal project area range from 0 to 186 m/611 ft., with the majority of the waters less than 150 m deep.
There was no sighting of harbor porpoise during the 1-day 2012 Seattle Slip 2 Batter Pile project (WSDOT 2012) or the 10-day 2016 Seattle Test Pile project (WSDOT 2016). During the 99-day marine mammal monitoring of the previous Seattle Multimodal Project in 2017/2018 season, 288 harbor porpoise were observed in the project area, an average of 3/day (WSDOT 2019).
Dall's porpoises are migratory and appear to have predictable seasonal movements driven by changes in oceanographic conditions (Green
The occurrence of these Dall's porpoise in the WSDOT's Seattle Multimodal project area is rare. There was no sighting of Dall's porpoise during the 1-day 2012 Seattle Slip 2 Batter Pile project (WSDOT 2012) or the 10-day 2016 Seattle Test Pile project (WSDOT 2016). During the 99-day marine mammal monitoring of the previous Seattle Multimodal Project in 2017/2018 season, no Dall's porpoise was observed in the project area (WSDOT 2019).
California sea lions breed on islands off Baja Mexico and southern California, with males (primarily) migrating north to feed in the northern waters (Everitt
California sea lions were unknown in Puget Sound until approximately 1979 (Steiger and Calambokidis 1986). Everitt
California sea lions do not avoid areas with heavy or frequent human activity, but rather may approach certain areas to investigate. This species typically does not flush from a buoy or haulout if approached. In Washington, California sea lions use haulout sites within all inland water regions (WDFW 2000). The movement of California sea lions into Puget Sound could be an expansion in range of a growing population (Steiger and Calambokidis 1986).
The nearest documented California sea lion haulout sites are 3 km/2 miles southwest of the Seattle Ferry Terminal, although sea lions also make use of docks and other buoys in the area.
During the 2012 Seattle Slip 2 Batter Pile project, 15 California sea lions were observed during this 1-day project (WSDOT 2012). During the 2016 Seattle Test Pile project, 12 California sea lions were observed over 10 days in the project area, with the maximum number sighted in a single day being 4 (WSDOT 2016). During the 99 monitoring days of the 2017/18 Seattle Multimodal Project, 1,047 California sea lions were observed in the project area, an average of 11/day (WSDOT 2019).
Adult Eastern U.S. stock Steller sea lions congregate at rookeries in Oregon, California, and British Columbia for pupping and breeding from late May to early June (Gisiner 1985). Steller sea lion abundances vary seasonally in Washington inland water, with a minimum estimate of 1,000 to 2,000 individuals present or passing through the Strait of Juan de Fuca in fall and winter months (WSDOT 2019). The number of haulout sites has increased in recent years. The nearest documented Steller sea lion haulout sites are 15 km/9 miles southwest of the Seattle Ferry Terminal.
There was no sighting of Steller sea lion during the 1-day 2012 Seattle Slip 2 Batter Pile project (WSDOT 2012) or the 10-day 2016 Seattle Test Pile project (WSDOT 2016). During the 99-day marine mammal monitoring of the previous Seattle Multimodal Project in
Harbor seals are the most numerous marine mammal species in Puget Sound. Harbor seals are non-migratory; their local movements are associated with such factors as tides, weather, season, food availability and reproduction (Scheffer and Slipp 1944; Fisher 1952; Bigg 1969, 1981).
They are not known to make extensive pelagic migrations, although some long-distance movements of tagged animals in Alaska (108 miles) and along the U.S. west coast (up to 342 miles) have been recorded (Pitcher and McAllister 1981; Brown and Mate 1983; Herder 1983).
Harbor seals haul out on rocks, reefs and beaches and feed in marine, estuarine and occasionally fresh waters. Harbor seals display strong fidelity for haulout sites (Pitcher and Calkins 1979; Pitcher and McAllister 1981).
The nearest documented harbor seal haulout to the Seattle Ferry Terminal is 10.6 km/6.6 miles west on Blakely Rocks (outside of the project Level B harassment zone), though harbor seals also make use of docks, buoys and beaches in the area. The level of use of this haulout during the fall and winter is unknown, but is expected to be much less as air temperatures become colder than water temperatures, which results in seals in general hauling out less (WSDOT 2019). Harbor seals are known to haul out on docks and beaches throughout the project area.
During the 2012 Seattle Slip 2 Batter Pile project, 6 harbor seals were observed during this one day project (WSDOT 2012). During the 2016 Seattle Test Pile project, 56 harbor seals were observed over 10 days in the project area, with the maximum number sighted in a single day being 13 (WSDOT 2016). During the 99-day marine mammal monitoring of the previous Seattle Multimodal Project in the 2017/2018 season, 813 harbor seals were observed in the project area, an average of 8/day (WSDOT 2019).
Northern Elephant seals breed and give birth in California (U.S.) and Baja California (Mexico), primarily on offshore islands, from December to March. Males feed near the eastern Aleutian Islands and in the Gulf of Alaska, and females feed further south. Adults return to land between March and August to molt, with males returning later than females. Adults return to their feeding areas again between their spring/summer molting and their winter breeding seasons (NMFS 2015a).
The closest documented Northern Elephant seal haulout is Protection Island (88.5 shoreline km/55 shoreline miles northwest of the Seattle Ferry Terminal) (WDFW 2000). Northern Elephant seals also use area beaches as haulouts, such as a female elephant seal who has been coming to a south Whidbey Island beach to rest while molting each spring for several years, and recently gave birth to a pup (Orca Network 2015a).
The occurrence of these northern elephant seal in the WSDOT's Seattle Multimodal project area is rare. There was no sighting of northern elephant seal during the 1-day 2012 Seattle Slip 2 Batter Pile project (WSDOT 2012) or the 10-day 2016 Seattle Test Pile project (WSDOT 2016). During the 99-day marine mammal monitoring of the previous Seattle Multimodal Project in 2017/2018 season, no elephant seal was observed in the project area (WSDOT 2019).
Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (
The pinniped functional hearing group was modified from Southall
For more detail concerning these groups and associated frequency ranges, please see NMFS (2018) for a review of available information. Twelve marine mammal species (eight cetacean and four pinniped (two otariid and two phocid) species) have the reasonable potential to co-occur with the proposed construction activities. Please refer to
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The
Potential impacts to marine mammals from the proposed Seattle Multimodal project at Colman Dock are from noise generated during in-water pile driving and pile removal activities.
Here, we first provide background information on marine mammal hearing before discussing the potential effects of the use of active acoustic sources on marine mammals.
The WSDOT's Seattle Multimodal project using in-water pile driving and pile removal could adversely affect marine mammal species and stocks by exposing them to elevated noise levels in the vicinity of the activity area.
Exposure to high intensity sound for a sufficient duration may result in auditory effects such as a noise-induced threshold shift (TS)—an increase in the auditory threshold after exposure to noise (Finneran
For marine mammals, published data are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (Finneran, 2015). For pinnipeds in water, data are limited to measurements of TTS in harbor seals, an elephant seal, and California sea lions (Kastak
Lucke
Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (
In addition, chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals, which utilize sound for vital biological functions (Clark
Masking occurs at the frequency band that the animals utilize. Therefore, since noise generated from vibratory pile driving is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by odontocetes (toothed whales). However, lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (
Unlike TS, masking, which can occur over large temporal and spatial scales, can potentially affect the species at population, community, or even ecosystem levels, as well as individual
Finally, marine mammals' exposure to certain sounds could lead to behavioral disturbance (Richardson
The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall
The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be biologically significant if the change affects growth, survival, and/or reproduction, which depends on the severity, duration, and context of the effects.
The primary potential impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory pile removal and pile driving in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.
With regard to fish as a prey source for cetaceans and pinnipeds, fish are known to hear and react to sounds and to use sound to communicate (Tavolga
The level of sound at which a fish will react or alter its behavior is usually well above the detection level. Fish have been found to react to sounds when the sound level increased to about 20 dB above the detection level of 120 dB (Ona, 1988); however, the response threshold can depend on the time of year and the fish's physiological condition (Engas
During the coastal construction, only a small fraction of the available habitat would be ensonified at any given time. Disturbance to fish species would be short-term and fish would return to their pre-disturbance behavior once the pile driving activity ceases. Thus, the proposed construction would have little, if any, impact on marine mammals' prey availability in the area where construction work is planned.
Finally, the time of the proposed construction activity would avoid the spawning season of the ESA-listed salmonid species.
This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform both NMFS' consideration of “small numbers” and the negligible impact determination.
Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance, which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).
Authorized takes would primarily be by Level B harassment, as noise generated from in-water pile driving has the potential to result in disruption of behavioral patterns for individual marine mammals. There is also some potential for auditory injury (Level A harassment) to result, primarily for high-frequency cetacean species and phocids because predicted auditory injury zones are larger than for mid-frequency species and otariids, and because these species are much smaller than mysticetes, thus they present challenges in implementing monitoring and mitigation measures. Auditory injury is unlikely to occur for low- and mid-frequency cetacean species and otariids. The proposed mitigation and monitoring measures are expected to minimize the severity of such taking to the extent practicable.
As described previously, no mortality is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated.
Generally speaking, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. We note that while these basic factors can contribute to a basic calculation to provide an initial prediction of takes, additional information that can qualitatively inform take estimates is also sometimes available (
Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be
Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (
WSDOT's proposed activity includes the use vibratory hammer, which generates non-impulse noises, and impact hammer, which generates impulse noises. Therefore, the 120 and 160 dB re 1 μPa (rms) are applicable.
Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Version 2.0) (Technical Guidance, 2018) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). WSDOT's proposed activity includes the use of impulsive (impact pile driving) and non-impulsive (vibratory pile driving and pile removal) sources.
These thresholds are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2018 Technical Guidance, which may be accessed at
Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds, which include source levels and transmission loss coefficient.
The source level for vibratory pile driving and removal of the 18- and 24-in steel pile is based on vibratory pile driving of the 30-in steel pile at Port Townsend. The unweighted SPL
The source level for vibratory pile driving of the 36-in steel piles is based on vibratory test pile driving of 36-in steel piles at Port Townsend in 2010. Recordings of vibratory pile driving were made at a distance of 10 m from the pile. The results show that the unweighted SPL
The source level for impact pile driving of the 36-in steel pile is based on the sound source verification (SSV) measurements at Colman Dock in 2018. The source levels reported are: 174 dB re 1 µPa
The source level for vibratory pile removal of 14-in timber pile is based measurements conducted at the Port Townsend Ferry Terminal during vibratory removal of a 12-inch timber pile by WSDOT. The recorded source level is 152 dB
The source levels for vibratory pile removal of 12-in steel and 14-in steel H piles are based on vibratory pile driving of 12-in steel pipe pile measured by CALTRANS. The unweighted source level is 155 dB
A summary of source levels is presented in Table 5.
These source levels are used to compute the Level A injury zones and to estimate the Level B harassment zones.
All distances to the Level B harassment zone except for 18-, 24-, and 36-in vibratory pile driving are based on the above source levels applying practical spreading loss,
For Level B harassment ensonified areas for vibratory pile driving and removal of the 18-in, 24-in, and 36-in steel piles, the distance is based on measurements conducted during the year 1 Seattle multimodal project at Colman. The result showed that pile driving noise of two 36-in steel piles being concurrently driven was no longer detectable at a range of 5.4 miles (8.69 km). Therefore, the distance of 8,690 m is selected as the Level B harassment distance for vibratory pile driving and removal of the 18-in, 24-in, and 36-in steel piles.
For Level A harassment zones, since the peak source levels for both pile driving are below the injury thresholds, cumulative SEL were used to do the calculations using the NMFS acoustic guidance (NMFS 2018).
When the NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which may result in some degree of overestimate of Level A harassment take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources (such as in-water pile driving), NMFS User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. When calculate Level A harassment distances using NMFS' User Spreadsheet, input parameters pile driving or removal duration (for vibratory hammer) or number of strikes (for impact hammer) of each pile and the number of piles installed or removed per day.
Distances of ensonified area for different pile driving/removal activities for different marine mammal hearing groups is present in Table 6.
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.
Marine mammal take calculation are based on marine mammal monitoring during the 2017/2018 season Seattle Multimodal project at Colman Dock when observation data are available, then adjusted to account for possible missed observations. These species are harbor seal, California sea lion, Steller sea lion, and harbor porpoise.
For marine mammals that were not observed, density data from the U.S. Navy Marine Species Density Report were used for take calculation.
For bottlenose dolphin and long-beaked common dolphin, no density estimate is available. Therefore, take numbers for these two species are based on prior anecdotal observations and strandings in the action area.
A summary of marine mammal abundance and density is provided in Table 7.
For marine mammals with observation data during WSDOT's 2017/2018 Seattle Multimodal project, take numbers were calculated as:
To determine the portion of total take that would result from Level A harassment, the proportion of Level A and Level B harassment was used to apportion the total takes. Furthermore, an additional 20 takes of harbor seals by Level A harassment is added to account for the higher numbers historically sighted during monitoring and the smaller shutdown zones (see below).
For marine mammals that were not observed during the 2017/2018 season but with known densities in the general area (
For long-beaked common dolphin and bottlenose dolphin, an average of 7 animals per group is determined based on sighting data from Cascadia Research (CRC 2012, 2017). Assuming that an average of one group could be encountered per month in the project area, a total of 49 takes of each species is assessed for the duration of 7 months in-water work window.
For calculated take number less than 15, such as northern elephant seals, transient killer whales, humpback whales, gray whales, and minke whales, Level B take numbers were adjusted to account for group size and the likelihood of encountering. Specifically, for northern elephant seal, take of 15 animals is estimated based on the likelihood of encountering this species during the project period. For transient killer whale, take of 30 animals is estimated based on the group size and the likelihood of encountering in the area. For gray, humpback, and minke whale, 30, 30, and 10 animals each area estimated, respectively.
WSDOT will implement strict monitoring and mitigation measures and to suspend pile driving activities when SRKWs are detected in the vicinity of the action to avoid takes of this population.
A summary of marine mammal take numbers is provided in Table 8.
In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).
In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where
(1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned), the likelihood of effective implementation (probability implemented as planned); and
(2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.
Specific mitigation measures are proposed as follows.
1. Time Restriction.
Work would occur only during daylight hours, when visual monitoring of marine mammals can be conducted.
2. Establishing and Monitoring Level A, Level B Harassment Zones, and Shutdown Zones.
WSDOT shall establish shutdown zones that encompass the distances within which marine mammals could be taken by Level A harassment (see Table 7 above) except for harbor seal. For Level A harassment zones that is less than 10 m from the source, a minimum of 10 m distance should be established as a shutdown zone. For harbor seal, a maximum of 60 m shutdown zone would be implemented if the actual Level A harassment zone exceeds 60 m. This is because there are a few habituated harbor seals that repeated occur within the larger Level A zone, which makes implementing a shutdown zone larger than 60 m infeasible.
A summary of exclusion zones is provided in Table 9.
WSDOT shall also establish a Zone of Influence (ZOI) based on the Level B harassment zones for take monitoring where received underwater SPLs are higher than 160 dB
NMFS-approved protected species observers (PSO) shall conduct an initial 30-minute survey of the exclusion zones to ensure that no marine mammals are seen within the zones before pile driving and pile removal of a pile segment begins. If marine mammals are found within the exclusion zone, pile driving of the segment would be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor would wait 15 minutes. If no marine mammals are seen by the observer in that time it can be assumed that the animal has moved beyond the exclusion zone.
If pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated exclusion zone prior to commencement of pile driving, the observer(s) must notify the pile driving operator (or other authorized individual) immediately and continue to monitor the exclusion zone. Operations may not resume until the marine mammal has exited the exclusion zone or 30 minutes have elapsed since the last sighting.
3. Soft-start.
A “soft-start” technique is intended to allow marine mammals to vacate the area before the impact pile driver reaches full power. Whenever there has been downtime of 30 minutes or more without impact pile driving, the contractor will initiate the driving with ramp-up procedures described below.
Soft start for impact hammers requires contractors to provide an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 1-minute waiting period, then two subsequent three-strike sets. Each day, WSDOT will use the soft-start technique at the beginning of impact pile driving, or if pile driving has ceased for more than 30 minutes.
4. Shutdown Measures.
WSDOT shall implement shutdown measures if a marine mammal is detected within an exclusion zone or is about to enter an exclusion zone listed in Tables 8.
WSDOT shall also implement shutdown measures if SRKWs are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction activities.
If a killer whale approaches the Level B harassment zone during pile driving or removal, and it is unknown whether it is a SRKW or a transient killer whale, it shall be assumed to be a SRKW and WSDOT shall implement the shutdown measure.
If a SRKW or an unidentified killer whale enters the Level B harassment zone undetected, in-water pile driving or pile removal shall be suspended until the whale exits the Level B harassment zone to avoid further level B harassment.
Further, WSDOT shall implement shutdown measures if the number of authorized takes for any particular species reaches the limit under the IHA and if such marine mammals are sighted
5. Coordination with Local Marine Mammal Research Network.
Prior to the start of pile driving for the day, the Orca Network and/or Center for Whale Research will be contacted by WSDOT to find out the location of the nearest marine mammal sightings. The Orca Sightings Network consists of a list of over 600 (and growing) residents, scientists, and government agency personnel in the United States and Canada. Sightings are called or emailed into the Orca Network and immediately distributed to other sighting networks including: The NMFS Northwest Fisheries Science Center, the Center for Whale Research, Cascadia Research, the Whale Museum Hotline and the British Columbia Sightings Network.
Sightings information collected by the Orca Network includes detection by hydrophone. The SeaSound Remote Sensing Network is a system of interconnected hydrophones installed in the marine environment of Haro Strait (west side of San Juan Island) to study orca communication, in-water noise, bottom fish ecology and local climatic conditions. A hydrophone at the Port Townsend Marine Science Center measures average in-water sound levels and automatically detects unusual sounds. These passive acoustic devices allow researchers to hear when different marine mammals come into the region. This acoustic network, combined with the volunteer (incidental) visual sighting network allows researchers to document presence and location of various marine mammal species.
With this level of coordination in the region of activity, WSDOT will be able to get real-time information on the presence or absence of whales before starting any pile driving.
Based on our evaluation of the required measures, NMFS has preliminarily determined that the prescribed mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, Section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.
Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:
• Occurrence of marine mammal species or stocks in the area in which take is anticipated (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;
• How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;
• Effects on marine mammal habitat (
• Mitigation and monitoring effectiveness.
WSDOT shall employ NMFS-approved PSOs to conduct marine mammal monitoring for its dolphin relocation project at Bremerton and Edmonds ferry terminals. The purposes of marine mammal monitoring are to implement mitigation measures and learn more about impacts to marine mammals from WSDOT's construction activities. The PSOs will observe and collect data on marine mammals in and around the project area for 30 minutes before, during, and for 30 minutes after all pile removal and pile installation work. NMFS-approved PSOs shall meet the following requirements:
1. Independent observers (
2. At least one observer must have prior experience working as an observer;
3. Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience;
4. Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and
5. NMFS will require submission and approval of observer CVs.
Monitoring of marine mammals around the construction site shall be conducted using high-quality binoculars (
• For Level B harassment zones with radii less than 1,000 m, 3 PSOs will be monitoring from land.
• For Level B harassment zones with radii larger than 1,000 m but smaller than 2,500 m, 4 PSOs will be monitoring from land.
• For Level B harassment zones with radii larger than 2,500 m, 4 PSOs will be monitoring from land with an additional 1 PSO monitoring from a ferry.
6. PSOs shall collect the following information during marine mammal monitoring:
• Date and time that monitored activity begins and ends for each day conducted (monitoring period);
• Construction activities occurring during each daily observation period, including how many and what type of piles driven;
• Deviation from initial proposal in pile numbers, pile types, average driving times, etc.;
• Weather parameters in each monitoring period (
• Water conditions in each monitoring period (
• For each marine mammal sighting:
○ Species, numbers, and, if possible, sex and age class of marine mammals;
○ Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;
○ Location and distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point; and
○ Estimated amount of time that the animals remained in the Level B zone;
• Description of implementation of mitigation measures within each
• Other human activity in the area within each monitoring period.
To verify the required monitoring distance, the exclusion zones and Level B harassment zones will be determined by using a range finder or hand-held global positioning system device.
WSDOT will conduct noise field measurement to determine the actual Level B harassment distance from the source during vibratory pile driving. If the actual Level B harassment distance is less than modelled, the number of PSOs will be adjusted based on the criteria listed above.
WSDOT is required to submit a draft monitoring report within 90 days after completion of the construction work or the expiration of the IHA (if issued), whichever comes earlier. In the case if WSDOT intends to renew the IHA (if issued) in a subsequent year, a monitoring report should be submitted 60 days before the expiration of the current IHA (if issued). This report would detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. NMFS would have an opportunity to provide comments on the report, and if NMFS has comments, WSDOT would address the comments and submit a final report to NMFS within 30 days.
In addition, NMFS would require WSDOT to notify NMFS' Office of Protected Resources and NMFS' West Coast Stranding Coordinator within 48 hours of sighting an injured or dead marine mammal in the construction site. WSDOT shall provide NMFS and the Stranding Network with the species or description of the animal(s), the condition of the animal(s) (including carcass condition, if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available).
In the event that WSDOT finds an injured or dead marine mammal that is not in the construction area, WSDOT would report the same information as listed above to NMFS as soon as operationally feasible.
NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, this introductory discussion of our analyses applies to all the species listed in Table 8, given that the anticipated effects of WSDOT's Seattle Multimodal at Colman Dock project involving pile driving and pile removal on marine mammals are expected to be relatively similar in nature. There is no information about the nature or severity of the impacts, or the size, status, or structure of any species or stock that would lead to a different analysis by species for this activity, or else species-specific factors would be identified and analyzed.
Although some marine mammals could experience, and are authorized for Level A harassment in the form of PTS if they stay within the Level A harassment zone during the entire pile driving for the day (114 harbor seals, 103 harbor porpoises, and 71 Dall's porpoise), the degree of injury is expected to be mild and is not likely to affect the reproduction or survival of the individual animals. It is expected that, if hearing impairments occurs, most likely the affected animal would lose a few dB in its hearing sensitivity, which in most cases is not likely to affect its survival and recruitment. Hearing impairment that occur for these individual animals would be limited to the dominant frequency of the noise sources,
For these species except harbor seal, harbor porpoise and Dall's porpoise, takes that are anticipated and authorized are expected to be limited to short-term Level B harassment (behavioral and TTS). Marine mammals present in the vicinity of the action area and taken by Level B harassment would most likely show overt brief disturbance (startle reaction) and avoidance of the area from elevated noise levels during pile driving and pile removal and the implosion noise. A few marine mammals could experience TTS if they occur within the Level B TTS ZOI. However, as discussed earlier in this document, TTS is a temporary loss of hearing sensitivity when exposed to loud sound, and the hearing threshold is expected to recover completely within minutes to hours.
Portions of the SRKW range is within the proposed action area. In addition, the entire Puget Sound is designated as the SRKW critical habitat under the ESA. However, WSDOT would be required to implement strict mitigation measures to suspend pile driving or pile removal activities when this stock is detected in the vicinity of the project area. We anticipate that take of SRKW would be avoided. There are no other known important areas for other marine mammals, such as feeding or pupping, areas.
The project also is not expected to have significant adverse effects on affected marine mammals' habitat, as analyzed in detail in the “Anticipated Effects on Marine Mammal Habitat” subsection. There is no ESA designated critical habitat in the vicinity of the Seattle Multimodal Project at Colman Dock area. The project activities would not permanently modify existing marine mammal habitat. The activities may kill some fish and cause other fish to leave the area temporarily, thus impacting marine mammals' foraging opportunities in a limited portion of the foraging range. However, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. Therefore, given the consideration of potential impacts to marine mammal prey species and their
In summary and as described above, the following factors primarily support our preliminary determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:
• Injury—only a relatively small number of marine mammals (of three stocks) would experience Level A harassment in the form of mild PTS, which is expected to be of small degree;
• Behavioral disturbance—eleven species/stocks of marine mammals would experience behavioral disturbance and TTS from the WSDOT's Seattle Colman Dock project. However, as discussed earlier, the area to be affected is small and the duration of the project is short. In addition, the nature of the take would involve mild behavioral modification; and
• Although portion of the SWKR critical habitat is within the project area, strict mitigation measures such as implementing shutdown measures and suspending pile drivingare expected to avoid take of SRKW, and impacts to prey species and the habitat itself are expected to be minimal. No other important habitat for marine mammals exist in the vicinity of the project area.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.
As noted above, only small numbers of incidental take may be authorized under Sections 101(a)(5)(A) and (D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.
The estimated takes are below 15 percent of the population for all marine mammals (Table 8).
Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS preliminarily finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
The California-Oregon-Washington stock of humpback whale and the Southern Resident stock of killer whale are the only marine mammal species listed under the ESA that could occur in the vicinity of WSDOT's proposed construction projects. NMFS worked with WSDOT to implement shutdown measures in the IHA that will avoid takes of Southern Resident killer whale. NMFS is proposing to authorize take of California/Oregon/Washington stock of humpback whale.
The effects of this proposed Federal action were adequately analyzed in NMFS'
As a result of these preliminary determinations, NMFS proposes to issue an IHA to the Washington State Department of Transportation for conducting Seattle Multimodal Project at Colman Dock in Seattle, Washington, from August 1, 2019, to July 31, 2020, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. A draft of the proposed IHA can be found at
We request comment on our analyses, the proposed authorization, and any other aspect of this Notice of Proposed IHA for the proposed issuance of an IHA to the Washington State Department of Transportation to take marine mammals incidental to its Seattle Multimodal Project at Colman Dock. We also request comment on the potential for renewal of this proposed IHA as described in the paragraph below. Please include with your comments any supporting data or literature citations to help inform our final decision on the request for MMPA authorization.
On a case-by-case basis, NMFS may issue a second 1-year IHA without additional notice when (1) another year of identical or nearly identical activities as described in the Specified Activities section is planned or (2) the activities would not be completed by the time the IHA expires and a second IHA would allow for completion of the activities beyond that described in the Dates and Duration section, provided all of the following conditions are met:
• A request for renewal is received no later than 60 days prior to expiration of the current IHA;
• The request for renewal must include the following:
(1) An explanation that the activities to be conducted beyond the initial dates either are identical to the previously analyzed activities or include changes so minor (
(2) A preliminary monitoring report showing the results of the required monitoring to date and an explanation showing that the monitoring results do not indicate impacts of a scale or nature not previously analyzed or authorized; and
• Upon review of the request for renewal, the status of the affected species or stocks, and any other pertinent information, NMFS determines that there are no more than minor changes in the activities, the mitigation and monitoring measures remain the same and appropriate, and the original findings remain valid.
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.
Interested persons are invited to submit comments on or before July 5, 2019.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Kelley Harris, 202-453-7346.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Institute of Education Sciences (IES), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is proposing a new information collection.
Interested persons are invited to submit comments on or before July 5, 2019.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Melanie Ali, 202-245-8345.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Career, Technical, and Adult Education, Department of Education.
Final requirements and definitions.
The Assistant Secretary for Career, Technical, and Adult Education announces requirements and definitions under the Tribally Controlled Postsecondary Career and Technical Institutions Program (TCPCTIP), Catalog of Federal Domestic Assistance (CFDA) number 84.245. The Assistant Secretary may use these requirements and definitions for a competition in fiscal year (FY) 2019 and in later years. We take this action to clarify the circumstances under which stipends may be paid to students attending tribally controlled postsecondary career and technical institutions and to establish requirements that applicants must meet to demonstrate that they: (1) Are eligible for assistance under TCPCTIP, and (2) will use grant funds in accordance with statutory requirements.
Kiawanta Hunter-Keiser, U.S. Department of Education, 400 Maryland Avenue SW, room 11-119, PCP, Washington, DC 20202-7241. Telephone: (202) 245-7724. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
Section 117 of Perkins V (20 U.S.C. 2327).
We published a notice of proposed requirements and definitions for this program in the
There are no differences between the proposed requirements and definitions and these final requirements and definitions.
(a) Documentation showing that the applicant is eligible, according to each of the requirements in the Eligible Applicants section of this notice (and pursuant to sections 117(a) and (d) of Perkins V), including meeting the definition of the terms “tribally controlled postsecondary career and technical institution” and “institution
(b) Descriptions of the career and technical education programs, including academic courses, to be supported under the proposed TCPCTIP project. Projects funded under this competition must propose organized educational activities that meet the definition of career and technical education, as that term is defined in section 3(5) of the Act.
(c) The estimated number of students to be served by the proposed project in each career and technical education program in each year of the project.
(d) Goals and objectives for the proposed project, including how the attainment of the goals and objectives would further Tribal economic development plans, if any.
(e) A detailed budget identifying the costs to be paid with funds under this program for each year of the project period, and resources available from other Federal, State, and local sources, including any student financial aid, that will be used to achieve the goals and objectives of the proposed project.
(f) A description of the procedure the applicant intends to use to determine student eligibility for stipends and stipend amounts, and its oversight procedures for the awarding and payment of stipends.
(1) To be eligible for a stipend, a student must—
(i) Be enrolled in a career and technical education project funded under this program;
(ii) Be in regular attendance in a TCPCTIP project and meet the training institution's attendance requirement;
(iii) Maintain satisfactory progress in his or her program of study according to the training institution's published standards for satisfactory progress; and
(iv) Have an acute economic need that prevents participation in a project funded under this program without a stipend and that cannot be met through a work-study program.
(b) The amount of a stipend is based on the greater of either the minimum hourly wage prescribed by State or local law or the minimum hourly wage established under the Fair Labor Standards Act.
(c) A grantee may only award a stipend if the stipend combined with other resources the student receives does not exceed the student's financial need. A “student's financial need” is the difference between the student's cost of attendance and the financial aid or other resources available to defray the student's cost of participating in a TCPCTIP project.
(d) To calculate the amount of a student stipend, a grantee would multiply the number of hours a student actually attends career and technical education instruction by the greater of the amount of the minimum hourly wage that is prescribed by State or local law or by the minimum hourly wage that is established under the Fair Labor Standards Act.
(e) Grantees must maintain records that fully support their decisions to award stipends and the amounts that are paid, such as proof of a student's enrollment in a TCPCTIP, stipend applications, timesheets showing the number of attendance hours confirmed in writing by an instructor, student financial status information, and evidence that a student would not be able to participate in the TCPCTIP project without a stipend. (20 U.S.C. 1232f; 34 CFR 75.700-75.702, 75.730, and 75.731)
(f) An eligible student may receive a stipend when taking a course for the first time. However, a stipend may not be provided to a student who has already taken, completed, and had the opportunity to benefit from a course and is merely repeating the course.
This document does not preclude us from proposing additional priorities, requirements, definitions, or selection criteria, subject to meeting applicable rulemaking requirements.
This document does
Under Executive Order 12866, it must be determined whether this regulatory action is “significant” and, therefore, subject to the requirements of the Executive order and subject to review by the Office of Management and Budget (OMB). Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action likely to result in a rule that may—
(1) Have an annual effect on the economy of $100 million or more, or adversely affect a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities in a material way (also referred to as an “economically significant” rule);
(2) Create serious inconsistency or otherwise interfere with an action taken or planned by another agency;
(3) Materially alter the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles stated in the Executive order.
This final regulatory action is not a significant regulatory action subject to review by OMB under section 3(f) of Executive Order 12866.
Under Executive Order 13771, for each new regulation that the Department proposes for notice and comment or otherwise promulgates that is a significant regulatory action under Executive Order 12866, and that imposes total costs greater than zero, it must identify two deregulatory actions. For FY 2019, any new incremental costs associated with a new regulation must be fully offset by the elimination of existing costs through deregulatory actions. However, Executive Order 13771 does not apply to “transfer rules”
We have also reviewed this final regulatory action under Executive Order 13563, which supplements and explicitly reaffirms the principles, structures, and definitions governing regulatory review established in Executive Order 12866. To the extent permitted by law, Executive Order 13563 requires that an agency—
(1) Propose or adopt regulations only upon a reasoned determination that their benefits justify their costs (recognizing that some benefits and costs are difficult to quantify);
(2) Tailor its regulations to impose the least burden on society, consistent with obtaining regulatory objectives and taking into account—among other things and to the extent practicable—the costs of cumulative regulations;
(3) In choosing among alternative regulatory approaches, select those approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity);
(4) To the extent feasible, specify performance objectives, rather than the behavior or manner of compliance a regulated entity must adopt; and
(5) Identify and assess available alternatives to direct regulation, including economic incentives—such as user fees or marketable permits—to encourage the desired behavior, or provide information that enables the public to make choices.
Executive Order 13563 also requires an agency “to use the best available techniques to quantify anticipated present and future benefits and costs as accurately as possible.” The Office of Information and Regulatory Affairs of OMB has emphasized that these techniques may include “identifying changing future compliance costs that might result from technological innovation or anticipated behavioral changes.”
We are issuing these final requirements and definitions only on a reasoned determination that their benefits justify their costs. In choosing among alternative regulatory approaches, we selected those approaches that maximize net benefits. Based on the analysis that follows, the Department believes that this regulatory action is consistent with the principles in Executive Order 13563.
We also have determined that this regulatory action would not unduly interfere with State, local, and Tribal governments in the exercise of their governmental functions.
In accordance with these Executive orders, the Department has assessed the potential costs and benefits, both quantitative and qualitative, of this regulatory action. The potential costs associated with this regulatory action are those resulting from regulatory requirements and those we have determined are necessary for administering the Department's programs and activities.
The Department believes that the final application requirements would help to ensure that: Only institutions eligible for assistance under section 117 of the Act receive such assistance; grants provided under section 117 of the Act are awarded only for allowable, reasonable, and necessary costs; and eligible applicants consider carefully in preparing their applications how the grants may be used to improve career and technical education programs and the outcomes of the students who enroll in them. The program requirements and related definitions are necessary to ensure that taxpayer funds are expended appropriately.
The Department further believes that the costs imposed on an applicant by the final requirements and definitions would be largely limited to the paperwork burden related to meeting the application requirements and that the benefits of preparing an application and receiving an award would justify any costs incurred by the applicant. Entities selected for awards under section 117 of the Act would be able to pay the costs associated with implementing the program requirements related to student stipends with grant funds. Thus, the costs of these final requirements and definitions would not be a significant burden for any eligible applicant.
Elsewhere in this section under Paperwork Reduction Act of 1995, we identify and explain burdens specifically associated with information collection requirements.
The small entities that this final regulatory action would affect are institutions of higher education. We believe that the costs imposed on an applicant by the final requirements and definitions would be limited to paperwork burden related to preparing an application and that the benefits of implementing these final requirements and definitions would outweigh any costs incurred by the applicant.
Participation in TCPCTIP is voluntary. For this reason, the final application requirements would impose no burden on small entities unless they applied for funding under TCPCTIP. We expect that in determining whether to apply for TCPCTIP funds, an eligible entity would evaluate the requirements of preparing an application and any associated costs, and weigh them against the benefits likely to be achieved by receiving a TCPCTIP grant. An eligible entity would probably apply only if it determines that the likely benefits exceed the costs of preparing an application. The likely benefits of applying for a TCPCTIP grant include the potential receipt of a grant as well as other benefits that may accrue to an entity through its development of an application, such as the identification of long- and short-range plans for the institution and its career and technical education programs. Additionally, final application requirement (a), which would direct applicants to document their eligibility under section 117 of the
We believe that the final requirements and definitions would not impose any additional burden on a small entity applying for a grant than the entity would face in the absence of the final action. That is, the length of the applications those entities would submit in the absence of the final regulatory action and the time needed to prepare an application would likely be the same.
This final regulatory action would not have a significant economic impact on a small entity once it receives a grant because it would be able to meet the costs of compliance using the funds provided under this program.
You may also access documents of the Department published in the
Office of Elementary and Secondary Education, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications for fiscal year (FY) 2019 for CSP—State Charter School Facilities Incentive Grants Program, Catalog of Federal Domestic Assistance (CFDA) number 84.282D. This notice relates to the approved information collection under OMB control number 1855-0012.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Clifton Jones, U.S. Department of Education, 400 Maryland Avenue SW, Room 3E211, Washington, DC 20202-5970. Telephone: (202) 205-2204. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
These priorities are:
The extent to which the applicant would target services to a Qualified Opportunity Zone, as designated by the Secretary of the Treasury under section 1400Z-1 of the Internal Revenue Code, as amended by the Tax Cuts and Jobs Act (Pub. L. 115-97). An applicant must—
(1) Provide the census tract number of the Qualified Opportunity Zone(s) in which it proposes to provide services; and
(2) Describe how the applicant will provide services in the Qualified Opportunity Zone(s).
The extent to which the
(1) Assessing annual performance data of the schools, including, as appropriate, graduation rates, student academic growth, and rates of student attrition;
(2) Reviewing the schools' independent, annual audits of financial statements prepared in accordance with generally accepted accounting principles, and ensuring that any such audits are publicly reported; and
(3) Holding
The extent to which the
The
(1) Allows at least one entity that is not a local educational agency (LEA) to be an
(2) In the case of a
The extent to which the
Applicants that have not previously received a grant under the program.
(a) In accordance with a specific
(b) Is created by a developer as a public school, or is adapted by a developer from an existing public school, and is operated under public supervision and direction;
(c) Operates in pursuit of a specific set of educational objectives determined by the school's developer and agreed to by the
(d) Provides a program of elementary or secondary education, or both;
(e) Is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution;
(f) Does not charge tuition;
(g) Complies with the Age Discrimination Act of 1975 (42 U.S.C. 6101
(h) Is a school to which parents choose to send their children, and that—
(i) Admits students on the basis of a lottery, consistent with section 4303(c)(3)(A) of the ESEA (20 U.S.C. 7221b(c)(3)(A)), if more students apply for admission than can be accommodated; or
(ii) In the case of a school that has an affiliated
(i) Agrees to comply with the same Federal and
(j) Meets all applicable Federal,
(k) Operates in accordance with
(l) Has a written performance contract with the
(m) May serve students in early childhood education programs or postsecondary students.
(a) That is dedicated solely to funding
(b) A portion of which is dedicated for funding
1.
(a) Is specified in
(b) Provides annual financing, on a per-pupil basis, for
2.a.
Applicants that are provisionally selected to receive grants will not receive grant funds unless they demonstrate, by September 1, 2019, that they are, or will be able to, provide the
b.
3.
1.
2.
Because we plan to make successful applications available to the public, you may wish to request confidentiality of business information.
Consistent with Executive Order 12600, please designate in your application any information that you feel is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).
3.
4.
5.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
Furthermore, applicants are strongly encouraged to include a table of contents that specifies where each required part of the application is located.
1.
(a)
(1) The need for per-pupil
(2) The extent to which the proposal meets the need to fund
(b)
(1) The likelihood that the proposed grant project will result in the
(2) The flexibility
(3) The quality of the plan for identifying
(4) The per-pupil facilities aid formula's ability to target resources to
(5) For projects that plan to reserve funds for evaluation, the quality of the applicant's plan to use grant funds for this purpose.
(6) For projects that plan to reserve funds for technical assistance, dissemination, or personnel, the quality of the applicant's plan to use grant funds for these purposes.
(7) The extent to which the proposed project
(c)
(1) The qualifications, including relevant training and experience, of the project manager and other members of the grant project team, including employees not paid with grant funds, consultants, and subcontractors.
(2) The adequacy and appropriateness of the applicant's staffing plan for the grant project.
(d)
(1) The extent to which the requested grant amount and the project costs are reasonable in relation to the objectives, design, and potential significance of the proposed grant project.
(2) The extent to which the costs are reasonable in relation to the number of students served and to the anticipated results and benefits.
(3) The extent to which the non-Federal share exceeds the minimum percentages (which are based on the percentages under section 4304(k)(2)(C) of the ESEA), particularly in the initial years of the program.
(e)
(1) The Secretary considers the quality of the evaluation to be conducted of the proposed project.
(2) In determining the quality of the evaluation, the Secretary considers the following factors—
(i) The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project.
(ii) The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes.
(iii) The extent to which the methods of evaluation will provide valid and reliable performance data on
2.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
4.
Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
5.
(a)
(b)
(1)
(2)
(3)
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
Office of Postsecondary Education, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications for new awards for fiscal year (FY) 2019 for the Alaska Native and Native Hawaiian-Serving Institutions (ANNH) Program, Catalog of Federal Domestic Assistance (CFDA) numbers 84.031N (Alaska Native) and 84.031W (Native Hawaiian). This notice relates to the approved information collection under OMB control number 1840-0810.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Robyn Wood, U.S. Department of Education, 400 Maryland Avenue SW, Room 268-42, Washington, DC 20202-4260. Telephone: (202) 453-7744. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
This priority is:
Projects that are designed to address supporting instruction in personal financial literacy, knowledge of markets and economics, knowledge of higher education financing and repayment (
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2020 from the list of unfunded applications from this competition.
1.a.
This program is authorized by title III, part A, of the HEA. At the time of submission of their applications, applicants must certify their total undergraduate headcount enrollment and that either 20 percent of the IHE's enrollment is Alaska Native or 10 percent is Native Hawaiian. An assurance form, which is included in the application materials for this competition, must be signed by an official for the applicant and submitted.
To qualify as an eligible institution under the ANNH Program, an institution must—
(i) Be accredited or preaccredited by a nationally recognized accrediting agency or association that the Secretary has determined to be a reliable authority as to the quality of education or training offered;
(ii) Be legally authorized by the State in which it is located to be a junior or community college or to provide an educational program for which it awards a bachelor's degree;
(iii) Be designated as an “eligible institution,” as defined in 34 CFR 600.2, by demonstrating that it: (1) Has an enrollment of needy students as described in 34 CFR 607.3; and (2) has low average educational and general expenditures per full-time equivalent (FTE) undergraduate student as described in 34 CFR 607.4.
b.
A grantee under the HSI Program, which is authorized under title V of the HEA, may not receive a grant under any HEA, title III, part A program. The title III, part A programs are: The Strengthening Institutions Program; the Tribally Controlled Colleges and Universities program; the Alaska Native and Native Hawaiian-Serving Institutions program; the Asian American and Native American Pacific Islander-Serving Institutions program; and the Native American-Serving Nontribal Institutions program. Furthermore, a current HSI program grantee may not give up its HSI grant in order to be eligible to receive a grant under ANNH or any title III, part A program as described in 34 CFR 607.2(g)(1).
An eligible HSI that is not a current grantee under the HSI program may apply for a FY 2019 grant under all title III, part A programs for which it is eligible, as well as receive consideration for a grant under the HSI program. However, a successful applicant may receive only one grant as described in 34 CFR 607.2(g)(1).
An eligible IHE that submits applications for an Individual Development Grant and a Cooperative Arrangement Development Grant in this competition may be awarded both in the same fiscal year. However, we will not award a second Cooperative Arrangement Development Grant to an otherwise eligible IHE for an award year for which the IHE already has a Cooperative Arrangement Development Grant award under the ANNH Program. A grantee with an Individual Development Grant or a Cooperative Arrangement Development Grant may be a subgrantee in one or more Cooperative Arrangement Development Grants. The lead institution in a Cooperative Arrangement Development Grant must be an eligible institution. Partners or subgrantees are not required to be eligible institutions.
2.a.
b.
3.
1.
2.
3.
4.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger, and no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract and the bibliography. However, the recommended page limit does apply to all of the application narrative.
1.
(a)
(1) The strengths, weaknesses, and significant problems of the institution's academic programs, institutional management, and fiscal stability are clearly and comprehensively analyzed and result from a process that involved major constituencies of the institution;
(2) The goals for the institution's academic programs, institutional management, and fiscal stability are realistic and based on comprehensive analysis;
(3) The objectives stated in the plan are measurable, related to institutional goals, and, if achieved, will contribute to the growth and self-sufficiency of the institution; and
(4) The plan clearly and comprehensively describes the methods and resources the institution will use to institutionalize practice and improvements developed under the proposed project, including, in particular, how operational costs for personnel, maintenance, and upgrades of equipment will be paid with institutional resources.
(b)
(1) Realistic and defined in terms of measurable results; and
(2) Directly related to the problems to be solved and to the goals of the comprehensive development plan.
(c)
(1) The Secretary considers the quality of the design of the proposed project.
(2) In determining the quality of the design of the proposed project, the Secretary considers the extent to which the proposed project demonstrates a rationale (as defined in this notice).
(d)
(1) The implementation strategy for each activity is comprehensive;
(2) The rationale for the implementation strategy for each activity is clearly described and is supported by the results of relevant studies or projects; and
(3) The timetable for each activity is realistic and likely to be attained.
(e)
(1) The past experience and training of key professional personnel are directly related to the stated activity objectives; and
(2) The time commitment of key personnel is realistic.
(f)
(1) Procedures for managing the project are likely to ensure efficient and effective project implementation; and
(2) The project coordinator and activity directors have sufficient authority to conduct the project effectively, including access to the president or chief executive officer.
(g)
(1) The data elements and the data collection procedures are clearly described and appropriate to measure the attainment of activity objectives and to measure the success of the project in achieving the goals of the comprehensive development plan; and
(2) The data analysis procedures are clearly described and are likely to produce formative and summative results on attaining activity objectives and measuring the success of the project on achieving the goals of the comprehensive development plan.
(h)
2.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
A panel of three non-Federal reviewers will review and score each application in accordance with the selection criteria. A rank order funding slate will be made from this review. Awards will be made in rank order according to the average score received from the peer review and from the competitive preference priority.
In tie-breaking situations for development grants, 34 CFR 607.23(b) requires that we award one additional point to an application from an IHE that has an endowment fund of which the current market value, per FTE enrolled student, is less than the average current market value of the endowment funds, per FTE enrolled student, at comparable type institutions that offer similar instruction. We award one additional point to an application from an IHE that has expenditures for library materials per FTE enrolled student that are less than the average expenditure for library materials per FTE enrolled student at similar type institutions. We also add one additional point to an application from an IHE that proposes to carry out one or more of the following activities—
(1) Faculty development;
(2) Funds and administrative management;
(3) Development and improvement of academic programs;
(4) Acquisition of equipment for use in strengthening management and academic programs;
(5) Joint use of facilities; and
(6) Student services.
For the purpose of these funding considerations, we use 2017-2018 data.
If a tie remains after applying the tie-breaker mechanism above, priority will be given to applicants that have the
3.
4.
Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
5.
(a) The percentage change, over the five-year period, of the number of full-time degree-seeking undergraduates enrolled at Alaska Native and Native Hawaiian-Serving Institutions (Note: This is a long-term measure, which will be used to periodically gauge performance);
(b) The percentage of first-time, full-time degree-seeking undergraduate students at four-year Alaska Native and Native Hawaiian-Serving Institutions who were in their first year of postsecondary enrollment in the previous year and are enrolled in the current year at the same Alaska Native and Native Hawaiian-Serving Institution;
(c) The percentage of first-time, full-time degree-seeking undergraduate students at two-year Alaska Native and Native Hawaiian-Serving Institutions who were in their first year of postsecondary enrollment in the previous year and are enrolled in the current year at the same Alaska Native and Native Hawaiian-Serving Institution;
(d) The percentage of first-time, full-time degree-seeking undergraduate students enrolled at four-year Alaska Native and Native Hawaiian-Serving Institutions who graduate within six years of enrollment; and
(e) The percentage of first-time, full-time degree-seeking undergraduate students enrolled at two-year Alaska Native and Native Hawaiian-Serving Institutions who graduate within three years of enrollment.
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
Office of Postsecondary Education, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications for new awards for fiscal year (FY) 2019 for the Alaska Native and Native Hawaiian-Serving Institutions (ANNH) Program, Catalog of Federal Domestic Assistance (CFDA) numbers 84.031R (Alaska Native) and 84.031V (Native Hawaiian). This notice relates to the approved information collection under OMB control number 1840-0810.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Robyn Wood, U.S. Department of Education, 400 Maryland Avenue SW, Room 268-42, Washington, DC 20202-4260. Telephone: (202) 453-7744. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
This priority is:
Projects that are designed to address supporting instruction in personal financial literacy, knowledge of markets and economics, knowledge of higher education financing and repayment (
In developing logic models, applicants may want to use resources such as the Regional Educational Laboratory Program's (REL Pacific) Education Logic Model Application, available at
A cooperative arrangement is an arrangement to carry out allowable grant activities between an institution eligible to receive a grant under this part and another eligible or ineligible IHE, under which the
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2020 from the list of unfunded applications from this competition.
The Department is not bound by any estimates in this notice.
1.
To qualify as an eligible institution under the ANNH Program, an institution must—
(a) Be accredited or preaccredited by a nationally recognized accrediting agency or association that the Secretary has determined to be a reliable authority as to the quality of education or training offered;
(b) Be legally authorized by the State in which it is located to be a junior or community college or to provide an educational program for which it awards a bachelor's degree;
(c) Be designated as an “eligible institution” by demonstrating that it: (1) Has an enrollment of needy students as described in 34 CFR 607.3; and (2) has low average educational and general expenditures per full-time equivalent (FTE) undergraduate student as described in 34 CFR 607.4.
The notice announcing the FY 2019 process for designation of eligible institutions, and inviting applications for waiver of eligibility requirements, was published in the
An eligible IHE that submits applications for an Individual Development Grant and a Cooperative Arrangement Development Grant in this competition may be awarded both in the same fiscal year. A grantee with an Individual Development Grant or a Cooperative Arrangement Development Grant may be a subgrantee in one or more Cooperative Arrangement Development Grants. The lead institution in a Cooperative Arrangement Development Grant must be an eligible institution. Partners or subgrantees are not required to be eligible institutions.
2. a.
b.
3.
1.
2.
3.
4.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger, and no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to Part I, the cover sheet; Part II, the budget section, including the narrative budget justification; Part IV, the assurances and certifications; or the one-page abstract and the bibliography. However, the recommended page limit does apply to all of the application narrative.
The Budget Information-Non-Construction Programs Form (ED 524) Sections A-C are not the same as the narrative response to the Budget section of the selection criteria.
1.
(a)
(1) The strengths, weaknesses, and significant problems of the institution's academic programs, institutional management, and fiscal stability are clearly and comprehensively analyzed
(2) The goals for the institution's academic programs, institutional management, and fiscal stability are realistic and based on comprehensive analysis;
(3) The objectives stated in the plan are measurable, related to institutional goals, and, if achieved, will contribute to the growth and self-sufficiency of the institution; and
(4) The plan clearly and comprehensively describes the methods and resources the institution will use to institutionalize practice and improvements developed under the proposed project, including, in particular, how operational costs for personnel, maintenance, and upgrades of equipment will be paid with institutional resources.
(b)
(1) Realistic and defined in terms of measurable results; and
(2) Directly related to the problems to be solved and to the goals of the comprehensive development plan.
(c)
(1) The Secretary considers the quality of the design of the proposed project.
(2) In determining the quality of the design of the proposed project, the Secretary considers the extent to which the proposed project demonstrates a rationale (as defined in this notice).
(d)
(1) The implementation strategy for each activity is comprehensive;
(2) The rationale for the implementation strategy for each activity is clearly described and is supported by the results of relevant studies or projects; and
(3) The timetable for each activity is realistic and likely to be attained.
(e)
(1) The past experience and training of key professional personnel are directly related to the stated activity objectives; and
(2) The time commitment of key personnel is realistic.
(f)
(1) Procedures for managing the project are likely to ensure efficient and effective project implementation; and
(2) The project coordinator and activity directors have sufficient authority to conduct the project effectively, including access to the president or chief executive officer.
(g)
(1) The data elements and the data collection procedures are clearly described and appropriate to measure the attainment of activity objectives and to measure the success of the project in achieving the goals of the comprehensive development plan; and
(2) The data analysis procedures are clearly described and are likely to produce formative and summative results on attaining activity objectives and measuring the success of the project on achieving the goals of the comprehensive development plan.
(h)
2.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
A panel of three non-Federal reviewers will review and score each application in accordance with the selection criteria. A rank order funding slate will be made from this review. Awards will be made in rank order according to the average score received from the peer review and from the competitive preference priority.
In tie-breaking situations for development grants, 34 CFR 607.23(b) requires that we award one additional point to an application from an IHE that has an endowment fund of which the current market value, per FTE enrolled student, is less than the average current market value of the endowment funds, per FTE enrolled student, at comparable type institutions that offer similar instruction. We award one additional point to an application from an IHE that has expenditures for library materials per FTE enrolled student that are less than the average expenditure for library materials per FTE enrolled student at similar type institutions. We also add one additional point to an application from an IHE that proposes to carry out one or more of the following activities—
(1) Faculty development;
(2) Funds and administrative management;
(3) Development and improvement of academic programs;
(4) Acquisition of equipment for use in strengthening management and academic programs;
(5) Joint use of facilities; and
(6) Student services.
For the purpose of these funding considerations, we use 2017-2018 data.
If a tie remains after applying the tie-breaker mechanism above, priority will be given to applicants that have the lowest endowment values per FTE enrolled student.
3.
4.
Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, Appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, Appendix XII, if this grant
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
5.
(a) The percentage change, over the five-year period, of the number of full-time degree-seeking undergraduates enrolled at Alaska Native and Native Hawaiian-Serving Institutions (
(b) The percentage of first-time, full-time degree-seeking undergraduate students at four-year Alaska Native and Native Hawaiian-Serving Institutions who were in their first year of postsecondary enrollment in the previous year and are enrolled in the current year at the same Alaska Native and Native Hawaiian-Serving Institution;
(c) The percentage of first-time, full-time degree-seeking undergraduate students at two-year Alaska Native and Native Hawaiian-Serving Institutions who were in their first year of postsecondary enrollment in the previous year and are enrolled in the current year at the same Alaska Native and Native Hawaiian-Serving Institution;
(d) The percentage of first-time, full-time degree-seeking undergraduate students enrolled at four-year Alaska Native and Native Hawaiian-Serving Institutions who graduate within six years of enrollment; and
(e) The percentage of first-time, full-time degree-seeking undergraduate students enrolled at two-year Alaska Native and Native Hawaiian-Serving Institutions who graduate within three years of enrollment.
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995, ED is
Interested persons are invited to submit comments on or before July 5, 2019.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Beverly Baker, 202-453-6162.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Office of Elementary and Secondary Education, Department of Education.
Notice.
The Department of Education (Department) is issuing a notice inviting applications for fiscal year (FY) 2019 for the Alaska Native Education (ANE) program, Catalog of Federal Domestic Assistance (CFDA) number 84.356A. This notice relates to the approved information collection under OMB control number 1894-0006.
Applications Available: June 4, 2019.
For the addresses for obtaining and submitting an application, please refer to our Common Instructions for Applicants to Department of Education Discretionary Grant Programs, published in the
Almita Reed, U.S. Department of Education, 400 Maryland Avenue SW, Room 3E222, Washington, DC 20202. Telephone: (202) 260-1979. Email:
If you use a telecommunications device for the deaf (TDD) or a text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.
The ANE program encourages grantees to undertake a broad array of activities to achieve these purposes, including many that are consistent with the Administration's policy focus areas as expressed in the Secretary's Final Supplemental Priorities and Definitions for Discretionary Grant Programs (83 FR 9096) (Supplemental Priorities). For example, section 6304(a)(3)(D) of the ESEA authorizes student enrichment programs, including programs in science, technology, engineering, and
As a final example, section 6304(a)(3)(K) authorizes career preparation activities to enable Alaska Native children and adults to prepare for meaningful employment, including programs providing tech-prep, mentoring, training, and apprenticeship activities. Similarily, Supplemental Priority 4 is designed to support projects likely to improve student academic performance and better prepare students for employment, responsible citizenship, and fulfilling lives.
(a) An Indian tribe, as defined in section 4 of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450(b)), located in Alaska;
(b) A tribal organization, as defined in section 4 of such Act (25 U.S.C. 450(b)), located in Alaska; or
(c) An organization listed in clauses (i) through (xii) of section 419(4)(B) of the Social Security Act (42 U.S.C. 619(4)(B)(i) through (xii)), or the successor of an entity so listed.
(a) All applicants:
(1) The applicant must provide a detailed description of the plans, methods, strategies, and activities it will develop and implement to improve the educational outcomes of Alaska Natives; and how the applicant will develop and implement such plans, methods, strategies, and activities; and
(2) The applicant must provide a detailed description of the data it will collect to assist in the evaluation of the programs carried out under the ANE program, including data that address the performance measures in section VI.5 (Performance Measures) of this notice; and how the applicant will collect such data.
(b) Group Application:
An applicant that applies as part of a partnership must meet this requirement, in addition to the requirements in paragraph (a).
(1) An ANO that applies for a grant in partnership with a State educational agency (SEA) or local educational agency (LEA) must serve as the fiscal agent for the project.
(2) Group applications under the ANE program must include a partnership agreement that includes a Memorandum of Understanding or a Memorandum of Agreement (MOU/MOA) between the members of the partnership identified and discussed in the grant application. Each MOU/MOA must—
(i) Be signed by all partners, and dated within 120 days prior to the date of the submission of the application;
(ii) Clearly outline the work to be completed by each partner that will participate in the grant in order to accomplish the goals and objectives of the project; and
(iii) Demonstrate an alignment between the activities, roles, and responsibilities described in the grant application for each of the partners in the partnership agreement.
(c) Applicants Establishing Eligibility through a Charter or Sanction from an Alaska Native Tribe or ANO:
For an entity that does not meet the eligibility requirements for an ANO, established in section 6304(a)(1) and 6306(2) of the ESEA and the notice of final definitions and requirements published elsewhere in this issue of the
(1) Written documentation demonstrating that the entity is physically located in the State of Alaska.
(2) Written documentation demonstrating that the entity has experience operating programs that fulfill the purposes of the ANE program.
(3) Written documentation demonstrating that the entity is predominately governed by Alaska Natives, including the total number, names, and Tribal affiliations of members of the governing board.
(4) A copy of the official charter or sanction provided to the entity by an Alaska Native Tribe or ANO.
(1) Give to Indians preferences and opportunities for training and employment in connection with the administration of the grant; and
(2) Give to Indian organizations and to Indian-owned economic enterprises, as defined in section 3 of the Indian Financing Act of 1974 (25 U.S.C. 1452(e)), preference in the award of contracts in connection with the administration of the grant.
(b) For purposes of this requirement, an Indian is a member of any federally recognized Indian Tribe.
Contingent upon the availability of funds and the quality of applications, we may make additional awards in subsequent years from the list of unfunded applications from this competition.
1.
(b) Alaska Native organizations that do not have experience operating programs that fulfill the purposes of the ANE program, but are in partnership with—
(i) An SEA or LEA; or
(ii) An Alaska Native organization that operates a program that fulfills the purposes of the ANE program; or
(c) An entity located in Alaska, and predominately governed by Alaska Natives, that does not meet the definition of an Alaska Native organization but—
(i) Has experience operating programs that fulfill the purposes of the ANE program; and
(ii) Is granted an official charter or sanction from at least one Alaska Native Tribe or Alaska Native organization to carry out programs that meet the purposes of the ANE program.
2.
3.
1.
2.
Because we plan to make successful applications available to the public, you may wish to request confidentiality of business information.
Consistent with Executive Order 12600, please designate in your application any information that you believe is exempt from disclosure under Exemption 4. In the appropriate Appendix section of your application, under “Other Attachments Form,” please list the page number or numbers on which we can find this information. For additional information please see 34 CFR 5.11(c).
3.
4.
5.
• A “page” is 8.5″ x 11″, on one side only, with 1″ margins at the top, bottom, and both sides.
• Double space (no more than three lines per vertical inch) all text in the application narrative, including titles, headings, footnotes, quotations, references, and captions, as well as all text in charts, tables, figures, and graphs.
• Use a font that is either 12 point or larger or no smaller than 10 pitch (characters per inch).
• Use one of the following fonts: Times New Roman, Courier, Courier New, or Arial.
The recommended page limit does not apply to the cover sheet; the budget section, including the narrative budget justification; the assurances and certifications; or the one-page abstract, the resumes, the bibliography, or the letters of support. However, the recommended page limit does apply to all of the application narrative.
6.
1.
The selection criteria are as follows:
(a)
(1) The Secretary considers the need for the proposed project.
(2) In determining the need for the proposed project, the Secretary considers the extent to which specific gaps or weaknesses in services, infrastructure, or opportunities have been identified and will be addressed by the proposed project, including the nature and magnitude of those gaps or weaknesses.
(b)
(1) The Secretary considers the quality of the design of the proposed project.
(2) In determining the quality of the design of the proposed project, the Secretary considers the following factors:
(i) The extent to which the goals, objectives, and outcomes to be achieved by the proposed project are clearly specified and measurable (up to 20 points);
(ii) The extent to which the proposed project demonstrates a rationale (as defined in this notice) (up to 10 points); and
(iii) The extent to which the project plans, methods, strategies, and activities described by the applicant under Application Requirement (a)(1) will improve educational outcomes for Alaska Natives (up to 10 points).
(c)
(1) The Secretary considers the quality of the management plan for the proposed project.
(2) In determining the quality of the management plan for the proposed project, the Secretary considers the following factors:
(i) The adequacy of the management plan to achieve the objectives of the proposed project on time and within budget, including clearly defined responsibilities, timelines, and milestones for accomplishing project tasks (up to 20 points); and
(ii) The adequacy of mechanisms for ensuring high-quality products and services from the proposed project (up to 20 points).
(d)
(1) The Secretary considers the quality of the personnel who will carry out the proposed project.
(2) In determining the quality of project personnel, the Secretary considers the extent to which the applicant encourages applications for employment from persons who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability. In addition the Secretary considers the qualifications, including relevant training and experience, of key project personnel.
(e)
(1) The Secretary considers the quality of the evaluation to be conducted of the proposed project.
(2) In determining the quality of the evaluation, the Secretary considers the following factors:
(i) The extent to which the methods of evaluation are thorough, feasible, and appropriate to the goals, objectives, and outcomes of the proposed project. (up to 5 points)
(ii) The extent to which the methods of evaluation are appropriate to the context within which the project operates. (up to 5 points)
2.
In addition, in making a competitive grant award, the Secretary requires various assurances, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
3.
4.
Please note that, if the total value of your currently active grants, cooperative agreements, and procurement contracts from the Federal Government exceeds $10,000,000, the reporting requirements in 2 CFR part 200, appendix XII, require you to report certain integrity information to FAPIIS semiannually. Please review the requirements in 2 CFR part 200, appendix XII, if this grant plus all the other Federal funds you receive exceed $10,000,000.
1.
If your application is not evaluated or not selected for funding, we notify you.
2.
We reference the regulations outlining the terms and conditions of an award in the
3.
4.
(b) At the end of your project period, you must submit a final performance report, including financial information, as directed by the Secretary. If you receive a multiyear award, you must submit an annual performance report that provides the most current performance and financial expenditure information as directed by the Secretary under 34 CFR 75.118. The Secretary may also require more frequent performance reports under 34 CFR 75.720(c). For specific requirements on reporting, please go to
(c) Under 34 CFR 75.250(b), the Secretary may provide a grantee with additional funding for data collection analysis and reporting. In this case the Secretary establishes a data collection period.
5.
6.
In making a continuation award, the Secretary also considers whether the grantee is operating in compliance with the assurances in its approved application, including those applicable to Federal civil rights laws that prohibit discrimination in programs or activities receiving Federal financial assistance from the Department (34 CFR 100.4, 104.5, 106.4, 108.8, and 110.23).
You may also access documents of the Department published in the
United States Election Assistance Commission.
Notice of extension of the comment period for the Voluntary Voting System Guidelines 2.0 Principles and Guidelines.
In accordance with the Help America Vote Act of 2002, the U.S. Election Assistance Commission (EAC) is publishing the Voluntary Voting System Guidelines 2.0 Principles and Guidelines (VVSG 2.0) for public comment. The VVSG 2.0 Principles and Guidelines provide high level principles and guidelines to which voting systems can be tested to determine if they provide basic functionality, accessibility, and security capabilities.
The Comment period has been extended to 5:00 p.m. EST on June 7, 2019.
In order to allow efficient and effective review of comments the EAC requests that:
(1) Comments refer to the specific section that is the subject of the comment.
(2) General comments regarding the entire document or comments that refer to more than one section be made as specifically as possible so that EAC can clearly understand to which portion(s) of the documents the comment refers.
(3) To the extent that a comment suggests a change in the wording of a Principal or Guideline or section of the guidelines, please provide proposed language for the suggested change.
Jerome Lavoto, Phone (301) 563-3929, or at
As required by Section 222(d) of HAVA the EAC is placing the proposed VVSG 2.0 Principles and Guidelines as submitted by the Technical Guidelines Development Committee (TGDC) out for a 90 public comment period. The EAC is asking for comments regarding all sections of the Principles and Guidelines including the proposed Structure of the VVSG 2.0. The Principles and Guidelines will subsequently be accompanied by Requirements, which will be distributed to the TGDC, the Standards Board, the Board of Advisors and submitted for public comment and consideration by the Commission.
The EAC made the decision to undertake the drafting of VVSG 2.0 Principles and Guidelines as a result of feedback received over several years from a variety of stakeholders including, but not limited to State and local election officials, voting system manufacturers and usability, accessibility and security interest groups.
The EAC Technical Guidelines Development Committee (TGDC) proposed a different structure for developing the VVSG 2.0 than in previous years. This structure differs significantly from previous versions of the VVSG because it is a high level principles and guidelines document. The Principles are high-level system design goals. The Guidelines are a broad description of the functions that make up a voting system. This new structure has significantly decreased the size and complexity of the VVSG from previous versions.
Unlike previous versions of the VVSG, this proposed version recommends that the Requirements for testing a voting system be separate and apart from the Principles and Guidelines. As proposed, the VVSG 2.0 Principles and Guidelines will be accompanied by a separate document that details the Requirements for how systems can meet the new Principles and Guidelines in order to obtain certification. The Requirements will subsequently be accompanied by Test Assertions for how the accredited test laboratories will validate that the system complies with the Requirements and the Principles and Guidelines.
The Requirements will be adjunct to the VVSG Principles and Guidelines itself and will be subject to public review and comment, including distribution to the EAC's TGDC, Standards Board and Board of Advisors for comment prior to consideration and implementation by the Commission.
The TGDC unanimously approved to recommend VVSG 2.0 Principles and Guidelines on September 12, 2017, and sent the Principles and Guidelines to the EAC Executive Director via the Director of the National Institute of Science and Technology (NIST), in the capacity of the Chair of the TGDC. The Commission will accept comments on the proposed structure of the VVSG 2.0 Principles and Guidelines as well as on the content of the Principles and Guidelines.
The Voluntary Voting System Guidelines version 2.0 Principles and Guidelines (VVSG 2.0), is the fifth iteration of national level voting system standards. The Federal Election Commission published the first two sets of federal standards in 1990 and 2002. The EAC then adopted Version 1.0 of the VVSG on December 13, 2005. In an effort to update and improve version 1.0 of the VVSG, on March 31, 2015, the EAC commissioners unanimously approved VVSG 1.1.
Office of Environmental Management, Department of Energy (DOE).
Notice of open meeting.
This notice announces a meeting of the Environmental Management Site-Specific Advisory Board (EM SSAB), Idaho Cleanup Project. The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Thursday, June 20, 2019, 8:00 a.m.-4:00 p.m.
The opportunities for public comment are at 10:45 a.m. and 3:00 p.m.
This time is subject to change; please contact the Federal Coordinator (below) for confirmation of times prior to the meeting.
Shoshone-Bannock Hotel and Event Center, 777 Bannock Trail, Fort Hall, ID 83203.
Brad Bugger, Federal Coordinator, Department of Energy, Idaho Operations Office, 1955 Fremont Avenue, MS-1203, Idaho Falls, Idaho 83415. Phone (208) 526-0833; or email:
Office of Energy Efficiency and Renewable Energy, U.S. Department of Energy.
Notice and request for comments.
The Department of Energy (DOE), pursuant to the Paperwork Reduction Act of 1995, intends to extend for three years, an information collection request with the Office of Management and Budget (OMB). The information collection request, Historic Preservation for Energy Efficiency Programs, was initially approved on December 1, 2010 under OMB Control No. 1910-5155 and was reinstated on September 12, 2016. The current expiration date is September 30, 2019. The extension of this currently approved information collection, will allow DOE to continue data collection on the status of the Weatherization Assistance Program (WAP), the State Energy Program (SEP), and the Energy Efficiency and Conservation Block Grant (EECBG) program.
Comments regarding this collection must be received on or before July 5, 2019. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, please advise the OMB Desk Officer of your intention to make a submission as soon as possible. The Desk Officer may be telephoned at (202) 395-4650.
Written comments should be sent to the
and to
Requests for additional information or copies of the information collection instrument and instructions should be directed to: Christine Askew, EE-5W, U.S. Department of Energy, 1000 Independence Ave. SW, Washington, DC 20585-1290, Phone: (202) 586-8224, Fax: (202) 287-1992, Email:
Additional information and reporting guidance concerning the Historic Preservation reporting requirement for the WAP, SEP, and EECBG programs are available for review at:
Programs will ensure compliance with the National Historic Preservation Act (NHPA). Comments are invited on: (a) Whether the extended 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, including the validity of the methodology and assumptions used; (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. This information collection request contains: (1)
Title V, National Historic Preservation Act of 1966, Pub. L. 89-665 as amended (16 U.S.C. 470
Office of Environmental Management, Department of Energy (DOE).
Notice of open meeting.
This notice announces a combined meeting of the Environmental Monitoring and Remediation Committee and Waste Management Committee of the Environmental Management Site-Specific Advisory Board (EM SSAB), Northern New Mexico (known locally as the Northern New Mexico Citizens' Advisory Board [NNMCAB]). The Federal Advisory Committee Act requires that public notice of this meeting be announced in the
Wednesday, June 19, 2019, 1:00 p.m.-4:00 p.m.
NNMCAB Office, 94 Cities of Gold Road, Pojoaque, NM 87506.
Menice Santistevan, Northern New Mexico Citizens' Advisory Board, 94 Cities of Gold Road, Santa Fe, NM 87506. Phone (505) 995-0393; Fax (505) 989-1752 or Email:
Take notice that the Commission received the following electric corporate filings:
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection.
a.
b. Project No.: 2934-029.
c. Date filed: April 1, 2019.
d.
e.
f.
g.
h.
i.
j. Deadline for filing motions to intervene and protests: 60 days from the issuance date of this notice.
The Commission strongly encourages electronic filing. Please file motions to intervene and protests using the Commission's eFiling system at
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.
k. This application has been accepted for filing, but is not ready for environmental analysis at this time.
l. The existing Upper Mechanicville Hydroelectric Project consists of: (1) A 700-foot-long concrete gravity dam with a crest elevation of 66.6 feet National Geodetic Vertical Datum of 1929 (NGVD29); (2) 3 spillway bays each extending 222 feet across the length of the dam and separated by a 7.5-foot to 10.5-foot-wide concrete pier, with each spillway bay containing 12 pneumatic Obermeyer crest gates that are 6 feet high; (3) a 1.8-mile-long impoundment with a 380-acre surface area and gross storage capacity of 10,735 acre-feet at a normal pool elevation of 72.6 feet NGVD29; (4) an intake channel with two reinforced guide walls and three 35-foot-diameter cofferdam walls constructed of sheet piling; (5) a 20-foot-wide and 7.5-foot-high intake bypass sluice gate; (6) a 105.5-foot-long by 122-foot-wide powerhouse containing two 12,780 horsepower Kaplan turbines and two Siemens-Allis generators each having a rated capacity of 8,265 kilowatts; (7) a tailrace approximately 1,200 feet long and 120 feet wide with a bi-level bottom designed to minimize cross-currents; (8) one 1.10-mile-long, 34.5-kilovolt transmission line; and (9) appurtenant facilities.
During the non-navigation season (typically from December 1 through April 30), NYSEG operates the project in a run-of-river (ROR) mode and maintains the impoundment at an elevation of 72.6 feet NGVD29. During the navigation season (typically May 1 through November 30), NYSEG
m. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at
Register online at
n. Anyone may submit a protest or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, and .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 protests or motions to intervene must be received on or before the specified comment date for the particular application.
The application will be processed according to the following Hydro Licensing Schedule. Revisions to the schedule may be made as appropriate.
Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at
The Commission's Rules of Practice and Procedure require all intervenors filing documents with the Commission to serve a copy of that document on each person whose name appears 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
k.
l.
m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.
n.
o.
e.
f.
g.
h.
i.
j.
k.
l. With this notice, we are designating Green Mountain Power as the Commission's non-federal representative for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act, section 106 of the National Historic Preservation Act, and section 305(b) of the Magnuson-Stevens Fishery Conservation and Management Act.
m. Green Mountain Power filed with the Commission a Pre-Application Document (PAD; including a proposed process plan and schedule), pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website (
Register online at
o. With this notice, we are soliciting comments on the PAD and Commission staff's Scoping Document 1 (SD1), as well as study requests. All comments on the PAD and SD1, and study requests
The Commission strongly encourages electronic filing. Please file all documents using the Commission's eFiling system at
All filings with the Commission must bear the appropriate heading: “Comments on Pre-Application Document,” “Study Requests,” “Comments on Scoping Document 1,” “Request for Cooperating Agency Status,” or “Communications to and from Commission Staff.” Any individual or entity interested in submitting study requests, commenting on the PAD or SD1, and any agency requesting cooperating status must do so within 60 days of the date of this notice.
p. Although our current intent is to prepare an environmental assessment (EA), there is the possibility that an Environmental Impact Statement (EIS) will be required. The scoping process will satisfy the NEPA scoping requirements, irrespective of whether an EA or EIS is issued by the Commission.
Commission staff will hold two scoping meetings in the vicinity of the project at the time and place noted below. The daytime meeting will focus on resource agency, Indian tribe, and non-governmental organization concerns, while the evening meeting is primarily for receiving input from the public. We invite all interested individuals, organizations, and agencies to attend one or both of the meetings, and to assist staff in identifying particular study needs, as well as the scope of environmental issues to be addressed in the environmental document. The times and locations of these meetings are as follows:
SD1, which outlines the subject areas to be addressed in the environmental document, was mailed to the individuals and entities on the Commission's mailing list. Copies of SD1 will be available at the scoping meetings, or may be viewed on the web at
The licensee and Commission staff will conduct an environmental site review of the project on Thursday, June 27, 2019, starting at 1:00 p.m. All participants should meet at the project's powerhouse, located at 10 Electric St., Manchester, NH 03102.
If you plan to attend the environmental site review, please contact Katie Sellers of Kleinschmidt Associates at (207) 416-1218, or via email at
At the scoping meetings, staff will: (1) Initiate scoping of the issues; (2) review and discuss existing conditions and resource management objectives; (3) review and discuss existing information and identify preliminary information and study needs; (4) review and discuss the process plan and schedule for pre-filing activity that incorporates the time frames provided for in Part 5 of the Commission's regulations and, to the extent possible, maximizes coordination of federal, state, and tribal permitting and certification processes; and (5) discuss the appropriateness of any federal or state agency or Indian tribe acting as a cooperating agency for development of an environmental document.
Meeting participants should come prepared to discuss their issues and/or concerns. Please review the PAD in preparation for the scoping meetings. Directions on how to obtain a copy of the PAD and SD1 are included in item n of this document.
The meetings will be recorded by a stenographer and will be placed in the public records of the project.
Take notice that on May 24, 2019, pursuant to sections 206, 306 and 309 of the Federal Power Act, 16 U.S.C. 824e, 825e and 825h and Rule 206 of the Rules of Practice and Procedure of the Federal Energy Regulatory Commission (Commission), 18 CFR 385.206 (2019), Oklahoma Gas and Electric Company (OG&E or Complainant) filed a formal complaint against Southwest Power Pool, Inc. (SPP or Respondent) requesting that the Commission rules, that if SPP requires OG&E to refund revenue credits for use of transmission facilities that OG&E sponsored during a historical period of approximately five and one half years from April, 2010 to September, 2015, it would violate its contractual commitments and tariff obligations to OG&E, and orders that SPP not seek refunds or unwind those payments, all as more fully explained in the complaint.
OG&E certifies that copies of the complaint were served on the contacts for SPP, as listed on the Commission's list of Corporate Officials.
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 and 385.214). Protests will be considered by the Commission in determining the
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
a.
b.
c.
d.
e.
f.
g.
h. Potential
i.
j.
k.
l. With this notice, we are designating PacifiCorp as the Commission's non-federal representative for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act and section 106 of the National Historic Preservation Act.
m. PacifiCorp filed with the Commission a Pre-Application Document (PAD; including a proposed process plan and schedule), pursuant to 18 CFR 5.6 of the Commission's regulations.
n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website (
o. Register online at
p. With this notice, we are soliciting comments on the PAD and Commission's staff Scoping Document 1 (SD1), as well as study requests. All comments on the PAD and SD1, and study requests should be sent to the address above in paragraph h. In addition, all comments on the PAD and SD1, study requests, requests for cooperating agency status, and all communications to and from Commission staff related to the merits of the potential application must be filed with the Commission.
The Commission strongly encourages electronic filing. Please file all documents using the Commission's eFiling system at
All filings with the Commission must bear the appropriate heading: “Comments on Pre-Application Document,” “Study Requests,” “Comments on Scoping Document 1,” “Request for Cooperating Agency Status,” or “Communications to and from Commission Staff.” Any individual or entity interested in submitting study requests, commenting on the PAD or SD1, and any agency requesting cooperating status must do so by July 29, 2019.
q. Although our current intent is to prepare an environmental assessment (EA), there is the possibility that an Environmental Impact Statement (EIS) will be required. Nevertheless, this notice, associated scoping meeting, and our scoping process will satisfy the NEPA scoping requirements, irrespective of whether an EA or EIS is issued by the Commission.
Commission staff will hold two scoping meetings in the vicinity of the project at the times and places noted below. The daytime meeting will focus on resource agency, Indian tribes, and non-governmental organization concerns, while the evening meeting is primarily for receiving input from the public. We invite all interested individuals, organizations, and agencies to attend one or both of the meetings, and to assist staff in identifying particular study needs, as well as the scope of environmental issues to be addressed in the environmental document. The times and locations of these meetings are as follows:
SD1, which outlines the subject areas to be addressed in the environmental document, was mailed to the individuals and entities on the Commission's mailing list. Copies of SD1 will be available at the scoping meetings, or may be viewed on the web at
The potential applicant and Commission staff will conduct an Environmental Site Review of the project on Wednesday, June 26, 2019, starting at 9:00 a.m. All participants should meet at Cutler Marsh Marina recreation site—also known as Valley View Marina—located on the west side of Cutler Reservoir on Highway 30, just west of the Highway 30 bridge over the reservoir. Driving directions: Starting at L.W.'s Truck Stop in Logan, Utah (southwest corner of 1000 W and 200 N), drive west on Highway 30 (also 200 N) approximately 5 miles. After crossing Cutler Reservoir, the Cutler Marsh Marina Recreation Site will be on the south side of the highway; turn left from the highway into the gravel parking lot. All participants are responsible for their own transportation. Recommended gear: Closed toe shoes, good for walking 1-2 miles in, hat, sunscreen, water bottle, binoculars (optional, for wildlife viewing). Anyone with questions about the site visit should contact Ms. Miriam Hugentobler with PacifiCorp at: (801) 652-8983. Lunch and extra water will be provided by PacifiCorp. For lunch RSVPs please contact Ms. Miriam Hugentobler at (801) 652-8983 or email her at:
At the scoping meetings, staff will: (1) Initiate scoping of the issues; (2) review and discuss existing conditions and resource management objectives; (3) review and discuss existing information and identify preliminary information and study needs; (4) review and discuss the process plan and schedule for pre-filing activity that incorporates the time frames provided for in Part 5 of the Commission's regulations and, to the extent possible, maximizes coordination of federal, state, and tribal permitting and certification processes; and (5) discuss the appropriateness of any federal or state agency or Indian tribe acting as a cooperating agency for development of an environmental document.
Meeting participants should come prepared to discuss their issues and/or concerns. Please review the PAD in preparation for the scoping meetings. Directions on how to obtain a copy of the PAD and SD1 are included in item n. of this document.
The meetings will be recorded by a stenographer and will be placed in the public records of the project.
This is a supplemental notice in the above-referenced proceeding of RE Gaskell West 2 LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is June 17, 2019.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the website that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Environmental Protection Agency (EPA).
Notice of proposed consent decree; request for public comment.
In accordance with section 113(g) of the Clean Air Act, as amended (“CAA” or the “Act”), notice is given of a proposed consent decree in
Written comments on the proposed consent decree must be received by July 5, 2019.
Submit your comments, identified by Docket ID number EPA-HQ-OGC-2019-0209, online at
Geoffrey L. Wilcox, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone: (202) 564-5601; email address:
EPA designated the Fairbanks North Star Borough area as nonattainment for the 2006 24-hour PM
The proposed consent decree would resolve a lawsuit filed by the Plaintiffs seeking to compel the EPA to take action under Clean Air Act section 110(k)(1)(B) to determine whether the State of Alaska has made an administratively complete SIP submission intended to meet the Serious nonattainment area plan requirements for the 2006 24-hour PM
Under the terms of the proposed consent decree, EPA shall sign a notice of final rulemaking making the required completeness determination no later than July 8, 2019. Thereafter, the EPA shall, within 15 business days, send the signed notice of final rulemaking making the completeness determination to the Office of
For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed consent decree from persons who are not named as parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed consent decree if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act.
The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2019-0209) contains a copy of the proposed consent decree. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.
An electronic version of the public docket is available through
It is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing online at
You may submit comments as provided in the
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment and with any disk or CD ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Environmental Protection Agency (EPA).
Notice.
The Environmental Protection Agency (EPA) has submitted an information collection request (ICR), Consolidated Superfund Information Collection Request (EPA ICR Number 1487.14, OMB Control Number 2050-0179), to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. This is a proposed extension of the ICR, which is currently approved through May 31, 2019. Public comments were previously requested via the
Additional comments may be submitted on or before July 5, 2019.
Submit your comments, referencing Docket ID Number EPA-HQ-SFUND-2004-0008, to (1) EPA online using
EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.
Yolanda Singer, Office of Superfund Remediation and Technology Innovation, Assessment and Remediation Division, (5202P), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 703-603-8835; fax number: 703-603-9146; email address:
Supporting documents, which explain in detail the information that the EPA will be collecting, are available in the public docket for this ICR. The docket can be viewed online at
Environmental Protection Agency (EPA).
Notice of Federal Advisory Committee meeting.
Pursuant to the Federal Advisory Committee Act, Public Law 92-463, notice is hereby given that the Good Neighbor Environmental Board will hold a public meeting on Thursday, June 27 and Friday, June 28, 2019 in Imperial Beach, California. The meeting is open to the public.
The Good Neighbor Environmental Board will hold an open meeting on Thursday, June 27 from 9 a.m. (registration at 8:30 a.m.) to 5:30 p.m. The following day, Friday, June 28, the Board will meet from 8:30 a.m. (registration at 8 a.m.) until 2 p.m.
The meeting will be held at the Marriott Pier South, 800 Seacoast Drive, Imperial Beach, California. The meeting is open to the public, with limited seating on a first-come, first-serve basis.
Federal Communications Commission.
Notice.
In this document, the Commission released a public notice announcing the meeting of the North American Numbering Council (NANC). At this meeting, the NANC will consider and vote on a recommendation from its Numbering Administration Oversight Working group for the annual NANP budget and contribution factor. In addition, the Interoperable Video Calling Working Group will report on its progress in developing recommendations for the NANC's future consideration.
The NANC meeting is open to the public. The FCC will accommodate as many attendees as possible; however, admittance will be limited to seating availability. The Commission will also provide audio coverage of the meeting. Other reasonable accomodations for people with disabilities are available upon request. Requests for such accommodations should be submitted via email to
Members of the public may submit comments to the NANC in the FCC's Electronic Comment Filing System, ECFS, at
More information about the NANC is available at
Thursday, June 20, 2019, 10:00 a.m.
Requests to make an oral statement or provide written comments to the NANC should be sent to Carmell Weathers, Competition Policy Division, Wireline Competition Bureau, Federal Communications Commission, Portals II, 445 12th Street SW, Room 5-C162, Washington, DC 20554 or emailed to
Carmell Weathers at (202) 418-2325 or
This is a summary of the Commission's document in CC Docket No. 92-237, DA 19-452 released May 22, 2019. The complete text in this document is available for public inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The document may also be purchased from the Commission's duplicating contractor, Best Copy and Printing, Inc., 445 12th Street SW, Room CY-B402, Washington, DC 20554, telephone (800) 378-3160 or (202) 863-2893, facsimile (202) 863-2898, or via the internet at
Federal Communications Commission.
Notice.
The Federal Communications Commission (FCC) has received Office of Management and Budget (OMB) approval for the following public information collection pursuant to the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number, and no person is required to respond to a collection of information unless it displays a currently valid control number. Comments concerning the accuracy of the burden estimates and any suggestions for reducing the burden should be directed to the person listed in the
Nicole Ongele, Office of the Managing Director, at (202) 418-2991, or email:
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act of 1995 (PRA), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written PRA comments should be submitted on or before August 5,
Direct all PRA comments to Nicole Ongele, FCC, via email
For additional information about the information collection, contact Nicole Ongele, (202) 418-2991.
This information collection addresses the requirement that certain carriers with high-cost reporting obligations must file information about their locations which meet their broadband deployment public interest obligations via an electronic portal (“portal”). The
Federal Communications Commission.
Notice.
The Federal Communications Commission (Commission) has received Office of Management and Budget (OMB) approval, for a new, one-time information collection pursuant to the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number, and no person is required to respond to a collection of information unless it displays a currently valid control number. Comments concerning the accuracy of the burden estimates and any suggestions for reducing the burden should be directed to the person listed in the
Contact Cathy Williams,
The total annual reporting burdens and costs for the respondents are as follows:
There are currently a number of existing licenses in the 39 GHz band that do not fit geographically into the Commission's new 39 GHz band plan, resulting in “encumbered” licenses in this band. The Commission will use the incentive auction process to resolve the difficulties presented by these encumbrances and the need for existing 39 GHz licenses to be transitioned efficiently to the new band plan and possibly to new service areas. Pursuant to the reconfiguration process adopted in the
The Commission received approval from OMB for the information collection requirements contained in OMB 3060-1262 on May 23, 2019.
Thursday, June 6, 2019 at 2:00 p.m.
1050 First Street NE, Washington, DC (12th Floor).
This meeting will be open to the public.
Correction and Approval of Minutes for April 25, 2019.
Management and Administrative Matters
Judith Ingram, Press Officer, Telephone: (202) 694-1220.
Individuals who plan to attend and require special assistance, such as sign language interpretation or other reasonable accommodations, should contact Dayna C. Brown, Secretary and Clerk, at (202)694-1040, at least 72 hours prior to the meeting date.
The notificants listed below have applied under the Change in Bank Control Act (“Act”) (12 U.S.C. 1817(j)) and § 225.41 of the Board's Regulation Y (12 CFR 225.41) to acquire shares of a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)).
The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than June 20, 2019.
1.
Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).
Notice and request for comments.
In accordance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, and the Office of Management and Budget (OMB) regulations, DoD, GSA, and NASA invite the public to comment on a revision concerning extraordinary contractual action requests.
DoD, GSA, and NASA will consider all comments received by August 5, 2019.
DoD, GSA, and NASA invite interested persons to submit comments on this collection by either of the following methods:
•
•
Ms. Cecelia L. Davis, Procurement Analyst, Office of Governmentwide Acquisition Policy, GSA, at 202-219-0202 or email at
9000-0029, Extraordinary Contractual Action Requests.
FAR subpart 50.1 prescribes policies and procedures that allow contracts to be entered into, amended, or modified in order to facilitate national defense under the extraordinary emergency authority granted under 50 U.S.C. 1431
This authority applies to the Government Printing Office; the Department of Homeland Security; the Tennessee Valley Authority; the National Aeronautics and Space Administration; the Department of Defense; the Department of the Army; the Department of the Navy; the Department of the Air Force; the Department of the Treasury; the Department of the Interior; the Department of Agriculture; the Department of Commerce; and the Department of Transportation. Also included is the Department of Energy for functions transferred to that Department from other authorized agencies and any other agency that may be authorized by the President.
In order for a contractor to be granted relief under the FAR, specific evidence must be submitted which supports the firm's assertion that relief is appropriate and that the matter cannot be disposed of under the terms of the contract.
FAR 50.103-3 specifies the minimum information that a contractor must include in a request for contract adjustment in accordance with FAR 50-103-1 and 50.103-2.
FAR 50-103-4 sets forth additional information that the contracting officer or other agency official may request from the contractor to support any request made under FAR 50.103-3.
FAR 50.104-3 sets forth the information that the contractor shall include in a request for the indemnification clause to cover unusually hazardous or nuclear risks.
FAR 52.250-1, Indemnification under Public Law 850804, requires in paragraph (g) that the contractor shall promptly notify the contracting officer of any claim or action against, or loss by, the contractor or any subcontractors that may reasonably to involve indemnification under the clause.
The information is used by the Government to determine if relief can be granted under FAR and to determine the appropriate type and amount of relief.
Part C (Centers for Disease Control and Prevention) of the Statement of Organization, Functions, and Delegations of Authority of the Department of Health and Human Services (45 FR 67772-76, dated October 14, 1980, and corrected at 45 FR 69296, October 20, 1980, as amended most recently at 84 FR 14739-14381, dated April 10, 2019) is amended to reflect the reorganization of the Office of the Associate Director for Policy and Strategy, Office of the Director, Centers for Disease Control and Prevention. This reorganization abolishes the Office of Health System Collaboration and establishes the Office of Population Health and Healthcare.
Section C-B, Organization and Functions, is hereby amended as follows:
Delete in its entirety the functional statement for the
Delete in its entirety the functional statement for the
Delete in its entirety the title and functional statement for the
Delete in its entirety the functional statement for the
Delete in its entirety the
After the functional statement for the
Centers for Medicare & Medicaid Services, Department of Health and Human Services.
Notice.
The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the
Comments must be received by August 5, 2019.
When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:
1.
2.
To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:
1. Access CMS' website address at
2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to
3. Call the Reports Clearance Office at (410) 786-1326.
William N. Parham at (410) 786-4669.
This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see
Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the
Section 1142 of the Act describes the authority of the Agency for Healthcare Research and Quality (AHRQ) to conduct and support research on outcomes, effectiveness, and appropriateness of services and procedures to identify the most effective and appropriate means to prevent, diagnose, treat, and manage diseases, disorders, and other health conditions. That section includes a requirement that the Secretary assure that AHRQ research priorities under Section 1142 appropriately reflect the needs and priorities of the Medicare program.
The coordination of AHRQ priorities under section 1142 with the needs and priorities of the Medicare program is accomplished through direct collaboration between the AHRQ and CMS. AHRQ reviews all CED NCDs established under Section 1862(a)(1)(E) of the Act. Consistent with section 1142, AHRQ also indicates its support for clinical research studies that CMS determines address the CED questions and meet the general standards for CED studies. In order for CMS (or its designated entity) to determine if the Medicare coverage criteria are met, as described in our regulations, CMS (or its designated entity) must review the study protocol and supporting materials, as needed.
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is withdrawing the approval of five abbreviated new drug applications (ANDAs) for products containing pemoline. The holders of the applications requested withdrawal of the applications and have waived their opportunity for a hearing.
Approval is withdrawn as of June 4, 2019.
Kimberly Lehrfeld, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 6226, Silver Spring, MD 20993-0002, 301-796-3137.
FDA approved the following ANDAs for pemoline tablets for the conditions of use in the labeling of new drug application (NDA) 016832, the reference listed drug on which these ANDAs relied:
FDA approved the following ANDAs for pemoline chewable tablets for the conditions of use in the labeling of NDA 017703, the reference listed drug on which these ANDAs relied:
On October 24, 2005, FDA issued a
On August 10, 2018, the applicants listed in the table below requested that FDA withdraw approval of the pemoline ANDAs listed in the table under § 314.150(d) (21 CFR 314.150(d)), and, in doing so, waived their opportunity for a hearing. For the reasons discussed above, which the applicants do not dispute in their withdrawal request letters, and pursuant to the applicants' requests, FDA is withdrawing approval of the ANDAs listed in the table, and all amendments and supplements thereto, under § 314.150(d). Tablet strengths listed in the table below include all strengths FDA has identified as being previously approved under these ANDAs. In each case, approval of the entire application is withdrawn, including any strengths inadvertently missing from the table. Distribution of these products in interstate commerce without an approved application is illegal and subject to regulatory action (see sections 505(a) and 301(d) of the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 355(a) and 331(d), respectively).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA or we) 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 July 5, 2019.
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: 202-395-7285, or emailed to
Amber Sanford, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-8867,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
The Family Smoking Prevention and Tobacco Control Act (Pub. L. 111-31) (Tobacco Control Act), enacted on June 22, 2009, amended the Federal Food, Drug, and Cosmetic Act (FD&C Act) and provided FDA with the authority to regulate the manufacture, marketing, and distribution of cigarettes, cigarette tobacco, roll-your-own (RYO) tobacco, and smokeless tobacco products to protect the public health and to reduce tobacco use by minors. The Tobacco Control Act also gave FDA the authority to issue regulations deeming other products that meet the statutory definition of a tobacco product to be subject to chapter IX of the FD&C Act (section 901(b) of the FD&C Act (21 U.S.C. 387a(b))).
In accordance with that authority, on May 10, 2016, FDA issued a final rule deeming all products that meet the statutory definition of tobacco product, except accessories of newly deemed tobacco products, to be subject to FDA's tobacco product authority (final deeming rule) (81 FR 28974).
Chapter IX of the FD&C Act now applies to newly regulated products, including sections 904(a)(3) and (c)(1) (21 U.S.C. 387d(a)(3) and (c)(1)). Section 904(a)(3) of the FD&C Act requires the submission of an initial report from each tobacco product manufacturer or importer, or agents thereof, listing all constituents, including smoke constituents as applicable, identified as a harmful and potentially harmful constituent (HPHC) to health by FDA. Reports must be by brand and by quantity in each brand and subbrand. We note that for cigarettes, smokeless tobacco, cigarette filler, and RYO tobacco products, this initial reporting was completed in 2012.
Section 904(c)(1) of the FD&C Act provides that manufacturers of tobacco products not on the market as of June 22, 2009, must also provide the information reportable under section 904(a)(3) at least 90 days prior to introducing the product into interstate commerce.
FDA has taken several steps to identify HPHCs to be reported under section 904 of the FD&C Act, including issuing a guidance discussing FDA's current thinking on the meaning of the
The purpose of the information collection is to collect statutorily mandated information regarding HPHCs in tobacco products and tobacco smoke, by brand and by quantity in each brand and subbrand.
To facilitate the submission of HPHC information, Forms FDA 3787a, 3787b, and 3787c for cigarettes, smokeless tobacco products, and RYO tobacco products, respectively, in both paper and electronic formats, are available. Additionally, FDA is developing forms to facilitate the submission of HPHC information for the newly deemed tobacco products. We intend to model these forms on the current HPHC reporting forms (
Manufacturers or importers, or their agents, may submit HPHC information either electronically or in paper format. The FDA eSubmitter tool provides electronic forms to streamline the data entry and submission process for reporting HPHCs for cigarettes, smokeless tobacco products, and RYO tobacco products. Users of eSubmitter may populate an FDA-created Excel file and import data into eSubmitter. Whether respondents decide to submit reports electronically or on paper, each form provides instructions for completing and submitting HPHC information to FDA. The forms contain fields for company information, product information, and HPHC information.
In the
FDA estimates the burden of this collection of information as follows:
The burden for this collection of information is estimated to be 2,516 hours. The burden estimate for this collection of information includes the time it will take to read the instructions, test the products, and prepare the HPHC report.
In arriving at this burden estimate, FDA estimated the number of tobacco products to be reported under the requirements of section 904(c)(1) of the FD&C Act annually to FDA.
Section 1 of table 1 estimates that 155 respondents (67 cigarette manufacturers or importers, 46 RYO tobacco manufacturers, 42 smokeless manufacturers) will submit 97 HPHC reports annually. This section addresses the time required for manufacturers and importers (or their agents), who must report their product information to FDA under section 904(c)(1) of the FD&C Act at least 90 days prior to delivery for introduction into interstate commerce for all new products, to report their company information to FDA through the use of the electronic portal or paper forms.
The company information reported includes: Company name; mailing address; telephone and Fax numbers; FDA Establishment Identifier number;
The product information includes: Brand and subbrand name; unique product identification number; type of product identification number; product category and subcategory; and mean weight and standard deviation of tobacco in product.
We estimate that the burden to enter both the company and product information is no more than 1.82 hours for cigarettes, 0.43 hours for RYO, and 0.63 hours for smokeless tobacco products regardless of whether the paper or electronic Form FDA series 3787 is used. The time to report per tobacco product types varies because the number of HPHCs varies by tobacco product category.
The estimated number of responses under section 904(c)(1) is based on FDA's experience and the past 3 years' actual responses to FDA under this provision of the FD&C Act for statutorily regulated products.
Section 2 of table 1 estimates that 88 respondents (46 cigarette filler and RYO tobacco manufacturers and importers and 42 smokeless manufacturers) will test quantities of HPHCs in an average of 24.5 products annually. This section addresses the time required for manufacturers and importers (or their agents) who must test HPHC quantities in products. The burden estimates include the burden to test the tobacco products, draft testing reports, and submit the report to FDA. The total expected burden for this section is 291 hours.
Section 3 of table 1 addresses the time required for manufacturers and importers to test quantities for HPHCs in cigarette smoke. The burden estimates include: The burden to test the number of replicate measurements; test date range; manufacture date range; extraction method; separation method; detection method; and mean quantity and standard deviation of HPHCs and includes the burden to test the tobacco products, draft testing reports, and submit the report to FDA. The annual burden reflects our estimate of the time it takes to test the tobacco products (
The total estimated burden for this information collection is 2,516 hours and 139 responses.
Our estimated burden for the information collection reflects an overall decrease of 2,125 hours and a corresponding decrease of 142 responses. We attribute this decrease to updated information on the number of submissions we received over the last few years.
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or we) is announcing the availability of a draft guidance for industry entitled “Evaluating Alternate Curricula for the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption.” The draft guidance, when finalized, will provide recommendations on the factors that covered farms should consider if they are selecting an alternate curriculum training to meet the requirements of the “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption” (Produce Safety Rule) and for educators when developing or evaluating alternate curricula.
Submit either electronic or written comments on the draft guidance by October 2, 2019 to ensure that the Agency considers your comment on the draft guidance before it begins work on the final version of the guidance.
You may submit comments on any guidance at any time as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS
You may submit comments on any guidance at any time (see 21 CFR 10.115(g)(5)).
Submit written requests for single copies of the draft guidance to the Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740. Send two self-addressed adhesive labels to assist that office in processing your request. See the
Fazila Shakir, Center for Food Safety and Applied Nutrition, Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-1355.
We are announcing the availability of a draft guidance for industry entitled “Evaluating Alternate Curricula for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption: Guidance for Industry.” We are issuing the draft guidance consistent with our good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the current thinking of FDA on this topic. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternate approach if it satisfies the requirements of the applicable statutes and regulations. This guidance is not subject to Executive Order 12866.
The Produce Safety Rule established science-based minimum standards for the safe growing, harvesting, packing, and holding of produce grown for human consumption. Subpart C of the rule includes the specific requirements for personnel qualifications and training, including the requirement for at least one supervisor or responsible party from a farm to successfully complete food safety training at least equivalent to that received under the standardized curriculum recognized as adequate by FDA (§ 112.22(c) (21 CFR 112.22(c))). For farms covered by the Produce Safety Rule, version 1.1 of the standardized curriculum developed by the Produce Safety Alliance is adequate as the standardized curriculum in § 112.22(c). The purpose of this draft guidance is to provide recommendations on the factors that covered farms should consider if they are using an alternate curriculum training to satisfy the requirements of § 112.22(c) and for educators when developing or evaluating alternate curricula.
Persons with access to the internet may obtain the draft guidance at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the issuance of approval of a product redeeming a priority review voucher. The Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended by the Food and Drug Administration Safety and Innovation Act (FDASIA), authorizes FDA to award priority review vouchers to sponsors of approved rare pediatric disease product applications that meet certain criteria. FDA is required to publish notice of the issuance of vouchers as well as the approval of products redeeming a voucher. FDA has determined that MAYZENT (siponimod) approved March 26, 2019, meets the redemption criteria.
Althea Cuff, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Silver Spring, MD 20993-0002, 301-796-4061, Fax: 301-796-9858, email:
Under section 529 of the FD&C Act (21 U.S.C. 360ff), which was added by FDASIA, FDA will report the issuance of rare pediatric disease priority review vouchers and the approval of products for which a voucher was redeemed. FDA has determined that MAYZENT (siponimod), approved March 26, 2019, meets the redemption criteria.
For further information about the Rare Pediatric Disease Priority Review Voucher Program and for a link to the full text of section 529 of the FD&C Act, go to
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 July 5, 2019.
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: 202-395-7285, or emailed to
Domini Bean, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-5733,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
This information collection supports FDA regulations regarding the sanitary transportation of human and animal food. The regulations are intended to focus on preventing food safety problems throughout the food chain and were issued under the Sanitary Food Transportation Act of 2005 (2005 SFTA), and the FDA Food Safety Modernization Act, enacted in 2011. The 2005 SFTA amended the Federal Food, Drug, and Cosmetic Act (FD&C Act), in part, by creating section 416 (21 U.S.C. 350e), which directs us to issue regulations to require shippers, carriers by motor vehicle or rail vehicle, receivers, and other persons engaged in the transportation of food to use prescribed sanitary transportation practices to ensure that food is not transported under conditions that may render the food adulterated. Section 416 also directs that we prescribe appropriate human and animal food transportation practice requirements relating to: (1) Sanitation; (2) packaging, isolation, and other protective measures; (3) limitations on the use of vehicles; (4) information to be disclosed to carriers and to manufacturers; and (5) recordkeeping.
In addition, the 2005 SFTA created section 402(i) of the FD&C Act (21 U.S.C. 342(i)), which provides that food that is transported or offered for transport by a shipper, carrier by motor vehicle or rail vehicle, receiver, or any other person engaged in the transportation of food under conditions that are not in compliance with the regulations issued under section 416 is adulterated and section 301(hh) of the FD&C Act (21 U.S.C. 331(hh)), which prohibits the failure by a shipper, carrier by motor vehicle or rail vehicle, receiver, or any other person engaged in the transportation of food to comply with the regulations issued under section 416.
The 2005 SFTA also amended section 703 of the FD&C Act (21 U.S.C. 373) by providing that a shipper, carrier by motor vehicle or rail vehicle, receiver, or other person subject to section 416 shall, on request of an officer or employee designated by FDA, permit the officer or employee, at reasonable times, to have access to and to copy all records that are required to be kept under the regulations issued under section 416.
Accordingly, we issued regulations in 21 CFR 1.900 that establish requirements for the sanitary transportation of human and animal food. The regulations include certain recordkeeping requirements, procedures and information collection for respondents who wish to request a waiver for any requirement, as well as third-party disclosures regarding sanitary specifications.
In the
We estimate the burden of the information collection as follows:
We estimate an annual recordkeeping burden of 124,669 hours, consistent with the estimate found in the Final Regulatory Impact Analysis for the 2016 final rule and used to establish the information collection. This assumes 1,502,032 workers will spend an average of 5 minutes on activities related to the record retention requirements under 21 CFR 1.912. We expect these activities will likely include documenting procedures and training, as well as sanitary transportation operations and specification requirements.
We estimate one waiver petition from each of two firms will be submitted and respondents will spend 24 hours to prepare and submit the petition to FDA.
Finally, we estimate an annual third-party disclosure burden of 132 hours, consistent with the currently approved burden estimate for this collection of information. We assume each of 226 firms will spend an average of 35 minutes, annually, disclosing written records as required under 21 CFR 1.908.
Cumulatively, we have reduced our burden estimate for the information collection. We made this adjustment to reflect the removal of one-time burden associated with implementation of the new regulatory requirements. Because these provisions have since become effective, the one-time estimates previously included have been removed.
Office of Disease Prevention and Health Promotion, Office of the Assistant Secretary for Health, Office of the Secretary, Department of Health and Human Services.
Notice.
The Department of Health and Human Services (HHS) provides notice of a request for comments about the proposed update to the definition of health literacy. The Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives for Healthy People 2030 used the following working definition: “Health literacy occurs when a society provides accurate health information and services that people can easily find, understand, and use to inform their decisions and actions.”
Written comments must be submitted by August 5, 2019.
Written comments will be accepted via email at
Stephanie Santana, Public Health Analyst, U.S. Department of Health and Human Services, Office of the Assistant Secretary for Health, Office of Disease Prevention and Health Promotion, 1101 Wootton Parkway, Rockville, MD 20852. 240-453-8265 Email:
Healthy People and health literacy. Healthy People provides science-based, 10-year national objectives for improving the health of all Americans. Health literacy objectives have been tracked in Healthy People 2010 and 2020 and will also be included in Healthy People 2030.
Health literacy is one of the Healthy People 2030 framework's foundational principles (“Achieving health and well-being requires eliminating health disparities, achieving health equity, and attaining health literacy”) and one of its overarching goals (“Eliminate health disparities, achieve health equity, and attain health literacy to improve the health and well-being of all”).
Current Healthy People health literacy definition. The following definition of health literacy has been used in Healthy People 2010 and Healthy People 2020: “Health literacy is the degree to which individuals have the capacity to obtain, process, and understand basic health information needed to make appropriate health decisions.”
This definition of health literacy has had a tremendous impact on the field, influencing health literacy measurement and improvement efforts around the world.
The Secretary's Advisory Committee on National Health Promotion and Disease Prevention Objectives used this working definition of health literacy for 2030: “Health literacy occurs when a society provides accurate health information and services that people can easily find, understand, and use to inform their decisions and actions.”
This working definition reflects the evolution of the concept of health literacy toward a consensus that health literacy is affected not only by an individual's capacities, but also by the accessibility, clarity, and actionability of health information and health services.
Submission Instructions. Comments should:
1. Address the strengths and/or weaknesses of the recommended definition,
2. Be brief and concise; Limit 250 words
3. Make specific editing suggestions, and
4. Cite articles that support suggested changes (if any).
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, 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.
Substance Abuse and Mental Health Services Administration, Department of Health and Human Services.
Notice of subcommittee meetings (virtual).
The Secretary of Health and Human Services (Secretary) announces subcommittee meetings of the Interdepartmental Serious Mental Illness Coordinating Committee (ISMICC).
The meetings are open to the public and can be accessed via telephone only. Agenda with call-in information will be posted on the SAMHSA website prior to the meetings at:
The meetings will include information on the following focus areas: Data, Access, Treatment and Recovery, Justice, and Finance.
The meetings will be held (virtually) at SAMHSA Headquarters, 5600 Fishers Lane, Rockville, Maryland 20857.
Substantive meeting information and a roster of Committee members is available at the Committee's website
Pamela Foote, Substance Abuse and Mental Health Services Administration, 5600 Fishers Lane, 14E53C, Rockville, MD 20857; telephone: 240-276-1279; email:
The ISMICC was established on March 15, 2017, in accordance with section 6031 of the 21st Century Cures Act, and the Federal Advisory Committee Act, 5 U.S.C. App., as amended, to report to the Secretary, Congress, and any other relevant federal department or agency on advances in serious mental illness (SMI) and serious emotional disturbance (SED), research related to the prevention of, diagnosis of, intervention in, and treatment and recovery of SMIs, SEDs, and advances in access to services and support for adults with SMI or children with SED. In addition, the ISMICC will evaluate the effect federal programs related to serious mental illness have on public health, including public health outcomes such as (A) rates of suicide, suicide attempts, incidence and prevalence of SMIs, SEDs, and substance use disorders, overdose, overdose deaths, emergency hospitalizations, emergency room boarding, preventable emergency room visits, interaction with the criminal justice system, homelessness, and unemployment; (B) increased rates of employment and enrollment in educational and vocational programs; (C) quality of mental and substance use disorders treatment services; or (D) any other criteria as may be determined by the Secretary. Finally, the ISMICC will make specific recommendations for actions that agencies can take to better coordinate the administration of mental health services for adults with SMI or children with SED. Not later than 1 (one) year after the date of enactment of the 21st Century Cures Act, and 5 (five) years after such date of enactment, the ISMICC shall submit a report to Congress and any other relevant federal department or agency.
This ISMICC consists of federal members listed below or their designees, and non-federal public members.
Office of the Secretary, Department of Homeland Security.
Notice.
This notice informs the public that the Department of Homeland Security (DHS) has determined that conditions in Venezuela threaten the safety and security of passengers, aircraft, and crew, and that the public interest requires an immediate suspension of all commercial passenger and cargo flights between the United States and Venezuela. The U.S. Department of Transportation (DOT) concurred with this determination and has issued an Order suspending all foreign air transportation for passengers or cargo to or from any airport in Venezuela, effective May 15, 2019.
Applicable May 15, 2019.
James Gregory, Acting Assistant Administrator, Strategic Communications and Public Affairs, TSA-4, Transportation Security Administration (TSA), 601 South 12th Street, Arlington, VA 20598-6004; telephone: (571) 227-3051; email:
Pursuant to section 44907(e) of title 49, United States Code, if “(1) a condition exists that threatens the safety or security of passengers, aircraft, or crew traveling to or from [a foreign] airport; and (2) the public interest requires an immediate suspension of transportation between the United States and that airport,” the Secretary of Homeland Security, in coordination with the Secretary of Transportation and with the approval of the Secretary of State, shall suspend flights to and from that foreign airport.
The Secretary of Homeland Security has determined that conditions in Venezuela threaten the safety and security of passengers, aircraft, and crew, and that the public interest requires an immediate suspension of air transportation. This determination is based on several prevailing factors, which include: (1) Reports of civil unrest and violence in and around the airports; (2) the inability of TSA to gain access to Venezuelan airports to conduct required security assessments to determine whether adequate security measures are in place; (3) the current economic and political crisis in Venezuela; (4) cancellation of flights to Venezuela by American Airlines, the largest air carrier providing service, and two other carriers; (5) the U.S. Department of State's publication of Do Not Travel advisories, suspension of Embassy operations, and recommendation that TSA inspectors not enter the country owing to safety concerns; (6) the Federal Aviation Administration's issuance of a Notice to Airmen (NOTAM) on May 1, 2019, which prohibits all flight operations by U.S. air carriers and commercial operators in Venezuela airspace below FL 260; and (7) the risk of Maduro regime actions against U.S. citizens and U.S. interests located in Venezuela. Following Secretary of State approval, DOT concurred with this determination and suspended foreign air transportation of passengers or cargo to or from any airport in Venezuela, effective May 15, 2019.
Notice of the Secretary of Homeland Security's finding regarding conditions in Venezuela shall be displayed prominently in all U.S. airports with regularly scheduled air carrier operations. DHS will notify the news media of this determination. The Secretary of Homeland Security has instructed TSA to require that each foreign and domestic air carrier providing air transportation originating in the United States to any person with a flight itinerary that originates in, transfers or transits through, or has a final destination of any airport in Venezuela, provide written notice to such person advising that conditions in Venezuela currently present a threat to the traveling public.
If and when the conditions in Venezuela change and if in the public interest, the Secretary of Homeland Security, in coordination with the Secretary of Transportation, will revisit this determination.
Bureau of Indian Affairs, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Office of the Assistant Secretary-Indian Affairs (AS-IA) are proposing to renew an information collection.
Interested persons are invited to submit comments on or before August 5, 2019.
Send your comments on this information collection request (ICR) by mail to the Winter Jojola-Talburt, U.S. Department of the Interior, Office of Indian Energy and Economic Development, Division of Energy and Mineral Development, 13922 Denver West Pkwy, Ste. 200, Lakewood, Colorado 80401; or by email at
Please reference OMB Control Number 1076-0174 in the subject line of your comments.
To request additional information about this ICR, contact Winter Jojola-Talburt by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the AS-IA; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the AS-IA enhance the quality, utility, and clarity of the information to be collected; and (5) how might the AS-IA minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
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 authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Bureau of Land Management, Interior.
Notice of information collection; request for comment.
In accordance with the Paperwork Reduction Act of 1995, we, the Bureau of Land Management (BLM), are proposing to renew an information collection.
Interested persons are invited to submit comments on or before August 5, 2019.
Send your comments on this information collection request (ICR) by mail to the U.S. Department of the Interior, Bureau of Land Management, 1849 C Street NW, Room 2134LM, Washington, DC 20240, Attention: Jean Sonneman; or by email to
To request additional information about this ICR, contact Leah Baker by telephone at 202-912-7282 or by email at
In accordance with the Paperwork Reduction Act of 1995, we provide the general public and other Federal agencies with an opportunity to comment on new, proposed, revised, and continuing collections of information. This helps us assess the impact of our information collection requirements and minimize the public's reporting burden. It also helps the public understand our information collection requirements and provide the requested data in the desired format.
We are soliciting comments on the proposed ICR that is described below. We are especially interested in public comment addressing the following issues: (1) Is the collection necessary to the proper functions of the BLM; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the BLM enhance the quality, utility, and clarity of the information to be collected; and (5) how might the BLM minimize the burden of this collection on the respondents, including through the use of information technology.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this ICR. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
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 authority for this action is the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
National Park Service, Interior.
Notice.
History Colorado has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the History Colorado. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to History Colorado at the address in this notice by July 5, 2019.
Alisa DiGiacomo, History Colorado, 1200 Broadway, Denver, CO 80203, telephone (303) 866-4687, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of History Colorado, Denver, CO. The human remains and associated funerary objects were removed from Montezuma and La Plata Counties, CO.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by History Colorado professional staff in consultation with representatives of the Hopi Tribe, Arizona; Jicarilla Apache Nation, New Mexico; Kiowa Indian Tribe of Oklahoma; Mescalero Apache Tribe of the Mescalero Reservation, New Mexico; Navajo Nation, Arizona, New Mexico & Utah; Pueblo of Acoma, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Southern Ute Indian Tribe of the Southern Ute Reservation, Colorado; Ute Mountain Ute Tribe (previously listed as the Ute Mountain Tribe of the Ute Mountain Reservation, Colorado, New Mexico & Utah); Ysleta del Sur Pueblo (previously listed as the Ysleta Del Sur Pueblo of Texas); and the Zuni Tribe of the Zuni Reservation, New Mexico.
The Ohkay Owingeh, New Mexico (previously listed as the Pueblo of San Juan); Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Picuris, New Mexico; and the Pueblo of Santa Ana, New Mexico were invited to consult but did not do so.
Hereafter, all the Tribes listed above are referred to as “The Consulted and Invited Tribes.”
In March 2018, human remains representing, at minimum, three individuals were removed from 5MT20855 in Montezuma County, CO. The individuals were removed during archeological monitoring for Kinder Morgan CO2 Company's proposed Well Pad and Access Road construction. The human remains were transferred to the Office of Archaeology and Historic Preservation (OAHP) in September 2018, and are identified as OAHP Case Number 331. The human remains represent one adult female 25-35 years of age, one adult female 45-65 years of age, and one adult male 25-60 years of age. No known individuals were identified. The 11 associated funerary objects are one lot of gray ware sherds representing a bowl, one lot of white ware sherds representing a bowl, one lot of stone flakes, three lots of sherds, one Mancos grayware pitcher, one polishing stone, one piece of ground stone in two sections, and two burned juniper slabs.
The site at 5MT20855 is a multicomponent, seasonal habitation site. The architecture and ceramics recovered from the component associated with these individuals date to the late Basketmaker III/Pueblo I periods (A.D. 550-900). Osteological analysis by Woods Canyon Archaeological Consultants determined the individuals to be Native American. The preponderance of the evidence, including geographical location, archeological evidence (including site architecture and material culture), biological evidence, and continuity of key cultural traits through time, shows that the site is associated with the Ancestral Puebloan occupations of the southwestern United States from the Basketmaker II period through the Pueblo III period (approximately 1000 B.C. to A.D. 1300).
In the 1930s, human remains representing one individual were removed from Blue Mesa, La Plata County, CO. A second individual was removed from Yellow Jacket Canyon, Montezuma County, CO. A third individual is represented by a tooth, and
Osteological analysis by Dr. Christine Pink determined the individuals to be Native American. The geographical areas from which the human remains were removed contain numerous documented Ancestral Puebloan sites. Root and McLean were knowledgeable about Ancestral Puebloan burials. Root was an avid collector of Ancestral Pueblo human remains and goods, and led field schools for Fort Lewis College from 1965 to 1969. The preponderance of the evidence, including geographical location, biological evidence, and expert opinion regarding burial context, shows that the human remains are associated with the Ancestral Puebloan occupations of the southwestern United States from the Basketmaker II period through the Pueblo III period (approximately 1000 B.C. to A.D. 1300).
Evidence for the cultural affiliation of the human remains in this notice was gathered from tribal consultations, physical examination of the human remains, a survey of acquisition history, a review of current available archeological, ethnographic, historical, anthropological and linguistic literature, and artifact analysis.
Officials of History Colorado have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of six individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 11 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Hopi Tribe of Arizona; Ohkay Owingeh, New Mexico (previously listed as the Pueblo of San Juan); Pueblo of Acoma, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of Santa Ana, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; Ysleta del Sur Pueblo (previously listed as the Ysleta Del Sur Pueblo of Texas); and the Zuni Tribe of the Zuni Reservation, New Mexico, hereafter referred to as “The Affiliated Tribes.”
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Alisa DiGiacomo, History Colorado, 1200 Broadway, Denver, CO 80203, telephone (303) 866-4687, email
History Colorado is responsible for notifying The Consulted and Invited Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Tennessee Department of Environment and Conservation, Division of Archaeology has completed an inventory of human remains and associated funerary objects in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Tennessee Department of Environment and Conservation, Division of Archaeology. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Tennessee Department of Environment and Conservation, Division of Archaeology at the address in this notice by July 5, 2019.
Michael C. Moore, Tennessee Department of Environment and Conservation, Division of Archaeology, 1216 Foster Avenue, Cole Building 3, Nashville, TN 37243, telephone (615) 687-4776, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Tennessee Department of Environment and Conservation, Division of Archaeology, Nashville, TN. The human remains and associated funerary objects were removed from Rutherford County and Williamson County, TN.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Tennessee Department of Environment and Conservation, Division of Archaeology professional staff in consultation with representatives of the Cherokee Nation; Eastern Band of Cherokee Indians; The Chickasaw Nation; The Muscogee (Creek) Nation; The Osage Nation (previously listed as the Osage Tribe); and the United Keetoowah Band of Cherokee Indians in Oklahoma, hereafter referred to as “The Tribes.”
The Fernvale site (40WM51) was excavated by the Division of Archaeology in 1985 prior to bridge construction by the Tennessee Department of Transportation. This site is located on the west side of the South Harpeth River in northwest Williamson County, TN, near the community of Fernvale. The final report on the excavation (
Radiocarbon dates and recovered artifacts indicate Fernvale is primarily a Late Archaic period site dating 3490 to 3320 BP. All removed burials and associated burial objects are consistent with previously identified Native American burials and objects dating to the Late Archaic period. 33 individuals were removed from 27 pit features. Burial 2 comprised an adult female that had been interred with a mature dog. No known individuals were identified. A total of 61 associated funerary objects were recovered with these individuals. The 62 associated funerary objects are three bone pins, nine projectile points, two polished bone fragments, one ovate knife, one biface, one drill, one antler tine, 17 canid phalanges, four bone awls, seven fragmented mussel shells, two limestone hoes, four shell beads, two hammerstones, one grooved cobble, six fragmented animal bones, and the remains of one dog.
The Arnold site (40WM5) was established on a low ridge along the north bank of the Little Harpeth River about a mile southwest of the city of Brentwood in northern Williamson County, TN. This site, named after the famed singer Eddy Arnold, was excavated in 1965 and 1966 by the Southeastern Indian Antiquities Survey Inc. (SIAS) prior to construction of a residential subdivision.
The SIAS excavation is reported to have uncovered 151 stone-box graves and the remnants of 17 structures. A report on the SIAS Arnold site excavations was published in 1972 as part of the edited volume
The stone-box graves and structure architecture indicate Arnold is a Mississippian period site. All removed burials and associated burial objects are consistent with previously identified late prehistoric Native American burials and objects dating roughly A.D. 1200-1450. Information regarding the Middle Cumberland Mississippian culture can be found in Kevin Smith's 1992 dissertation
While over 150 burials were reportedly removed during the 1965-1966 work, the Division of Archaeology holds 19 human individuals from 14 burials. The remainder of the skeletal collection was held by Vanderbilt University. No known individuals were identified. The Division has five associated funerary objects recovered with these individuals. The five associated funerary objects are three ceramic frog-effigy jars and two ceramic effigy hooded bottles.
The Ryan site (40RD77) was established on a floodplain of Stewart Creek in Smyrna, Rutherford County, TN. This site was defined in 1981, by the Tennessee Department of Transportation (TDOT), during planning for an interstate connection, and it was excavated in the spring of 1982, prior to construction. The human remains were transferred to the Tennessee Division of Archaeology (TDOA) for curation upon completion of the work, although the burial objects were held by TDOT. A report was not completed at that time.
In 2000, the Ryan collection was temporarily transferred to TDOT for analysis by Gary Barker and Christopher M. Hazel. Their results were published in a 2007 Journal of Alabama Archaeology (JAA) article (“Ryan (40RD77): A Late Middle Archaic Benton Culture Cemetery in Tennessee's Central Basin”). After completion of the Barker and Hazel analysis, the human remains were returned to the TDOA. The JAA article listed 23 individuals from 20 burial pits, as well as one human cremation (originally designated Feature 4). In 2009 the TDOA requested that Middle Tennessee State University (MTSU) reanalyze the Ryan human remains. This reanalysis identified 20 individuals from the 20 burial pits, along with the one Feature 4 human cremation. No known individuals were identified.
The Division documented 22 associated funerary objects recovered with these individuals. These 23 associated funerary objects are three Benton style darts/knives, one stemmed dart/knife, one unnotched dart/knife, three shell beads, six drilled canine incisors, one bone atlatl hook, two shell pins, two bone pins, one lot of small steatite fragments (likely representing a single unknown object), one turkey awl, one raccoon baculum, and the remains of one dog.
The placement of these individuals in flexed burial positions within circular burial pits, along with distinctive associated funerary objects (including Benton style darts/knives and an atlatl hook), is consistent with previously identified Native American burials and objects dating to the prehistoric Middle Archaic period. Two radiocarbon dates between 4680-4360 B.C. confirm Ryan as a Middle Archaic period site.
Officials of the Tennessee Department of Environment and Conservation, Division of Archaeology have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 73 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 90 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and The Chickasaw Nation.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Michael C. Moore, Tennessee Department of Environment and Conservation, Division of Archaeology, 1216 Foster Avenue, Cole Building 3, Nashville, TN 37243, telephone (615) 687-4776, email
The Tennessee Department of Environment and Conservation, Division of Archaeology is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The U.S. Department of Agriculture, Forest Service, Cibola National Forest has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Cibola National Forest. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Cibola National Forest at the address in this notice by July 5, 2019.
Forest Supervisor, Steve Hattenbach, Cibola National Forest and Grasslands, 2113 Osuna Road NE, Albuquerque, NM 87113, telephone (505) 346-3804, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the U.S. Department of Agriculture, Forest Service, Cibola National Forest, Albuquerque, NM. The human remains and associated funerary objects were removed from site AR-03-03-02-536 (LA79663), Mt. Taylor Ranger District, Cibola National Forest and National Grasslands, Cibola County, NM.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Cibola National Forest professional staff in consultation with representatives of the Hopi Tribe of Arizona; Navajo Nation, Arizona, New Mexico & Utah; Pueblo of Acoma, New Mexico; Pueblo of Laguna, New Mexico; and the Zuni Tribe of the Zuni Reservation, New Mexico (hereafter referred to as “The Tribes”).
Between 1980 and 1991, human remains representing, at minimum, two individuals were removed from site AR-03-03-02-536 (LA79663) in Cibola County, NM. Based on reports, site forms, and other notes found in the Forest's heritage resource files, the site experienced several episodes of rodent damage and vandalism (pot hunting) over a period of 11 years (1980-1991). The initial damage to the site was noted in July 1980. At that time, 18 human bones or fragments of bones were observed in two midden features, and were collected by Forest Service archeological staff. The site form from that time indicates that the bones were likely brought to the surface as a result of rodent activity. The skeletal remains consist of four long bones, six ribs or rib fragments, seven vertebrae, and one sacrum, and represent the partial skeletons of two Native American individuals of unknown sex and age. No known individuals were identified.
Damage to site AR-03-03-02-536 (LA79663) from pot hunting was noted in 199l, and the site was subsequently monitored more frequently, until an individual was discovered digging within a room block at the site, resulting in an investigation in September 1991. During the course of the investigation, 12 artifacts collected by the individual were seized by a Forest Service Law Enforcement officer. In June 2008, evidence of new disturbance (pot hunting) was observed at the site. As part of the damage assessment, the Forest Service archeologist screened soil from two holes, and recovered additional items (ceramic sherds, flaked stone, small pieces of charcoal and adobe, and seven small pieces of faunal bone). The 63 associated funerary objects are 19 ceramic sherds, 13 pieces of flaked stone, 10 pieces of charcoal, 14 pieces of adobe, and seven small fragments of faunal remains.
Site AR-03-03-02-536 (LA79663) is a small masonry pueblo that is estimated to date between A.D. 900 and 1100. It is located in Limekiln Canyon, in the eastern portion of the Zuni Mountains, on lands managed by the Mt. Taylor Ranger District of the Cibola National Forest and National Grasslands. The 1996 report
Officials of the U.S. Department of Agriculture, Forest Service, Cibola National Forest have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of two individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 63 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and The Tribes.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Forest Supervisor, Steve Hattenbach, Cibola National Forest and Grasslands, 2113 Osuna Road NE, Albuquerque, NM 87113, telephone (505) 346-3804, email
The Cibola National Forest is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice.
The Office of the State Archaeologist Bioarchaeology Program, previously listed as the Office of the State Archaeologist Burials Program, has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to the Office of the State Archaeologist Bioarchaeology Program. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to the Office of the State Archaeologist Bioarchaeology Program at the address in this notice by July 5, 2019.
Dr. Lara Noldner, Office of the State Archaeologist Bioarchaeology Program, University of Iowa, 700 S Clinton Street, Iowa City, IA 52242, telephone (319) 384-0740, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the Office of the State Archaeologist Bioarchaeology Program, Iowa City, IA. The human remains and associated funerary objects were removed from site 13WD216 in Sioux City, Woodbury County, IA.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the museum, institution, or Federal agency that has control of the Native American human remains and associated funerary objects. The National Park Service is not responsible for the determinations in this notice.
A detailed assessment of the human remains was made by the Office of the State Archaeologist Bioarchaeology Program professional staff in consultation with representatives of the Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota; Crow Creek Sioux Tribe of the Crow Creek Reservation, South Dakota; Flandreau Santee Sioux Tribe of South Dakota; Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; Lower Sioux Indian Community in the State of Minnesota; Oglala Sioux Tribe (previously listed as the Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota); Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota; Santee Sioux Nation, Nebraska; Shakopee Mdewakanton Sioux Community of Minnesota; Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, South Dakota; Spirit Lake Tribe, North Dakota; Upper Sioux Community, Minnesota; and the Yankton Sioux Tribe of South Dakota (hereafter referred to as “The Tribes”).
In September 1958, human remains representing, at minimum, 12 individuals were removed from the Sioux City South Ravine (13WD216) in Woodbury County, IA. The human remains were disturbed by heavy machinery at a sand borrow during the construction of Interstate 29. Staff from Morningside College began work at the site on the day of the discovery, and Reynold Ruppe of the University of Iowa completed the excavation. The site was looted twice during the excavation, resulting in the loss of human remains and artifacts. The remaining artifacts and human remains were dispersed, with some displayed at the Sioux City Public Museum and some reposed at the University of Iowa. In 1965, most of the human remains and artifacts were reunited in Sioux City, Iowa. The human remains were then transferred to William Bass at the University of Kansas for study, while the artifacts were sent to the Smithsonian Institution laboratory in Lincoln, Nebraska. Most of the human remains and some of the artifacts from site 13WD216 were discovered in the repository of the University of Tennessee-Knoxville in early 2018, and were transferred to the Iowa Office of the State Archaeologist Bioarchaeology Program in July 2018. Individuals represented include one
Based on the presence of square cut nails, the site is roughly dated to A.D. 1800-1900. Graves with Prosser buttons post-date 1840, while the burial with the mass-produced coffin handle likely dates between 1860 and 1880. A European-tradition burial position (supine and extended) in wooden coffins and the mix of ancestry apparent from osteological analysis lend support to the identification of this site as the burial ground of a small French and Native American community mentioned in a county history as having emerged in the 1850s. Not all individuals excavated from this cemetery were identified as Native American. Four individuals were identified as Native American through facial morphology and cranial metrics. Two individuals, a young adult male and female, were determined to have African American ancestry, possibly with Native American admixture, based on cranial metrics and dental morphology. Two individuals, a young adult male and the 11- to 12-year-old child, were determined to be Euroamerican based on facial and dental morphology. Ancestry could not be determined osteologically for the four individuals whose crania were not present, however, after discussion with tribal representatives, they are considered to be Native American. The
Officials of the Office of the State Archaeologist Bioarchaeology Program have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of ten individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 101 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and The Tribes.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Dr. Lara Noldner, Office of the State Archaeologist Bioarchaeology Program, University of Iowa, 700 S Clinton Street, Iowa City, IA 52242, telephone (319) 384-0740, email
The Office of the State Archaeologist Bioarchaeology Program is responsible for notifying The Tribes that this notice has been published.
National Park Service, Interior.
Notice; correction.
The U.S. Department of the Interior, National Park Service, Petrified Forest National Park has completed an inventory of human remains and associated funerary objects, in consultation with the appropriate Indian Tribes or Native Hawaiian organizations, and has determined that there is a cultural affiliation between the human remains and associated funerary objects and present-day Indian Tribes or Native Hawaiian organizations. Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request to Petrified Forest National Park. If no additional requestors come forward, transfer of control of the human remains and associated funerary objects to the lineal descendants, Indian Tribes, or Native Hawaiian organizations stated in this notice may proceed.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Petrified Forest National Park at the address in this notice by July 5, 2019.
Brad Traver, Superintendent, Petrified Forest National Park, Box 2217, Petrified Forest, AZ 86028, telephone (928) 524-6228 Ext. 225, email
Notice is here given in accordance with the Native American Graves Protection and Repatriation Act (NAGPRA), 25 U.S.C. 3003, of the completion of an inventory of human remains and associated funerary objects under the control of the U.S. Department of the Interior, National Park Service, Petrified Forest National Park, Petrified Forest, AZ. The human remains and associated funerary objects were removed from Petrified Forest National Park, Apache and Navajo Counties, AZ.
This notice is published as part of the National Park Service's administrative responsibilities under NAGPRA, 25 U.S.C. 3003(d)(3). The determinations in this notice are the sole responsibility of the Superintendent, Petrified Forest National Park.
This notice corrects the minimum number of individuals and number of associated funerary objects reported in two previously published notices: Notice of Inventory Completion (80 FR 23573-23574, April 28, 2015); and corrected Notice of Inventory Completion (80 FR 32602-32603, June 9, 2015). This notice replaces both the original Notice of Inventory Completion of April 28, 2015 and the corrected Notice of Inventory Completion of June 9, 2015. A re-assessment of human remains previously determined to be
A detailed assessment of the human remains was made by Petrified Forest National Park professional staff in consultation with representatives of the Fort McDowell Yavapai Nation, Arizona; Hopi Tribe of Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation, Arizona; Kewa Pueblo, New Mexico (previously listed as the Pueblo of Santo Domingo); Navajo Nation, Arizona, New Mexico & Utah; Pueblo of Acoma, New Mexico; Pueblo of Santa Ana, New Mexico; and Zuni Tribe of the Zuni Reservation, New Mexico (hereafter referred to as “The Consulted Tribes”).
The following tribes were invited to consult, but did not participate: Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California; Fort Mojave Indian Tribe of Arizona, California & Nevada; Gila River Indian Community of the Gila River Indian Reservation, Arizona; Havasupai Tribe of the Havasupai Reservation, Arizona; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation, Arizona; Las Vegas Tribe of Paiute Indians of the Las Vegas Indian Colony, Nevada; Moapa Band of Paiute Indians of the Moapa River Indian Reservation, Nevada; Ohkay Owingeh, New Mexico (previously listed as the Pueblo of San Juan); Paiute Indian Tribe of Utah (Cedar Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes) (formerly Paiute Indian Tribe of Utah (Cedar City Band of Paiutes, Kanosh Band of Paiutes, Koosharem Band of Paiutes, Indian Peaks Band of Paiutes, and Shivwits Band of Paiutes)); Pascua Yaqui Tribe of Arizona; Pueblo of Cochiti, New Mexico; Pueblo of Isleta, New Mexico; Pueblo of Jemez, New Mexico; Pueblo of Laguna, New Mexico; Pueblo of Nambe, New Mexico; Pueblo of Picuris, New Mexico; Pueblo of Pojoaque, New Mexico; Pueblo of San Felipe, New Mexico; Pueblo of San Ildefonso, New Mexico; Pueblo of Sandia, New Mexico; Pueblo of Santa Clara, New Mexico; Pueblo of Taos, New Mexico; Pueblo of Tesuque, New Mexico; Pueblo of Zia, New Mexico; San Carlos Apache Tribe of the San Carlos Reservation, Arizona; San Juan Southern Paiute Tribe of Arizona; Tohono O'odham Nation of Arizona; Tonto Apache Tribe of Arizona; and Yavapai-Apache Nation of the Camp Verde Indian Reservation, Arizona (hereafter referred to as “The Invited Tribes”).
In 1933-1934 human remains representing, at minimum, one individual were removed from AZ Q:1:23 in Navajo County, AZ, during legally authorized activities to restore the site architecture and interpret the site for visitors. The human remains are in the physical custody of the Museum of Northern Arizona, Flagstaff, AZ. No known individuals were identified. No associated funerary objects are present.
In 1953, human remains representing, at minimum, six individuals were removed from AZ Q:1:3 in Apache County, AZ, by Fred Wendorf as part of his doctoral research at Harvard University. The human remains and associated funerary objects are in the physical custody of the Museum of Northern Arizona (MNA) in Flagstaff, AZ. No known individuals were identified. The 2,201 associated funerary objects are 13 pottery bowls, one mineral (galena), six pottery jars (some fragmentary), 2,083 shell beads, one stone pendant, two stone scrapers, one shell pendant, 25 basket fragments, one blanket, and 68 pottery sherds.
In 1967, human remains representing, at minimum, three individuals were removed from AZ Q:1:22 in Apache County, AZ, during legally authorized excavations conducted by Calvin Jennings of the Museum of Northern Arizona. The human remains are in the physical custody of the Museum of Northern Arizona, Flagstaff, AZ. No known individuals were identified. No associated funerary objects are present.
In 1968, human remains representing, at minimum, one individual were removed from AZ Q:1:3 in Apache County, AZ, by the Chief Naturalist at Petrified Forest National Park during regular site monitoring. The human remains are in the physical custody of the Museum of Northern Arizona, Flagstaff, AZ. No known individuals were identified. No associated funerary objects are present.
In 1985, human remains representing, at minimum, one individual were removed from AZ Q:1:58 in Apache County, AZ, during legally authorized excavations. No known individuals were identified. The two associated funerary objects are one pottery bowl and one charcoal sample.
In 1988, human remains representing, at minimum, two individuals were removed from AZ Q:1:226 in Navajo County, AZ, during legally authorized archeological survey and site recordation. No known individuals were identified. The 11 associated funerary objects are two pottery bowls, three pottery jars, and six shell beads.
Archeological site context and types of funerary objects suggest that all five sites were occupied by ancestral Puebloan peoples. Ethnographic and archeological evidence, including burial orientation, body position, and the type and placement of the associated funerary objects, indicates that the mortuary practices of these ancestral Puebloan peoples correspond closely with those of the Hopi Tribe of Arizona and the Zuni Tribe of the Zuni Reservation, New Mexico.
Officials of Petrified Forest National Park have determined that:
• Pursuant to 25 U.S.C. 3001(9), the human remains described in this notice represent the physical remains of 14 individuals of Native American ancestry.
• Pursuant to 25 U.S.C. 3001(3)(A), the 2,214 objects described in this notice are reasonably believed to have been placed with or near individual human remains at the time of death or later as part of the death rite or ceremony.
• Pursuant to 25 U.S.C. 3001(2), there is a relationship of shared group identity that can be reasonably traced between the Native American human remains and associated funerary objects and the Hopi Tribe of Arizona and the Zuni Tribe of the Zuni Reservation, New Mexico.
Lineal descendants or representatives of any Indian Tribe or Native Hawaiian organization not identified in this notice that wish to request transfer of control of these human remains and associated funerary objects should submit a written request with information in support of the request to Brad Traver, Superintendent, Petrified Forest National Park, Box 2217, Petrified Forest, AZ 86028, telephone (928) 524-6228 Ext. 225, email
Petrified Forest National Park is responsible for notifying The Consulted Tribes and The Invited Tribes that this notice has been published.
United States International Trade Commission.
Notice.
The Commission hereby gives notice of the scheduling of expedited reviews pursuant to the Tariff Act of 1930 (“the Act”) to determine whether revocation of the antidumping and countervailing duty orders on sodium nitrite from China and the antidumping order on sodium nitrite from Germany would be likely to lead to continuation or recurrence of material injury within a reasonably foreseeable time.
April 12, 2019
Christopher W. Robinson (202-205-2542), 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 (
For further information concerning the conduct of these reviews and rules of general application, consult the Commission's Rules of Practice and Procedure, part 201, subparts A and B (19 CFR part 201), and part 207, subparts A, D, E, and F (19 CFR part 207).
In accordance with sections 201.16(c) and 207.3 of the rules, each document filed by a party to the reviews must be served on all other parties to the reviews (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 reviews are being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that a complaint was filed with the U.S. International Trade Commission on April 29, 2019, under section 337 of the Tariff Act of 1930, as amended, on behalf of LG Chem, Ltd. of South Korea and LG Chem Michigan, Inc. of Holland, Michigan. Supplements were filed on May 13, and 15, 2019. The complaint, as supplemented, alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain lithium ion batteries, battery cells, battery modules, battery packs, components thereof, and processes therefor by reason of the misappropriation of trade secrets, the threat or effect of which is to destroy or substantially injure an industry in the United States.
The complainant requests that the Commission institute an investigation and, after the investigation, issue a limited exclusion order and cease and desist orders.
The complaint, except for any confidential information contained
Pathenia M. Proctor, The Office of Unfair Import Investigations, U.S. International Trade Commission, telephone (202) 205-2560.
(1) Pursuant to subsection (b) of section 337 of the Tariff Act of 1930, as amended, an investigation be instituted to determine whether there is a violation of subsection (a)(1)(A) of section 337 in the importation into the United States or the sale within the United States after importation of certain products identified in paragraph (2) by reason of the misappropriation of trade secrets, the threat or effect of which is to substantially injure an industry in the United States;
(2) Pursuant to section 210.10(b)(1) of the Commission's Rules of Practice and Procedure, 19 CFR 210.10(b)(1), the plain language description of the accused products or category of accused products, which defines the scope of the investigation, is “lithium-ion batteries, battery cells, battery modules, battery packs, components thereof, and processes therefor”;
(3) For the purpose of the investigation so instituted, the following are hereby named as parties upon which this notice of investigation shall be served:
(a) The complainants are:
(b) The respondents are the following entities alleged to be in violation of section 337, and are the parties upon which the complaint is to be served:
(c) The Office of Unfair Import Investigations, U.S. International Trade Commission, 500 E Street SW, Suite 401, Washington, DC 20436; and
(4) For the investigation so instituted, the Chief Administrative Law Judge, U.S. International Trade Commission, shall designate the presiding Administrative Law Judge.
Responses to the complaint and the notice of investigation must be submitted by the named respondents in accordance with section 210.13 of the Commission's Rules of Practice and Procedure, 19 CFR 210.13. Pursuant to 19 CFR 201.16(e) and 210.13(a), such responses will be considered by the Commission if received not later than 20 days after the date of service by the Commission of the complaint and the notice of investigation. Extensions of time for submitting responses to the complaint and the notice of investigation will not be granted unless good cause therefor is shown.
Failure of a respondent to file a timely response to each allegation in the complaint and in this notice may be deemed to constitute a waiver of the right to appear and contest the allegations of the complaint and this notice, and to authorize the administrative law judge and the Commission, without further notice to the respondent, to find the facts to be as alleged in the complaint and this notice and to enter an initial determination and a final determination containing such findings, and may result in the issuance of an exclusion order or a cease and desist order or both directed against the respondent.
By order of the Commission.
In accordance with Departmental Policy, 28 CFR 50.7, notice is hereby given that a proposed Consent Decree in
This proposed Consent Decree concerns a complaint filed by the United States against David A. Whitehill and Dependable Towing & Recovery, Inc., pursuant to Sections 301(a) and 404 of the Clean Water Act, 33 U.S.C. 1311(a) and 1344, to obtain injunctive relief from and impose civil penalties against the Defendants based on allegations that they discharged pollutants without a permit into waters of the United States and violated an administrative order issued by the United States Environmental Protection Agency. The proposed Consent Decree resolves these allegations by requiring the Defendants to restore impacted areas, perform mitigation, and pay a civil penalty.
The Department of Justice will accept written comments relating to this proposed Consent Decree for thirty (30) days from the date of publication of this Notice. Please address comments to Heather Gange, Senior Attorney, United States Department of Justice, Environment and Natural Resources Division, Environmental Defense Section, Post Office Box 7611, Washington, DC 20044-7611, and refer to
The proposed Consent Decree may be examined at the Clerk's Office, United States District Court for the Western District of New York (Buffalo Division), 2 Niagara Square, Buffalo, NY 14202. In addition, the proposed Consent Decree may be examined electronically at
National Aeronautics and Space Administration (NASA).
Notice of information collection.
The National Aeronautics and Space Administration, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
All comments should be submitted within 30 calendar days from the date of this publication.
Interested persons are invited to submit written comments on the proposed information collection to NASA Paperwork Reduction Act Clearance Officer, Code JF000, National Aeronautics and Space Administration, Washington, DC 20546-0001 or
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Gatrie Johnson, NASA Clearance Officer, NASA Headquarters, 300 E Street SW, JF000, Washington, DC 20546, or
The NASA Ames Research Center, Human Systems Integration Division, manages voluntary safety reporting systems to collect and share safety information including, but not limited to, the NASA Aviation Safety Reporting System (ASRS) and the Confidential Close Call Reporting System (C3RS). Both systems are voluntary reporting systems for the reporting of safety incidents, events, or situations. Respondents include, but are not limited to, any participant involved in safety-critical domains such as aviation or railway operations including commercial and general aviation pilots, drone operators, air traffic controllers, flight attendants, ground crews, maintenance technicians, dispatchers, train engineers, conductors, and other members of the public.
The collected safety data are used by NASA, Federal Aviation Administration (FAA), Federal Railroad Administration (FRA), and other organizations that are engaged in research and the promotion of safety. The data are used to (1) Identify deficiencies and discrepancies so that these can be remedied by appropriate authorities, (2) Support policy formulation and planning for improvements and, (3) Strengthen the foundation of human factors safety research. Respondents are not reimbursed for associated cost to provide the information. Comments submitted in response to this notice will be summarized and included in the request for OMB approval of this information collection. They will also become a matter of public record.
NASA collects this information electronically and that is the preferred manner, however information may also be collected via mail.
National Archives and Records Administration (NARA).
Office of Government Information Services (OGIS) annual open meeting.
We are announcing OGIS's annual meeting, open to the public. The purpose of the meeting is to discuss OGIS's reviews and reports and allow interested people to appear and present oral or written statements.
The meeting will take place on Friday, June 14, 2019, from 10 a.m. to 11:30 a.m. EDT. Please register for the meeting no later than 5 p.m. EDT on June 12, 2018.
Kirsten Mitchell, by mail at National Archives and Records Administration; Office of Government Information Services; 8601 Adelphi Road—OGIS; College Park, MD 20740-6001, by telephone at 202-741-5770, or by email at
We conduct our meetings in accordance with the Freedom of Information Act, 5 U.S.C. 552(h)(6). OGIS's 2019 Report for Fiscal Year 2018, published during Sunshine Week (March 10-16, 2019), summarizes our work, in accordance with FOIA, 5 U.S.C. 552(h)(4)(A).
In addition to hearing statements from attendees, we will also answer questions during the meeting. Please submit questions before the meeting by emailing
We will also live-stream the meeting on the U.S. National Archives' YouTube
National Credit Union Administration (NCUA).
Notice.
The National Credit Union Administration (NCUA) will submit 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, on or after the date of publication of this notice.
Comments should be received on or before July 5, 2019 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of this information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for NCUA, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by contacting Mackie Malaka at (703) 548-2704, emailing
By Gerard Poliquin, Secretary of the Board, the National Credit Union Administration, on May 30, 2019.
National Credit Union Administration (NCUA).
Notice.
The National Credit Union Administration (NCUA) will submit 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, on or after the date of publication of this notice.
Comments should be received on or before July 5, 2019 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of this information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for NCUA, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by contacting Mackie Malaka at (703) 548-2704, emailing
By Gerard Poliquin, Secretary of the Board, the National Credit Union Administration, on May 30, 2019.
Nuclear Regulatory Commission.
Biweekly notice.
Pursuant to the Atomic Energy Act of 1954, as amended (the Act), the U.S. Nuclear Regulatory Commission (NRC) is publishing this regular biweekly notice. The Act requires the Commission to 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 or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
This biweekly notice includes all notices of amendments issued, or proposed to be issued, from May 7, 2019, to May 20, 2019. The last biweekly notice was published on May 21, 2019.
Comments must be filed by July 5, 2019. A request for a hearing must be filed by August 5, 2019.
You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):
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For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Janet Burkhardt, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-1384, email:
Please refer to Docket ID NRC-2019-0129, facility name, unit number(s), plant docket number, application date, and subject when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
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•
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Please include Docket ID NRC-2019-0129, facility name, unit number(s), plant docket number, application date, and subject in your comment submission.
The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at
If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Pursuant to Section 189a.(2) of the Atomic Energy Act of 1954, as amended (the Act), the NRC is publishing this regular biweekly notice. The Act requires the Commission to 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 or combined license, as applicable, upon a determination by the Commission that such amendment involves no significant hazards consideration, notwithstanding the pendency before the Commission of a request for a hearing from any person.
The Commission has made a proposed determination that the following amendment requests involve no significant hazards consideration. Under the Commission's regulations in § 50.92 of 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 if circumstances change during the 30-day comment
Within 60 days after the date of publication of this notice, any persons (petitioner) whose interest may be affected by this action may file a request for a hearing and petition for leave to intervene (petition) with respect to the action. Petitions shall be filed in accordance with the Commission's “Agency Rules of Practice and Procedure” in 10 CFR part 2. Interested persons should consult a current copy of 10 CFR 2.309. The NRC's regulations are accessible electronically from the NRC Library on the NRC's website at
As required by 10 CFR 2.309(d) the petition should specifically explain the reasons why intervention should be permitted with particular reference to the following general requirements for standing: (1) The name, address, and telephone number of the petitioner; (2) the nature of the petitioner's right under the Act to be made a party to the proceeding; (3) the nature and extent of the 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 petitioner's interest.
In accordance with 10 CFR 2.309(f), the petition must also set forth the specific contentions which the petitioner seeks to have litigated in 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 must 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 the specific sources and documents on which the petitioner intends to rely to support its position on the issue. The petition must include sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. Contentions must be limited to matters within the scope of the proceeding. The contention must be one which, if proven, would entitle the petitioner to relief. A petitioner who fails to satisfy the requirements at 10 CFR 2.309(f) 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. Parties have the opportunity to participate fully in the conduct of the hearing with respect to resolution of that party's admitted contentions, including the opportunity to present evidence, consistent with the NRC's regulations, policies, and procedures.
Petitions must be filed no later than 60 days from the date of publication of this notice. Petitions and motions for leave to file new or amended contentions that are filed after the deadline will not be entertained absent a determination by the presiding officer that the filing demonstrates good cause by satisfying the three factors in 10 CFR 2.309(c)(1)(i) through (iii). The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document.
If a hearing is requested, and the Commission has not made a final determination on the issue of no significant hazards consideration, the Commission will make a final determination on the issue of no significant hazards consideration. The final determination will serve to establish 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 would take place after issuance of the amendment. If the final determination is that the amendment request involves a significant hazards consideration, then any hearing held would take place before the issuance of the amendment unless the Commission finds an imminent danger to the health or safety of the public, in which case it will issue an appropriate order or rule under 10 CFR part 2.
A State, local governmental body, Federally-recognized Indian Tribe, or agency thereof, may submit a petition to the Commission to participate as a party under 10 CFR 2.309(h)(1). The petition should state the nature and extent of the petitioner's interest in the proceeding. The petition should be submitted to the Commission no later than 60 days from the date of publication of this notice. The petition must be filed in accordance with the filing instructions in the “Electronic Submissions (E-Filing)” section of this document, and should meet the requirements for petitions set forth in this section, except that under 10 CFR 2.309(h)(2) a State, local governmental body, or Federally-recognized Indian Tribe, or agency thereof does not need to address the standing requirements in 10 CFR 2.309(d) if the facility is located within its boundaries. Alternatively, a State, local governmental body, Federally-recognized Indian Tribe, or agency thereof may participate as a non-party under 10 CFR 2.315(c).
If a hearing is granted, any person who is not a party to the proceeding and is not affiliated with or represented by a party may, at the discretion of the presiding officer, be permitted to make a limited appearance pursuant to the provisions of 10 CFR 2.315(a). A person making a limited appearance may make an oral or written statement of his or her position on the issues but may not otherwise participate in the proceeding. A limited appearance may be made at any session of the hearing or at any prehearing conference, subject to the limits and conditions as may be imposed by the presiding officer. Details regarding the opportunity to make a limited appearance will be provided by the presiding officer if such sessions are scheduled.
All documents filed in NRC adjudicatory proceedings, including a request for hearing and petition for leave to intervene (petition), 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 that request to participate under 10 CFR 2.315(c), must be filed in accordance with the NRC's E-Filing rule (72 FR 49139; August 28, 2007, as amended at 77 FR 46562; August 3, 2012). 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
To comply with the procedural requirements of E-Filing, at least 10 days prior to the filing deadline, the participant should contact the Office of the Secretary by email at
Information about applying for a digital ID certificate is available on the NRC's public website at
A person filing electronically using the NRC's adjudicatory E-Filing system may seek assistance by contacting the NRC's Electronic Filing Help Desk through the “Contact Us” link located on the NRC's public website 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 stating why there is good cause for not filing electronically and 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, 11555 Rockville Pike, Rockville, Maryland 20852, Attention: Rulemaking and Adjudications Staff. Participants filing adjudicatory documents in this manner are responsible for serving the document on all other participants. Filing is considered complete by first-class mail as of the time of deposit in the mail, or by courier, express mail, or expedited delivery service upon depositing the document with the provider of the service. A presiding officer, having granted an exemption request from using E-Filing, may require a participant or party to use E-Filing if the presiding officer subsequently determines that the reason for granting the exemption from use of E-Filing no longer exists.
Documents submitted in adjudicatory proceedings will appear in the NRC's electronic hearing docket which is available to the public at
For further details with respect to these license amendment applications, see the application for amendment which is available for public inspection in ADAMS and at the NRC's PDR. For additional direction on accessing information related to this document, see the “Obtaining Information and Submitting Comments” section of this document.
1. Does the proposed amendment involve a significant increase in the probability or
The proposed change modifies existing SRs to operate the EBFS [Enclosure Building Filtration System] system for MPS2 and ABFS [Auxiliary Building Filter System], CREVS [Control Room Emergency Ventilation System], and SLCRS [Supplementary Leak Collection and Release System] systems for MPS3 that are equipped with electric heaters for a 10 hour period at the frequency specified in the SFCP with a requirement to operate the systems for 15 continuous minutes. Additionally, the SR for EBFS will be revised to remove the requirement [to] conduct the flow test with the duct heaters energized since the charcoal adsorption test is performed at 95% relative humidity.
These systems are not accident initiators and therefore, these changes do not involve a significant increase in the probability of an accident. The proposed system and filter testing changes are consistent with current regulatory guidance for these systems and will continue to assure that these systems perform their design function which may include mitigating accidents. Thus the change does not involve a significant increase in the consequences of an accident.
Therefore, it is concluded that this 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?
The proposed change modifies existing SRs to operate the EBFS, ABFS, CREVS, and SLCRS systems equipped with electric heaters for a 10 hour period at the frequency specified in the SFCP with a requirement to operate the systems for 15 continuous minutes. Additionally, the SR for EBFS will be revised to remove the requirement [to] conduct the flow test with the duct heaters energized since the charcoal adsorption test is performed at 95% relative humidity.
The change proposed for these ventilation systems does not change any system operations or maintenance activities. Testing requirements will be revised and will continue to demonstrate that the Limiting Conditions for Operation are met and the system components are capable of performing their intended safety functions. The change does not create new failure modes or mechanisms and no new accident precursors are generated.
Therefore, it is concluded that this change does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in the margin of safety?
The proposed change modifies existing SRs to operate the EBFS, ABFS, CREVS, and SLCRS systems equipped with electric heaters for a 10 hour period at the frequency specified in the SFCP with a requirement to operate the systems for 15 continuous minutes. Additionally, TSTF-522 identifies a regulatory position which indicates that plants which test ventilation system absorption at a relative humidity of 95% do not require heaters for the ventilation system to perform its specified safety function systems and that reference to the heaters can be removed from the TS. Based on justification provided in TSTF-522, the existing SR for EBFS will be revised to remove the requirement to complete the ventilation system test with the duct heaters energized since the adsorption test is performed at 95% relative humidity. EBFS will continue to have the heaters, but they will not be credited in the TS.
The design basis for the ventilation systems' heaters is to heat the incoming air which reduces the relative humidity. Per TSTF-522, the monthly 10 hour system operation utilizing the heaters was intended to remove moisture from the charcoal adsorber banks. Because the ASTM D3803-1989 Standard no longer requires this 10 hour operation utilizing the heaters, the duration is replaced with a continuous 15 minute operation requirement. The proposed change is consistent with guidance provided in Regulatory Position 4.9 of Regulatory Guide 1.52, Revision 3.
Therefore, it is concluded that this 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. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The change to TS 3.3.5.3 adds a note that previously applied when the Surveillance Requirements for Modes 4 and 5 were included in TS 3.3.5.1. There are no new requirements or actions added that have not been previously approved. Applying the note cannot increase probability of an accident because it does not change plant equipment or SR method or surveillance frequency.
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 previously evaluated?
The proposed change duplicates existing TS Surveillance Requirements that will continue to protect Safety Limit 2.1.1.3. The note requires ECCS initiation function to be maintained in order to allow the delayed entry into the Condition. The proposed change will not alter the design function of the equipment involved. The event of concern is an unexpected draining event. The proposed change does not create new failure mechanisms, malfunctions, or accident initiators that would cause a draining event or a new or different kind of accident not previously evaluated or included 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?
The proposed changes have no adverse effect on plant operation. The plant response to the design basis accidents do not change. The proposed changes do not adversely affect existing plant safety margins or the reliability of the equipment assumed to operate in the safety analyses. There is no change being made to safety analysis assumptions, safety limits or limiting safety system settings that would adversely affect plant safety as a result of the proposed changes. The analysis in NEDC-30936-P-A demonstrates that the testing allowance does not significantly reduce the probability that the ECCS will initiate when necessary. The note can only be used when initiation capability is maintained.
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. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The CCH system is not an initiator of an accident and does not have the function of preventing any accidents. Therefore, the proposed change does not involve an increase in the probability of an event.
The CCH system utilizes active components to perform its design function in support of MCR cooling, however, the CCH system utilizes safety-related equipment which meet the design requirements stated in the Columbia FSAR [Final Safety Analysis Report]. System performance and reliability will be monitored by the Maintenance Rule, the IST [Inservice Testing] Program and TS [technical specification] surveillance. Procedures are available for CCH system use and the CCH system components are accessible post-accident. Analyses have been performed and conclude there is adequate time to initiate MCR cooling following a design basis event. The proposed change does not impact radiological consequences of any accident described in the FSAR. Therefore, the proposed change does not involve a significant increase in the consequences of an event.
2. Does the proposed amendment create the possibility of a new or different kind of accident from any accident previously analyzed?
The proposed change allows the use of either CCH or SW, when capable of the required heat removal, as cooling support to the [Main] Control Room AC system for the purpose of meeting both the equipment qualification temperature limit and the bounding control room habitability steady state temperature. The proposed change will align CCH to both the Division 1 and Division 2 emergency cooling coils for emergency standby service. If normal MCR cooling is lost, emergency MCR cooling will be manually initiated post-accident and is supported by analyses that conclude the manual actions are feasible and adequate time is available to perform the actions. The [Main] Control Room AC system cooling function is not an accident initiator and is not postulated to create a new or different kind of accident than previously analyzed.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed LAR [license amendment request] provides additional flexibility to utilize either the CCH or SW system to meet the MCR required equipment qualification temperature limit and the long term steady state temperature for 30 days continuous control room occupancy. The SW system will be evaluated to ensure it is capable of the required heat removal prior to crediting it as the available cooling source. Operator training will be provided to reflect use of CCH as the preferred cooling source to support the Control Room AC system in both Division 1 and Division 2 following approval of this LAR. Analyses have been performed and conclude that there is adequate time to initiate MCR cooling following a design basis event. Surveillances will be performed on both the CCH and SW systems in support of MCR cooling and the systems will be maintained as safety-related. Therefore, the proposed changes do 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. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change eliminates certain Completion Times from the TSs. Completion Times are not an initiator to any accident previously evaluated. As a result, the probability of an accident previously evaluated is not affected. The consequences of an accident with respect to the proposed change are no different than the consequences of the same accident when applying the existing Completion Times. As a result, the consequences of an accident previously evaluated are not affected by this change. The proposed change does not alter or prevent the ability of [a] structure, system, or component (SSC) from performing the credited function to mitigate the consequences of an initiating event within the assumed acceptance limits. The proposed change does not affect the source term, reactor building isolation, or radiological release assumptions used in evaluating the radiological consequences of an accident previously evaluated. Further, the proposed change does not increase the types or amounts of radioactive effluent that may be released offsite, nor significantly increase individual or cumulative occupational/public radiation exposures. The proposed change is consistent with the safety analysis assumptions and resultant consequences.
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 previously evaluated?
The proposed change does not involve a physical alteration of the plant (
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?
The proposed change to delete the second Completion Time does not alter the manner in which safety limits, limiting safety system settings, or limiting conditions for operation are determined. The safety analysis acceptance criteria are not affected by this change. The proposed change will not result in plant operation in a configuration outside of the design basis.
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
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed activity involves the revision of the Limerick Generating Station (LGS), Units 1 and 2 Technical Specification (TS) 6.8.4.g, “Primary Containment Leakage Rate Testing Program,” to allow the extension of the Type A integrated leakage rate test (ILRT) containment test interval to 15 years and the extension of the Type C local leakage rate test (LLRT) interval to 75 months. The proposed activity also involves the extension of the drywell-to-suppression chamber bypass leak test (DWBT) from 120 months to 180 months to align the test with the proposed Type A test frequency. Per the guidance provided in Nuclear Energy Institute (NEI) 94-01, “Industry Guideline for Implementing Performance-Based Option of 10 CFR 50, Appendix J,” Revision 3-A, the current Type A test interval of 120 months (10 years) would be extended on a permanent basis to no longer than 15 years from the last Type A test. The current Type C test interval of 60 months for selected components would be extended on a performance basis to no longer than 75 months. Extensions of up to nine months (total maximum interval of 84 months for Type C tests) are permissible only for non-routine emergent conditions.
The proposed extensions do not involve either a physical change to the plant or a change in the manner in which the plant is operated or controlled. The containment is designed to provide an essentially leak tight barrier against the uncontrolled release of radioactivity to the environment for postulated accidents. As such, the containment and the testing requirements invoked to periodically demonstrate the integrity of the containment exist to ensure the plant's ability to mitigate the consequences of an accident, and do not involve the prevention or identification of any precursors of an accident.
The change in dose risk for changing the Type A test frequency from three-per-ten years to once-per-fifteen years, measured as an increase to the total integrated dose risk for all internal events accident sequences for LGS, is 6.60E-02 person-roentgen equivalent man(rem)/yr (0.36 percent) using the Electric Power Research Institute (EPRI) guidance with the base case corrosion included. The change in dose risk drops to 1.16E-02 person-rem/yr (0.06 percent) when using the EPRI Expert Elicitation methodology. The values calculated per the EPRI guidance are all lower than the acceptance criteria of ≤1.0 person-rem/yr or <1.0% person-rem/yr. The change in dose risk for changing the DWBT frequency from once-per-ten years to once-per-fifteen years, measured as an increase to the total integrated dose risk for all internal events accident sequences for LGS, is 1.5E-02 person-rem/yr. The results of the risk assessment for this amendment meet these criteria. Moreover, the risk impact for the ILRT extension when compared to other severe accident risks is negligible. Therefore, this proposed extension does not involve a significant increase in the probability of an accident previously evaluated.
In addition, as documented in NUREG-1493, “Performance-Based Containment Leak-Test Program,” dated September 1995, Types B and C tests have identified a very large percentage of containment leakage paths, and the percentage of containment leakage paths that are detected only by Type A testing is very small. The LGS Type A test history supports this conclusion.
The integrity of the containment is subject to two types of failure mechanisms that can be categorized as: (1) Activity based, and (2) time based. Activity based failure mechanisms are defined as degradation due to system and/or component modifications or maintenance. Local leak rate test requirements and administrative controls such as configuration management and procedural requirements for system restoration ensure that containment integrity is not degraded by plant modifications or maintenance activities. The design and construction requirements of the containment combined with the containment inspections performed in accordance with the American Society of Mechanical Engineers (ASME) Boiler and Pressure Vessel (B&PV) Code, Section XI, Rules for Inservice Inspection of Nuclear Power Plant Components, Containment Maintenance Rule Structures Monitoring Program, Containment Coatings Program and TS requirements serve to provide a high degree of assurance that the containment would not degrade in a manner that is detectable only by a Type A test (ILRT). Based on the above, the proposed extensions do not significantly increase the consequences of an accident previously evaluated.
The proposed amendment also deletes Units 1 and 2 TS 6.8.4.g exceptions previously granted via TS Amendments No. 190 (Unit 1) and No. 151 (Unit 2) to allow one-time extensions of the ILRT test frequency for LGS. These exceptions were for activities that would have already taken place by the time this amendment is approved; therefore, their deletion is solely an administrative action that has no effect on any component and no impact on how the unit is operated.
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?
The proposed amendment to the LGS, Units 1 and 2 TS 6.8.4.g involves the extension of the LGS, Units 1 and 2 Type A (ILRT) containment test interval to 15 years and the extension of the Type C (LLRT) test interval to 75 months. The proposed activity also involves the extension of the DWBT from 120 months to 180 months to align the test with the proposed Type A test frequency. The containment and the testing requirements to periodically demonstrate the integrity of the containment exist to ensure the plant's ability to mitigate the consequences of an accident and do not involve any accident precursors or initiators. The proposed change does not involve a physical change to the plant (
The proposed amendment also deletes Units 1 and 2 TS 6.8.4.g(a) exceptions previously granted to allow one-time extensions of the ILRT test frequency for LGS. These exceptions were for activities that would have already taken place by the time this amendment is approved; therefore, their deletion is solely an administrative action that has no effect on any component and no impact on how the unit is operated.
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?
The proposed amendment to Units 1 and 2 TS 6.8.4.g involves the extension of the LGS Type A containment test interval to 15 years and the extension of the Type C test
The proposed change involves only the extension of the interval between Type A containment leak rate tests and Type C tests for LGS. The proposed surveillance interval extension is bounded by the 15-year ILRT interval and the 75-month Type C test interval currently authorized within NEI 94-01, Revision 3-A. Industry experience supports the conclusion that Types B and C testing detects a large percentage of containment leakage paths and that the percentage of containment leakage paths that are detected only by Type A testing is small. The containment inspections performed in accordance with ASME Section Xl and TS serve to provide a high degree of assurance that the containment would not degrade in a manner that is detectable only by Type A testing. The combination of these factors ensures that the margin of safety in the plant safety analysis is maintained. The design, operation, testing methods and acceptance criteria for Types A, B, and C containment leakage tests specified in applicable codes and standards would continue to be met, with the acceptance of this proposed change, since these are not affected by changes to the Type A and Type C test intervals.
The current frequency associated with a DWBT leakage test is 120 months. If any DWBT test fails to meet the specified limit, the test schedule for subsequent tests shall be reviewed and approved by the NRC. If two consecutive tests fail to meet the specified limit, a test shall be performed at least every 24 months until two consecutive tests meet the specified limit, at which time the test schedule may be resumed. The proposed change will modify this leakage test frequency from 120 months to 180 months. The proposed change is acceptable as the results from previous tests show that the measured drywell-to-suppression chamber bypass leakage at the current TS frequency has been a small percentage of the allowable leakage. Acceptability is further demonstrated by the design requirements applied to the primary containment components and other periodically performed primary containment inspections.
LGS, Units 1 and 2 TS SR 4.6.2.1.e DWBT monitors the combined leakage of three types of pathways: (1) The drywell floor and downcomers, (2) piping externally connected to both the drywell and suppression chamber air space and (3) the suppression chamber to drywell vacuum breakers. This amendment would extend the surveillance interval on the passive components of the test (the first two types of pathways), while retaining the current surveillance interval on the active components (suppression chamber to drywell vacuum breakers).
The proposed amendment also deletes Units 1 and 2 TS 6.8.4.g(a) exceptions previously granted to allow one-time extensions of the ILRT test frequency for LGS. These exceptions were for activities that would have already taken place by the time this amendment is approved; therefore, the deletion is solely an administrative action that has no effect on any component and no impact on how the unit is operated.
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. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change clarifies the operability requirements for the RCS leakage detection instrumentation and reduces the time allowed for the plant to operate when the only TS-required operable RCS leakage detection instrumentation monitor is the drywell atmospheric gaseous radiation monitor. The monitoring of RCS leakage is not a precursor to any accident previously evaluated. The monitoring of RCS leakage is not used to mitigate the consequences of any accident previously evaluated. Therefore, it is concluded that this 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?
The proposed change clarifies the operability requirements for the RCS leakage detection instrumentation and reduces the time allowed for the plant to operate when the only TS-required operable RCS leakage detection instrumentation monitor is the drywell atmospheric gaseous radiation monitor. The proposed change does not involve a physical alteration of the plant (no new or different type of equipment will be installed) or a change in the methods governing normal plant operation. Therefore, it is concluded that this 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?
The proposed change clarifies the operability requirements for the RCS leakage detection instrumentation and reduces the time allowed for the plant to operate when the only TS-required operable RCS leakage detection instrumentation monitor is the drywell atmospheric gaseous radiation monitor. Reducing the amount of time the plant is allowed to operate with only the drywell atmospheric gaseous radiation monitor operable increases the margin of safety by increasing the likelihood that an increase in RCS leakage will be detected before it potentially results in gross failure. Therefore, it is concluded that this 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. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change addresses conditions during which the secondary containment SRs are not met. The secondary containment is not an initiator of any accident previously evaluated. As a result, the probability of an accident previously evaluated is not increased. The consequences of an accident previously evaluated while utilizing the proposed changes are no different than the consequences of an accident while utilizing the existing four hour Completion Time for an inoperable secondary containment. In addition, the proposed Note for SR 4.6.5.1.a provides an alternative means to ensure the secondary containment safety function is met. As a result, the consequences of an 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.
2. Does the proposed change create the possibility of a new or different kind of accident from any previously evaluated?
The proposed change does not alter the protection system design, create new failure modes, or change any modes of operation. The proposed change does not involve a physical alteration of the plant; and no new or different kind of equipment will be installed. Consequently, there are no new initiators that could result in a new or different kind of accident.
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?
The proposed change addresses conditions during which the secondary containment SRs are not met. Conditions in which the secondary containment is not at a negative pressure are acceptable provided the conditions do not affect the ability of the FRVS [filtration recirculation and ventilation system] to establish the required secondary containment vacuum under post-accident conditions within the time assumed in the accident analysis. This condition is incorporated in the proposed change by requiring an analysis of actual environmental and secondary containment pressure conditions to confirm the capability of the FRVS is maintained within the assumptions of the accident analysis. Therefore, the safety function of the secondary containment is not affected. The allowance for both an inner and outer secondary containment door to be open simultaneously for entry and exit does not affect the safety function of the secondary containment as the doors are promptly closed after entry or exit, thereby restoring the secondary containment boundary.
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. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change does not affect the operation or reliability of any system, structure or component (SSC) required to maintain a normal power operating condition or to mitigate anticipated transients without safety-related systems. There is no change to the auxiliary steam header isolation valve safety class or nonsafety-related functions. With the proposed change, the auxiliary steam header isolation valve will continue to perform its nonsafety-related design function of providing isolation at the system interface between the main steam system and auxiliary steam supply system. The operation of the auxiliary steam header isolation valve is not changed, and it remains downstream of the main steam isolation valve (MSIV). The auxiliary steam header isolation valve is not, nor was it, credited in limiting blowdown of a second steam generator in the event of a steam line break upstream of an MSIV concurrent with the failure of the other MSIV. Therefore, there is no impact to the MSS [main steam system] design function of limiting blowdown of a second steam generator in the event of a steam line break upstream of an MSIV concurrent with the failure of the other MSIV, and there is no impact to Chapter 15 evaluations.
Therefore, the proposed amendment does not involve a significant 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?
The proposed change does not affect the operation of systems or equipment that could initiate a new or different kind of accident or alter any SSC such that a new accident initiator or initiating sequence of events is created. There is no change to the auxiliary steam header isolation valve safety class or nonsafety-related functions. With the proposed change, the auxiliary steam header isolation valve will continue to perform its nonsafety-related design function of providing isolation at the system interface between the main steam system and auxiliary steam supply system. The operation of the auxiliary steam header isolation valve is not changed, and it remains downstream of the main steam isolation valve (MSIV). The auxiliary steam header isolation valve is not, nor was it, credited in limiting blowdown of a second steam generator in the event of a steam line break upstream of an MSIV concurrent with the failure of the other MSIV. Therefore, there is no impact to the MSS design function of limiting blowdown of a second steam generator in the event of a steam line break upstream of an MSIV concurrent with the failure of the other MSIV, and there is no impact to Chapter 15 evaluations.
Therefore, the proposed amendment does not create the possibility of a new or different kind of accident from any accident previously evaluated.
3. Does the proposed amendment involve a significant reduction in a margin of safety?
The proposed change does not affect existing safety margins. There is no change to the auxiliary steam header isolation valve safety class or nonsafety-related functions. With the proposed change, the auxiliary steam header isolation valve will continue to perform its nonsafety-related design function of providing isolation at the system interface between the main steam system and auxiliary steam supply system. The operation of the auxiliary steam header isolation valve is not changed, and it remains downstream of the main steam isolation valve (MSIV). The auxiliary steam header isolation valve is not, nor was it, credited in limiting blowdown of a second steam generator in the event of a steam line break upstream of an MSIV concurrent with the failure of the other MSIV. Therefore, there is no impact to the MSS design function of limiting blowdown of a second steam generator in the event of a steam line break upstream of an MSIV concurrent with the failure of the other MSIV, and there is no impact to Chapter 15 evaluations.
Therefore, the proposed amendment 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. Does the proposed amendment [change] involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change permits the extension of completion times provided risk is assessed and managed within the Risk Informed Completion Time Program. The proposed change does not involve a significant increase in the probability of an accident previously evaluated because the changes involve no change to the plant or its mode of operation. The proposed change does not increase the consequences of an accident because the design-basis mitigation function of the affected systems is not changed and the consequences of an accident during the extended completion time are no different from those during the existing COMPLETION TIME.
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?
The proposed TS revision does not change the design, configuration, or method of plant operation. The proposed change does not involve a physical alteration of the plant in that no new or different kind of equipment will be installed.
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?
The proposed change permits the extension of completion times provided risk is assessed and managed within the Risk Informed Completion Time Program. The proposed change implements a risk-informed configuration management program to assure that adequate safety margins are maintained. Application of these new specifications and the configuration management program considers cumulative effects of multiple systems or components being out of service and does so more effectively than the current TS.
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. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change to replace the words “Turbine Impulse Chamber Pressure” or “Turbine Impulse Pressure”, as appropriate, with “Turbine Inlet Pressure” in the descriptive text associated with the P-13 function of the Reactor Trip System does not involve any physical or design change to the P-13 function. The proposed change is intended to eliminate potential confusion by making the description generically applicable for other turbine types.
Therefore, there is no impact to the probability or consequences of an accident previously evaluated due to the proposed change.
2. Does the proposed amendment create the possibility of a new or different kind of
Replacing the words “Turbine Impulse Chamber Pressure” with “Turbine Inlet Pressure” in the descriptive text associated with the P-13 function will not create the possibility of a new or different kind of accident from any accident previously evaluated. No safety-related equipment, safety function, or plant operation will be altered as a result of this proposed change. No new operator actions are created as a result of the proposed change.
Changing the descriptive text associated with the P-13 permissive has no impact on the accidents analyzed in the STPNOC [STP Nuclear Operating Company] Updated Final Safety Analysis Report (UFSAR) and is not an accident initiator. Since this change does not impact any conditions that would initiate an accident, there is no possibility of a new or different kind of accident resulting from this change.
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?
Changing the descriptive text associated with the P-13 permissive will not affect the margin of safety. The margin of safety presently provided by the Technical Specifications remains unchanged.
The proposed amendment does not affect the design of the facility or system operating parameters, does not physically alter safety-related systems and does not affect the method in which safety-related systems perform their functions.
Therefore, the proposed change does not impact margin of safety.
The NRC staff has reviewed the licensee's analysis and, based on this review, it appears that the standards of 10 CFR 50.92(c) are satisfied. Therefore, the NRC staff proposes to determine that the request for amendments involves no significant hazards consideration.
1. Does the proposed amendment involve a significant increase in the probability or consequences of an accident previously evaluated?
Testing slave relay K620 more frequently than currently required will not increase the probability or the consequences of a previously evaluated accident.
The new turbine controls being installed under a plant modification include new EHC [Electrohydraulic Control] trip bus coils with an impedance sized to allow a small test current to be applied to the trip logic without activating the trip coils. This permits the K620 slave relay to be tested on-line at the frequency used for testing other, similar slave relays in the plant and without any significant increase in the probability of an inadvertent turbine trip. Consequently, the new test scheme for this relay does not increase the probability of a previously evaluated transient (
Slave relay K620 provides trip signals to the Main Turbine and the Main Feedwater trip logic. Performing this test at the increased frequency will not adversely affect the relay's performance since the new frequency is typical for slave relays that can be tested during plant operation. It is thus reasonable to conclude that the likelihood of relay failure is not increased.
In regard to accident consequences, the change in test frequency for the K620 relay does not affect its required operability. Since the relay's function is not affected, there is no change to how the function is credited or assumed in the plant's accident analysis. The analyzed consequences are thus unaffected.
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?
Testing slave relay K620 more frequently than currently required does not create the possibility of a new or different kind of accident from any accident previously evaluated.
Currently, slave relay K620 is tested with the turbine offline since under the current (unmodified) design, the testing of slave relay K620 produces a test current sufficient to trip the main turbine. The new proposed turbine controls include new EHC trip bus coils with an impedance sized to allow a small test current to be applied to the trip logic without activating the trip coils, thus allowing the slave relay test to be performed online. There is no change to the design or function of the relay itself or its associated logic. Thus, no new failure modes are introduced by the replacement of these trip coils.
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?
The proposed TS change only affects the testability of the K620 relay (and thus the frequency at which the relay is tested). The design and function of the K620 slave relay itself are unchanged. No changes to the accident analyses, including any associated assumptions such as instrument setpoints or credited trip functions, are required or being made for this proposed change.
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. Does the proposed change involve a significant increase in the probability or consequences of an accident previously evaluated?
The proposed change revises TS Chapter 5, “Administrative Controls,” Section 5.5, “Programs and Manuals,” by eliminating the “lnservice Testing Program” specification (
Performance of inservice testing is not an initiator to any accident previously evaluated. As a result, the probability of occurrence of an accident is not significantly affected by the proposed change. lnservice test frequencies under Code Case OMN-20 are equivalent to the current testing periods allowed by the TS with the exception that test intervals greater than 2 years may be extended by up to 6 months to facilitate test scheduling and consideration of plant operating conditions that may not be suitable for performance of the required testing. The testing frequency extension will not affect the ability of the components to mitigate any accident previously evaluated, as the components are required to be operable during the testing period extension. Performance of inservice tests utilizing the allowances in OMN-20 will not significantly affect the reliability of the tested components. As a result, the availability of the affected components, as well as their ability to mitigate the consequences of accidents 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 change create the possibility of a new or different kind of accident from any accident previously evaluated?
The proposed change does not alter the design or configuration of the plant. The proposed change does not involve a physical alteration of the plant; no new or different kind of equipment will be installed. The proposed change does not alter the types of inservice testing performed. In most cases, the frequency of inservice testing is unchanged. However, the frequency of testing would not result in a new or different kind of accident from any previously evaluated since the testing methods are not altered.
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?
The proposed change eliminates some requirements from the TS in lieu of requirements in the ASME Code, as modified by use of Code Case OMN-20. Compliance with the ASME Code is required by 10 CFR 50.55a. The proposed change also allows inservice tests with test intervals greater than 2 years to be extended by 6 months (consistent with code case OMN-20) to facilitate test scheduling and consideration of plant operating conditions that may not be suitable for performance of the required testing. The testing frequency extension will not affect the ability of the components to respond to an accident as the components are required to be operable during the testing period extension. The proposed change also eliminates a statement that nothing in the ASME Code should be construed to supersede the requirements of any TS. The NRC has determined that statement to be incorrect. However, elimination of the statement will have no effect on plant operation or safety.
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.
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.
A notice of consideration of issuance of amendment to facility operating license or combined license, as applicable, 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 can be accessed as described in the “Obtaining Information and Submitting Comments” section of this document.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated May 3, 2019.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated May 6, 2019.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated May 14, 2019.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated May 13, 2019.
The Commission's related evaluation of the amendment is contained in a Safety Evaluation dated April 30, 2019.
The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated May 7, 2019.
For the Nuclear Regulatory Commission.
Weeks of June 3, 10, 17, 24, July 1, 8, 2019.
Commissioners' Conference Room, 11555 Rockville Pike, Rockville, Maryland.
Public and Closed.
There are no meetings scheduled for the week of June 3, 2019.
There are no meetings scheduled for the week of June 10, 2019.
This meeting will be webcast live at the Web address—
This meeting will be webcast live at the Web address—
There are no meetings scheduled for the week of June 24, 2019.
There are no meetings scheduled for the week of July 1, 2019.
There are no meetings scheduled for the week of July 8, 2019.
For more information or to verify the status of meetings, contact Denise McGovern at 301-415-0681 or via email at
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 (
Members of the public may request to receive this information electronically. If you would like to be added to the distribution, please contact the Nuclear Regulatory Commission, Office of the Secretary, Washington, DC 20555 (301-415-1969), or by email at
For the Nuclear Regulatory Commission.
May 30, 2019, at 3:00 p.m.
Washington, DC.
Closed.
On May 30, 2019, the members of the Temporary Emergency Committee of the Board of Governors of the United States Postal Service voted unanimously to hold and to close to public observation a special meeting in Washington, DC, via teleconference. The Board determined that no earlier public notice was practicable.
Michael J. Elston, Acting Secretary of the Board, U.S. Postal Service, 475 L'Enfant Plaza SW, Washington, DC 20260-1000. Telephone: (202) 268-4800.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to allow an odd lot-sized Order to be eligible for the Midpoint Extended Life Order. The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing to allow an odd lot
Currently, a Midpoint Extended Life Order must be entered with a size of at least one round lot and any shares of a Midpoint Extended Life Order remaining after an execution that are less than a round lot will be cancelled by the System. Over the last several years, the number of high priced securities has increased (
There is a notably large percentage of odd lot trades in relatively high priced securities. For example, in October 2018, such transactions accounted for approximately 5 percent of total consolidated volume during the month, and accounted for 30 percent of all transactions occurring in the month across all securities. In contrast, for stocks with a price of $500 or more during the same timeframe the Exchange observed that 39 percent of total consolidated volume was due to odd lot trades and 85 percent of all transactions occurring in the month were odd lots. Thus, a significant number of higher priced securities have transactions occurring in odd lot transactions. The Exchange believes that allowing entry of odd lot-sized Midpoint Extended Life Orders will eliminate a limitation of the Order and give users more control over their Orders.
In the first quarter of 2019 for example, the Exchange executed approximately 2,000,000 trades in one issuer whose stock has a price greater than $1,000, with an average trade size of approximately 34 shares. Using this stock's closing price of approximately $1,700 for March 2019, the notional value of a 34 share trade would be $56,000. Most would agree that $56,000 in value does not represent a small trade. For this stock to execute as a Midpoint Extended Life Order, the average trade size would need to triple to achieve the current minimum Order size of 100 shares or one round lot for this particular stock, and as such has only traded 20 times as a Midpoint Extended Life Order in the first quarter of 2019. Nasdaq believes that eliminating the minimum Order size from the Midpoint Extended Life Order will provide like-minded investors the opportunity to transact in high-priced stocks such as the example above in an ecosystem where the quote remains stable approximately 88—90 percent of time one second post-execution,
As of March 12, 2019, there are nearly 550 securities that trade on the Exchange that are priced greater than $100, 76 securities greater than $250, 24 securities greater than $500, and 10 securities over $1,000. Odd lot Orders account for 46 percent of trades for stocks above $100, and for securities over $500 this number rises to over 85 percent. Odd lot transactions now represent a large percentage of trades, yet are ineligible for the Midpoint Extended Life Order, even for transactions that would be identified by many as institutional sized and some even being classified as a block trade.
Nasdaq recognizes that not all participants may desire to execute odd lots. Such participants may elect to use the Minimum Quantity Order Attribute to avoid such transactions, much like they would do for executing on the Nasdaq Book. Nasdaq notes that other exchanges and many Alternative Trading Systems (ATSs) allow for odd lots and customers there use minimum quantity attributes to manage the execution sizes for their orders. The Exchange notes that the Minimum Quantity Order Attribute is limited to Orders of at least one round lot upon entry.
In proposing the Midpoint Extended Life Order round lot requirement, the Exchange noted that round lots would promote size and provide members with the most efficient processing of Midpoint Extended Life Orders.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Midpoint Extended Life Order was adopted as a pro-competitive measure to improve participation on the Exchange by allowing certain market participants that may currently be underserved on regulated exchanges to compete based on elements other than speed. The proposed change is a natural extension of the original proposal because it broadens interaction opportunities in Midpoint Extended Life Orders, particularly in higher priced stocks, while also ensuring that market participants use the Order Type consistent with its original purposes. In sum, the proposed change will not burden competition but rather may promote competition for liquidity in Midpoint Extended Life Orders by expanding the pool of market participants that may seek to enter such Orders. These market participants may have otherwise found the cost of a round lot Order in the securities in which they desire to trade as Midpoint Extended Life Orders too high. The proposed change will not place a burden on competition among market venues, as any market may adopt an order type that operates like the Midpoint Extended Life Order, including allowing for the execution of odd lot-sized orders, as proposed herein.
No written comments were either solicited or received.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove 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 Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its NYSE American Equities Price List (“Price List”) and the NYSE American Options Fee Schedule (“Fee Schedule”) related to co-location services to update the description of the access to trading and execution systems provided with the purchase of access to the co-location local area networks. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Price List and Fee Schedule related to co-location
To implement the changes, the Exchange proposes to amend paragraph one of General Note 4, which describes the access to trading and execution systems which a User receives when it purchases access to the LCN or IP network.
The Exchange will announce the implementation date through a customer notice.
As set forth in the first paragraph of General Note 4, when a User purchases access to the LCN or IP network, it receives the ability to access the trading and execution systems of the Exchange and the SRO Affiliates (together, the “Exchange Systems”), provided the User has authorization from the Exchange or relevant Affiliate SRO.
In order to obtain access to the Global OTC System, the User would enter into an agreement with Global OTC, pursuant to which Global OTC would charge the User any applicable fees charged to its subscribers by Global OTC. Once the Exchange receives authorization from Global OTC, the Exchange would establish a connection between the User and the Global OTC System.
The Exchange provides Users access to the Global OTC System and the Exchange Systems (“Access”) as a convenience to Users. Use of Access is completely voluntary. The Exchange is not aware of any impediment to third parties offering Access. As alternatives to using the Access to the Global OTC System provided by the Exchange, a User may access such services through the Secure Financial Transaction Infrastructure (“SFTI”) network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access such services and products through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
Global OTC is an affiliate of the Exchange, which has an indirect interest in Global OTC because it is owned by the Exchange's ultimate parent, Intercontinental Exchange, Inc.
Unlike the NYSE Exchanges, Global OTC is not a national securities exchange registered with the Securities and Exchange Commission (“Commission”) under Section 6 of the Act.
The Exchange charges fees for connectivity to the execution systems of third party markets and other content service providers, including two ATSs.
To implement the change, the Exchange proposes to revise the first paragraph of General Note 4 as follows:
• Amend the first sentence to state that when a User purchases access to the LCN or IP network, it receives the ability to access the Global OTC System as well as the Exchange Systems, subject to authorization by Global OTC, the Exchange or Affiliate Exchange, as applicable;
• Amend the third sentence to note that a User can change the access to the Global OTC System that it receives at any time, subject to authorization by Global OTC; and
• Add a new fifth sentence stating that “Global OTC offers access to the Global OTC System to its subscribers, such that a User does not have to purchase access to the LCN or IP network to obtain access to the Global OTC System.”
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, a Sponsored Participant or an agent thereof (
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because it would allow Users to connect to the Global OTC System, thereby increasing Users' ability to tailor their data center operations to the requirements of their business operations by allowing them to select the form and latency of access that best suits their needs. Global OTC provides publicly displayed, firm, auto-executable prices in the OTC securities marketplace, and the Exchange believes that allowing Users to connect to the Global OTC System would promote price discovery and transparency in the OTC market, benefiting participants in such market. At the same time, Users are not required to use any of their bandwidth to access the Global OTC System unless they wish to do so. Rather, a User only receives the Access that it selects, and a User can change what Access it receives at any time, subject to authorization from the Exchange, Affiliate SRO or Global OTC, as applicable.
The Exchange provides Access as a convenience to Users. Use of Access is completely voluntary, and each User has several other access options available to it. As alternatives to using the Access to the Global OTC System provided by the Exchange, a User may access the Global OTC System through the SFTI network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access the Global OTC System through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange believes that the proposed revisions to General Note 4 would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because they would make the description of Access more accessible and transparent by including Global OTC, thereby providing market participants with clarity as to what connectivity is included in the purchase of access to the LCN and IP network, avoiding any potential investor confusion. The proposed revisions to General Note 4 would provide a more detailed and accurate description of the Access Users receive with their purchase of access to the LCN or IP network. The proposed rule change would also make clear that Access to each of the Exchange Systems and the Global OTC System is provided on the same terms. All Users that voluntarily select to access the LCN or IP network receive Access to the Exchange Systems and the Global OTC System, and are not subject to a charge for such Access above and beyond the fee paid for the relevant LCN or IP network access.
The Exchange also believes that the proposed rule changes are consistent with Section 6(b)(4) of the Act,
The proposed rule change is reasonable and equitable because, as stated above, it would also make clear that Access to each of the Exchange Systems and Global OTC System is provided on the same terms. The Exchange further believes that the Access to the Global OTC System described herein is equitably allocated and not unfairly discriminatory because all Users that voluntarily select to access the LCN or IP network receive the same Access, and are not subject to a charge for Access to Global OTC above and beyond the fee paid for the relevant LCN or IP network access. Users are not required to use any of their bandwidth to access the Global OTC System unless they wish to do so. Rather, a User only receives the Access that it selects, and a User can change what Access it receives at any time, subject to authorization from the Exchange, Affiliate SRO or Global OTC, as applicable. In addition to the service being completely voluntary, it is available to all Users on an equal basis. Users that opted to Access the Global OTC System would not receive access that is not available to all Users.
The Exchange believes that the proposed rule change does not unfairly discriminate between customers, issuers, brokers or dealers in not charging Users an additional fee to access Global OTC while charging a connectivity fee to access OTC Markets, because Global OTC and the OTC Markets ATS are not fungible. A User that opted to access Global OTC or OTC Markets would choose between them based on a variety of factors, including not just the reasonableness of fees charged, but also the extent to which it wished to have publicly displayed, firm, auto-executable prices. In addition, the Exchange is not the sole method a User can use to access the OTC Markets ATS. A User may use the SFTI network, a third party telecommunication network, a cross connect, or a combination thereof to access the OTC Markets ATS through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the
For the reasons above, the proposed changes do not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that providing Users that purchase access to the LCN or IP network with Access to the Global OTC System does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because, by offering Access to the Global OTC System, the Exchange gives each User additional options for addressing its access needs, responding to User demand for access options. The Exchange provides Access as a convenience to Users. Use of Access is completely voluntary, and each User has several other access options available to it. As alternatives to using the Access to the Global OTC System provided by the Exchange, a User may access the Global OTC System through the SFTI network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access the Global OTC System through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor. Users that opt to Access the Global OTC System would not receive access that is not available to all Users, as all market participants that contract with Global OTC may receive access. In this way, the proposed changes would enhance competition by helping Users tailor their Access to the needs of their business operations by allowing them to select the form and latency of access and connectivity that best suits their needs.
The Exchange believes that the proposed rule change does not unfairly discriminate between customers, issuers, brokers or dealers in not charging Users an additional fee to access Global OTC while charging a connectivity fee to access OTC Markets, because Global OTC and the OTC Markets ATS are not fungible. A User that opted to access Global OTC or OTC Markets would choose between them based on a variety of factors, including not just the reasonableness of fees charged, but also the extent to which it wished to have publicly displayed, firm, auto-executable prices. In addition, the Exchange is not the sole method a User can use to access the OTC Markets ATS. A User may use the SFTI network, a third party telecommunication network, a cross connect, or a combination thereof to access the OTC Markets ATS through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange believes that the proposed revisions to General Note 4 would provide a more detailed and accurate description of the Access Users receive with their purchase of access to the LCN or IP network, thereby enhancing competition by ensuring that all Users have access to the same information regarding Access.
The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange.
For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to modify the treatment of direct listings including Level 2 American Depository Receipts (ADRs) under IM-5900-7, specify that an Eligible New Listing includes Level 3 ADRs, update the values of certain services, modify the market advisory tools provided under IM-5900-7 to certain new listings, and make certain other clarifying changes.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Nasdaq offers complimentary services under IM-5900-7 to companies listing on the Nasdaq Global and Global Select Markets in connection with an initial public offering (other than a company listed under IM-5101-2), upon emerging from bankruptcy, in connection with a spin-off or carve-out from another company, or in conjunction with a business combination that satisfies the conditions in Nasdaq IM-5101-2(b) (“Eligible New Listings”) and to companies (other than a company listed under IM-5101-2) switching their listing from the New York Stock Exchange (“NYSE”) to the Global or Global Select Markets (“Eligible Switches”).
Nasdaq recognizes that some companies that have sold common equity securities in private placements, which have not been listed on a national securities exchange or traded in the over-the-counter market pursuant to FINRA Form 211 immediately prior to the initial pricing, may wish to list those securities to allow existing shareholders to sell their shares. Nasdaq previously adopted requirements under IM-5315-1 applicable to such companies listing on the Nasdaq Global Select Market
U.S. investors often hold equity securities of foreign issuers in the form of ADRs. An ADR is a security that represents an ownership interest in a specified number of foreign securities that have been placed with a depositary financial institution by the issuer or holders of such securities. An ADR is in essence a substitute trading mechanism for foreign securities allowing the issuer or holder to transfer title to the underlying foreign securities by delivery of the ADR. The depositary is typically a U.S. bank or trust company, and it usually appoints a custodian to hold the deposited securities in the home market of the foreign issuer.
In order to list ADRs, Nasdaq requires that such ADRs be sponsored. A sponsored ADR facility is typically established jointly by an issuer and a depositary. The foreign issuer of the deposited securities typically enters into a deposit agreement with the depositary. For a sponsored ADR, both the depositary and the foreign company sign the F-6 registration statement under the Securities Act of 1933. The deposit agreement sets out the rights and responsibilities of the issuer and the depositary, and the ADR holders as third party beneficiaries. Each ADR holder becomes a party to such agreement through its holding of the ADR.
Market participants describe sponsored facilities in terms of three categories, based on the extent to which the issuer of the deposited securities has accessed the U.S. securities market. A “Level 1 facility” is an ADR facility the ADRs of which trade in the U.S. over-the-counter market and the foreign issuer is not required to register with or report to the Commission under Section 12 or 15 of the Exchange Act. “Level 2” refers to ADRs that are listed on a U.S. stock exchange by a foreign issuer that becomes subject to certain SEC reporting requirements,
Nasdaq proposes to include Level 2 ADRs in the definition of an “Eligible New Listing” that receives complimentary services under IM-5900-7 when the ADRs are listed in connection with a direct listing under IM-5315-1(c). Nasdaq also proposes to specify that an Eligible New Listing includes Level 3 ADRs by stating that the rule reference in IM-5900-7 to listing “in connection with [the company's] initial public offering” means the initial public offering in the United States, including ADRs, rather than the initial public offering of the underlying foreign securities in the company's home market. Such companies would receive the same services under IM-5900-7, with the same value, as any other Eligible New
As part of the Service Package, Eligible New Listings and Eligible Switches with a market capitalization of $750 million or more currently receive a choice of market advisory tools, including a monthly ownership analytics and event driven targeting tool, as described in IM-5900-7(a)(iii). Nasdaq has determined to discontinue providing this tool because over time Nasdaq observed that it receives minimal interest from Nasdaq customers, in particular because there is considerable overlap in services with the stock surveillance tool.
Nasdaq also proposes to update the values of the services contained in IM-5900-7 to their current values. Depending on a company's market capitalization and whether it is an Eligible New Listing or an Eligible Switch, the total revised value of the services provided ranges from $151,000 to $828,000, and one-time development fees of approximately $5,000 are waived.
The proposed rule change will be operative for new listings on or after the effectiveness of this rule filing. Companies that list before that date will continue to receive services as described in the current rule.
Finally, Nasdaq also proposes to make non-substantive changes to update the introductory note in IM-5900-7 and to include the specific operative date of the proposed rule change to ease understanding of the rule.
Nasdaq represents, and this proposed rule change will help ensure, that individual listed companies, including ADRs and direct listings, are not given specially negotiated packages of products or services to list, or remain listed, which the Commission has previously stated would raise unfair discrimination issues under the Exchange Act.
The Exchange believes that its proposal is consistent with Section 6(b) of the Exchange Act,
Nasdaq faces competition in the market for listing services,
Nasdaq also believes it is reasonable, and not unfairly discriminatory, to offer complimentary services to a foreign company listing Level 2 ADRs or a domestic company listing in connection with a direct listing under IM-5315-1. Such companies are similar to other Eligible New Listings, such as initial public offerings of domestic companies, and will have increased need to focus on identifying and communicating with its shareholders because they are listing on a national securities exchange in the U.S. for the first time. Like the other Eligible New Listings that receive complimentary services under the existing rule, these companies are transitioning to the traditional U.S. public company model and the complimentary services provided will help ease that transition.
Nasdaq believes that the proposed change to specify that the rule reference in IM-5900-7 to listing “in connection with [the company's] initial public offering” means the initial public offering in the United States, including ADRs, rather than the initial public offering of the underlying foreign securities in the company's home market is consistent with Section 6(b)(5) of the Exchange Act because it will provide transparency in the rules and address an ambiguity by specifying that listing of Level 3 ADRs on Nasdaq is considered an initial public offering notwithstanding that the issuer of ADRs may already be a public company in their home country.
As described above, Nasdaq faces competition in the market for listing services, and competes, in part, by offering valuable services to companies. As part of the Service Package, Eligible New Listings and Eligible Switches with a market capitalization of $750 million or more currently receive a choice of market advisory tools, including a monthly ownership analytics and event driven targeting tool, as described in IM-5900-7(a)(iii). Based on Nasdaq's experience with offering this service, Nasdaq has determined to discontinue providing this tool because over time Nasdaq observed that this tool receives minimal interest from Nasdaq customers, in particular because the stock surveillance tool and the monthly ownership analytics and event driven targeting tool have considerable overlap between these services. Nasdaq believes that the removal of the monthly ownership analytics and event driven targeting tool is not unfairly discriminatory because all similarly situated companies are eligible for the same package of services. Moreover, no company currently uses this service.
The Commission has previously indicated pursuant to Section 19(b) of the Exchange Act
Finally, Nasdaq notes that the proposed change to update the introductory note in IM-5900-7 and to include the specific operative date of the proposed rule change is consistent with Section 6(b)(5) of the Exchange Act because it will clarify the rule without making any substantive change.
Nasdaq represents, and this proposed rule change will help ensure, that individual listed companies are not given specially negotiated packages of products or services to list, or remain listed, which the Commission has previously stated would raise unfair discrimination issues under the Exchange Act.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Exchange Act. As noted above, Nasdaq faces competition in the market for listing services, and competes, in part, by offering valuable services to companies. The proposed rule changes reflect that competition, but do not impose any burden on the competition with other exchanges. Rather, Nasdaq believes the proposed changes will result in more potential listings being eligible to receive the package and therefore will enhance competition for new listings of ADRs and companies listing in connection with a direct listing under IM-5315-1. Finally, the clarification that listing of Level 3 ADRs on Nasdaq is considered an initial public offering in the United States will not impose any burden on competition because it will provide transparency in the rules and eliminate an ambiguity. This change is consistent with the approach approved by the Commission in the rules of NYSE, which provides similar services to companies listing ADRs in connection with initial public offering.
Other exchanges can also offer similar services to companies, thereby increasing competition to the benefit of those companies and their shareholders. Accordingly, Nasdaq does not believe the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Exchange Act, as amended.
No written comments were either solicited or received.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
The Commission notes that Nasdaq's proposal to offer the Service Package to any companies listing ADRs or common stock through a direct listing is substantially similar to the rules of another exchange that were approved previously by the Commission as consistent with the Act after being published in the
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to adopt a listing fee schedule specific to companies that have not generated any significant revenues at the time of their original listing. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange's Global Market Capitalization Test (as set forth in Section 102.01C of the Exchange's Listed Company Manual (the “Manual”)) allows the Exchange to list companies that have not yet recorded any significant revenues, provided the issuer has at least a $200 million global market capitalization and meets the other requirements for listing. These companies are typically engaged in research and development (in many cases they are biotechnology companies focused on developing new drug candidates) or are in the early stages of commercialization of a product.
To address the issues described above, the Exchange proposes to amend Section 902.02 of the Manual to adopt a discounted annual fee schedule for newly-listed companies that list on or after June 1, 2019 and have not recorded in excess of $5 million of revenue in either (i) the most recent completed fiscal year prior to listing or (ii) during the year of listing through the most recently completed fiscal quarter before the listing date (“Pre-Revenue Companies”).
The Exchange believes the proposed fee schedule for Pre-Revenue Companies is reasonable, as paying the Exchange's fees is more burdensome for these early stage companies than it is for companies that generate significant revenues from operations. The Exchange believes that it is reasonable to apply the reduced fee level for a limited period, as Pre-Revenue Companies typically begin to generate significant revenues from operations within three years from the time of initial listing.
The proposed rule change would not affect the Exchange's commitment of resources to its regulatory oversight of the listing process or its regulatory programs.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that it is not unfairly discriminatory and represents an equitable allocation of reasonable fees to adopt the proposed separate fee schedule for Pre-Revenue Companies, as those companies have limited resources and the Exchange's fees are more burdensome for them than they are for companies that are generating significant revenues from operations.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The proposed rule change is designed to ensure that the fees charged by the Exchange accurately reflect the services provided and benefits realized by listed companies. The market for listing services is extremely competitive. Each listing exchange has a different fee schedule that applies to issuers seeking to list securities on its exchange. Issuers have the option to list their securities on these alternative venues based on the fees charged and the value provided by each listing. Because issuers have a choice to list their securities on a different national securities exchange, the Exchange does not believe that the proposed fee changes impose a burden on competition.
No written comments were solicited or received with respect to the proposed rule change.
The foregoing rule change is effective upon filing pursuant to Section 19(b)(3)(A)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the NYSE Arca Options Fees and Charges (the “Options Fee Schedule”) and the NYSE Arca Equities Fees and Charges (the “Equities Fee Schedule” and, together with the Options Fee Schedule, the “Fee Schedules”) related to co-location services to update the description of the access to trading and execution systems provided with the purchase of access to the co-location local area networks. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Fee Schedules related to co-location
To implement the changes, the Exchange proposes to amend paragraph one of General Note 4, which describes the access to trading and execution systems which a User receives when it purchases access to the LCN or IP network.
The Exchange will announce the implementation date through a customer notice.
As set forth in the first paragraph of General Note 4, when a User purchases access to the LCN or IP network, it receives the ability to access the trading and execution systems of the Exchange and the SRO Affiliates (together, the “Exchange Systems”), provided the User has authorization from the Exchange or relevant Affiliate SRO.
In order to obtain access to the Global OTC System, the User would enter into an agreement with Global OTC, pursuant to which Global OTC would charge the User any applicable fees charged to its subscribers by Global OTC. Once the Exchange receives authorization from Global OTC, the Exchange would establish a connection between the User and the Global OTC System.
The Exchange provides Users access to the Global OTC System and the Exchange Systems (“Access”) as a convenience to Users. Use of Access is completely voluntary. The Exchange is not aware of any impediment to third
Global OTC is an affiliate of the Exchange, which has an indirect interest in Global OTC because it is owned by the Exchange's ultimate parent, Intercontinental Exchange, Inc.
Unlike the NYSE Exchanges, Global OTC is not a national securities exchange registered with the Securities and Exchange Commission (“Commission”) under Section 6 of the Act.
The Exchange charges fees for connectivity to the execution systems of third party markets and other content service providers, including two ATSs.
To implement the change, the Exchange proposes to revise the first paragraph of General Note 4 as follows:
• Amend the first sentence to state that when a User purchases access to the LCN or IP network, it receives the ability to access the Global OTC System as well as the Exchange Systems, subject to authorization by Global OTC, the Exchange or Affiliate Exchange, as applicable;
• Amend the third sentence to note that a User can change the access to the Global OTC System that it receives at any time, subject to authorization by Global OTC; and
• Add a new fifth sentence stating that “Global OTC offers access to the Global OTC System to its subscribers, such that a User does not have to purchase access to the LCN or IP network to obtain access to the Global OTC System.”
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, a Sponsored Participant or an agent thereof (
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because it would allow Users to connect to the Global OTC System, thereby increasing Users' ability to tailor their data center operations to the
The Exchange provides Access as a convenience to Users. Use of Access is completely voluntary, and each User has several other access options available to it. As alternatives to using the Access to the Global OTC System provided by the Exchange, a User may access the Global OTC System through the SFTI network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access the Global OTC System through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange believes that the proposed revisions to General Note 4 would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because they would make the description of Access more accessible and transparent by including Global OTC, thereby providing market participants with clarity as to what connectivity is included in the purchase of access to the LCN and IP network, avoiding any potential investor confusion. The proposed revisions to General Note 4 would provide a more detailed and accurate description of the Access Users receive with their purchase of access to the LCN or IP network. The proposed rule change would also make clear that Access to each of the Exchange Systems and the Global OTC System is provided on the same terms. All Users that voluntarily select to access the LCN or IP network receive Access to the Exchange Systems and the Global OTC System, and are not subject to a charge for such Access above and beyond the fee paid for the relevant LCN or IP network access.
The Exchange also believes that the proposed rule changes are consistent with Section 6(b)(4) of the Act,
The proposed rule change is reasonable and equitable because, as stated above, it would also make clear that Access to each of the Exchange Systems and Global OTC System is provided on the same terms. The Exchange further believes that the Access to the Global OTC System described herein is equitably allocated and not unfairly discriminatory because all Users that voluntarily select to access the LCN or IP network receive the same Access, and are not subject to a charge for Access to Global OTC above and beyond the fee paid for the relevant LCN or IP network access. Users are not required to use any of their bandwidth to access the Global OTC System unless they wish to do so. Rather, a User only receives the Access that it selects, and a User can change what Access it receives at any time, subject to authorization from the Exchange, Affiliate SRO or Global OTC, as applicable. In addition to the service being completely voluntary, it is available to all Users on an equal basis. Users that opted to Access the Global OTC System would not receive access that is not available to all Users.
The Exchange believes that the proposed rule change does not unfairly discriminate between customers, issuers, brokers or dealers in not charging Users an additional fee to access Global OTC while charging a connectivity fee to access OTC Markets, because Global OTC and the OTC Markets ATS are not fungible. A User that opted to access Global OTC or OTC Markets would choose between them based on a variety of factors, including not just the reasonableness of fees charged, but also the extent to which it wished to have publicly displayed, firm, auto-executable prices. In addition, the Exchange is not the sole method a User can use to access the OTC Markets ATS. A User may use the SFTI network, a third party telecommunication network, a cross connect, or a combination thereof to access the OTC Markets ATS through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange.
For the reasons above, the proposed changes do not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that providing Users that purchase access to the LCN or IP network with Access to the Global
The Exchange believes that the proposed rule change does not unfairly discriminate between customers, issuers, brokers or dealers in not charging Users an additional fee to access Global OTC while charging a connectivity fee to access OTC Markets, because Global OTC and the OTC Markets ATS are not fungible. A User that opted to access Global OTC or OTC Markets would choose between them based on a variety of factors, including not just the reasonableness of fees charged, but also the extent to which it wished to have publicly displayed, firm, auto-executable prices. In addition, the Exchange is not the sole method a User can use to access the OTC Markets ATS. A User may use the SFTI network, a third party telecommunication network, a cross connect, or a combination thereof to access the OTC Markets ATS through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange believes that the proposed revisions to General Note 4 would provide a more detailed and accurate description of the Access Users receive with their purchase of access to the LCN or IP network, thereby enhancing competition by ensuring that all Users have access to the same information regarding Access.
The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange.
For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act.
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Securities and Exchange Commission (“Commission”).
Notice.
Notice of an application under section 6(c) of the Investment Company Act of 1940 (“Act”) for an exemption from section 15(a) of the Act and rule 18f-2 under the Act, as well as from certain disclosure requirements in rule 20a-1 under the Act, Item 19(a)(3) of Form N-1A, Items 22(c)(1)(ii), 22(c)(1)(iii), 22(c)(8) and 22(c)(9) of Schedule 14A under the Securities Exchange Act of 1934, and Sections 6-07(2)(a), (b), and (c) of Regulation S-X (“Disclosure Requirements”). The requested exemption would permit an investment adviser to hire and replace certain sub-advisers without shareholder approval and grant relief from the Disclosure Requirements as they relate to fees paid to the sub-advisers. The requested order would supersede a prior order.
Secretary, U.S. Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090. Applicants: Ryan C. Larrenaga, Esq., Columbia Management Investment Advisers, LLC, 225 Franklin Street, Boston, MA 02110.
Laura J. Riegel, Senior Counsel, at (202) 551-3038, or Trace W. Rakestraw, Branch Chief, at (202) 551-6821 (Division of Investment Management, Chief Counsel's Office).
The following is a summary of the application. The complete application may be obtained via the Commission's website by searching for the file number, or for an applicant using the Company name box, at
1. The Adviser serves as the investment adviser to each Series, pursuant to an investment management agreement with the applicable Trust (“Investment Management Agreement”).
2. Applicants request an order to permit the Adviser, subject to the approval of the Board, to enter into investment sub-advisory agreements with the Sub-Advisers (each, a “Sub-Advisory Agreement”) and materially amend such Sub-Advisory Agreements without obtaining the shareholder approval required under section 15(a) of the Act and rule 18f-2 under the Act.
3. Applicants agree that any order granting the requested relief will be subject to the terms and conditions stated in the application. Such terms and conditions provide for, among other safeguards, appropriate disclosure to Subadvised Series' shareholders and notification about sub-advisory changes and enhanced Board oversight to protect the interests of the Subadvised Series' shareholders.
4. Section 6(c) of the Act provides that the Commission may exempt any person, security, or transaction or any class or classes of persons, securities, or transactions from any provisions of the Act, or any rule thereunder, if such relief is necessary or appropriate in the public interest and consistent with the protection of investors and purposes fairly intended by the policy and provisions of the Act. Applicants believe that the requested relief meets this standard because, as further explained in the application, the Investment Management Agreements will remain subject to shareholder approval, while the role of the Sub-Advisers is substantially equivalent to that of individual portfolio managers, so that requiring shareholder approval of Sub-Advisory Agreements would impose unnecessary delays and expenses on the Subadvised Series. Applicants believe that the requested relief from the Disclosure Requirements meets this standard because it will improve the Adviser's ability to negotiate fees paid to the Sub-Advisers that are more advantageous for the Subadvised Series.
For the Commission, by the Division of Investment Management, under delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes certain changes regarding investments of Aware Ultra-Short Duration Enhanced Income ETF (the “Fund”), a series of Tidal ETF Trust (the “Trust”). Shares of the Fund currently are listed and traded on the Exchange under NYSE Arca Rule 8.600-E (“Managed Fund Shares”).The proposed change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes certain changes, described below under “Application of Generic Listing Requirements,” regarding investments of the Fund. The shares (“Shares”) of the Fund commenced trading on the Exchange on January 29, 2019 pursuant to the generic listing standards under Commentary .01 to NYSE Arca Rule 8.600-E
Toroso Investments, LLC (the “Adviser”) is the investment adviser for the Fund. Aware Asset Management, Inc. (the “Subadviser”) is the subadviser to the Fund. U.S. Bank National Association serves as the custodian (“Custodian”) for the Fund. Tidal ETF Services LLC serves as administrator for the Fund. U.S. Bancorp Fund Services, LLC serves as sub-administrator, fund accountant and transfer agent (“Transfer Agent”) for the Fund.
Commentary .06 to Rule 8.600-E provides that, if the investment adviser to the investment company issuing Managed Fund Shares is affiliated with a broker-dealer, such investment adviser shall erect and maintain a “fire wall” between the investment adviser and the broker-dealer with respect to access to information concerning the composition and/or changes to such investment company portfolio. In addition, Commentary .06 further requires that personnel who make decisions on the open-end fund's portfolio composition must be subject to procedures designed to prevent the use and dissemination of material nonpublic information regarding the open-end fund's portfolio. Commentary .06 to Rule 8.600-E is similar to Commentary .03(a)(i) and (iii) to NYSE Arca Rule 5.2-E(j)(3); however, Commentary .06 in connection with the establishment and maintenance of a “fire wall” between the investment adviser and the broker-dealer reflects the applicable open-end fund's portfolio, not an underlying benchmark index, as is the case with index-based funds. The Adviser and the Subadviser are not registered as broker-dealers and are not affiliated with a broker-dealer. In the event (a) the Adviser or Subadviser becomes registered as a broker-dealer or affiliated with one or more broker-dealers, or (b) any new adviser or sub-adviser is a registered broker-dealer or is affiliated with a broker-dealer, it will implement and maintain a fire wall with respect to its relevant personnel or its broker-dealer affiliate regarding access to information concerning the composition and/or changes to the portfolio, and will be subject to procedures designed to prevent the use and dissemination of material non-public information regarding such portfolio.
According to the Registration Statement, the investment objective of the Fund is to seek to maximize current income while maintaining a portfolio consistent with the preservation of capital and daily liquidity.
The Fund seeks to achieve its investment objective primarily by investing in “Fixed Income Securities” (as described below).
The Fund's may invest in the following fixed income instruments (“Fixed Income Securities”) issued by both U.S. and non-U.S. government and private sector issuers:
• U.S. government securities;
• Agency and non-agency asset-backed securities (“ABS”) and mortgage-backed securities (“MBS”) and collateralized mortgage obligations (“CMOs”);
• floating or variable rate securities;
• collateralized bond obligations (“CBOs”), collateralized loan obligations (“CLOs”) and other collateralized debt obligations (“CDOs” and, together with CBOs and CLOs, “CDOs/CBOs/CLOs”);
• corporate debt securities;
• municipal securities;
• floating or variable rate securities;
• inflation-indexed bonds;
• inflation-indexed securities issued by the U.S. Treasury, commonly known as “TIPS”;
• commercial paper (in addition to commercial paper that are cash equivalents);
• convertible securities; and
• structured notes.
The Fund may hold cash and cash equivalents.
The Fund may enter into dollar rolls and short sales of Fixed Income Securities. The Fund may also purchase securities and other instruments under when-issued, delayed delivery, to be announced or forward commitment transactions.
The Fund may invest in private placements and Rule 144A securities.
The Fund may hold the following U.S. and non-U.S. equity securities: Common stocks, preferred stocks, rights, warrants, exchange-traded notes (“ETNs”),
The Fund may hold the following U.S. and non-U.S. exchange-listed and over-the-counter (“OTC”) derivative instruments: OTC foreign currency forwards; U.S. and non-U.S. exchange-listed futures and options on stocks, Fixed Income Securities, interest rates, credit, currencies, commodities or related indices; and OTC options on stocks, Fixed Income Securities, interest rates, credit, currencies, commodities or related indices.
The Fund will not invest in securities or other financial instruments that have not been described in this proposed rule change.
Private ABS/MBS will, in the aggregate, not exceed more than 20% of the total assets of the Fund.
The Fund may invest up to 10% of its total assets in CDOs/CBOs/CLOs.
Investments in non-exchange-traded open-end management investment company securities will not exceed 20% of the total assets of the Fund.
According to the Registration Statement, the Trust issues and redeems Shares only in Creation Units of 25,000 Shares on a continuous basis at their NAV per Share next determined after receipt of an order, on any “Business Day”, in proper form pursuant to the terms of the Authorized Participant Agreement (“Participant Agreement”). The NAV of Shares is calculated each Business Day as of the scheduled close of regular trading on the NYSE, generally 4:00 p.m., Eastern Time. A “Business Day” is any day on which the NYSE is open for business. The size of a Creation Unit is subject to change.
The consideration for purchase of a Creation Unit of the Fund generally consists of the in-kind deposit of a designated portfolio of securities (the “Deposit Securities”) per each Creation Unit, constituting a substantial replication of the securities included in the Fund's portfolio and the Cash Component (defined below), computed as described below. Notwithstanding the foregoing, the Trust reserves the right to permit or require the substitution of a “cash in lieu” amount (“Deposit Cash”) to be added to the Cash Component to replace any Deposit Security.
Together, the Deposit Securities or Deposit Cash, as applicable, and the Cash Component constitute the “Fund Deposit,” which represents the minimum initial and subsequent investment amount for a Creation Unit of the Fund. The “Cash Component” is an amount equal to the difference between the NAV of Shares (per Creation Unit) and the value of the Deposit Securities or Deposit Cash, as applicable.
The Fund, through the National Securities Clearing Corporation (“NSCC”), makes available on each Business Day, prior to the opening of business on the Exchange (currently 9:30 a.m., Eastern Time), the list of the names and the required number of shares of each Deposit Security or the required amount of Deposit Cash, as applicable, to be included in the current Fund Deposit (based on information at the end of the previous Business Day) for the Fund.
The Trust reserves the right to permit or require the substitution of Deposit Cash to replace any Deposit Security, which shall be added to the Cash Component.
To be eligible to place orders with the Transfer Agent to purchase a Creation Unit of the Fund, an entity must be (i) a “Participating Party”,
The order cut-off time for the Fund for orders to purchase Creation Units is expected to be 2:00 p.m. Eastern Time, which time may be modified by the Fund from time-to-time by amendment to the Participant Agreement and/or applicable order form.
Shares may be redeemed only in Creation Units at their NAV next determined after receipt of a redemption request in proper form by the Fund through the Transfer Agent and only on a Business Day.
With respect to the Fund, the Custodian, through the NSCC, makes available prior to the opening of business on the Exchange (currently 9:30 a.m., Eastern Time) on each Business Day, the list of the names and share quantities of the Fund's portfolio securities that will be applicable (subject to possible amendment or correction) to redemption requests received in proper form on that day (“Fund Securities”). Fund Securities received on redemption may not be identical to Deposit Securities.
Redemption proceeds for a Creation Unit are paid either in-kind or in cash, or combination thereof, as determined by the Trust. With respect to in-kind redemptions of the Fund, redemption proceeds for a Creation Unit will consist of Fund Securities—as announced by the Custodian on the Business Day of the request for redemption received in proper form plus cash in an amount equal to the difference between the NAV of Shares being redeemed, as next determined after a receipt of a request in proper form, and the value of the Fund Securities (the “Cash Redemption Amount”), less a fixed redemption transaction fee, as applicable. In the event that the Fund Securities have a value greater than the NAV of Shares, a compensating cash payment equal to the differential is required to be made by or through an Authorized Participant by the redeeming shareholder. Notwithstanding the foregoing, at the Trust's discretion, an Authorized Participant may receive the corresponding cash value of the securities in lieu of the in-kind securities value representing one or more Fund Securities.
Orders to redeem Creation Units must be submitted in proper form to the Transfer Agent prior to 4:00 p.m. Eastern Time.
Investments in derivative instruments will be made in accordance with the Fund's investment objectives and policies.
To limit the potential risk associated with such transactions, the Fund may enter into offsetting transactions or segregate or “earmark” assets determined to be liquid by the Adviser in accordance with procedures established by the Fund's Board of Trustees (the “Board”). In addition, the Fund has included appropriate risk disclosure in its offering documents, including leveraging risk. Leveraging risk is the risk that certain transactions of the Fund, including the Fund's use of derivatives, may give rise to leverage, causing the Fund to be more volatile than if it had not been leveraged.
The Adviser and the Subadviser believe there will be minimal, if any, impact to the arbitrage mechanism as a result of the Fund's use of derivatives. The Adviser and the Subadviser understand that market makers and participants should be able to value derivatives as long as the positions are disclosed with relevant information. The Adviser and the Subadviser believe that the price at which Shares of the Fund trade will continue to be disciplined by arbitrage opportunities created by the ability to purchase or redeem Shares of the Fund at their NAV, which should ensure that Shares of the Fund will not trade at a material discount or premium in relation to their NAV.
The Exchange is submitting this proposed rule change because the changes described below would result in the portfolio for the Fund not meeting all of the “generic” listing requirements of Commentary .01 to NYSE Arca Rule 8.600-E applicable to the listing of Managed Fund Shares. The Fund's portfolio would meet all such requirements except for those set forth in Commentary .01(a)(1), Commentary .01(b)(1), Commentary .01(b)(4) and Commentary .01(b)(5).
Specifically, the Fund:
• Will not comply with the requirement in Commentary .01(b)(1) that components that in the aggregate account for at least 75% of the fixed income weight of the portfolio each have a minimum original principal amount outstanding of $100 million or more. Instead, the Exchange proposes that components, excluding Private ABS/MBS and CDOs/CBOs/CLOs that, in the aggregate, account for at least 50% of the fixed income weight of the portfolio each shall have a minimum original principal amount outstanding of $50 million or more. Private ABS/MBS and CDOs/CBOs/CLOs would not be subject to a requirement for a minimum original principal amount outstanding.
• will not comply with the requirement in Commentary .01(b)(5) that investments in non-agency, non-government sponsored entity and privately issued mortgage-related and other asset-backed securities (
• will not comply with the requirement that securities that in aggregate account for at least 90% of the fixed income weight of the portfolio meet one of the criteria in Commentary .01(b)(4) in respect of its investments in Private ABS/MBS.
• will not comply with the requirements of Commentary .01(a)(1)(A) through (E) to NYSE Arca Rule 8.600-E in connection with the Fund's investments in non-exchange traded investment company securities.
Deviations from the generic requirements are necessary for the Fund to achieve its investment objective in a manner that is cost-effective and that maximizes investors' returns. Further, the proposed alternative requirements are narrowly tailored to allow the Fund to achieve its investment objective in manner that is consistent with the principles of Section 6(b)(5) of the Act. As a result, it is in the public interest to approve listing and trading of Shares of the Fund on the Exchange pursuant to the requirements set forth herein.
As noted above, the Fund will not comply with the requirement in Commentary .01(b)(1) that components that in the aggregate account for at least 75% of the fixed income weight of the portfolio each have a minimum original principal amount outstanding of $100 million or more. Instead, the Exchange proposes that components, excluding Private ABS/MBS and CDOs/CBOs/CLOs, that in the aggregate account for at least 50% of the fixed income weight of the portfolio each shall have a minimum original principal amount outstanding of $50 million or more. Private ABS/MBS and CDOs/CBOs/CLOs would not be subject to a requirement for a minimum original principal amount outstanding. At least 50% of the fixed income weight of the Fund's portfolio, excluding Private ABS/MBS and CDOs/CBOs/CLOs, would continue to be subject to a substantial minimum (
As noted above, the Fund will not comply with the requirement in Commentary .01(b)(5) that investments in non-agency, non-government sponsored entity and privately issued mortgage-related and other asset-backed securities (
This alternative requirement is appropriate because the Fund's investment in Private ABS/MBS is expected to provide the Fund with benefits associated with increased diversification, as Private ABS/MBS investments tend to be less correlated to interest rates than many other fixed income securities. The Fund's investment in Private ABS/MBS will be subject to the Fund's liquidity procedures as adopted by the Fund's Board, and the Adviser does not expect that investments in Private ABS/MBS of up to 20% of the total assets of the Fund will have any material impact on the liquidity of the Fund's investments.
As noted above, the Fund will not comply with the requirement that securities that in aggregate account for at least 90% of the fixed income weight of the portfolio meet one of the criteria in Commentary .01(b)(4).
The Exchange notes that the Commission has previously approved the listing of Managed Fund Shares with similar investment objectives and strategies without imposing requirements that a certain percentage of such funds' securities meet one of the criteria set forth in Commentary .01(b)(4).
In addition, the Fund's investment in Private ABS/MBS and CDOs/CBOs/CLOs will be subject to the Fund's liquidity risk management program as approved by the Fund's Board.
The Fund may invest in shares of investment company securities (other than ETFs), which are equity securities. Therefore, to the extent the Fund invests in shares of other non-exchange-traded open-end management investment company securities, the Fund will not comply with the requirements of Commentary .01(a)(1)(A) through (E) to NYSE Arca Rule 8.600-E (U.S. Component Stocks) with respect to its equity securities holdings.
(A) Component stocks (excluding Derivative Securities Products and Index-Linked Securities) that in the aggregate account for at least 90% of the equity weight of the portfolio (excluding such Derivative Securities Products and Index-Linked Securities) each shall have a minimum market value of at least $75 million;
(B) Component stocks (excluding Derivative Securities Products and Index-Linked Securities) that in the aggregate account for at least 70% of the equity weight of the portfolio (excluding such Derivative Securities Products and Index-Linked Securities) each shall have a minimum monthly trading volume of 250,000 shares, or minimum notional volume traded per month of $25,000,000, averaged over the last six months;
(C) The most heavily weighted component stock (excluding Derivative Securities Products and Index-Linked Securities) shall not exceed 30% of the equity weight of the portfolio, and, to the extent applicable, the five most heavily weighted component stocks (excluding Derivative Securities Products and Index-Linked Securities) shall not exceed 65% of the equity weight of the portfolio;
(D) Where the equity portion of the portfolio does not include Non-U.S. Component Stocks, the equity portion of the portfolio shall include a minimum of 13 component stocks; provided, however, that there shall be no minimum number of component stocks if (i) one or more series of Derivative Securities Products or Index-Linked Securities constitute, at least in part, components underlying a series of Managed Fund Shares, or (ii) one or more series of Derivative Securities Products or Index-Linked Securities account for 100% of the equity weight of the portfolio of a series of Managed Fund Shares; and
(E) Except as provided herein, equity securities in the portfolio shall be U.S. Component Stocks listed
However, it is appropriate and in the public interest to approve listing and trading of Shares of the Fund notwithstanding that the Fund's holdings in such securities would not meet the requirements of Commentary .01(a)(1)(A) through (E) to Rule 8.600-E. Investments in other non-exchange-traded open-end management investment company securities will not exceed 20% of the total assets of the Fund. Such investments, which may include mutual funds that invest, for example, principally in fixed income securities, would be utilized to help the Fund meet its investment objective and to equitize cash in the short term. The Fund will invest in such securities only to the extent that those investments would be consistent with the requirements of Section 12(d)(1) of the 1940 Act and the rules thereunder.
The Exchange notes that Commentary .01(a)(1)(A) through (D) to Rule 8.600-E exclude certain “Derivative Securities Products” that are exchange-traded investment company securities, including Investment Company Units (as described in NYSE Arca Rule 5.2-E(j)(3)), Portfolio Depositary Receipts (as described in NYSE Arca Rule 8.100-E)) and Managed Fund Shares (as described in NYSE Arca Rule 8.600-E)).
The Exchange notes that the Commission has previously approved the listing of Managed Fund Shares with similar investment objectives and strategies where such funds were permitted to invest in the shares of other registered investment companies that are not ETFs or money market funds.
The Adviser and Subadviser represent that the proposed exceptions from the requirements of Commentary .01 to Rule 8.600-E described above are consistent with the Fund's investment objective, and will further assist the Adviser and Subadviser to achieve such investment objective. Deviations from the generic requirements are necessary for the Fund to achieve its investment objective in a manner that is cost-effective and that maximizes investors' returns. Further, the proposed alternative requirements are narrowly tailored to allow the Fund to achieve its investment objective in manner that is consistent with the principles of Section 6(b)(5) of the Act. As a result, it is in the public interest to approve listing and trading of Shares of the Fund on the Exchange pursuant to the requirements set forth herein.
The Exchange accordingly believes that it is appropriate and in the public interest to approve listing and trading of Shares of the Fund on the Exchange notwithstanding that the Fund would not meet the requirements of Commentary .01(a)(1), (b)(1), (b)(4) and (b)(5) to Rule 8.600-E. The Exchange notes that, other than Commentary .01(a)(1), (b)(1), (b)(4) and (b)(5) to Rule 8.600-E, the Fund's portfolio will meet all other requirements of Rule 8.600-E.
The Fund's website (
On a daily basis, the Fund discloses the information required under NYSE Arca Rule 8.600-E(c)(2) to the extent applicable. The website information will be publicly available at no charge.
In addition, a basket composition file, which includes the security names and share quantities, if applicable, required to be delivered in exchange for the Fund's Shares, together with estimates and actual cash components, will be publicly disseminated daily prior to the opening of the Exchange via the NSCC. The basket represents one Creation Unit of the Fund. Authorized Participants may refer to the basket composition file for information regarding securities and other instrument that may comprise the Fund's basket on a given day.
Investors can also obtain the Trust's Statement of Additional Information (“SAI”), the Fund's Shareholder Reports, and the Fund's Forms N-CSR and Forms N-SAR, filed twice a year. The Fund's SAI and Shareholder Reports will be available free upon request from the Trust, and those documents and the Form N-CSR, Form N-PX and Form N-SAR may be viewed on-screen or downloaded from the Commission's website at
Intra-day and closing price information regarding exchange-traded options will be available from the exchange on which such instruments are traded. Price information relating to OTC options and swaps will be available from major market data vendors. Intra-day price information for exchange-traded derivative instruments will be available from the applicable exchange and from major market data vendors. For exchange-traded common stocks, preferred stocks, rights, warrants, ETNs and ETFs, intraday price quotations will generally be available from broker-dealers and trading platforms (as applicable). Intraday and other price information for the fixed income securities in which the Fund invests will be available through subscription services, such as Bloomberg, Markit and Thomson Reuters, which can be accessed by Authorized Participants and other market participants. Additionally, the Trade Reporting and Compliance Engine (“TRACE”) of the Financial Industry Regulatory Authority (“FINRA”) will be a source of price information for corporate bonds, privately-issued securities, MBS and ABS, to the extent transactions in such securities are reported to TRACE.
Information regarding market price and trading volume of the Shares will be continually available on a real-time basis throughout the day on brokers' computer screens and other electronic services. Information regarding the previous day's closing price and trading volume information for the Shares will be published daily in the financial section of newspapers.
Quotation and last sale information for the Shares will be available via the Consolidated Tape Association (“CTA”) high-speed line. Exchange-traded options quotation and last sale information for options cleared via the Options Clearing Corporation are available via the Options Price Reporting Authority. In addition, the Portfolio Indicative Value (“PIV”), as defined in NYSE Arca Rule 8.600-E(c)(3), will be widely disseminated by one or more major market data vendors at least every 15 seconds during the Core Trading Session.
With respect to trading halts, the Exchange may consider all relevant factors in exercising its discretion to halt or suspend trading in the Shares of the Fund. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Rule 7.12-E have been reached. Trading also may be halted because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable. These may include: (1) The extent to which trading is not occurring in the securities and/or the financial instruments comprising the Disclosed Portfolio of the Fund; or (2) whether other unusual conditions or circumstances detrimental to the maintenance of a fair and orderly market are present. Trading in the Shares will be subject to NYSE Arca Rule 8.600-E(d)(2)(D), which sets forth circumstances under which Shares of the Fund may be halted.
The Exchange deems the Shares to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. Shares will trade on the NYSE Arca Marketplace from 4:00 a.m. to 8:00 p.m. E.T. in accordance with NYSE Arca Rule 7.34-E (Trading Sessions). The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions. As provided in NYSE Arca Rule 7.6-E, the minimum price variation (“MPV”) for quoting and entry of orders in equity securities traded on the NYSE Arca Marketplace is $0.01, with the exception of securities that are priced less than $1.00 for which the MPV for order entry is $0.0001.
With the exception of the requirements of Commentary .01(a)(1), Commentary .01(b)(4) and Commentary .01(b)(5) as described above under “Application of Generic Listing Requirements,” the Shares of the Fund will conform to the initial and
The Exchange represents that trading in the Shares will be subject to the existing trading surveillances administered by the Exchange, as well as cross-market surveillances administered by FINRA on behalf of the Exchange, which are designed to detect violations of Exchange rules and applicable federal securities laws. The Exchange represents that these procedures are adequate to properly monitor Exchange trading of the Shares in all trading sessions and to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange.
The surveillances referred to above generally focus on detecting securities trading outside their normal patterns, which could be indicative of manipulative or other violative activity. When such situations are detected, surveillance analysis follows and investigations are opened, where appropriate, to review the behavior of all relevant parties for all relevant trading violations.
The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares, ETFs, certain exchange-traded options and certain futures with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”), and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares, ETFs, certain exchange-traded options and certain futures from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares, ETFs, certain exchange-traded options and certain futures from markets and other entities that are members of ISG or with which the Exchange has in place a comprehensive surveillance sharing agreement (“CSSA”). The Exchange is able to access from FINRA, as needed, trade information for certain Fixed Income Securities held by the Fund reported to TRACE.
In addition, the Exchange also has a general policy prohibiting the distribution of material, non-public information by its employees.
All statements and representations made in this filing regarding (a) the description of the portfolio, (b) limitations on portfolio holdings or reference assets, or (c) the applicability of Exchange listing rules specified in this rule filing shall constitute continued listing requirements for listing the Shares on the Exchange.
The issuer has represented to the Exchange that it will advise the Exchange of any failure by the Fund to comply with the continued listing requirements, and, pursuant to its obligations under Section 19(g)(1) of the Act, the Exchange will monitor for compliance with the continued listing requirements. If the Fund is not in compliance with the applicable listing requirements, the Exchange will commence delisting procedures under NYSE Arca Rule 5.5(m)-E.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5) of the Act that an exchange have rules that are designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to remove impediments to, and perfect the mechanism of a free and open market and, in general, to protect investors and the public interest.
The Exchange believes that the proposed rule change is designed to prevent fraudulent and manipulative acts and practices in that the Shares will be listed and traded on the Exchange pursuant to the initial and continued listing criteria in NYSE Arca Rule 8.600-E. The Exchange has in place surveillance procedures that are adequate to properly monitor trading in the Shares in all trading sessions and to deter and detect violations of Exchange rules and federal securities laws applicable to trading on the Exchange. The Adviser and Subadviser are not registered as broker-dealers or affiliated with a broker-dealer. The Exchange or FINRA, on behalf of the Exchange, or both, will communicate as needed regarding trading in the Shares, certain exchange-traded options and certain futures with other markets and other entities that are members of the ISG, and the Exchange or FINRA, on behalf of the Exchange, or both, may obtain trading information regarding trading in the Shares, certain exchange-traded options and certain futures from such markets and other entities. In addition, the Exchange may obtain information regarding trading in the Shares, certain exchange-traded options and certain futures with other markets and other entities that are members of the ISG, or with which the Exchange has in place a comprehensive surveillance sharing agreement. The Exchange is able to access from FINRA, as needed, trade information for certain fixed income securities held by the Fund reported to FINRA's TRACE. FINRA also can access data obtained from the MSRB relating to certain municipal bond trading activity for surveillance purposes in connection with trading in the Shares.
The proposed rule change is designed to promote just and equitable principles of trade and to protect investors and the public interest in that the Exchange will obtain a representation from the issuer of the Shares that the NAV per Share will be calculated daily and that the NAV and the Disclosed Portfolio will be made available to all market participants at the same time. In addition, a large amount of information is publicly available regarding the Fund and the Shares, thereby promoting market transparency. The website for the Fund includes a form of the prospectus for the Fund and additional data relating to NAV and other applicable quantitative information. Trading in Shares of the Fund will be halted if the circuit breaker parameters in NYSE Arca Rule 7.12-E have been reached or because of market conditions or for reasons that, in the view of the Exchange, make trading in the Shares inadvisable, and trading in the Shares will be subject to NYSE Arca Rule 8.600-E(d)(2)(D), which sets forth circumstances under which trading in the Shares of the Fund may be halted. In addition, as noted above, investors have ready access to information regarding the Fund's holdings, the PIV, the Disclosed Portfolio, and quotation and last sale information for the Shares. In the aggregate, at least 90% of the weight of the Fund's holdings invested in futures, exchange-traded options, and listed swaps shall, on both an initial and continuing basis, consist of futures, options, and swaps for which the Exchange may obtain information from other members or affiliates of the ISG or for which the principal market is a market with which the Exchange has a CSSA. For purposes of calculating this limitation, a portfolio's investment in listed derivatives will be calculated as the aggregate gross notional value of the listed derivatives.
As discussed above, the Fund will not comply with the requirement in
As noted above, the Fund may invest in shares of non-exchange-traded investment company securities, which are equity securities. Therefore, to the extent the Fund invests in shares of non-exchange-traded open-end management investment company securities, the Fund will not comply with the requirements of Commentary .01(a)(1)(A) through (E) to NYSE Arca Rule 8.600-E (U.S. Component Stocks) with respect to its equity securities holdings.
As noted above, the Fund will not comply with the requirement in Commentary .01(b)(5) that investments in non-agency, non-government sponsored entity and privately issued mortgage-related and other asset-backed not account, in the aggregate, for more than 20% of the weight of the fixed income portion of the portfolio. Instead, Private ABS/MBS will, in the aggregate, not exceed more than 20% of the total assets of the Fund.
This alternative requirement is appropriate because the Fund's investment in Private ABS/MBS is expected to provide the Fund with benefits associated with increased diversification, as Private ABS/MBS investments tend to be less correlated to interest rates than many other fixed income securities. The Fund's investment in Private ABS/MBS will be subject to the Fund's liquidity procedures as adopted by the Fund's Board, and the Adviser does not expect that investments in Private ABS/MBS of up to 20% of the total assets of the Fund will have any material impact on the liquidity of the Fund's investments.
As noted above, the Fund will not comply with the requirement that securities that in aggregate account for at least 90% of the fixed income weight of the portfolio meet one of the criteria in Commentary .01(b)(4).
In addition, the Fund's investment in Private ABS/MBS and CDOs/CBOs/CLOs will be subject to the Fund's liquidity risk management program as approved by the Fund's Board.
The Adviser and Subadviser represent that the proposed exceptions from the requirements of Commentary .01 to Rule 8.600-E described above are consistent with the Fund's investment objective, and will further assist the Adviser and Subadviser to achieve such investment objective. Deviations from the generic requirements are necessary for the Fund to achieve its investment objective in a manner that is cost-effective and that maximizes investors' returns. Further, the proposed alternative requirements are narrowly tailored to allow the Fund to achieve its investment objective in manner that is consistent with the principles of Section 6(b)(5) of the Act. As a result, it is in the public interest to approve listing and trading of Shares of the Fund on the Exchange pursuant to the requirements set forth herein.
The Exchange accordingly believes that it is appropriate and in the public interest to approve listing and trading of Shares of the Fund on the Exchange notwithstanding that the Fund would
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 purpose of the Act. The Exchange notes that the proposed rule change will facilitate the continued listing and trading Shares of the Fund, and that will enhance competition among market participants, to the benefit of investors and the marketplace.
No written comments were solicited or received with respect to the proposed rule change.
Within 45 days of the date of publication of this notice in the
(A) By order approve or disapprove 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 Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to allow $1 or greater strike price intervals for options on certain Exchange-Traded Fund (“ETF”) Shares, as described below.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend the Exchange's rules to allow $1 or greater strike price intervals for options listed on the PowerShares QQQ Trust (“QQQ”) and the iShares Russell 2000 Index Fund (“IWM”), consistent with recent changes proposed by Cboe Exchange,
Currently, Commentary .05(a)(iv)(C) to Rule 1012 allows for the interval between strike prices of series of options on SPY, IVV, and DIA to be $1 or greater where the strike price is greater than $200. QQQ and IWM options, however, currently trade on the Exchange with $1 intervals up to a strike price of $200 pursuant to Commentary .05(a)(iv)(A) to Rule 1012. Above $200, these options classes trade with significantly wider $5 strike price intervals. The Exchange now proposes to modify Commentary .05(a)(iv)(C) to Rule 1012 to allow $1 strike price intervals where the strike price is above $200 for QQQ and IWM options, in effect matching the strike setting regime for these products below $200 and also for options on SPY, IVV, and DIA. The Exchange believes that the proposed rule change would make QQQ and IWM options easier for investors and traders to use, and more tailored to their investment needs.
QQQ and IWM are designed to provide investors different ways to efficiently gain exposure to the equity markets and execute risk management, hedging, asset allocation and income generation strategies. QQQ is a unit investment trust designed to closely track the price and performance of the Nasdaq-100 Index (“NDX”), which represents the largest and most active non-financial domestic and international issues listed on The Nasdaq Stock Market based on market capitalization. Likewise, IWM is an index ETF designed to closely track the price and performance of the Russell 2000 Index (“RUT”), which represents the small capitalization sector of the U.S. equity market. In general, QQQ and IWM options provide investors with the benefit of trading broader markets in a manageably sized contract.
The value of QQQ is designed to approximate 1/40 the value of the underlying NDX. For example, if the NDX price level is 1400, QQQ strike prices generally would be expected to be priced around $35. The value of IWM is designed to approximate 1/10 the value of the underlying RUT. In the past year, NDX has climbed above a price level of 7500 and RUT climbed to a price level of approximately 1700 (both prior to the December 2018 market-wide decline). The prices for QQQ and IWM options have correspondingly increased within the same time period.
Accordingly, the Exchange believes that offering a wider base of QQQ and IWM options affords traders and investors important hedging and trading opportunities, particularly in the midst of current price trends. The Exchange believes that not having the proposed $1 strike price intervals above $200 in QQQ and IWM options significantly constricts investors' hedging and trading possibilities. The Exchange therefore believes that by having smaller strike intervals in QQQ and IWM, investors would have more efficient hedging and trading opportunities due to the lower $1 intervals. The proposed $1 intervals above the $200 strike price will result in having at-the-money series based upon the underlying ETFs moving less than 1%. The Exchange believes that the proposed strike setting regime is in line with the slower movements of broad-based indices. Considering the fact that $1 intervals already exist below the $200 price point and that both QQQ and IWM have consistently inclined in price toward the $200 level, the Exchange believes that continuing to maintain the current $200 level (above which intervals increase 500% to $5), may have a negative effect on investing, trading and hedging opportunities, and volume. The Exchange believes that the investing, trading, and hedging opportunities available with QQQ and IWM options far outweighs any potential negative impact of allowing QQQ and IWM options to trade in more finely tailored intervals above the $200 price point.
The proposed strike setting regime would permit strikes to be set to more closely reflect the increasing values in the underlying indices, and allow investors and traders to roll open positions from a lower strike to a higher strike in conjunction with the price movements of the underlying ETFs. Under the current rule, where the next higher available series would be $5 away above a $200 strike price, the ability to roll such positions is effectively negated. Accordingly, to move a position from a $200 strike to a $205 strike under the current rule, an investor would need for the underlying product to move 2.5%, and would not be able to execute a roll up until such a large movement occurred. As discussed above, NDX and RUT have experienced continued, steady growth. The Exchange believes that with the proposed rule change, the investor would be in a significantly safer position of being able to roll his/her open options position from a $200 to a $201 strike price, which is only a 0.5% move for the underlying. The Exchange believes that the proposed rule change will benefit investors by providing them the flexibility to more closely tailor their investment and hedging decisions using QQQ and IWM options.
By allowing series of QQQ and IWM options to be listed in $1 intervals between strike prices over $200, the proposal will moderately augment the potential total number of options series available on the Exchange. However, the Exchange believes that it and the Options Price Reporting Authority (“OPRA”) have the necessary system capacity to handle any potential additional traffic associated with this rule change. The Exchange also believes that members will not have a capacity issue due to the proposed rule change. In addition, the Exchange represents that it does not believe this expansion will cause fragmentation of liquidity, but rather, believes that finer strike intervals will serve to increase liquidity available as well as price efficiency by providing more trading opportunities for all market participants.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes the proposed rule change is consistent with Section 6(b)(1) of the Act,
As noted above, QQQ and IWM options currently trade in wider $5 intervals above a $200 strike price, whereas the same products at or below a $200 strike price trade in $1 intervals. This creates a situation where contracts on the same options class effectively may not be able to execute certain strategies such as, for example, rolling to a higher strike price, simply because of the $200 strike price, above which options intervals increase by 500%. This proposal remedies the situation by allowing QQQ and IWM options to trade in $1 or greater intervals at all strike prices.
The Exchange believes that the proposed rule change will benefit investors by giving them increased flexibility to more closely tailor their investment and hedging decisions. Moreover, the proposal is consistent with changes adopted by CBOE and approved by the Commission.
With regard to the impact of this proposal on system capacity, the Exchange believes it and OPRA have the necessary systems capacity to handle any potential additional traffic associated with this proposed rule change. As discussed above, the Exchange further believes that its members will not have a capacity issue as a result of this proposal.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the proposed rule change is a competitive response to a recent CBOE filing approved by the Commission.
No written comments were either solicited or received.
Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to a proposal [sic] to allow $1 or greater strike price intervals for options on certain Exchange-Traded Fund (“ETF”) Shares, as described below.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend the Exchange's rules to allow $1 or greater strike price intervals for options listed on the PowerShares QQQ Trust (“QQQ”) and the iShares Russell 2000 Index Fund (“IWM”), consistent with recent changes proposed by Cboe Exchange, Inc. (“CBOE”) and approved by the Commission.
Currently, Chapter IV, Supplementary Material .01(c) to Section 6, allows for the interval between strike prices of series of options on SPY, IVV, and DIA to be $1 or greater where the strike price is greater than $200. QQQ and IWM options, however, currently trade on the Exchange with $1 intervals up to a strike price of $200 pursuant to Supplementary Material .01(b) to Section 6. Above $200, these options classes trade with significantly wider $5 strike price intervals. The Exchange now proposes to modify Supplementary Material .01(c) to Section 6 to allow $1 strike price intervals where the strike price is above $200 for QQQ and IWM options, in effect matching the strike setting regime for these products below $200 and also for options on SPY, IVV, and DIA. The Exchange believes that the proposed rule change would make QQQ and IWM options easier for investors and traders to use, and more tailored to their investment needs.
QQQ and IWM are designed to provide investors different ways to efficiently gain exposure to the equity markets and execute risk management, hedging, asset allocation and income generation strategies. QQQ is a unit investment trust designed to closely track the price and performance of the Nasdaq-100 Index (“NDX”), which represents the largest and most active non-financial domestic and international issues listed on The Nasdaq Stock Market based on market capitalization. Likewise, IWM is an index ETF designed to closely track the price and performance of the Russell 2000 Index (“RUT”), which represents the small capitalization sector of the U.S. equity market. In general, QQQ and IWM options provide investors with the benefit of trading broader markets in a manageably sized contract.
The value of QQQ is designed to approximate 1/40 the value of the underlying NDX. For example, if the NDX price level is 1400, QQQ strike prices generally would be expected to be priced around $35. The value of IWM is designed to approximate 1/10 the value of the underlying RUT. In the past year, NDX has climbed above a price level of 7500 and RUT climbed to a price level of approximately 1700 (both prior to the December 2018 market-wide decline). The prices for QQQ and IWM options have correspondingly increased within the same time period.
Accordingly, the Exchange believes that offering a wider base of QQQ and IWM options affords traders and investors important hedging and trading opportunities, particularly in the midst of current price trends. The Exchange believes that not having the proposed $1 strike price intervals above $200 in QQQ and IWM options significantly constricts investors' hedging and trading possibilities. The Exchange therefore believes that by having smaller strike intervals in QQQ and IWM, investors would have more efficient hedging and trading opportunities due to the lower $1 intervals. The proposed $1 intervals above the $200 strike price will result in having at-the-money series based upon the underlying ETFs moving less than 1%. The Exchange believes that the proposed strike setting regime is in line with the slower movements of broad-based indices. Considering the fact that $1 intervals already exist below the $200 price point and that both QQQ and IWM have consistently inclined in price toward the $200 level, the Exchange believes that continuing to maintain the current $200 level (above which intervals increase 500% to $5), may have a negative effect on investing, trading and hedging opportunities, and volume. The Exchange believes that the investing, trading, and hedging opportunities available with QQQ and IWM options far outweighs any potential negative impact of allowing QQQ and IWM options to trade in more finely tailored intervals above the $200 price point.
The proposed strike setting regime would permit strikes to be set to more closely reflect the increasing values in the underlying indices, and allow investors and traders to roll open positions from a lower strike to a higher strike in conjunction with the price movements of the underlying ETFs. Under the current rule, where the next higher available series would be $5 away above a $200 strike price, the ability to roll such positions is effectively negated. Accordingly, to move a position from a $200 strike to a $205 strike under the current rule, an investor would need for the underlying product to move 2.5%, and would not be able to execute a roll up until such a large movement occurred. As discussed above, NDX and RUT have experienced continued, steady growth. The Exchange believes that with the proposed rule change, the investor would be in a significantly safer position of being able to roll his/her open options position from a $200 to a $201 strike price, which is only a 0.5% move for the underlying. The Exchange believes that the proposed rule change will benefit investors by providing them the flexibility to more closely tailor their investment and hedging decisions using QQQ and IWM options.
By allowing series of QQQ and IWM options to be listed in $1 intervals between strike prices over $200, the proposal will moderately augment the potential total number of options series available on the Exchange. However, the Exchange believes that it and the Options Price Reporting Authority (“OPRA”) have the necessary system capacity to handle any potential additional traffic associated with this rule change. The Exchange also believes that members will not have a capacity issue due to the proposed rule change. In addition, the Exchange represents that it does not believe this expansion will cause fragmentation of liquidity, but rather, believes that finer strike intervals will serve to increase liquidity available as well as price efficiency by providing more trading opportunities for all market participants.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes the proposed rule change is consistent with Section 6(b)(1) of the Act,
As noted above, QQQ and IWM options currently trade in wider $5 intervals above a $200 strike price, whereas the same products at or below a $200 strike price trade in $1 intervals. This creates a situation where contracts on the same options class effectively may not be able to execute certain strategies such as, for example, rolling to a higher strike price, simply because of the $200 strike price, above which options intervals increase by 500%. This proposal remedies the situation by allowing QQQ and IWM options to trade in $1 or greater intervals at all strike prices.
The Exchange believes that the proposed rule change will benefit investors by giving them increased flexibility to more closely tailor their investment and hedging decisions. Moreover, the proposal is consistent with changes adopted by CBOE and approved by the Commission.
With regard to the impact of this proposal on system capacity, the Exchange believes it and OPRA have the necessary systems capacity to handle any potential additional traffic associated with this proposed rule change. As discussed above, the Exchange further believes that its members will not have a capacity issue as a result of this proposal.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the proposed rule change is a competitive response to a recent CBOE filing approved by the Commission.
No written comments were either solicited or received.
Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to allow $1 or greater strike price intervals for options on certain Exchange-Traded Fund (“ETF”) Shares, as described below.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend the Exchange's rules to allow $1 or greater strike price intervals for options listed on the PowerShares QQQ Trust (“QQQ”) and the iShares Russell 2000 Index Fund (“IWM”), consistent with recent changes proposed by Cboe Exchange, Inc. (“CBOE”) and approved by the Commission.
Currently, Supplementary Material .14 to Rule 504 allows for the interval between strike prices of series of options on SPY, IVV, and DIA to be $1 or greater where the strike price is greater than $200. QQQ and IWM options, however, have historically traded on the Exchange with $1 intervals up to a strike price of $200 pursuant to Rule 504(h), which permits options on Exchange-Traded Fund Shares to be traded in intervals that were established on other exchanges prior to listing on the Exchange.
QQQ and IWM are designed to provide investors different ways to efficiently gain exposure to the equity markets and execute risk management, hedging, asset allocation and income generation strategies. QQQ is a unit investment trust designed to closely track the price and performance of the Nasdaq-100 Index (“NDX”), which represents the largest and most active non-financial domestic and international issues listed on The Nasdaq Stock Market based on market capitalization. Likewise, IWM is an index ETF designed to closely track the price and performance of the Russell 2000 Index (“RUT”), which represents the small capitalization sector of the U.S. equity market. In general, QQQ and IWM options provide investors with the benefit of trading broader markets in a manageably sized contract.
The value of QQQ is designed to approximate 1/40 the value of the underlying NDX. For example, if the NDX price level is 1400, QQQ strike prices generally would be expected to be priced around $35. The value of IWM is designed to approximate 1/10 the value of the underlying RUT. In the past year, NDX has climbed above a price level of 7500 and RUT climbed to a price level of approximately 1700 (both prior to the December 2018 market-wide decline). The prices for QQQ and IWM options have correspondingly increased within the same time period.
Accordingly, the Exchange believes that offering a wider base of QQQ and IWM options affords traders and investors important hedging and trading opportunities, particularly in the midst of current price trends. The Exchange believes that not having the proposed $1 strike price intervals above $200 in QQQ and IWM options significantly constricts investors' hedging and trading possibilities. The Exchange therefore believes that by having smaller strike intervals in QQQ and IWM, investors would have more efficient hedging and trading opportunities due to the lower $1 intervals. The proposed $1 intervals above the $200 strike price will result in having at-the-money series based upon the underlying ETFs moving less than 1%. The Exchange believes that the proposed strike setting regime is in line with the slower movements of broad-based indices. Considering the fact that $1 intervals already exist below the $200 price point and that both QQQ and IWM have consistently inclined in price toward the $200 level, the Exchange believes that continuing to maintain the current $200 level (above which intervals increase 500% to $5), may have a negative effect on investing, trading and hedging opportunities, and volume. The Exchange believes that the investing, trading, and hedging opportunities available with QQQ and IWM options far outweighs any potential negative impact of allowing QQQ and IWM options to trade in more finely tailored intervals above the $200 price point.
The proposed strike setting regime would permit strikes to be set to more closely reflect the increasing values in the underlying indices, and allow investors and traders to roll open positions from a lower strike to a higher strike in conjunction with the price movements of the underlying ETFs. Under the current rule, where the next higher available series would be $5 away above a $200 strike price, the ability to roll such positions is effectively negated. Accordingly, to move a position from a $200 strike to a $205 strike under the current rule, an investor would need for the underlying product to move 2.5%, and would not be able to execute a roll up until such a large movement occurred. As discussed above, NDX and RUT have experienced continued, steady growth. The Exchange believes that with the proposed rule change, the investor would be in a significantly safer position of being able to roll his/her open options position from a $200 to a
By allowing series of QQQ and IWM options to be listed in $1 intervals between strike prices over $200, the proposal will moderately augment the potential total number of options series available on the Exchange. However, the Exchange believes that it and the Options Price Reporting Authority (“OPRA”) have the necessary system capacity to handle any potential additional traffic associated with this rule change. The Exchange also believes that members will not have a capacity issue due to the proposed rule change. In addition, the Exchange represents that it does not believe this expansion will cause fragmentation of liquidity, but rather, believes that finer strike intervals will serve to increase liquidity available as well as price efficiency by providing more trading opportunities for all market participants.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes the proposed rule change is consistent with Section 6(b)(1) of the Act,
As noted above, QQQ and IWM options currently trade in wider $5 intervals above a $200 strike price, whereas the same products at or below a $200 strike price trade in $1 intervals. This creates a situation where contracts on the same options class effectively may not be able to execute certain strategies such as, for example, rolling to a higher strike price, simply because of the $200 strike price, above which options intervals increase by 500%. This proposal remedies the situation by allowing QQQ and IWM options to trade in $1 or greater intervals at all strike prices.
The Exchange believes that the proposed rule change will benefit investors by giving them increased flexibility to more closely tailor their investment and hedging decisions. Moreover, the proposal is consistent with changes adopted by CBOE and approved by the Commission.
With regard to the impact of this proposal on system capacity, the Exchange believes it and OPRA have the necessary systems capacity to handle any potential additional traffic associated with this proposed rule change. As discussed above, the Exchange further believes that its members will not have a capacity issue as a result of this proposal.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the proposed rule change is a competitive response to a recent CBOE filing approved by the Commission.
No written comments were either solicited or received.
Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend the Exchange's Price List related to co-location services to update the description of the access to trading and execution systems provided with the purchase of access to the co-location local area networks. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Price List related to co-location
To implement the changes, the Exchange proposes to amend paragraph one of General Note 4, which describes the access to trading and execution systems which a User receives when it purchases access to the LCN or IP network.
The Exchange will announce the implementation date through a customer notice.
As set forth in the first paragraph of General Note 4, when a User purchases access to the LCN or IP network, it receives the ability to access the trading and execution systems of the Exchange and the SRO Affiliates (together, the “Exchange Systems”), provided the User has authorization from the Exchange or relevant Affiliate SRO.
In order to obtain access to the Global OTC System, the User would enter into an agreement with Global OTC, pursuant to which Global OTC would charge the User any applicable fees charged to its subscribers by Global OTC. Once the Exchange receives authorization from Global OTC, the Exchange would establish a connection between the User and the Global OTC System.
The Exchange provides Users access to the Global OTC System and the Exchange Systems (“Access”) as a convenience to Users. Use of Access is completely voluntary. The Exchange is not aware of any impediment to third parties offering Access. As alternatives to using the Access to the Global OTC System provided by the Exchange, a User may access such services through the Secure Financial Transaction Infrastructure (“SFTI”) network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access such services and products through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
Global OTC is an affiliate of the Exchange, which has an indirect interest in Global OTC because it is owned by the Exchange's ultimate parent, Intercontinental Exchange, Inc.
Unlike the NYSE Exchanges, Global OTC is not a national securities exchange registered with the Securities and Exchange Commission (“Commission”) under Section 6 of the Act.
The Exchange charges fees for connectivity to the execution systems of third party markets and other content service providers, including two ATSs.
To implement the change, the Exchange proposes to revise the first paragraph of General Note 4 as follows:
• Amend the first sentence to state that when a User purchases access to the LCN or IP network, it receives the ability to access the Global OTC System as well as the Exchange Systems, subject to authorization by Global OTC, the Exchange or Affiliate Exchange, as applicable;
• Amend the third sentence to note that a User can change the access to the Global OTC System that it receives at any time, subject to authorization by Global OTC; and
• Add a new fifth sentence stating that “Global OTC offers access to the Global OTC System to its subscribers, such that a User does not have to purchase access to the LCN or IP network to obtain access to the Global OTC System.”
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, a Sponsored Participant or an agent thereof (
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because it would allow Users to connect to the Global OTC System, thereby increasing Users' ability to tailor their data center operations to the requirements of their business operations by allowing them to select the form and latency of access that best suits their needs. Global OTC provides publicly displayed, firm, auto-executable prices in the OTC securities marketplace, and the Exchange believes that allowing Users to connect to the Global OTC System would promote price discovery and transparency in the OTC market, benefiting participants in such market. At the same time, Users are not required to use any of their bandwidth to access the Global OTC System unless they wish to do so. Rather, a User only receives the Access that it selects, and a User can change what Access it receives at any time, subject to authorization from the Exchange, Affiliate SRO or Global OTC, as applicable.
The Exchange provides Access as a convenience to Users. Use of Access is completely voluntary, and each User has several other access options available to it. As alternatives to using the Access to the Global OTC System provided by the Exchange, a User may access the Global OTC System through the SFTI network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access the Global OTC System through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange believes that the proposed revisions to General Note 4 would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because they would make the description of Access more accessible and transparent by including Global OTC, thereby providing market participants with clarity as to what connectivity is included in the purchase of access to the LCN and IP network, avoiding any potential investor confusion. The proposed revisions to General Note 4 would provide a more detailed and accurate description of the Access Users receive with their purchase of access to the LCN or IP network. The proposed rule change would also make clear that Access to each of the Exchange Systems and the Global OTC System is provided on the same terms. All Users that voluntarily select to access the LCN or IP network receive Access to the Exchange Systems and the Global OTC System, and are not subject to a charge for such Access above and beyond the fee paid for the relevant LCN or IP network access.
The Exchange also believes that the proposed rule changes are consistent with Section 6(b)(4) of the Act,
The proposed rule change is reasonable and equitable because, as stated above, it would also make clear that Access to each of the Exchange Systems and Global OTC System is provided on the same terms. The Exchange further believes that the Access to the Global OTC System described herein is equitably allocated and not unfairly discriminatory because all Users that voluntarily select to access the LCN or IP network receive the same Access, and are not subject to a charge for Access to Global OTC above and beyond the fee paid for the relevant LCN or IP network access. Users are not required to use any of their bandwidth to access the Global OTC System unless they wish to do so. Rather, a User only receives the Access that it selects, and a User can change what Access it receives at any time, subject to authorization from the Exchange, Affiliate SRO or Global OTC, as applicable. In addition to the service being completely voluntary, it is available to all Users on an equal basis. Users that opted to Access the Global OTC System would not receive access that is not available to all Users.
The Exchange believes that the proposed rule change does not unfairly discriminate between customers, issuers, brokers or dealers in not charging Users an additional fee to access Global OTC while charging a connectivity fee to access OTC Markets, because Global OTC and the OTC Markets ATS are not fungible. A User that opted to access Global OTC or OTC Markets would choose between them based on a variety of factors, including not just the reasonableness of fees charged, but also the extent to which it wished to have publicly displayed, firm, auto-executable prices. In addition, the Exchange is not the sole method a User can use to access the OTC Markets ATS. A User may use the SFTI network, a third party telecommunication network, a cross connect, or a combination thereof to access the OTC Markets ATS through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data
For the reasons above, the proposed changes do not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that providing Users that purchase access to the LCN or IP network with Access to the Global OTC System does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because, by offering Access to the Global OTC System, the Exchange gives each User additional options for addressing its access needs, responding to User demand for access options. The Exchange provides Access as a convenience to Users. Use of Access is completely voluntary, and each User has several other access options available to it. As alternatives to using the Access to the Global OTC System provided by the Exchange, a User may access the Global OTC System through the SFTI network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access the Global OTC System through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor. Users that opt to Access the Global OTC System would not receive access that is not available to all Users, as all market participants that contract with Global OTC may receive access. In this way, the proposed changes would enhance competition by helping Users tailor their Access to the needs of their business operations by allowing them to select the form and latency of access and connectivity that best suits their needs.
The Exchange believes that the proposed rule change does not unfairly discriminate between customers, issuers, brokers or dealers in not charging Users an additional fee to access Global OTC while charging a connectivity fee to access OTC Markets, because Global OTC and the OTC Markets ATS are not fungible. A User that opted to access Global OTC or OTC Markets would choose between them based on a variety of factors, including not just the reasonableness of fees charged, but also the extent to which it wished to have publicly displayed, firm, auto-executable prices. In addition, the Exchange is not the sole method a User can use to access the OTC Markets ATS. A User may use the SFTI network, a third party telecommunication network, a cross connect, or a combination thereof to access the OTC Markets ATS through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange believes that the proposed revisions to General Note 4 would provide a more detailed and accurate description of the Access Users receive with their purchase of access to the LCN or IP network, thereby enhancing competition by ensuring that all Users have access to the same information regarding Access.
The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange.
For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to allow $1 or greater strike price intervals for options on certain Exchange-Traded Fund (“ETF”) Shares, as described below.
The text of the proposed rule change is available on the Exchange's website at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
The purpose of the proposed rule change is to amend the Exchange's rules to allow $1 or greater strike price intervals for options listed on the PowerShares QQQ Trust (“QQQ”) and the iShares Russell 2000 Index Fund (“IWM”), consistent with recent changes proposed by Cboe Exchange, Inc. (“CBOE”) and approved by the Commission.
Currently, Chapter IV, Supplementary Material .01(c) to Section 6, allows for the interval between strike prices of series of options on SPY, IVV, and DIA to be $1 or greater where the strike price is greater than $200. QQQ and IWM options, however, currently trade on the Exchange with $1 intervals up to a strike price of $200 pursuant to Supplementary Material .01(b) to
QQQ and IWM are designed to provide investors different ways to efficiently gain exposure to the equity markets and execute risk management, hedging, asset allocation and income generation strategies. QQQ is a unit investment trust designed to closely track the price and performance of the Nasdaq-100 Index (“NDX”), which represents the largest and most active non-financial domestic and international issues listed on The Nasdaq Stock Market based on market capitalization. Likewise, IWM is an index ETF designed to closely track the price and performance of the Russell 2000 Index (“RUT”), which represents the small capitalization sector of the U.S. equity market. In general, QQQ and IWM options provide investors with the benefit of trading broader markets in a manageably sized contract.
The value of QQQ is designed to approximate 1/40 the value of the underlying NDX. For example, if the NDX price level is 1400, QQQ strike prices generally would be expected to be priced around $35. The value of IWM is designed to approximate 1/10 the value of the underlying RUT. In the past year, NDX has climbed above a price level of 7500 and RUT climbed to a price level of approximately 1700 (both prior to the December 2018 market-wide decline). The prices for QQQ and IWM options have correspondingly increased within the same time period.
Accordingly, the Exchange believes that offering a wider base of QQQ and IWM options affords traders and investors important hedging and trading opportunities, particularly in the midst of current price trends. The Exchange believes that not having the proposed $1 strike price intervals above $200 in QQQ and IWM options significantly constricts investors' hedging and trading possibilities. The Exchange therefore believes that by having smaller strike intervals in QQQ and IWM, investors would have more efficient hedging and trading opportunities due to the lower $1 intervals. The proposed $1 intervals above the $200 strike price will result in having at-the-money series based upon the underlying ETFs moving less than 1%. The Exchange believes that the proposed strike setting regime is in line with the slower movements of broad-based indices. Considering the fact that $1 intervals already exist below the $200 price point and that both QQQ and IWM have consistently inclined in price toward the $200 level, the Exchange believes that continuing to maintain the current $200 level (above which intervals increase 500% to $5), may have a negative effect on investing, trading and hedging opportunities, and volume. The Exchange believes that the investing, trading, and hedging opportunities available with QQQ and IWM options far outweighs any potential negative impact of allowing QQQ and IWM options to trade in more finely tailored intervals above the $200 price point.
The proposed strike setting regime would permit strikes to be set to more closely reflect the increasing values in the underlying indices, and allow investors and traders to roll open positions from a lower strike to a higher strike in conjunction with the price movements of the underlying ETFs. Under the current rule, where the next higher available series would be $5 away above a $200 strike price, the ability to roll such positions is effectively negated. Accordingly, to move a position from a $200 strike to a $205 strike under the current rule, an investor would need for the underlying product to move 2.5%, and would not be able to execute a roll up until such a large movement occurred. As discussed above, NDX and RUT have experienced continued, steady growth. The Exchange believes that with the proposed rule change, the investor would be in a significantly safer position of being able to roll his/her open options position from a $200 to a $201 strike price, which is only a 0.5% move for the underlying. The Exchange believes that the proposed rule change will benefit investors by providing them the flexibility to more closely tailor their investment and hedging decisions using QQQ and IWM options.
By allowing series of QQQ and IWM options to be listed in $1 intervals between strike prices over $200, the proposal will moderately augment the potential total number of options series available on the Exchange. However, the Exchange believes that it and the Options Price Reporting Authority (“OPRA”) have the necessary system capacity to handle any potential additional traffic associated with this rule change. The Exchange also believes that members will not have a capacity issue due to the proposed rule change. In addition, the Exchange represents that it does not believe this expansion will cause fragmentation of liquidity, but rather, believes that finer strike intervals will serve to increase liquidity available as well as price efficiency by providing more trading opportunities for all market participants.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange also believes the proposed rule change is consistent with
As noted above, QQQ and IWM options currently trade in wider $5 intervals above a $200 strike price, whereas the same products at or below a $200 strike price trade in $1 intervals. This creates a situation where contracts on the same options class effectively may not be able to execute certain strategies such as, for example, rolling to a higher strike price, simply because of the $200 strike price, above which options intervals increase by 500%. This proposal remedies the situation by allowing QQQ and IWM options to trade in $1 or greater intervals at all strike prices.
The Exchange believes that the proposed rule change will benefit investors by giving them increased flexibility to more closely tailor their investment and hedging decisions. Moreover, the proposal is consistent with changes adopted by CBOE and approved by the Commission.
With regard to the impact of this proposal on system capacity, the Exchange believes it and OPRA have the necessary systems capacity to handle any potential additional traffic associated with this proposed rule change. As discussed above, the Exchange further believes that its members will not have a capacity issue as a result of this proposal.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. To the contrary, the proposed rule change is a competitive response to a recent CBOE filing approved by the Commission.
No written comments were either solicited or received.
Because the proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A) of the Act
A proposed rule change filed pursuant to Rule 19b-4(f)(6) under the Act
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule change should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(1)
The Exchange proposes to amend its Schedule of Fees and Rebates (the “Price List”) related to co-location services to update the description of the access to trading and execution systems provided with the purchase of access to the co-location local area networks. The proposed rule change is available on the Exchange's website at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Exchange proposes to amend the Price List related to co-location
To implement the changes, the Exchange proposes to amend paragraph one of General Note 4, which describes the access to trading and execution systems which a User receives when it purchases access to the LCN or IP network.
The Exchange will announce the implementation date through a customer notice.
As set forth in the first paragraph of General Note 4, when a User purchases access to the LCN or IP network, it receives the ability to access the trading and execution systems of the Exchange and the SRO Affiliates (together, the “Exchange Systems”), provided the User has authorization from the Exchange or relevant Affiliate SRO.
In order to obtain access to the Global OTC System, the User would enter into an agreement with Global OTC, pursuant to which Global OTC would charge the User any applicable fees charged to its subscribers by Global OTC. Once the Exchange receives authorization from Global OTC, the Exchange would establish a connection between the User and the Global OTC System.
The Exchange provides Users access to the Global OTC System and the Exchange Systems (“Access”) as a convenience to Users. Use of Access is completely voluntary. The Exchange is not aware of any impediment to third parties offering Access. As alternatives to using the Access to the Global OTC System provided by the Exchange, a User may access such services through the Secure Financial Transaction Infrastructure (“SFTI”) network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access such services and products through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
Global OTC is an affiliate of the Exchange, which has an indirect interest in Global OTC because it is owned by the Exchange's ultimate parent, Intercontinental Exchange, Inc.
Unlike the NYSE Exchanges, Global OTC is not a national securities exchange registered with the Securities and Exchange Commission (“Commission”) under Section 6 of the
The Exchange charges fees for connectivity to the execution systems of third party markets and other content service providers, including two ATSs.
To implement the change, the Exchange proposes to revise the first paragraph of General Note 4 as follows:
• Amend the first sentence to state that when a User purchases access to the LCN or IP network, it receives the ability to access the Global OTC System as well as the Exchange Systems, subject to authorization by Global OTC, the Exchange or Affiliate Exchange, as applicable;
• Amend the third sentence to note that a User can change the access to the Global OTC System that it receives at any time, subject to authorization by Global OTC; and
• Add a new fifth sentence stating that “Global OTC offers access to the Global OTC System to its subscribers, such that a User does not have to purchase access to the LCN or IP network to obtain access to the Global OTC System.”
As is the case with all Exchange co-location arrangements, (i) neither a User nor any of the User's customers would be permitted to submit orders directly to the Exchange unless such User or customer is a member organization, a Sponsored Participant or an agent thereof (
The proposed change is not otherwise intended to address any other issues relating to co-location services and/or related fees, and the Exchange is not aware of any problems that Users would have in complying with the proposed change.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
The Exchange believes that the proposed rule change would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because it would allow Users to connect to the Global OTC System, thereby increasing Users' ability to tailor their data center operations to the requirements of their business operations by allowing them to select the form and latency of access that best suits their needs. Global OTC provides publicly displayed, firm, auto-executable prices in the OTC securities marketplace, and the Exchange believes that allowing Users to connect to the Global OTC System would promote price discovery and transparency in the OTC market, benefiting participants in such market. At the same time, Users are not required to use any of their bandwidth to access the Global OTC System unless they wish to do so. Rather, a User only receives the Access that it selects, and a User can change what Access it receives at any time, subject to authorization from the Exchange, Affiliate SRO or Global OTC, as applicable.
The Exchange provides Access as a convenience to Users. Use of Access is completely voluntary, and each User has several other access options available to it. As alternatives to using the Access to the Global OTC System provided by the Exchange, a User may access the Global OTC System through the SFTI network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access the Global OTC System through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange believes that the proposed revisions to General Note 4 would remove impediments to, and perfect the mechanisms of, a free and open market and a national market system and, in general, protect investors and the public interest because they would make the description of Access more accessible and transparent by including Global OTC, thereby providing market participants with clarity as to what connectivity is included in the purchase of access to the LCN and IP network, avoiding any potential investor confusion. The proposed revisions to General Note 4 would provide a more detailed and accurate description of the Access Users receive with their purchase of access to the LCN or IP network. The proposed rule change would also make clear that Access to each of the Exchange Systems and the Global OTC System is provided on the same terms. All Users that voluntarily select to access the LCN or IP network receive Access to the Exchange Systems and the Global OTC System, and are not subject to a charge for such Access above and beyond the fee paid for the relevant LCN or IP network access.
The Exchange also believes that the proposed rule changes are consistent with Section 6(b)(4) of the Act,
The proposed rule change is reasonable and equitable because, as stated above, it would also make clear that Access to each of the Exchange Systems and Global OTC System is provided on the same terms. The Exchange further believes that the Access to the Global OTC System described herein is equitably allocated and not unfairly discriminatory because all Users that voluntarily select to access the LCN or IP network receive the same Access, and are not subject to a charge for Access to Global OTC above and beyond the fee paid for the relevant LCN or IP network access. Users are not required to use any of their bandwidth to access the Global OTC System unless they wish to do so. Rather, a User only receives the Access that it selects, and a User can change what Access it receives at any time, subject to authorization from the Exchange, Affiliate SRO or Global OTC, as applicable. In addition to the service being completely voluntary, it is available to all Users on an equal basis. Users that opted to Access the Global OTC System would not receive access that is not available to all Users.
The Exchange believes that the proposed rule change does not unfairly discriminate between customers, issuers, brokers or dealers in not charging Users an additional fee to access Global OTC while charging a connectivity fee to access OTC Markets, because Global OTC and the OTC Markets ATS are not fungible. A User that opted to access Global OTC or OTC Markets would choose between them based on a variety of factors, including not just the reasonableness of fees charged, but also the extent to which it wished to have publicly displayed, firm, auto-executable prices. In addition, the Exchange is not the sole method a User can use to access the OTC Markets ATS. A User may use the SFTI network, a third party telecommunication network, a cross connect, or a combination thereof to access the OTC Markets ATS through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange.
For the reasons above, the proposed changes do not unfairly discriminate between or among market participants that are otherwise capable of satisfying any applicable co-location fees, requirements, terms and conditions established from time to time by the Exchange.
For these reasons, the Exchange believes that the proposal is consistent with the Act.
In accordance with Section 6(b)(8) of the Act,
The Exchange believes that providing Users that purchase access to the LCN or IP network with Access to the Global OTC System does not impose any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act because, by offering Access to the Global OTC System, the Exchange gives each User additional options for addressing its access needs, responding to User demand for access options. The Exchange provides Access as a convenience to Users. Use of Access is completely voluntary, and each User has several other access options available to it. As alternatives to using the Access to the Global OTC System provided by the Exchange, a User may access the Global OTC System through the SFTI network, a third party telecommunication network, third party wireless network, a cross connect, or a combination thereof to access the Global OTC System through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor. Users that opt to Access the Global OTC System would not receive access that is not available to all Users, as all market participants that contract with Global OTC may receive access. In this way, the proposed changes would enhance competition by helping Users tailor their Access to the needs of their business operations by allowing them to select the form and latency of access and connectivity that best suits their needs.
The Exchange believes that the proposed rule change does not unfairly discriminate between customers, issuers, brokers or dealers in not charging Users an additional fee to access Global OTC while charging a connectivity fee to access OTC Markets, because Global OTC and the OTC Markets ATS are not fungible. A User that opted to access Global OTC or OTC Markets would choose between them based on a variety of factors, including not just the reasonableness of fees charged, but also the extent to which it wished to have publicly displayed, firm, auto-executable prices. In addition, the Exchange is not the sole method a User can use to access the OTC Markets ATS. A User may use the SFTI network, a third party telecommunication network, a cross connect, or a combination thereof to access the OTC Markets ATS through a connection to an access center outside the data center (which could be a SFTI access center, a third-party access center, or both), another User, or a third party vendor.
The Exchange believes that the proposed revisions to General Note 4 would provide a more detailed and accurate description of the Access Users receive with their purchase of access to the LCN or IP network, thereby enhancing competition by ensuring that all Users have access to the same information regarding Access.
The Exchange operates in a highly competitive market in which exchanges offer co-location services as a means to facilitate the trading and other market activities of those market participants who believe that co-location enhances the efficiency of their operations. Accordingly, fees charged for co-location services are constrained by the active competition for the order flow of, and other business from, such market participants. If a particular exchange charges excessive fees for co-location services, affected market participants will opt to terminate their co-location arrangements with that exchange, and adopt a possible range of alternative strategies, including placing their servers in a physically proximate location outside the exchange's data center (which could be a competing exchange), or pursuing strategies less dependent upon the lower exchange-to-participant latency associated with co-location. Accordingly, the exchange charging excessive fees would stand to lose not only co-location revenues but also the liquidity of the formerly co-located trading firms, which could have additional follow-on effects on the market share and revenue of the affected exchange.
For the reasons described above, the Exchange believes that the proposed rule change reflects this competitive environment.
No written comments were solicited or received with respect to the proposed rule change.
The Exchange has filed the proposed rule change pursuant to Section 19(b)(3)(A)(iii) of the Act
A proposed rule change filed under Rule 19b-4(f)(6)
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B)
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's internet comment form (
• Send an email to
• Send paper comments in triplicate to: 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 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 burden on respondents, including the use of automated collection techniques or other forms of information technology. Mail, email, or fax your comments and recommendations on the information collection(s) to the OMB Desk Officer and SSA Reports Clearance Officer at the following addresses or fax numbers.
Or you may submit your comments online through
The information collections below are pending at SSA. SSA will submit them 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 August 5, 2019. Individuals can obtain copies of the collection instruments by writing to the above email address.
By virtue of the authority vested in me as Secretary of State pursuant to section 7041(a)(1)(2)(B) of the Department of State, Foreign Operations, and Related Programs Appropriations Act, 2019 (Div. K, Pub. L. 116-6) and similar provisions in prior year appropriations acts, I hereby certify that the Government of Egypt has dismissed the convictions issued by the Cairo Criminal Court on June 4, 2013, in “Public Prosecution Case No. 1110 for the Year 2012” and has not subjected the defendants to further prosecution.
This certification shall be published in the
Office of the United States Trade Representative.
Notice of product exclusions.
Effective July 6, 2018, the U.S. Trade Representative (Trade Representative) imposed additional duties on goods of China with an annual trade value of approximately $34 billion (the $34 billion action) as part of the action in the Section 301 investigation of China's acts, policies, and practices related to technology transfer, intellectual property, and innovation. The Trade Representative's determination included a decision to establish a product exclusion process. The Trade Representative initiated the exclusion process in July 2018, and stakeholders have submitted requests for the exclusion of specific products. In December 2018, March 2019, April 2019, and May 2019, the Trade Representative granted exclusion requests. This notice announces the Trade Representative's determination to grant additional exclusion requests, as specified in the Annex to this notice. The Trade Representative will continue to issue decisions on pending requests on a periodic basis.
The product exclusions announced in this notice will apply as of the July 6, 2018 effective date of the $34 billion action, and will extend for one year after the publication of this notice. U.S. Customs and Border Protection will issue instructions on entry guidance and implementation.
For general questions about this notice, contact Assistant General Counsels Philip Butler or Megan Grimball, or Director of Industrial Goods Justin Hoffmann at (202) 395-5725. For specific questions on customs classification or implementation of the product exclusions identified in the Annex to this notice, contact
For background on the proceedings in this investigation, please see the prior notices issued in the investigation, including 82 FR 40213 (August 24, 2017), 83 FR 14906 (April 6, 2018), 83 FR 28710 (June 20, 2018), 83 FR 33608 (July 17, 2018), 83 FR 38760 (August 7, 2018), 83 FR 40823 (August 16, 2018), 83 FR 47974 (September 21, 2018), 83 FR 65198 (December 19, 2018), 83 FR 67463 (December 28, 2018), 84 FR 7966 (March 5, 2019), 84 FR 11152 (March 25, 2019), 84 FR 16310 (April 18, 2019), and 84 FR 21389 (May 14, 2019).
Effective July 6, 2018, the Trade Representative imposed additional 25 percent duties on goods of China classified in 818 8-digit subheadings of the Harmonized Tariff Schedule of the United States (HTSUS), with an approximate annual trade value of $34 billion.
Under the July 11 notice, requests for exclusion had to identify the product subject to the request in terms of the physical characteristics that distinguish the product from other products within the relevant 8-digit subheading covered by the $34 billion action. Requestors also had to provide the 10-digit subheading of the HTSUS most applicable to the particular product requested for exclusion, and could submit information on the ability of U.S. Customs and Border Protection to administer the requested exclusion. Requestors were asked to provide the quantity and value of the Chinese-origin product that the requestor purchased in the last three years. With regard to the rationale for the requested exclusion, requests had to address the following factors:
• Whether the particular product is available only from China and specifically whether the particular product and/or a comparable product is available from sources in the United States and/or third countries.
• Whether the imposition of additional duties on the particular product would cause severe economic harm to the requestor or other U.S. interests.
• Whether the particular product is strategically important or related to “Made in China 2025” or other Chinese industrial programs.
The July 11 notice stated that the Trade Representative would take into account whether an exclusion would undermine the objective of the Section 301 investigation.
The July 11 notice required submission of requests for exclusion from the $34 billion action no later than October 9, 2018, and noted that the Trade Representative would periodically announce decisions. In December 2018, the Trade Representative granted an initial set of exclusion requests.
Based on the evaluation of the factors set out in the July 11 notice, which are summarized above, pursuant to sections 301(b), 301(c), and 307(a) of the Trade
As set out in the Annex to this notice, the exclusions are established in two different formats: (1) As an exclusion for an existing 10-digit subheading from within an 8-digit subheading covered by the $34 billion action, or (2) as an exclusion reflected in specially prepared product descriptions. In particular, the exclusions take the form of one 10-digit HTSUS subheading, and 88 specially prepared product descriptions.
In accordance with the July 11 notice, the exclusions are available for any product that meets the description in the Annex, regardless of whether the importer filed an exclusion request. Further, the scope of each exclusion is governed by the scope of the product descriptions in the Annex to this notice, and not by the product descriptions set out in any particular request for exclusion.
The exclusions in the Annex cover approximately 464 separate exclusion requests: The excluded 10-digit subheading covers 40 separate requests, and the 88 specially prepared product descriptions cover approximately 424 separate requests.
Paragraph A, subparagraphs (3)-(5) are conforming amendments to the HTSUS reflecting the modification made by the Annex to this notice.
As stated in the July 11 notice, the exclusions will apply as of the July 6, 2018 effective date of the $34 billion action, and extend for one year after the publication of this notice. U.S. Customs and Border Protection will issue instructions on entry guidance and implementation.
The Trade Representative will continue to issue determinations on pending requests on a periodic basis.
A. Effective with respect to goods entered for consumption, or withdrawn from warehouse for consumption, on or after 12:01 a.m. eastern daylight time on July 6, 2018, subchapter III of chapter 99 of the Harmonized Tariff Schedule of the United States (HTSUS) is modified:
1. By inserting the following new heading 9903.88.10 in numerical sequence, with the material in the new heading inserted in the columns of the HTSUS labeled “Heading/Subheading”, “Article Description”, and “Rates of Duty 1-General”, respectively:
2. by inserting the following new U.S. note 20(m) to subchapter III of chapter 99 in numerical sequence:
“(m) The U.S. Trade Representative determined to establish a process by which particular products classified in heading 9903.88.01 and provided for in U.S. notes 20(a) and 20(b) to this subchapter could be excluded from the additional duties imposed by heading 9903.88.01. See 83 FR 28710 (June 20, 2018) and 83 FR 32181 (July 11, 2018). Pursuant to the product exclusion process, the U.S. Trade Representative has determined that the additional duties provided for in heading 9903.88.01 shall not apply to the following particular products, which are provided for in the enumerated statistical reporting numbers:
3. by amending the last sentence of the first paragraph of U.S. note 20(a) to subchapter III of chapter 99 by:
a. Deleting the word “or” where it appears after the phrase “U.S. note 20(j) to subchapter III of chapter 99;”; and
b. inserting “; or (5) heading 9903.88.10 and U.S. note 20(m) to subchapter III of chapter 99” after the phrase “U.S. note 20(k) to subchapter III of chapter 99”, where it appears at the end of the sentence.
4. by amending the first sentence of U.S. note 20(b) to subchapter III of chapter 99 by:
a. Deleting the word “or” where it appears after the phrase “U.S. note 20(j) to subchapter III of chapter 99;”; and
b. inserting “; or (5) heading 9903.88.10 and U.S. note 20(m) to subchapter III of chapter 99” after the phrase “U.S. note 20(k) to subchapter III of chapter 99”, where it appears at the end of the sentence.
5. by amending the Article Description of heading 9903.88.01:
a. By deleting “9903.88.07 or”;
b. by inserting in lieu thereof “9903.88.07, ”; and
c. by inserting “or 9903.88.10,” after “9903.88.08,”.
Federal Highway Administration (FHWA), DOT.
Notice and request for comments.
The FHWA invites public comments about our intention to request the Office of Management and Budget's (OMB) approval for a new information collection, which is summarized below under
Please submit comments by July 16, 2019.
You may submit comments identified by DOT Docket ID 2019-0019 by any of the following methods:
Lindsey Svendsen, 202-366-2035, or Arnold Feldman, 202-366-2028, Office of Real Estate Services, Federal Highway Administration, Department of Transportation, 1200 New Jersey Avenue SE, Washington, DC 20590. Office hours are from 7 a.m. to 3 p.m., Monday through Friday, except Federal holidays.
This survey will collect information that will support analysis of the current state of the practice of Alternative Uses of the ROW nationwide. The report will identify current processes and tools used by SDOTs to identify and track ROW available for alternative uses, the types of alternative use requests they receive, and any safety, operational, or legal issues related to alternative uses. The survey will also identify additional opportunities for improving the existing processes, tools for identifying and tracking ROW that can streamline agencies' Property Management programs and provide information to states that have shown interest in alternative uses.
The Paperwork Reduction Act of 1995; 44 U.S.C. chapter 35, as amended; and 49 CFR 1.48.
Saint Lawrence Seaway Development Corporation (SLSDC); USDOT.
Notice of public meeting.
This notice announces the public meeting via conference call of the Saint Lawrence Seaway Development Corporation Advisory Board.
The public meeting will be held on (all times Eastern):
• Tuesday, June 18, 2019 from 2:00 p.m.-4:00 p.m. EST.
The meeting will be held via conference call at the SLSDC's Headquarters, 55 M Street SE, Suite 930, Washington, DC 20003.
Wayne Williams, Chief of Staff, Saint Lawrence Seaway Development Corporation, 1200 New Jersey Avenue SE, Washington, DC 20590; 202-366-0091.
Pursuant to Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463; 5 U.S.C. App. I), notice is hereby given of a meeting of the Advisory Board of the Saint Lawrence Seaway Development Corporation (SLSDC). The agenda for this meeting will be as follows:
Attendance at the meeting is open to the interested public but limited to the space available. With the approval of the Administrator, members of the public may present oral statements at the meeting. Persons wishing further information should contact the person listed under the heading,
Internal Revenue Service (IRS), Treasury.
Notice of meeting.
The Electronic Tax Administration Advisory Committee (ETAAC) will hold a public meeting on Wednesday, June 19, 2019.
Mr. Michael Deneroff, Office of National Public Liaison, at (202) 317-6851, or send an email to
Notice is hereby given pursuant to section 10(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. App. (1988), that a public meeting of the ETAAC will be held on Wednesday, June 19, 2019 from 9:00 a.m. to 12:00 p.m. at 1111 Constitution Avenue NW, Washington, DC 20224. The purpose of the ETAAC is to provide continuing advice with regard to the development and implementation of the IRS organizational strategy for electronic tax administration. ETAAC is an organized public forum for discussion of electronic tax administration issues such as prevention of identity theft and refund fraud. It supports the overriding goal that paperless filing should be the preferred and most convenient method of filing tax and information returns. ETAAC members convey the public's perceptions of IRS electronic tax administration activities, offer constructive observations about current or proposed policies, programs and procedures, and suggest improvements. Due to limited seating and security requirements, call or email Michael Deneroff to confirm your attendance. Mr. Deneroff can be reached at 202-317-6851 or
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Comments must be submitted on or before July 5, 2019.
Submit written comments on the collection of information through
Danny S. Green, Enterprise Records Service (005R1B), Department of Veterans Affairs, 811 Vermont Avenue NW, Washington, DC 20420, (202) 421-1354 or email
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
By direction of the Secretary.
Veterans Benefits Administration, Department of Veterans Affairs.
Notice.
In compliance with the Paperwork Reduction Act (PRA) of 1995, this notice announces that the Veterans Benefits Administration, Department of Veterans Affairs, will submit the collection of information abstracted below to the Office of Management and Budget (OMB) for review and comment. The PRA submission describes the nature of the information collection and its expected cost and burden and it includes the actual data collection instrument.
Comments must be submitted on or before July 5, 2019.
Submit written comments on the collection of information through
Danny S. Green, (202) 421-1354 or email
VBA uses the information collected on this form as evidence of additional circumstances which may affect entitlement determinations pursuant to 38 U.S.C.1522. The information is used as a counterbalance to a claimant's substantial estate and/or annual income.
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
By direction of the Secretary.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing amendments to address the results of the residual risk and technology reviews (RTRs) that the EPA is required to conduct in accordance with the Clean Air Act (CAA) with regard to the National Emissions Standards for Hazardous Air Pollutants (NESHAP) for the Surface Coating of Metal Cans and the NESHAP for the Surface Coating of Metal Coil. The EPA is proposing to find the risks due to emissions of air toxics from these source categories under the current standards to be acceptable and that the standards provide an ample margin of safety to protect public health. We are proposing no revisions to the numerical emission limits based on these analyses. The EPA is proposing to amend provisions addressing emissions during periods of startup, shutdown, and malfunction (SSM); to amend provisions regarding electronic reporting of performance test results; to amend provisions regarding monitoring requirements; and to make miscellaneous clarifying and technical corrections.
You may send comments, identified by Docket ID No. EPA-HQ-OAR-2017-0684 for 40 Code of Federal Regulations (CFR) part 63, subpart KKKK, Surface Coating of Metal Cans, and Docket ID No. EPA-HQ-OAR-2017-0685 for 40 CFR part 63, subpart SSSS, Surface Coating of Metal Coil, as applicable, by any of the following methods:
•
•
•
•
•
For questions about this proposed action, contact Ms. Paula Hirtz, Minerals and Manufacturing Group, Sector Policies and Programs Division (D243-04), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-2618; fax number: (919) 541-4991; and email address:
The EPA may publish any comment received to its public docket. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (
The
Table 1 of this preamble lists the NESHAP and associated regulated industrial source categories that are the subject of this proposal. Table 1 is not intended to be exhaustive, but rather provides a guide for readers regarding the entities that this proposed action is likely to affect. The proposed standards, once promulgated, will be directly applicable to the affected sources. Federal, state, local, and tribal government entities would not be affected by this proposed action. As defined in the
In addition to being available in the dockets for this action, an electronic copy of this action is available on the internet. Following signature by the EPA Administrator, the EPA will post a copy of this proposed action at
Redline versions of the regulatory language that incorporates the proposed changes in this action are available in the Metal Cans and the Metal Coil Dockets (Docket ID No. EPA-HQ-OAR-2017-0684 and Docket ID No. EPA-HQ-OAR-2017-0685, respectively).
The statutory authority for this action is provided by sections 112 and 301 of the CAA, as amended (42 U.S.C. 7401
In the first stage of the CAA section 112 standard setting process, the EPA promulgates technology-based standards under CAA section112(d) for categories of sources identified as emitting one or more of the HAP listed in CAA section 112(b). Sources of HAP emissions are either major sources or area sources, and CAA section 112 establishes different requirements for major source standards and area source standards. “Major sources” are those that emit or have the potential to emit 10 tons per year (tpy) or more of a single HAP or 25 tpy or more of any combination of HAP. All other sources are “area sources.” For major sources, CAA section 112(d)(2) provides that the technology-based NESHAP must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). These standards are commonly referred to as MACT standards. CAA section 112(d)(3) also establishes a minimum control level for MACT standards, known as the MACT “floor.” The EPA must also consider control options that are more stringent than the floor. Standards more stringent than the floor are commonly referred to as beyond-the-floor standards. In certain instances, as provided in CAA section 112(h), the EPA may set work practice standards where it is not feasible to prescribe or enforce a numerical emission standard. For area sources, CAA section 112(d)(5) gives the EPA discretion to set standards based on generally available control technologies or management practices (GACT standards) in lieu of MACT standards.
The second stage in standard-setting focuses on identifying and addressing any remaining (
The approach incorporated into the CAA and used by the EPA to evaluate residual risk and to develop standards under CAA section 112(f)(2) is a two-step approach. In the first step, the EPA determines whether risks are acceptable. This determination “considers all health
CAA section 112(d)(6) separately requires the EPA to review standards promulgated under CAA section 112 and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less often than every 8 years. In conducting this review, which we call the “technology review,” the EPA is not required to recalculate the MACT floor.
The NESHAP for the Surface Coating of Metal Cans source category was promulgated on November 13, 2003 (68 FR 64432), and is codified at 40 CFR part 63, subpart KKKK. Technical corrections and clarifying amendments were promulgated on January 6, 2006 (71 FR 1386). The Surface Coating of Metal Cans NESHAP applies to the surface coating and related operations at each new, reconstructed, and existing affected source of HAP emissions at facilities that are major sources and are engaged in the surface coating of metal cans and ends (including decorative tins) and metal crowns and closures. The Surface Coating of Metal Cans NESHAP (40 CFR 63.3561) defines a “metal can” as “a single-walled container manufactured from metal substrate equal to or thinner than 0.3785 mm (0.0149 inch)” and includes coating operations for the four following subcategories:
• One- and two-piece draw and iron can body coating—includes one-piece aerosol cans, defined as an “aerosol can formed by the draw and iron process to which no ends are attached and a valve is placed directly on top” and two-piece draw and iron cans, defined as a “steel or aluminum can manufactured by the draw and iron process.” These include two-piece beverage cans manufactured to contain drinkable liquids, such as beer, soft drinks, or fruit juices, and two-piece food cans designed to contain edible products other than beverages and to be hermetically sealed.
• Sheetcoating—includes all the flat metal sheetcoating operations associated with the manufacture of three-piece cans, decorative tins, crowns, and closures.
• Three-piece can body assembly coating—includes three-piece aerosol cans, defined as a “steel aerosol can formed by the three-piece can assembly process manufactured to contain food or nonfood products,” and three-piece food cans, defined as a “steel can formed by the three-piece can assembly process manufactured to contain edible products and designed to be hermetically sealed.”
• End coating—includes the application of end seal compounds and repair spray coatings to metal can ends and includes three distinct coating type segments reflecting different end uses: Aseptic end seal compounds, non-aseptic end seal compounds, and repair spray coatings.
The Surface Coating of Metal Cans NESHAP defines a “decorative tin” as “a single-walled container, designed to be covered or uncovered that is manufactured from metal substrate equal to or thinner than 0.3785 mm (0.0149 inch) and is normally coated on the exterior surface with decorative coatings. Decorative tins may contain foods but are not hermetically sealed and are not subject to food processing steps such as retort or pasteurization. Interior coatings are not usually applied to protect the metal and contents from chemical interaction.”
The Surface Coating of Metal Cans NESHAP also defines a “coating” as “a material that is applied to a substrate for decorative, protective, or functional purposes. Such materials include, but are not limited to, paints, sealants, caulks, inks, adhesives, and maskants.” Fusion pastes, ink jet markings, mist solutions, and lubricants, as well as decorative, protective, or functional materials that consist only of protective oils for metals, acids, bases, or any combination of these substances, are not considered coatings under 40 CFR part 63, subpart KKKK.
Based on our search of the National Emission Inventory (NEI) (
The primary HAP emitted from metal can surface coating operations are organic HAP and include glycol ethers, formaldehyde, xylenes, toluene, methyl isobutyl ketone, 2-(hexyloxy) ethanol, ethyl benzene, and methanol. These HAP account for 99 percent of the HAP emissions from the source category. The HAP emissions from the metal cans category occur from coating application lines, drying and curing ovens, mixing and thinning areas, and cleaning of equipment. The coating application lines and the drying and curing ovens are the largest sources of HAP emissions. The coating application lines apply an exterior base coat to two- and three-piece cans using a lithographic/printing (
Inorganic HAP emissions were considered in the development of the Surface Coating of Metal Cans NESHAP. Inorganic HAP, including chromium and manganese compounds, are contained in some of the coatings used by this source category. However, the EPA determined that no controls were needed because the coatings used that may contain inorganic HAP were not spray applied. Instead, these coatings were roll applied through direct contact (similar to lithographic printing) with the surface to which they were being applied, and the inorganic HAP became part of the cured coating.
We estimated that the Surface Coating of Metal Cans NESHAP requirements would reduce the emissions of organic HAP from the source category by 71 percent or 6,800 tpy (68 FR 2110, January 15, 2003). This estimate included two HAP that were since delisted. The delisting of ethylene glycol monobutyl ether occurred in 2004, and the delisting of methyl ethyl ketone occurred in 2005.
The NESHAP specifies numerical emission limits for existing sources and for new and reconstructed sources for organic HAP emissions according to four can coating subcategories. The organic HAP emission limits for existing sources conducting: (1) One- and two-piece draw and iron can body coating (includes two-piece beverage cans, two-piece food cans, and one-piece aerosol cans) ranges from 0.07 to 0.12 kilogram (kg) HAP/liter of coating solids (or 0.59 to 0.99 pound/gallon (lb/gal)); (2) sheet coating is 0.03 kg HAP/liter of coating solids (or 0.26 lb/gal); (3) three piece can assembly (includes inside spray, aseptic, and non-aseptic side seam stripes on food cans, side seam stripes on general line non-food cans, and side seam stripes on aerosol cans) ranges from 0.29 to 1.94 kg HAP/liter of coating solids (or 2.43 to 16.16 lb/gal); and (4) end coating (includes aseptic and non-aseptic end seal compounds and repair spray coatings) ranges from zero to 2.06 kg HAP/liter of coating solids (or zero to 17.17 lb/gal). The organic HAP emission limits for new and reconstructed sources conducting: (1) One and two-piece draw and iron can body coating ranges from 0.04 to 0.08 kg HAP/liter of coating solids (or 0.31 to 0.65 lb/gal); (2) sheet coating is 0.02 kg HAP/liter of coating solids (or 0.17 lb/gal); (3) three piece can assembly ranges from 0.12 to 1.48 kg HAP/liter of coating solids (or 1.03 to 12.37 lb/gal); and (4) end coating ranges from zero to 0.64 kg HAP/liter of coating solids (or zero to 5.34 lb/gal). The specific organic HAP emission limits for each can coating subcategory are listed in Table 3 of the memorandum titled
Compliance with the Surface Coating of Metal Cans NESHAP emission limits can be achieved using several different options, including a compliant material option, an emission rate without add-on controls option (averaging option), an emission rate with add-on controls option, or a control efficiency/outlet concentration. For any coating operation(s) on which the facility uses the compliant material option or the emission rate without add-on controls option, the facility is not required to meet any work practice standards.
If the facility uses the emission rate with add-on controls option, the facility must develop and implement a work practice plan to minimize organic HAP emissions from the storage, mixing, and conveying of coatings, thinners, and cleaning materials used in, and waste materials generated by, the coating operation(s) using that option. The plan must specify practices and procedures to ensure that a set of minimum work practices specified in the NESHAP are implemented. The facility must also comply with site-specific operating limits for the emission capture and control system.
The NESHAP for the Surface Coating of Metal Coil source category was promulgated on June 10, 2002 (67 FR 39794), and is codified at 40 CFR part 63, subpart SSSS. A technical correction to the final rule was published on March 17, 2003 (68 FR 12590). The Surface Coating of Metal Coil NESHAP applies to owners or operators of metal coil surface coating operations at facilities that are major sources of HAP.
The Surface Coating of Metal Coil NESHAP (40 CFR 63.5100) applies to the collection of all coil coating lines at a facility and defines a coil coating line as the process for metal coil coating that includes the web unwind or feed station, a series of one or more coating stations, associated curing ovens, wet sections, and quench stations. A coil coating line does not include ancillary operations such as mixing/thinning, cleaning, wastewater treatment, and storage of coating material. The Surface Coating of Metal Coil NESHAP (40 CFR 63.5110) defines a coil coating operation as the collection of equipment used to apply an organic coating to the surface of any continuous metal strip that is 0.006 inch (0.15 millimeter (mm)) thick or more that is packaged in a roll or coil. The Surface Coating of Metal Coil NESHAP also defines a coating material as the coating and other products (
Based on our search of the NEI and EPA's ECHO database and a review of active air emission permits, we estimate that 48 facilities are subject to the Surface Coating of Metal Coil NESHAP. A complete list of facilities we identified as subject to the Surface Coating of Metal Coil NESHAP is available in Appendix 1 to the memorandum titled
The primary HAP emitted from metal coil coating operations are organic HAP and include xylenes, glycol ethers, naphthalene, isophorone, toluene, diethylene glycol monobutyl ether (DGME), and ethyl benzene. The majority of organic HAP emissions are from the coating application and the curing ovens.
Inorganic HAP emissions were considered in the development of the Surface Coating of Metal Coil NESHAP. Based on information reported in survey responses during the development of the 2002 proposed NESHAP, inorganic HAP were present in the pigments and film-forming components of some coatings used by this source category. However, we concluded that inorganic HAP are not likely to be emitted from these sources because of the application techniques used (67 FR 46032, July 11, 2002). The data obtained from the NEI and the Toxics Release Inventory for
We estimated that the Surface Coating of Metal Coil NESHAP requirements would reduce the emissions of organic HAP from the source category by approximately 55 percent or 1,318 tpy (65 FR 44616, July 18, 2000). The NESHAP specifies numerical emission limits for organic HAP emissions from the coating application stations and associated curing ovens. The Surface Coating of Metal Coil NESHAP provides options for limiting organic HAP emissions to one of the four specified levels: (1) Use only individually compliant coatings with an organic HAP content that does not exceed 0.046 kg/liter of solids applied, (2) use coatings with an average organic HAP content of 0.046 kg/liter of solids on a rolling 12-month average, (3) use a capture system and add-on control device to either reduce emissions by 98 percent or use a 100-percent efficient capture system (permanent total enclosure (PTE)) and an oxidizer to reduce organic HAP emissions to no more than 20 parts per million by volume (ppmv) as carbon, or (4) use a combination of compliant coatings and control devices to maintain an average equivalent emission rate of organic HAP not exceeding 0.046 kg/liter of solids on a rolling 12-month average basis. These compliance options apply to an individual coil coating line, to multiple lines as a group, or to the entire affected source.
Compliant coatings must contain no organic HAP (each organic HAP that is not an Occupational Safety and Health Administration (OSHA)-defined carcinogen that is measured to be present at less than 1 percent by weight is counted as zero). The NESHAP also sets operating limits for the emission capture and add-on control devices.
For the risk modeling portion of these RTRs, the EPA used data from the 2011 and 2014 NEI. The NEI is a database that contains information about sources that emit criteria air pollutants, their precursors, and HAP. The database includes estimates of annual air pollutant emissions from point, nonpoint, and mobile sources in the 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands. The EPA collects this information and releases an updated version of the NEI database every 3 years. The NEI includes data necessary for conducting risk modeling, including annual HAP emissions estimates from individual emission points at facilities and the related emissions release parameters. We used NEI emissions and supporting data as the primary data to develop the model input files for the risk assessments for each of these three source categories. Detailed information on the development of the modeling file for the Surface Coating of Metal Cans source category can be found in Appendix 1 to the
For both the risk modeling and technology review portion of these RTRs, we also gathered data from facility construction and operating permits regarding emission points, air pollution control devices, and process operations. We collected permits and supporting documentation from state permitting authorities through state-maintained online databases. The facility permits were also used to confirm that the facilities were major sources of HAP and were subject to the NESHAP that are the subject of these risk assessments. In certain cases, we contacted industry associations and facility owners or operators to confirm and clarify the sources of emissions that were reported in the NEI. No formal information collection request (ICR) was conducted for this action.
For the technology review portion of these RTRs, we also used information from the EPA's ECHO database as a tool to identify which facilities were potentially subject to the NESHAP. The ECHO database provides integrated compliance and enforcement information for approximately 800,000 regulated facilities nationwide. Using the search feature in ECHO, the EPA identified facilities that could potentially be subject to each of these two NESHAP. We then reviewed operating permits for these facilities, when available, to confirm that they were major sources of HAP with emission sources subject to these NESHAP.
Also for the technology reviews, we collected information from the reasonably available control technology (RACT), best available control technology (BACT), and lowest achievable emission rate (LAER) determinations in the EPA's RACT/BACT/LAER Clearinghouse (RBLC).
Additional information about these data collection activities for the technology reviews is contained in the technology review memoranda titled
We also reviewed the NESHAP for other surface coating source categories that were promulgated after the Surface Coating of Metal Cans and the Surface Coating of Metal Coil NESHAP as part of the technology review for these source categories. We reviewed the regulatory requirements and/or technical analyses associated with these later regulatory actions to identify any practices, processes, and control technologies considered in those rulemakings that could be applied to emission sources in the Surface Coating of Metal Cans and the Surface Coating of Metal Coil source categories, as well as the costs, non-air impacts, and energy implications associated with the use of those technologies. We also reviewed
In this section, we describe the analyses performed to support the proposed decisions for the RTRs and other issues addressed in this proposal.
As discussed in section II.A of this preamble and in the Benzene NESHAP, in evaluating and developing standards under CAA section 112(f)(2), we apply a two-step approach to determine whether or not risks are acceptable and to determine if the standards provide an ample margin of safety to protect public health. As explained in the Benzene NESHAP, “the first step judgment on acceptability cannot be reduced to any single factor” and, thus, “[t]he Administrator believes that the acceptability of risk under section 112 is best judged on the basis of a broad set of health risk measures and information.” 54 FR 38046, September 14, 1989. Similarly, with regard to the ample margin of safety determination, “the Agency again considers all of the health risk and other health information considered in the first step. Beyond that information, additional factors relating to the appropriate level of control will also be considered, including cost and economic impacts of controls, technological feasibility, uncertainties, and any other relevant factors.”
The Benzene NESHAP approach provides flexibility regarding factors the EPA may consider in making determinations and how the EPA may weigh those factors for each source category. The EPA conducts a risk assessment that provides estimates of the MIR posed by the HAP emissions from each source in the source category, the hazard index (HI) for chronic exposures to HAP with the potential to cause noncancer health effects, and the hazard quotient (HQ) for acute exposures to HAP with the potential to cause noncancer health effects.
See 54 FR 38057, September 14, 1989. Thus, the level of the MIR is only one factor to be weighed in determining acceptability of risk. The Benzene NESHAP explained that “an MIR of approximately one in 10 thousand should ordinarily be the upper end of the range of acceptability. As risks increase above this benchmark, they become presumptively less acceptable under CAA section 112, and would be weighed with the other health risk measures and information in making an overall judgment on acceptability. Or, the Agency may find, in a particular case, that a risk that includes an MIR less than the presumptively acceptable level is unacceptable in the light of other health risk factors.”
The EPA notes that it has not considered certain health information to date in making residual risk determinations. At this time, we do not attempt to quantify the HAP risk that may be associated with emissions from other facilities that do not include the source categories under review, mobile source emissions, natural source emissions, persistent environmental pollution, or atmospheric transformation in the vicinity of the sources in the categories.
The EPA understands the potential importance of considering an individual's total exposure to HAP in addition to considering exposure to HAP emissions from the source category and facility. We recognize that such consideration may be particularly important when assessing noncancer risk, where pollutant-specific exposure health reference levels (
In response to the SAB recommendations, the EPA incorporates cumulative risk analyses into its RTR risk assessments, including those reflected in this proposal. The Agency (1) Conducts facility-wide assessments, which include source category emission points, as well as other emission points within the facilities; (2) combines exposures from multiple sources in the same category that could affect the same individuals; and (3) for some persistent and bioaccumulative pollutants, analyzes the ingestion route of exposure. In addition, the RTR risk assessments consider aggregate cancer risk from all carcinogens and aggregated noncancer HQs for all noncarcinogens affecting the same target organ or target organ system.
Although we are interested in placing source category and facility-wide HAP risk in the context of total HAP risk from all sources combined in the vicinity of each source, we are concerned about the uncertainties of doing so. Estimates of total HAP risk from emission sources other than those that we have studied in depth during this RTR review would have significantly greater associated uncertainties than the source category or facility-wide estimates. Such aggregate or cumulative assessments would compound those uncertainties, making the assessments too unreliable.
Our technology review focuses on the identification and evaluation of developments in practices, processes, and control technologies that have occurred since the MACT standards were promulgated. Where we identify such developments, we analyze their technical feasibility, estimated costs, energy implications, and non-air environmental impacts. We also consider the emission reductions associated with applying each development. This analysis informs our decision of whether it is “necessary” to revise the emissions standards. In addition, we consider the appropriateness of applying controls to new sources versus retrofitting existing sources. For this exercise, we consider any of the following to be a “development”:
• Any add-on control technology or other equipment that was not identified and considered during development of the original MACT standards;
• Any improvements in add-on control technology or other equipment (that were identified and considered during development of the original MACT standards) that could result in additional emissions reduction;
• Any work practice or operational procedure that was not identified or considered during development of the original MACT standards;
• Any process change or pollution prevention alternative that could be broadly applied to the industry and that was not identified or considered during development of the original MACT standards; and
• Any significant changes in the cost (including cost effectiveness) of applying controls (including controls the EPA considered during the development of the original MACT standards).
In addition to reviewing the practices, processes, and control technologies that were considered at the time we originally developed the NESHAP (
In this section, we provide a complete description of the types of analyses that we generally perform during the risk assessment process. In some cases, we do not perform a specific analysis because it is not relevant. For example, in the absence of emissions of HAP known to be persistent and bioaccumulative in the environment (PB-HAP), we would not perform a multipathway exposure assessment. Where we do not perform an analysis, we state that we do not and provide the reason. While we present all of our risk assessment methods, we only present risk assessment results for the analyses actually conducted (see section IV.B of this preamble).
The EPA conducts a risk assessment that provides estimates of the MIR for cancer posed by the HAP emissions from each source in the source category, the HI for chronic exposures to HAP with the potential to cause noncancer health effects, and the HQ for acute exposures to HAP with the potential to cause noncancer health effects. The assessment also provides estimates of the distribution of cancer risk within the exposed populations, cancer incidence, and an evaluation of the potential for an adverse environmental effect. The seven sections that follow this paragraph describe how we estimated emissions and conducted the risk assessments in this action. The dockets for this rulemaking contain the following documents which provide more information on the risk assessment inputs and models: Metal Cans Risk Assessment Report and the Metal Coil Risk Assessment Report. The methods used to assess risk (as described in the seven primary steps below) are consistent with those described by the EPA in the document reviewed by a panel of the EPA's SAB in 2009;
The actual emissions and the emission release characteristics for each facility were obtained primarily from either the 2011 NEI or the 2014 NEI. The 2011 version of the NEI was the most recent version available during the data collection phase of this rulemaking; therefore, most data were obtained from the 2011 NEI. The 2014 NEI was used to supplement the dataset with HAP data for emission units or processes for which the 2011 NEI included only volatile organic compounds (VOC) or particulate matter. In some cases, the industry association or the specific facilities were contacted to confirm emissions that appeared to be outliers, that were otherwise inconsistent with our understanding of the industry, or that were associated with high risk values in our initial risk screening analyses. When appropriate, emission values and release characteristics were revised based on these facility contacts, and these changes were documented. Additional information on the development of the modeling file for each source category, including the development of the actual emissions estimates and emissions release characteristics, can be found in Appendix 1 to the
The available emissions data in the RTR emissions dataset include estimates of the mass of HAP emitted during a specified annual time period. These “actual” emission levels are often lower than the emission levels allowed under the requirements of the current MACT standards. The emissions allowed under the MACT standards are referred to as the “MACT-allowable” emissions. We discussed the consideration of both MACT-allowable and actual emissions in the final Coke Oven Batteries RTR (70 FR 19998-19999, April 15, 2005) and in the proposed and final Hazardous Organic NESHAP RTRs (71 FR 34428, June 14, 2006, and 71 FR 76609, December 21, 2006, respectively). In those actions, we noted that assessing the risk at the MACT-allowable level is inherently reasonable since that risk reflects the maximum level facilities could emit and still comply with national emission standards. We also explained that it is reasonable to consider actual emissions, where such data are available, in both steps of the risk analysis, in accordance with the Benzene NESHAP approach. (54 FR 38044, September 14, 1989.)
For both the Surface Coating of Metal Cans and the Surface Coating of Metal Coil source categories, the EPA calculated allowable emissions by developing source category-specific multipliers of 1.1 that was applied to the current emissions for each category to estimate the allowable emissions. The multipliers were based on information obtained from the facility operating permits and the add-on control device control efficiencies for metal can and metal coil coating operations. Both categories have facilities that employ the use of add-on controls with efficiencies that are slightly above the control efficiency level required by the respective NESHAP, which suggests that the actual emissions are slightly lower than the NESHAP allowable levels.
For more details on how the EPA estimated the MACT allowable emissions for the Surface Coating of Metal Cans source category, please see Appendix 1 to the
Both long-term and short-term inhalation exposure concentrations and health risk from the source categories addressed in this proposal were estimated using the Human Exposure Model (HEM-3).
The air dispersion model AERMOD, used by the HEM-3 model, is one of the EPA's preferred models for assessing air pollutant concentrations from industrial facilities.
In developing the risk assessment for chronic exposures, we use the estimated annual average ambient air concentrations of each HAP emitted by each source in the source categories. The HAP air concentrations at each nearby census block centroid located within 50 km of the facility are a surrogate for the chronic inhalation exposure concentration for all the people who reside in that census block. A distance of 50 km is consistent with both the analysis supporting the 1989 Benzene NESHAP (54 FR 38044, September 14, 1989) and the limitations of Gaussian dispersion models, including AERMOD.
For each facility, we calculate the MIR as the cancer risk associated with a continuous lifetime (24 hours per day, 7 days per week, 52 weeks per year, 70 years) exposure to the maximum concentration at the centroid of each inhabited census block. We calculate individual cancer risk by multiplying the estimated lifetime exposure to the ambient concentration of each HAP (in micrograms per cubic meter (μg/m
To estimate individual lifetime cancer risks associated with exposure to HAP emissions from each facility in the source category, we sum the risks for each of the carcinogenic HAP
To assess the risk of noncancer health effects from chronic exposure to HAP, we calculate either an HQ or a target organ-specific hazard index (TOSHI). We calculate an HQ when a single noncancer HAP is emitted. Where more than one noncancer HAP is emitted, we sum the HQ for each of the HAP that affects a common target organ or target organ system to obtain a TOSHI. The HQ is the estimated exposure divided by the chronic noncancer dose-response value, which is a value selected from one of several sources. The preferred chronic noncancer dose-response value is the EPA RfC, defined as “an estimate (with uncertainty spanning perhaps an order of magnitude) of a continuous inhalation exposure to the human population (including sensitive subgroups) that is likely to be without an appreciable risk of deleterious effects during a lifetime” (
For each HAP for which appropriate acute inhalation dose-response values are available, the EPA also assesses the potential health risks due to acute exposure. For these assessments, the EPA makes conservative assumptions about emission rates, meteorology, and exposure location. We use the peak hourly emission rate,
To characterize the potential health risks associated with estimated acute inhalation exposures to a HAP, we generally use multiple acute dose-response values, including acute RELs, acute exposure guideline levels (AEGLs), and emergency response planning guidelines (ERPG) for 1-hour exposure durations, if available, to calculate acute HQs. The acute HQ is calculated by dividing the estimated acute exposure by the acute dose-response value. For each HAP for which acute dose-response values are available, the EPA calculates acute HQs.
An acute REL is defined as “the concentration level at or below which no adverse health effects are anticipated for a specified exposure duration.”
ERPGs are “developed for emergency planning and are intended as health-based guideline concentrations for single exposures to chemicals.”
An acute REL for 1-hour exposure durations is typically lower than its corresponding AEGL-1 and ERPG-1. Even though their definitions are slightly different, AEGL-1s are often the same as the corresponding ERPG-1s, and AEGL-2s are often equal to ERPG-2s. The maximum HQs from our acute inhalation screening risk assessment typically result when we use the acute REL for a HAP. In cases where the maximum acute HQ exceeds 1, we also report the HQ based on the next highest acute dose-response value (usually the AEGL-1 and/or the ERPG-1).
For these source categories, we did not have short term emissions data; therefore, we developed source category-specific factors based on information about each industry. We request comment on our assumptions regarding hour-to-hour variation in emissions and our methods of calculating the multiplier for estimating the peak 1-hour emissions for each source category and any additional information that could help refine our approach.
The Surface Coating of Metal Cans source category process is a continuous (non-batch) coating application and curing process that results in consistent emission rates. The sources in this category primarily roll-apply coatings onto the surface of the metal cans. The sources employ the use of various compliance options, which include the use of compliant coatings, coatings when averaged meet the emission limits, and for facilities that cannot use these options, they employ the use of add-on controls. We expect that the hourly variations in emissions from these processes during routine operations to be minimal. Thus, applying the default emission factor of 10 to estimate the worst-case hourly emission rate is not reasonable for this category. We expect that minimal variations in emissions occur due to variations in the organic HAP content of the coatings. We calculated acute emissions by developing a source category-specific multiplier of 1.1 that was applied to the actual annual emissions, which were then divided by the total number of hours in a year (8,760 hours). A further discussion of why this factor was chosen can be found in Appendix 1 to the Metal Cans Risk Assessment Report in the Metal Cans Docket.
Similarly, for the Surface Coating of Metal Coil source category, we expect to see minimal hour-to-hour variation in emissions during routine operations because coil coating operations roll-apply coating onto a moving metal strip (coil) in a continuous coating process. The coil ends are seamed together in a continuous (non-batch) process that achieves a consistent emission rate. Thus, the default emission factor of 10 to estimate the worst-case hourly emission rate is not reasonable for this category. We expect that minimal variation in emissions occur due to variations in the organic HAP content of the coatings from batch to batch. We calculated acute emissions by developing a source category-specific multiplier of 1.1 that was applied to the actual annual emissions, which were then divided by the total number of hours in a year (8,760 hours). A further discussion of why this factor was chosen can be found in Appendix 1 to the Metal Coil Risk Assessment Report in the Metal Coil Docket.
In our acute inhalation screening risk assessment, acute impacts are deemed negligible for HAP for which acute HQs are less than or equal to 1 (even under the conservative assumptions of the screening assessment), and no further analysis is performed for these HAP. In cases where an acute HQ from the screening step is greater than 1, we consider additional site-specific data to develop a more refined estimate of the potential for acute exposures of concern. For both source categories in this action, the data refinements employed consisted of plotting the HEM-3 polar grid results for each HAP with an acute HQ value greater than 1 on aerial photographs of the facilities. We then assessed whether the highest acute HQs were off-site and at locations that may be accessible to the public (
The EPA conducts a tiered screening assessment examining the potential for significant human health risks due to exposures via routes other than inhalation (
For the Surface Coating of Metal Cans source category, we did not identify emissions of any PB-HAP. Because we did not identify PB-HAP emissions, no further evaluation of multipathway risk was conducted for this source category. For the Surface Coating of Metal Coil source category, we identified PB-HAP emissions of lead, so we proceeded to the next step of the evaluation. In this
We derive the Tier 1 screening threshold emission rates for these PB-HAP (other than lead compounds) to correspond to a maximum excess lifetime cancer risk of 1-in-1 million (
In the Tier 2 screening assessment, the location of each facility that exceeds a Tier 1 screening threshold emission rate is used to refine the assumptions associated with the Tier 1 fisher and farmer exposure scenarios at that facility. A key assumption in the Tier 1 screening assessment is that a lake and/or farm is located near the facility. As part of the Tier 2 screening assessment, we use a U.S. Geological Survey (USGS) database to identify actual waterbodies within 50 km of each facility. We also examine the differences between local meteorology near the facility and the meteorology used in the Tier 1 screening assessment. We then adjust the previously-developed Tier 1 screening threshold emission rates for each PB-HAP for each facility based on an understanding of how exposure concentrations estimated for the screening scenario change with the use of local meteorology and USGS waterbody data. If the PB-HAP emission rates for a facility exceed the Tier 2 screening threshold emission rates and data are available, we may conduct a Tier 3 screening assessment. If PB-HAP emission rates do not exceed a Tier 2 screening value of 1, we consider those PB-HAP emissions to pose risks below a level of concern.
There are several analyses that can be included in a Tier 3 screening assessment, depending upon the extent of refinement warranted, including validating that the lakes are fishable, considering plume-rise to estimate emissions lost above the mixing layer, and considering hourly effects of meteorology and plume rise on chemical fate and transport. If the Tier 3 screening assessment indicates that risks above levels of concern cannot be ruled out, the EPA may further refine the screening assessment through a site-specific assessment.
In evaluating the potential multipathway risk from emissions of lead compounds, rather than developing a screening threshold emission rate, we compare maximum estimated chronic inhalation exposure concentrations to the level of the current National Ambient Air Quality Standards (NAAQS) for lead.
For further information on the multipathway assessment approach, see the Metal Coil Risk Assessment Report, which is available in the Metal Coil docket for this action.
The EPA conducts a screening assessment to examine the potential for an adverse environmental effect as required under section 112(f)(2)(A) of the CAA. Section 112(a)(7) of the CAA defines “adverse environmental effect” as “any significant and widespread adverse effect, which may reasonably be anticipated, to wildlife, aquatic life, or other natural resources, including adverse impacts on populations of endangered or threatened species or significant degradation of environmental quality over broad areas.”
The EPA focuses on eight HAP, which are referred to as “environmental HAP,” in its screening assessment: Six PB-HAP and two acid gases. The PB-HAP included in the screening assessment are arsenic compounds, cadmium compounds, dioxins/furans, (POM, mercury (both inorganic mercury and methyl mercury), and lead compounds. The acid gases included in the screening assessment are hydrochloric acid (HCl) and hydrogen fluoride (HF).
HAP that persist and bioaccumulate are of particular environmental concern because they accumulate in the soil, sediment, and water. The acid gases, HCl and HF, are included due to their well-documented potential to cause direct damage to terrestrial plants. In the environmental risk screening assessment, we evaluate the following four exposure media: Terrestrial soils, surface water bodies (includes water-column and benthic sediments), fish consumed by wildlife, and air. Within these four exposure media, we evaluate nine ecological assessment endpoints, which are defined by the ecological entity and its attributes. For PB-HAP (other than lead), both community-level and population-level endpoints are included. For acid gases, the ecological assessment evaluated is terrestrial plant communities.
An ecological benchmark represents a concentration of HAP that has been linked to a particular environmental effect level. For each environmental HAP, we identified the available ecological benchmarks for each assessment endpoint. We identified, where possible, ecological benchmarks at the following effect levels: Probable effect levels, lowest-observed-adverse-
For further information on how the environmental risk screening assessment was conducted, including a discussion of the risk metrics used, how the environmental HAP were identified, and how the ecological benchmarks were selected, see Appendix 9 of the
For the environmental risk screening assessment, the EPA first determined whether any facilities in the Surface Coating of Metal Cans and Surface Coating of Metal Coil source categories emitted any of the environmental HAP. For the Surface Coating of Metal Cans source category, we identified emissions of HCl and HF. For the Surface Coating of Metal Coil source category, we identified emissions of HF and lead.
Because one or more of the environmental HAP evaluated are emitted by at least one facility in the source categories, we proceeded to the second step of the evaluation for both the Surface Coating of Metal Cans and the Surface Coating of Metal Coil source categories.
The environmental screening assessment includes six PB-HAP: Arsenic compounds, cadmium compounds, dioxins/furans, POM, mercury (both inorganic mercury and methyl mercury), and lead compounds. With the exception of lead, the environmental risk screening assessment for PB-HAP consists of three tiers. The first tier of the environmental risk screening assessment uses the same health-protective conceptual model that is used for the Tier 1 human health screening assessment. TRIM.FaTE model simulations were used to back-calculate Tier 1 screening threshold emission rates. The screening threshold emission rates represent the emission rate in tons per year that results in media concentrations at the facility that equal the relevant ecological benchmark. To assess emissions from each facility in the category, the reported emission rate for each PB-HAP was compared to the Tier 1 screening threshold emission rate for that PB-HAP for each assessment endpoint and effect level. If emissions from a facility do not exceed the Tier 1 screening threshold emission rate, the facility “passes” the screening assessment, and, therefore, is not evaluated further under the screening approach. If emissions from a facility exceed the Tier 1 screening threshold emission rate, we evaluate the facility further in Tier 2.
In Tier 2 of the environmental screening assessment, the screening threshold emission rates are adjusted to account for local meteorology and the actual location of lakes in the vicinity of facilities that did not pass the Tier 1 screening assessment. For soils, we evaluate the average soil concentration for all soil parcels within a 7.5-km radius for each facility and PB-HAP. For the water, sediment, and fish tissue concentrations, the highest value for each facility for each pollutant is used. If emission concentrations from a facility do not exceed the Tier 2 screening threshold emission rate, the facility “passes” the screening assessment and typically is not evaluated further. If emissions from a facility exceed the Tier 2 screening threshold emission rate, we evaluate the facility further in Tier 3.
As in the multipathway human health risk assessment, in Tier 3 of the environmental screening assessment, we examine the suitability of the lakes around the facilities to support life and remove those that are not suitable (
To evaluate the potential for an adverse environmental effect from lead, we compared the average modeled air concentrations (from HEM-3) of lead around each facility in the source category to the level of the secondary NAAQS for lead. The secondary lead NAAQS is a reasonable means of evaluating environmental risk because it is set to provide substantial protection against adverse welfare effects which can include “effects on soils, water, crops, vegetation, man-made materials, animals, wildlife, weather, visibility and climate, damage to and deterioration of property, and hazards to transportation, as well as effects on economic values and on personal comfort and well-being.”
The environmental screening assessment for acid gases evaluates the potential phytotoxicity and reduced productivity of plants due to chronic exposure to HF and HCl. The environmental risk screening methodology for acid gases is a single-tier screening assessment that compares modeled ambient air concentrations (from AERMOD) to the ecological benchmarks for each acid gas. To identify a potential adverse environmental effect (as defined in section 112(a)(7) of the CAA) from emissions of HF and HCl, we evaluate the following metrics: The size of the modeled area around each facility that exceeds the ecological benchmark for each acid gas, in acres and km
To put the source category risks in context, we typically examine the risks from the entire “facility,” where the facility includes all HAP-emitting operations within a contiguous area and under common control. In other words, we examine the HAP emissions not only from the source category emission points of interest, but also emissions of HAP from all other emission sources at the facility for which we have data. For these source categories, we conducted the facility-wide assessment using a dataset compiled from the 2014 NEI. The source category records of that NEI dataset were removed, evaluated, and updated as described in section II.C of this preamble: “What data collection activities were conducted to support this action?” Once a quality assured source category dataset was available, it was placed back with the remaining records from the NEI for that facility.
Uncertainty and the potential for bias are inherent in all risk assessments, including those performed for this proposal. Although uncertainty exists, we believe that our approach, which used conservative tools and assumptions, ensures that our decisions are health and environmentally protective. A brief discussion of the uncertainties in the RTR emissions datasets, dispersion modeling, inhalation exposure estimates, and dose-response relationships follows below. Also included are those uncertainties specific to our acute screening assessments, multipathway screening assessments, and our environmental risk screening assessments. A more thorough discussion of these uncertainties is included in the
Although the development of the RTR emissions datasets involved quality assurance/quality control processes, the accuracy of emissions values will vary depending on the source of the data, the degree to which data are incomplete or missing, the degree to which assumptions made to complete the datasets are accurate, errors in emission estimates, and other factors. The emission estimates considered in this analysis generally are annual totals for certain years, and they do not reflect short-term fluctuations during the course of a year or variations from year to year. The estimates of peak hourly emission rates for the acute effects screening assessment were based on an emission adjustment factor applied to the average annual hourly emission rates, which are intended to account for emission fluctuations due to normal facility operations.
We recognize there is uncertainty in ambient concentration estimates associated with any model, including the EPA's recommended regulatory dispersion model, AERMOD. In using a model to estimate ambient pollutant concentrations, the user chooses certain options to apply. For RTR assessments, we select some model options that have the potential to overestimate ambient air concentrations (
Although every effort is made to identify all of the relevant facilities and emission points, as well as to develop accurate estimates of the annual emission rates for all relevant HAP, the uncertainties in our emission inventory likely dominate the uncertainties in the exposure assessment. Some uncertainties in our exposure assessment include human mobility, using the centroid of each census block, assuming lifetime exposure, and assuming only outdoor exposures. For most of these factors, there is neither an under nor overestimate when looking at the maximum individual risk or the incidence, but the shape of the distribution of risks may be affected. With respect to outdoor exposures, actual exposures may not be as high if people spend time indoors, especially for very reactive pollutants or larger particles. For all factors, we reduce uncertainty when possible. For example, with respect to census-block centroids, we analyze large blocks using aerial imagery and adjust locations of the block centroids to better represent the population in the blocks. We also add additional receptor locations where the population of a block is not well represented by a single location.
There are uncertainties inherent in the development of the dose-response values used in our risk assessments for cancer effects from chronic exposures and noncancer effects from both chronic and acute exposures. Some uncertainties are generally expressed quantitatively, and others are generally expressed in qualitative terms. We note, as a preface to this discussion, a point on dose-response uncertainty that is stated in the EPA's
Cancer UREs used in our risk assessments are those that have been developed to generally provide an upper bound estimate of risk.
Many of the UFs used to account for variability and uncertainty in the development of acute dose-response values are quite similar to those developed for chronic durations. Additional adjustments are often applied to account for uncertainty in extrapolation from observations at one exposure duration (
Uncertainty also exists in the selection of ecological benchmarks for the environmental risk screening assessment. We established a hierarchy of preferred benchmark sources to allow selection of benchmarks for each environmental HAP at each ecological assessment endpoint. We searched for benchmarks for three effect levels (
Although we make every effort to identify appropriate human health effect dose-response values for all pollutants emitted by the sources in this risk assessment, some HAP emitted by this source category are lacking dose-response assessments. Accordingly, these pollutants cannot be included in the quantitative risk assessment, which could result in quantitative estimates understating HAP risk. To help to alleviate this potential underestimate, where we conclude similarity with a HAP for which a dose-response value is available, we use that value as a surrogate for the assessment of the HAP for which no value is available. To the extent use of surrogates indicates appreciable risk, we may identify a need to increase priority for an IRIS assessment for that substance. We additionally note that, generally speaking, HAP of greatest concern due to environmental exposures and hazard are those for which dose-response assessments have been performed, reducing the likelihood of understating risk. Further, HAP not included in the quantitative assessment are assessed qualitatively and considered in the risk characterization that informs the risk management decisions, including consideration of HAP reductions achieved by various control options.
For a group of compounds that are unspeciated (
In addition to the uncertainties highlighted above, there are several factors specific to the acute exposure assessment that the EPA conducts as part of the risk review under section 112 of the CAA. The accuracy of an acute inhalation exposure assessment depends on the simultaneous occurrence of independent factors that may vary greatly, such as hourly emissions rates, meteorology, and the presence of humans at the location of the maximum concentration. In the acute screening assessment that we conduct under the RTR program, we assume that peak emissions from the source category and worst-case meteorological conditions co-occur, thus, resulting in maximum ambient concentrations. These two events are unlikely to occur at the same time, making these assumptions conservative. We then include the additional assumption that a person is located at this point during this same time period. For these source categories, these assumptions would tend to be worst-case actual exposures as it is unlikely that a person would be located at the point of maximum exposure during the time when peak emissions and worst-case meteorological conditions occur simultaneously.
For each source category, we generally rely on site-specific levels of PB-HAP or environmental HAP emissions to determine whether a refined assessment of the impacts from multipathway exposures is necessary or whether it is necessary to perform an environmental screening assessment. This determination is based on the results of a three-tiered screening assessment that relies on the outputs from models—TRIM.FaTE and AERMOD—that estimate environmental pollutant concentrations and human exposures for five PB-HAP (dioxins, POM, mercury, cadmium, and arsenic) and two acid gases (HF and HCl). For lead, we use AERMOD to determine ambient air concentrations, which are then compared to the secondary NAAQS standard for lead. Two important types of uncertainty associated with the use of these models in RTR risk assessments and inherent to any assessment that relies on environmental modeling are model uncertainty and input uncertainty.
Model uncertainty concerns whether the model adequately represents the actual processes (
Input uncertainty is concerned with how accurately the models have been configured and parameterized for the assessment at hand. For Tier 1 of the multipathway and environmental
In Tier 2 of the multipathway and environmental screening assessments, we refine the model inputs to account for meteorological patterns in the vicinity of the facility versus using upper-end national values, and we identify the actual location of lakes near the facility rather than the default lake location that we apply in Tier 1. By refining the screening approach in Tier 2 to account for local geographical and meteorological data, we decrease the likelihood that concentrations in environmental media are overestimated, thereby increasing the usefulness of the screening assessment. In Tier 3 of the screening assessments, we refine the model inputs again to account for hour-by-hour plume rise and the height of the mixing layer. We can also use those hour-by-hour meteorological data in a TRIM.FaTE run using the screening configuration corresponding to the lake location. These refinements produce a more accurate estimate of chemical concentrations in the media of interest, thereby reducing the uncertainty with those estimates. The assumptions and the associated uncertainties regarding the selected ingestion exposure scenario are the same for all three tiers.
For the environmental screening assessment for acid gases, we employ a single-tiered approach. We use the modeled air concentrations and compare those with ecological benchmarks.
For all tiers of the multipathway and environmental screening assessments, our approach to addressing model input uncertainty is generally cautious. We choose model inputs from the upper end of the range of possible values for the influential parameters used in the models, and we assume that the exposed individual exhibits ingestion behavior that would lead to a high total exposure. This approach reduces the likelihood of not identifying high risks for adverse impacts.
Despite the uncertainties, when individual pollutants or facilities do not exceed screening threshold emission rates (
The EPA evaluates the following HAP in the multipathway and/or environmental risk screening assessments, where applicable: Arsenic, cadmium, dioxins/furans, lead, mercury (both inorganic and methyl mercury), POM, HCl, and HF. These HAP represent pollutants that can cause adverse impacts either through direct exposure to HAP in the air or through exposure to HAP that are deposited from the air onto soils and surface waters and then through the environment into the food web. These HAP represent those HAP for which we can conduct a meaningful multipathway or environmental screening risk assessment. For other HAP not included in our screening assessments, the model has not been parameterized such that it can be used for that purpose. In some cases, depending on the HAP, we may not have appropriate multipathway models that allow us to predict the concentration of that pollutant. The EPA acknowledges that other HAP beyond these that we are evaluating may have the potential to cause adverse effects and, therefore, the EPA may evaluate other relevant HAP in the future, as modeling science and resources allow.
As described in section III of this preamble, for the Surface Coating of Metal Cans source category, we conducted a risk assessment for all HAP emitted. We present results of the risk assessment briefly below and in more detail in the
Table 2 of this preamble summarizes the results of the inhalation risk assessment for the source category. As discussed in section III.C.2 of this preamble, we set MACT-allowable HAP emission levels at metal can coating facilities equal to 1.1 times actual emissions. For more detail about the MACT-allowable emission levels, see Appendix 1 to the
The results of the inhalation risk modeling using actual emissions data, as shown in Table 2 of this preamble, indicate that the maximum individual cancer risk based on actual emissions (lifetime) could be up to 3-in-1 million (driven by formaldehyde from a two-piece can coating line), the maximum chronic noncancer TOSHI value based on actual emissions could be up to 0.02 (driven by formaldehyde from a two-piece can coating line), and the maximum screening acute noncancer HQ value (off-facility site) could be up to 0.4 (driven by formaldehyde). The total estimated annual cancer incidence (national) from these facilities based on actual emission levels is 0.0009 excess
Table 2 of this preamble shows the acute risk results for the Surface Coating of Metal Cans source category. The screening analysis for acute impacts was based on an industry specific multiplier of 1.1, to estimate the peak emission rates from the average rates. For more detailed acute risk results, refer to the
There are no PB-HAP emitted by facilities in the Surface Coating of Metal Cans source category. Therefore, we do not expect any human health multipathway risks as a result of emissions from this source category.
The emissions data for the Surface Coating of Metal Cans source category indicate that two environmental HAP are emitted by sources within this source category: HCl and HF. Therefore, we conducted a screening-level evaluation of the potential for adverse environmental risks associated with emissions of HCl and HF for the Surface Coating of Metal Cans source category. For both HCl and HF, each individual concentration (
Three facilities have a facility-wide cancer MIR greater than or equal to 1-in-1 million. The maximum facility-wide cancer MIR is 8-in-1 million, driven by formaldehyde from miscellaneous industrial processes (other/not classified) and acetaldehyde from beer production (brew kettle). The total estimated cancer incidence from the whole facility is 0.002 excess cancer cases per year, or one excess case in every 500 years. Approximately 1,500 people were estimated to have cancer risks above 1-in-1 million from exposure to HAP emitted from both MACT and non-MACT sources at three of the five facilities in this source category. The maximum facility-wide TOSHI for the source category is estimated to be less than 1, mainly driven by emissions of acetaldehyde from beer production (brew kettle primarily) and formaldehyde from miscellaneous industrial processes (other/not classified).
To examine the potential for any environmental justice issues that might be associated with the source category, we performed a demographic analysis, which is an assessment of risks to individual demographic groups of the populations living within 5 km and within 50 km of the facilities. In the analysis, we evaluated the distribution of HAP-related cancer and noncancer risk from the Surface Coating of Metal Cans source category across different demographic groups within the populations living near facilities.
The results of the demographic analysis are summarized in Table 3 of this preamble. These results, for various demographic groups, are based on the estimated risk from actual emissions levels for the population living within 50 km of the facilities.
The results of the Surface Coating of Metal Cans source category demographic analysis indicate that emissions from the source category expose approximately 700 people to a cancer risk at or above 1-in-1 million and no one to a chronic noncancer TOSHI greater than 1 (we note that many of those in the first risk group are
The methodology and the results of the demographic analysis are presented in a technical report titled
As noted in section III.A of this preamble, we weigh all health risk factors in our risk acceptability determination, including the cancer MIR, the number of persons in various cancer and noncancer risk ranges, cancer incidence, the maximum noncancer TOSHI, the maximum acute noncancer HQ, the extent of noncancer risks, the distribution of cancer and noncancer risks in the exposed population, and risk estimation uncertainties (54 FR 38044, September 14, 1989).
For the Surface Coating of Metal Cans source category, the risk analysis indicates that the cancer risks to the individual most exposed could be up to 3-in-1 million due to actual emissions or based on allowable emissions. These risks are considerably less than 100-in-1 million, which is the presumptive upper limit of acceptable risk. The risk analysis also shows very low cancer incidence (0.0009 cases per year for actual emissions and 0.001 cases per year for allowable emissions) and we did not identify potential for adverse chronic noncancer health effects. The acute noncancer risks based on actual emissions are low at an HQ of 0.4 for formaldehyde. Therefore, we find there is little potential concern of acute noncancer health impacts from actual emissions. In addition, the risk assessment indicates no significant potential for multipathway health effects.
Considering all the health risk information and factors discussed above, including the uncertainties discussed in section III.C.7 of this preamble, we propose to find that the risks from the Surface Coating of Metal Cans source category are acceptable.
Although we are proposing that the risks from the Surface Coating of Metal Cans source category are acceptable, risk estimates for approximately 700 individuals in the exposed population are above 1-in-1 million at the actual emissions level and 800 individuals at the allowable emissions level. Consequently, we further considered whether the MACT standards for the Surface Coating of Metal Cans source category provide an ample margin of safety to protect public health. In this ample margin of safety analysis, we investigated available emissions control options that might reduce the risk from the source category. We considered this information along with all the health risks and other health information considered in our determination of risk acceptability.
As described in section III.B of this preamble, our technology review focused on identifying developments in practices, processes, and control technologies for the Surface Coating of Metal Cans source category, and the EPA reviewed various information sources regarding emission sources that are currently regulated by the Surface Coating of Metal Cans NESHAP.
The only development identified in the technology review for can coating is the ongoing development and the potential future conversion from conventional interior can coatings that contain bisphenol A (BPA) to interior coatings that do not intentionally contain BPA (BPA-NI). Since BPA and BPA-NI are not HAP, this change would have no effect on the HAP emissions. There were no other technological developments identified that affect HAP emissions for the Surface Coating of Metal Cans source category. Therefore, we are proposing that additional emission controls for this source category are not necessary to provide an ample margin of safety.
The emissions data for the Surface Coating of Metal Cans source category indicate that two environmental HAP are emitted by sources within this source category: HCl and HF. The screening-level evaluation of the potential for adverse environmental risks associated with emissions of HCl and HF from the Surface Coating of Metal Cans source category indicated that each individual concentration (
As described in section III.B of this preamble, our technology review focused on identifying developments in practices, processes, and control technologies for the Surface Coating of Metal Cans source category. The EPA reviewed various information sources regarding emission sources that are currently regulated by the Surface Coating of Metal Cans NESHAP to support the technology review. The information sources included the following: The RBLC; state regulations, facility operating permits, regulatory actions (including technology reviews promulgated for other surface coating NESHAP subsequent to the Surface Coating of Metal Cans NESHAP); a site visit and discussions with individual can coating facilities and the industry trade association. The primary emission sources for the technology review included the following: The coating operations; all storage containers and mixing vessels in which coatings, thinners, and cleaning materials are stored or mixed; all manual and automated equipment and containers used for conveying coatings, thinners, and cleaning materials; and all storage containers and all manual and automated equipment and containers used for conveying waste materials generated by a coating operation.
Based on our review, we did not identify any add-on control technologies, process equipment, work practices, or procedures that had not been previously considered during development of the Surface Coating of Metal Cans NESHAP, and we did not identify any new or improved add-on control technologies that would result in additional emission reductions. A brief summary of the EPA's findings in conducting the technology review of can coating operations follows. For a detailed discussion of the EPA's findings, refer to the Metal Cans Technology Review Memorandum in the Metal Cans Docket.
During the 2003 MACT development for the Surface Coating of Metal Cans NESHAP, numerical emission limits were determined for each coating type segment within the four subcategories for a total of 12 HAP emission limits. The emission limits were based on industry survey responses and the
For this technology review, we used the EPA's NEI and the ECHO databases to identify facilities that are currently subject to the Surface Coating of Metal Cans NESHAP. The facility list was also reviewed by the Can Manufacturers Institute (CMI). CMI provided facility operating permits to confirm that only five facilities are currently operating as major sources and are subject to the Surface Coating of Metal Cans NESHAP.
Our search of the RBLC database for improvements in can coating technologies provided results for four metal can coating facilities with permit dates of 2006 or later. All four of the results contained information about the add-on controls used by the facilities. Two facilities reported the use of regenerative thermal oxidizers (RTOs), one reported the use of an induction heater and catalytic oxidation, and one reported the use of thermal oxidation. All of these control technologies were in use by the can coating industry during development of the Surface Coating of Metal Cans NESHAP and were already considered in the development of the Surface Coating of Metal Cans NESHAP. Therefore, we concluded that the results of the search are consistent with current Surface Coating of Metal Cans NESHAP requirements and did not include any improvements in add-on control technology or other equipment that were not identified and considered at that time.
We also conducted a review of the state operating permits for the can coating facilities that are subject to the Surface Coating of Metal Cans NESHAP to determine whether any are using technologies that exceed the MACT level of control or are using technologies that were not considered during the development of the original NESHAP. The permits show that two of the five facilities use no add-on controls (they use the compliant material option or the material averaging option to meet the NESHAP emission limits) and three of the five facilities had only partial control (
We reviewed other surface coating NESHAP promulgated after the Surface Coating of Metal Cans NESHAP to determine whether any requirements exceed the Surface Coating of Metal Cans MACT level of control or included technologies that were not considered during the development of the original Surface Coating of Metal Cans NESHAP. These NESHAP include Surface Coating of Miscellaneous Metal Parts and Products (40 CFR part 63, subpart MMMM), Surface Coating of Plastic Parts and Products (40 CFR part 63, subpart PPPP), and Surface Coating of Automobiles and Light-Duty Trucks (40 CFR part 63, subpart IIII). We also reviewed the results of the technology reviews for the following NESHAP: Printing and Publishing (40 CFR part 63, subpart KK), Shipbuilding and Ship Repair (40 CFR part 63, subpart II), and Wood Furniture Manufacturing (40 CFR part 63, subpart JJ).
Technology reviews for these NESHAP identified PTE and/or RTO as improvements in add-on control technology. Because the Surface Coating of Metal Cans NESHAP already includes a compliance option involving the use of a PTE and an add-on control device, and because these measures were considered in the development of the original Surface Coating of Metal Cans NESHAP, we concluded that these measures do not represent an improvement in control technology under CAA section 112(d)(6).
The technology review conducted for the Wood Furniture Manufacturing NESHAP identified the use of more efficient spray guns as a technology review development and revised the requirements to prohibit the use of conventional spray guns. Air-assisted airless spraying was added as a more efficient coating application technology. This development is not applicable to metal can coating because the primary coating operations are performed using non-spray application methods, such as lithographic printing and other types of direct transfer coating application, or they already use airless spray equipment for the inside spray, side seam spray, and repair coating operations. In conclusion, we found no improvements in add-on control technology or other equipment during review of the RBLC, the state operating permits, and subsequent NESHAP that were not already identified and considered during the Surface Coating of Metal Cans NESHAP development.
Alternatives to conventional solvent-borne coatings were identified and considered during MACT development but were not considered to be suitable for all can coating applications. These alternative coatings include higher solids coatings, waterborne coatings, and low-energy electron beam/ultraviolet cured coatings. Powder coating applications are not common for metal containers. Waterborne and higher solids coatings with lower HAP and VOC content were considered in the development of the proposed and final standards and are reflected in the HAP emission limitations in the final rule. Interior coatings used for cans that contain food or beverages are subject to regulation by the U.S. Food and Drug Administration (FDA), as well as internal approval by the food and beverage manufacturers. The only anticipated technology change in the area of coating reformulation for the Surface Coating of Metal Cans source category is the replacement of coatings that have no intentionally added BPA for both beverage and food cans, referred to as BPA-NI coatings. The major can coating producers are currently devoting much of their research and development efforts to develop BPA-NI systems for new applications and to improve the BPA-NI systems that already exist. However, a complete shift to these coatings is not expected unless driven by FDA regulation or consumer opinion. Therefore, the EPA did not identify any developments in coating technology or other process changes or pollution prevention alternatives that would represent a development relative to the coating technologies on which the final rule is based.
Finally, no improvements in work practices or operational procedures were identified for the Surface Coating of Metal Cans source category that were not previously identified and considered during MACT development.
Based on these findings, we conclude that there have not been any developments in add-on control technology or other equipment not identified and considered during MACT development, nor any improvements in add-on controls, nor any significant changes in the cost (including cost effectiveness) of the add-on controls. Therefore, we are proposing no revisions to the Surface Coating of Metal Cans NESHAP pursuant to CAA section 112(d)(6). For further discussion of the technology review results, refer to the Metal Cans Technology Review Memorandum in the Metal Cans Docket.
In addition to the proposed actions described above, we are proposing additional revisions to the NESHAP. We are proposing to require electronic submittal of notifications, semiannual reports, and compliance reports (which include performance test reports) for metal cans surface coating facilities. In addition, we are proposing revisions to the SSM provisions of the MACT rule in order to ensure that they are consistent with the Court decision in
In this action the EPA proposes to require owners and operators of surface coating of metal can facilities to submit electronic copies of the initial notifications required in 40 CFR 63.9(b) and 63.3510(b), notifications of compliance status required in 40 CFR 63.9(h) and 63.3510(c), performance test reports required in 40 CFR 63.3511(b), and semiannual reports required in 40 CFR 63.3511(a), through the EPA's Central Data Exchange (CDX), using the Compliance and Emissions Data Reporting Interface (CEDRI).
For the performance test reports required in 40 CFR 63.3511(b), results collected using test methods that are supported by the Electronic Reporting Tool (ERT) as listed on the EPA's ERT website (
For the semiannual reports required in 40 CFR 63.3511(a), the EPA proposes that owners and operators use the final semiannual report template, which will reside in CEDRI, one year after finalizing this proposed action. The
For the electronic submittal of initial notifications required in 40 CFR 63.9(b), no specific form is available at this time, so these notifications are required to be submitted electronically in PDF. If electronic forms are developed for these notifications, we will notify sources about their availability via the CEDRI website. For the electronic submittal of notifications of compliance status reports required in 40 CFR 63.9(h), the final semiannual report template discussed above, which will reside in CEDRI, will also contain the information required for the notifications of compliance status report and will satisfy the requirement to provide the notifications of compliance status information electronically, eliminating the need to provide a separate notifications of compliance status report. As stated above, the final semiannual report template will be available after finalizing this proposed action and sources will be required to use the form after one year. Prior to the availability of the final semiannual compliance report template in CEDRI, owners and operators of affected sources will be required to submit semiannual compliance reports as currently required by the rule. As stated above, we will notify sources about the availability of the final semiannual report template via the CEDRI website.
Additionally, the EPA has identified two broad circumstances in which electronic reporting extensions may be provided. In both circumstances, the decision to accept the claim of needing
As discussed in the memorandum Electronic Reporting Requirements
In its 2008 decision in
We are proposing the elimination of the SSM exemption in this rule. Consistent with
In proposing these rule amendments, the EPA has taken into account startup and shutdown periods and, for the reasons explained below, has not proposed alternate standards for those periods. Startups and shutdowns are part of normal operations for the Surface Coating of Metal Cans source category. As currently specified in 40 CFR 63.3492(b), any coating operation(s) for which you use the emission rate with add-on controls option must meet operating limits “at all times,” except for solvent recovery systems for which you conduct liquid-liquid material balances according to 40 CFR 63.3541(i). (Solvent recovery systems for which you conduct a liquid-liquid material balance require a monthly calculation of the solvent recovery device's collection and recovery efficiency for volatile organic matter.) Also, as currently specified in 40 CFR 63.3500(a)(2), any coating operation(s) for which you use the emission rate with add-on controls option or the control efficiency/outlet concentration option must be in compliance “at all times” with the emission limits in 40 CFR 63.3490 and work practice standards in 40 CFR 63.3493. During startup and shutdown periods, in order for a facility (using add-on controls to meet the standards) to meet the emission and operating standards, the control device for a coating operation needs to be turned on and operating at specified levels before the facility begins coating operations, and the control equipment needs to continue to be operated until after the facility ceases coating operations. In some cases, the facility needs to run thermal oxidizers on supplemental fuel before VOC levels are sufficient for the combustion to be (nearly) self-sustaining. Note that we are also proposing new related language in 40 CFR 63.3500(b) to require that the owner or operator operate and maintain the coating operation, including pollution control equipment, at all times to minimize emissions. See section IV.A.4.b.2 of this preamble for further discussion of this proposed revision.
Periods of startup, normal operations, and shutdown are all predictable and routine aspects of a source's operations. Malfunctions, in contrast, are neither predictable nor routine. Instead they are, by definition, sudden, infrequent and not reasonably preventable failures of emissions control, process, or monitoring equipment. (40 CFR 63.2) (Definition of malfunction). The EPA interprets CAA section 112 as not requiring emissions that occur during periods of malfunction to be factored into development of CAA section 112 standards and this reading has been upheld as reasonable by the Court in
As the Court recognized in
Although no statutory language compels the EPA to set standards for malfunctions, the EPA has the discretion to do so where feasible. For example, in the Petroleum Refinery Sector Risk and Technology Review, the EPA established a work practice standard for unique types of malfunctions that result in releases from pressure relief devices or emergency flaring events because we had information to determine that such work practices reflected the level of control that applies to the best performing sources (80 FR 75178, 75211-14, December 1, 2015). The EPA will consider whether circumstances warrant setting standards for a particular type of malfunction and, if so, whether the EPA has sufficient information to identify the relevant best performing sources and establish a standard for such malfunctions. We also encourage commenters to provide any such information.
It is unlikely that a malfunction would result in a violation of the standards during metal can surface coating operations for facilities using the compliant material option or the emission rate without add-on controls option. Facilities using the compliant material option have demonstrated that the organic HAP content of each coating is less than or equal to the applicable emission limit and that each thinner used contains no organic HAP. Facilities using the emission rate without add-on controls option have demonstrated that the coatings and thinners used in the coating operations are less than or equal to the applicable emission limit calculated as a rolling 12-month emission rate and determined on a monthly basis.
A malfunction event is more likely for metal can coating facilities that use the emission rate with add-on control options or the control efficiency/outlet concentration compliance option. For these options, facilities must demonstrate a reduction of total HAP of at least 97 or 95 percent or that the oxidizer outlet HAP concentration is no greater than 20 ppmv and 100-percent capture efficiency. For this option, facilities must demonstrate that their emission capture systems and add-on control devices meet the operating limits established by the Surface Coating of Metal Cans NESHAP. The capture and control device operating limits are listed in Table 4 of the Surface Coating of Metal Cans NESHAP and must be achieved continuously. Most are based on maintaining an average temperature over a 3-hour block period, which must not fall below the temperature limit established during the facility's initial performance test. In addition, work practices are also required when using this option to minimize organic HAP emissions from the storage, mixing, and conveying of coatings, thinners, and cleaning materials used in, and waste materials generated by, the coating operation(s), but it is unlikely that a malfunction would result in a violation of the work practice standards.
We currently have no information to suggest that it is feasible or necessary to establish any type of standard for malfunctions associated with the Surface Coating of Metal Cans source category. We encourage commenters to provide any such information, if available.
In the event that a source fails to comply with the applicable CAA section 112(d) standards as a result of a malfunction event, the EPA will determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malfunction periods, including preventative and corrective actions, as well as root cause analyses to ascertain and rectify excess
If the EPA determines in a particular case that an enforcement action against a source for violation of an emission standard is warranted, the source can raise any and all defenses in that enforcement action and the federal district court will determine what, if any, relief is appropriate. The same is true for citizen enforcement actions. Similarly, the presiding officer in an administrative proceeding can consider any defense raised and determine whether administrative penalties are appropriate.
In summary, the EPA interpretation of the CAA and, in particular, CAA section 112 is reasonable and encourages practices that will avoid malfunctions. Administrative and judicial procedures for addressing exceedances of the standards fully recognize that violations may occur despite good faith efforts to comply and can accommodate those situations.
We are proposing to revise the General Provisions table to subpart KKKK (Table 5) entry for 40 CFR 63.6(e)(1)(i) by changing the “yes” in column 3 to a “no.” Section 63.6(e)(1)(i) describes the general duty to minimize emissions. Some of the language in that section is no longer necessary or appropriate in light of the elimination of the SSM exemption. We are proposing instead to add general duty regulatory text at 40 CFR 63.3500(b) that reflects the general duty to minimize emissions while eliminating the reference to periods covered by an SSM exemption. The current language in 40 CFR 63.6(e)(1)(i) characterizes what the general duty entails during periods of SSM. With the elimination of the SSM exemption, there is no need to differentiate between normal operations, startup and shutdown, and malfunction events in describing the general duty. Therefore, the language the EPA is proposing for 40 CFR 63.3500(b) does not include that language from 40 CFR 63.6(e)(1)(i).
We are also proposing to revise the General Provisions table to subpart KKKK (Table 5) entry for 40 CFR 63.6(e)(1)(ii) by changing the “yes” in column 3 to a “no.” Section 63.6(e)(1)(ii) imposes requirements that are not necessary with the elimination of the SSM exemption or are redundant with the general duty requirement being added at 40 CFR 63.3500(b).
We are proposing to revise the General Provisions table to subpart KKKK (Table 5) entry for 40 CFR 63.6(e)(3) by changing the “yes” in column 3 to a “no.” Generally, these paragraphs require development of an SSM plan and specify SSM recordkeeping and reporting requirements related to the SSM plan. We are also proposing to remove from 40 CFR part 63, subpart KKKK, the current provisions requiring the SSM plan at 40 CFR 63.3511(c). As noted, the EPA is proposing to remove the SSM exemptions. Therefore, affected units will be subject to an emission standard during such events. The applicability of a standard during such events will ensure that sources have ample incentive to plan for and achieve compliance, and, thus, the SSM plan requirements are no longer necessary.
We are proposing to revise the General Provisions table to subpart KKKK (table 5) entry for 40 CFR 63.6(f)(1) by changing the “yes” in column 3 to a “no.” The current language of 40 CFR 63.6(f)(1) exempts sources from non-opacity standards during periods of SSM. As discussed above, the Court in
We are also proposing to remove rule text in 40 CFR 63.3541(h) clarifying that, in calculating emissions to demonstrate compliance, deviation periods must include deviations during an SSM period. Since the EPA is removing the SSM exemption, this clarifying text is no longer needed.
We are proposing to revise the General Provisions table to subpart KKKK (Table 5) entry for 40 CFR 63.7(e)(1) by changing the “yes” in column 3 to a “no.” Section 63.7(e)(1) describes performance testing requirements. The EPA is instead proposing to add a performance testing requirement at 40 CFR 63.3543 and 40 CFR 63.3553. The performance testing requirements we are proposing to add differ from the General Provisions performance testing provisions in several respects. The regulatory text does not include the language in 40 CFR 63.7(e)(1) that restated the SSM exemption and language that precluded startup and shutdown periods from being considered “representative” for purposes of performance testing. The proposed performance testing provisions will also not allow performance testing during startup or shutdown. As in 40 CFR 63.7(e)(1), performance tests conducted under this subpart should not be conducted during malfunctions because conditions during malfunctions are often not representative of normal operating conditions. Section 63.7(e) requires that the owner or operator maintain records of the process information necessary to document operating conditions during the test and include in such records an explanation to support that such conditions represent normal operation. The EPA is proposing to add language clarifying that the owner or operator must make such records available to the Administrator upon request.
We are proposing to revise the General Provisions table to subpart KKKK (Table 5) entry for 40 CFR 63.8(c)(1) by changing the “yes” in column 3 to a “no.” The cross-references to the general duty and SSM plan requirements in 40 CFR 63.8(c)(1) are not necessary in light of other requirements of 40 CFR 63.8 that require good air pollution control practices (40 CFR 63.8(c)(1)) and that set out the requirements of a quality control program for monitoring equipment (40 CFR 63.8(d)). Further, we have determined that 40 CFR 63.8(c)(1)(ii) is redundant to the current monitoring requirement in 40 CFR 63.3547(a)(4) and 40 CFR 63.3557(a)(4) (
We are proposing to revise the General Provisions table to subpart KKKK (Table 5) entry for 40 CFR 63.10(b)(2)(i) by changing the “yes” in column 3 to a “no.” Section 63.10(b)(2)(i) describes the recordkeeping requirements during startup and shutdown. These recording provisions are no longer necessary because the EPA is proposing that recordkeeping and reporting applicable
We are proposing to revise the General Provisions table to subpart KKKK (Table 5) entry for 40 CFR 63.10(b)(2)(ii) by changing the “yes” in column 3 to a “no.” Section 63.10(b)(2)(ii) describes the recordkeeping requirements during a malfunction, requiring a record of “the occurrence and duration of each malfunction.” A similar record is already required in 40 CFR 63.3512(i), which requires a record of “the date, time, and duration of each deviation,” which the EPA is retaining. The regulatory text in 40 CFR 63.3512(i) differs from the General Provisions in that the General Provisions requires the creation and retention of a record of the occurrence and duration of each malfunction of process, air pollution control, and monitoring equipment; whereas 40 CFR 63.3512(i) applies to any failure to meet an applicable standard and is requiring that the source record the date, time, and duration of the failure rather than the “occurrence.” For this reason, the EPA is proposing to add to 40 CFR 63.3512(i) a requirement that sources also keep records that include a list of the affected source or equipment and actions taken to minimize emissions, an estimate of the quantity of each regulated pollutant emitted over the emission limit for which the source failed to meet the standard, and a description of the method used to estimate the emissions. Examples of such methods would include product-loss calculations, mass balance calculations, measurements when available, or engineering judgment based on known process parameters (
We are proposing to revise the General Provisions table to subpart KKKK (Table 5) entry for 40 CFR 63.10(b)(2)(iv)-(v) by changing the “yes” in column 3 to a “no.” When applicable, the provision requires sources to record actions taken during SSM events when actions were inconsistent with their SSM plan. The requirement in 40 CFR 63.10(b)(2)(iv) is no longer appropriate because SSM plans will no longer be required. The requirement previously applicable under 40 CFR 63.10(b)(2)(iv)(B) to record actions to minimize emissions and record corrective actions is now applicable by reference to 40 CFR 63.3512(i)(4). When applicable, the provision in Section 63.10(b)(2)(v) requires sources to record actions taken during SSM events to show that actions taken were consistent with their SSM plan. The requirement is no longer appropriate because SSM plans will no longer be required.
We are proposing to revise the General Provisions table to subpart KKKK (Table 5) entry for 40 CFR 63.10(b)(2)(vi) by changing the “yes” in column 3 to a “no.” The provision requires sources to maintain records during continuous monitoring system (CMS) malfunctions. Section 63.3512(i) covers records of periods of deviation from the standard, including instances where a CMS is inoperative or out-of-control.
We are proposing to revise the General Provisions table to subpart KKKK (Table 5) entry for 40 CFR 63.10(c)(15) by changing the “yes” in column 3 to a “no.” When applicable, the provision allows an owner or operator to use the affected source's SSM plan or records kept to satisfy the recordkeeping requirements of the SSM plan, specified in 40 CFR 63.6(e), to also satisfy the requirements of 40 CFR 63.10(c)(10) through (12). The EPA is proposing to eliminate this requirement because SSM plans would no longer be required, and, therefore, 40 CFR 63.10(c)(15) no longer serves any useful purpose for affected units.
We are proposing to remove the requirement in 40 CFR 63.3512(j)(1) that deviation records specify whether deviations from a standard occurred during a period of SSM. This revision is being proposed due to the proposed removal of the SSM exemption and because, as discussed above in this section, we are proposing that deviation records must specify the cause of each deviation, which could include a malfunction period as a cause. We are also proposing to remove the requirement to report the SSM records in 40 CFR 63.6(e)(3)(iii) through (v) by deleting 40 CFR 63.3512(j)(2).
We are proposing to revise the General Provisions table to subpart KKKK (Table 5) entry for 40 CFR 63.10(d)(5) by changing the “yes” in column 3 to a “no.” Section 63.10(d)(5) describes the reporting requirements for startups, shutdowns, and malfunctions. To replace the General Provisions reporting requirement, the EPA is proposing to add reporting requirements to 40 CFR 63.3511(a)(7) and (8). The replacement language differs from the General Provisions requirement in that it eliminates periodic SSM reports as a stand-alone report. We are proposing language that requires sources that fail to meet an applicable standard at any time to report the information concerning such events in the semi-annual compliance report already required under this rule. Subpart KKKK of 40 CFR part 63 currently requires reporting of the date, time period, and cause of each deviation. We are clarifying in the rule that, if the cause of a deviation from the standard is unknown, this should be specified in the report. We are also proposing to change “date and time period” to “date, time, and duration” (see proposed revisions to 40 CFR 63.3511(a)(5)(i); 40 CFR 63.3511(a)(7)(vi), (a)(7)(vii), and (a)(7)(viii); 40 CFR 63.3511(a)(8)(v), (a)(8)(vi), and (a)(8)(xi)(A)) to use terminology consistent with the recordkeeping section. Further, we are proposing that the report must also contain the number of deviations from the standard, and a list of the affected source or equipment. For deviation reports addressing deviations from an applicable emission limit in 40 CFR 63.3490 or operating limit in Table 4 to 40 CFR part 63 subpart KKKK, we are proposing that the report also include an estimate of the quantity of each regulated pollutant emitted over any emission limit for which the source failed to meet the standard, and a description of the method used to estimate the emissions. For deviation reports addressing deviations from work practice standards associated with the emission rate with add-on controls option (40 CFR 63.3511(a)(8)(xiii)), we are retaining the current requirement (including reporting actions taken to correct the deviation), except that we are revising the rule language to reference the new general duty requirement in 40 CFR 63.3500(b), we are clarifying that the description of the deviation must include a list of the affected sources or equipment and the cause of the deviation, we are clarifying that “time period” includes the “time and duration,” and we are requiring that the report include the number of deviations from the work practice standards in the reporting period.
Regarding the proposed new requirement discussed above to estimate the quantity of each regulated pollutant
We will no longer require owners or operators to determine whether actions taken to correct a malfunction are consistent with an SSM plan, because plans would no longer be required. The proposed amendments, therefore, eliminate 40 CFR 63.3511(c) that requires reporting of whether the source deviated from its SSM plan, including required actions to communicate with the Administrator, and the cross reference to 40 CFR 63.10(d)(5)(ii) that contains the description of the previously required SSM report format and submittal schedule from this section. These specifications are no longer necessary because the events will be reported in otherwise required reports with similar format and submittal requirements.
Section 63.10(d)(5)(ii) describes an immediate report for startups, shutdown, and malfunctions when a source failed to meet an applicable standard, but did not follow the SSM plan. We will no longer require owners and operators to report when actions taken during a startup, shutdown, or malfunction were not consistent with an SSM plan, because plans would no longer be required.
We are proposing to remove the requirements in 40 CFR 63.3511(a)(7) and (a)(8) that deviation reports must specify whether deviation from an operating limit occurred during a period of SSM. We are also proposing to remove the requirements in 40 CFR 63.3511(a)(7)(x) and 40 CFR 63.3511(a)(8)(viii) to break down the total duration of deviations into the startup and shutdown categories. As discussed above in this section, we are proposing to require reporting of the cause of each deviation. Further, the startup and shutdown categories no longer apply because these periods are proposed to be considered normal operation, as discussed in section IV.A.4.b.1 of this preamble.
We propose to amend 40 CFR 63.3481(c)(5) to revise the reference to “future subpart MMMM” of this part by removing the word “future” because subpart MMMM was promulgated in 2004.
We propose to revise the format of references to test methods in 40 CFR part 60. The current reference in 40 CFR 63.3545(a) and (b) to Methods 1, 1A, 2, 2A, 2C, 2D, 2F, 2G, 3, 3A, 3B, 4, 25, and 25A specify that each method is in “appendix A” of part 60. Appendix A of part 60 has been divided into appendices A-1 through A-8. We propose to revise each reference to appendix A to indicate which of the eight sections of appendix A applies to the method.
We propose to amend 40 CFR 63.3521(a)(1)(i) and (4), which describe how to demonstrate initial compliance with the emission limitations using the compliant material option, to remove references to OSHA-defined carcinogens as specified in 29 CFR 1910.1200(d)(4). The reference to OSHA-defined carcinogens as specified in 29 CFR 1910.1200(d)(4) is intended to specify which compounds must be included in calculating total organic HAP content of a coating material if they are present at 0.1 percent or greater by mass. We are proposing to remove this reference because 29 CFR 1910.1200(d)(4) has been amended and no longer readily defines which compounds are carcinogens. We are proposing to replace these references to OSHA-defined carcinogens and 29 CFR 1910.1200(d)(4) with a list (in proposed new Table 8 to 40 CFR part 63, subpart KKKK) of those organic HAP that must be included in calculating total organic HAP content of a coating material if they are present at 0.1 percent or greater by mass.
We propose to include organic HAP in proposed Table 8 to 40 CFR part 63, subpart KKKK if they were categorized in the EPA's
We propose to revise the monitoring provisions for thermal and catalytic oxidizers to clarify that a thermocouple is part of the temperature sensor referred to in 40 CFR 63.3547(c)(3) and 40 CFR 63.3557(c)(3) for purposes of performing periodic calibration and verification checks.
Current 40 CFR 63.3513(a) allows records, “where appropriate,” to be maintained as “electronic spreadsheets” or a “database.” We propose to add clarification to this provision that the allowance to retain electronic records applies to all records that were submitted as reports electronically via the EPA's CEDRI. We also propose to add text to the same provision clarifying that this ability to maintain electronic copies does not affect the requirement for facilities to make records, data, and reports available upon request to a delegated air agency or the EPA as part of an on-site compliance evaluation.
As part of an ongoing effort to improve compliance with various federal air emission regulations, the EPA reviewed the compliance demonstration requirements in the Surface Coating of Metal Cans NESHAP. Currently, if a source owner or operator chooses to comply with the standards using add-on controls, the results of an initial performance test are used to determine compliance; however, the rule does not require ongoing periodic performance testing for these emission capture systems and add-on controls. We are proposing periodic testing of add-on control devices, in addition to the one-time initial emissions and capture efficiency testing and ongoing parametric monitoring to ensure ongoing compliance with the standards.
Although ongoing monitoring of operating parameters is required by the NESHAP, as the control device ages over time, the destruction efficiency of the control device can be compromised due to various factors. The EPA published several documents that identify potential control device operational problems that could decrease control device efficiency.
The Institute of Clean Air Companies (ICAC), an industry trade group currently representing 50 emission control device equipment manufacturers, corroborated the fact that control equipment degrades over time in their comments in a prior rulemaking. In their comments on proposed revisions to the NESHAP General Provisions (72 FR 69, January 3, 2007), ICAC stated that ongoing maintenance and checks of control devices are necessary in order to ensure emissions control technology remains effective.
State websites also provide on-line CAA violations and enforcement actions that include performance issues associated with control devices. A recent search resulted in identification of sources in Ohio and Massachusetts that did not achieve compliance even though they maintained the thermal oxidizer operating temperatures established during previous performance tests, which further corroborates with the ICAC comments and conclusions regarding control device degradation.
Based on the need for vigilance in maintaining equipment to stem degradation, we are proposing periodic testing of add-on control devices once every 5 years, in addition to the one-time initial emissions and capture efficiency testing and ongoing temperature measurement to ensure ongoing compliance with the standards.
In this action, we are proposing to require periodic performance testing of add-on control devices on a regular frequency (
The proposed periodic performance testing requirement allows an exception from periodic testing for facilities using instruments to continuously measure emissions. Such continuous emissions monitoring systems (CEMS) would show actual emissions. The use of CEMS to demonstrate compliance would obviate the need for periodic oxidizer testing. Moreover, installation and operation of a CEMS with a timesharing component, such that values from more than one oxidizer exhaust could be tabulated in a recurring frequency, could prove less expensive (estimated to have an annual cost below $15,000) than ongoing oxidizer testing.
This proposed requirement does not require periodic testing or CEMS monitoring of facilities using the compliant materials option or the emission-rate without add-on controls compliance option because these two compliance options do not use any add-on controls or control efficiency measurements in the compliance calculations.
The proposed periodic performance testing requirement requires facilities complying with the standards using emission capture systems and add-on controls and which are not already on a 5-year testing schedule conduct the first of the periodic performance tests within 3 years of the effective date of the revised standards. Afterward, they would conduct periodic testing before they renew their operating permits, but no longer than 5 years following the previous performance test. Additionally, facilities that have already tested as a condition of their permit within the last 2 years before the effective date would be permitted to maintain their current 5-year schedule and not be required to move up the date of the next test to the 3-year date specified above. This proposed requirement would require periodic air emissions testing to measure organic HAP destruction or removal efficiency at the inlet and outlet of the add-on control device, or measurement of the control device outlet concentration of organic HAP. The emissions would be measured as total gaseous organic mass emissions as carbon using either EPA Method 25 or 25A of appendix A-7 to 40 CFR part 60, which are the methods currently required for the initial compliance demonstration.
We estimate that the cost associated with this proposed requirement, which includes a control device emissions destruction or removal efficiency test using EPA Method 25 or 25A, would be approximately $19,000 per control device. The cost estimate is included in the memorandum titled
The EPA is proposing new and updated test methods for the Surface Coating of Metal Cans NESHAP that include IBR. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the following voluntary consensus standards (VCS) described in the amendments to 40 CFR 63.14:
• ASTM Method D1475-13, Standard Test Method for Density of Liquid Coatings, Inks, and Related Products, proposed to be IBR approved for 40 CFR 63.3521(c) and 63.3531(c);
• ASTM D2111-10 (2015), Standard Test Methods for Specific Gravity of Halogenated Organic Solvents and Their Admixtures, proposed to be IBR approved for 40 CFR 63.3521(c) and 63.3531(c);
• ASTM D2369-10 (2015), Test Method for Volatile Content of Coatings, proposed to be IBR approved for 40 CFR 63.3521(a)(2) and 63.3541(i)(3);
• ASTM D2697-03 (2014), Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings, proposed to be IBR approved for 40 CFR 63.3521(b)(1); and
• ASTM D6093-97 (2016), Standard Test Method for Percent Volume Nonvolatile Matter in Clear or Pigmented Coatings Using Helium Gas Pycnometer, proposed to be IBR approved for 40 CFR 63.3521(b)(1).
Older versions of ASTM Methods, D2697 and D6093 were incorporated by reference when the Surface Coating of Metal Cans NESHAP was originally promulgated (68 FR 64432, November 13, 2003). We are proposing to replace the older versions of these methods and ASTM Method D1475 with updated versions, which requires IBR revisions. The updated version of the method replaces the older version in the same paragraph of the rule text. We are also proposing the addition of ASTM Methods D2111 and D2369 to the Surface Coating of Metal Cans NESHAP for the first time by incorporating these methods by reference in this rulemaking. Refer to section VIII.J of this preamble for further discussion of these VCS.
The EPA is proposing that affected sources must comply with all of the amendments, with the exception of the proposed electronic format for submitting semiannual compliance reports, no later than 181 days after the effective date of the final rule, or upon startup, whichever is later. All affected facilities would have to continue to meet the current requirements of 40 CFR part 63, subpart KKKK until the applicable compliance date of the amended rule. The final action is not expected to be a “major rule” as defined by 5 U.S.C. 804(2), so the effective date of the final rule will be the promulgation date as specified in CAA section 112(d)(10).
For existing sources, we are proposing one change that would impact ongoing compliance requirements for 40 CFR part 63, subpart KKKK. As discussed elsewhere in this preamble, we are proposing to add a requirement that notifications, performance test results, and semiannual compliance reports be submitted electronically. We are proposing that the semiannual compliance report be submitted electronically using a new template, which is available for review and comment as part of this action. We are also proposing to change the requirements for SSM by removing the exemption from the requirements to meet the standard during SSM periods and by removing the requirement to develop and implement an SSM plan. Our experience with similar industries that are required to convert reporting mechanisms to install necessary hardware and software, become familiar with the process of submitting performance test results electronically through the EPA's CEDRI, test these new electronic submission capabilities, and reliably employ electronic reporting shows that a time period of a minimum of 90 days, and, more typically, 180 days, is generally necessary to successfully accomplish these revisions. Our experience with similar industries further shows that this sort of regulated facility generally requires a time period of 180 days to read and understand the amended rule requirements; to evaluate their operations to ensure that they can meet the standards during periods of startup and shutdown as defined in the rule and make any necessary adjustments; and to update their operation, maintenance, and monitoring plan to reflect the revised requirements. The EPA recognizes the confusion that multiple different compliance dates for individual requirements would create and the additional burden such an assortment of dates would impose. From our assessment of the timeframe needed for compliance with the entirety of the revised requirements, the EPA considers a period of 180 days to be the most expeditious compliance period practicable and, thus, is proposing that existing affected sources be in compliance with all of this regulation's revised requirements within 181 days of the regulation's effective date.
We solicit comment on these proposed compliance periods, and we specifically request submission of information from sources in this source category regarding specific actions that would need to be undertaken to comply with the proposed amended requirements and the time needed to make the adjustments for compliance with any of the revised requirements. We note that information provided may result in changes to the proposed compliance dates.
As described above in section III of this preamble, for the Surface Coating of Metal Coil source category, we conducted a risk assessment for all HAP emitted. We present results of the risk assessment briefly below and in more detail in the
Table 4 of this preamble summarizes the results of the inhalation risk assessment for the source category. As discussed in section III.C.2 of this preamble, we determined that MACT-allowable HAP emission levels at coil coating facilities are equal to 1.1 times the actual emissions. For more detail about the MACT-allowable emission levels, see Appendix 1 to the
The results of the inhalation risk modeling using actual emissions data, as shown in Table 4 of this preamble, indicate that the maximum individual cancer risk based on actual emissions (lifetime) could be up to 10-in-1 million (driven by naphthalene from solvent storage), the maximum chronic noncancer TOSHI value based on actual emissions could be up to 0.1 (driven by glycol ethers from prime and finish coating application), and the maximum screening acute noncancer HQ value (off-facility site) could be up to 3 (driven by DGME). The total estimated annual cancer incidence (national) from these facilities based on actual emission levels is 0.005 excess cancer cases per year or one case in every 200 years.
Table 4 of this preamble also shows the acute risk results for the Surface Coating of Metal Coil source category. The screening analysis for acute impacts was based on an industry-specific multiplier of 1.1, to estimate the peak emission rates from the average emission rates. For more detailed acute risk results refer to the
The emissions data for the Surface Coating of Metal Coil source category indicate that one PB-HAP is emitted by sources within this source category: Lead. In evaluating the potential for multipathway effects from emissions of lead, modeled maximum annual lead concentrations were compared to the NAAQS for lead (0.15 µg/m
The emissions data for the Surface Coating of Metal Coil source category indicate that two environmental HAP are emitted by sources within this source category: HF and lead. Therefore, we conducted a screening-level evaluation of the potential adverse environmental risks associated with emissions of HF and lead for the Surface Coating of Metal Coil source category. For HF, each individual concentration (
Sixteen facilities have a facility-wide cancer MIR greater than or equal to 1-in-1 million. The maximum facility-wide cancer MIR is 40-in-1 million, driven by naphthalene from equipment cleanup of metal coil coating processes. The total estimated cancer incidence from the whole facility is 0.02 excess cancer cases per year, or one excess case in every 50 years. Approximately 270,000 people were estimated to have cancer risks above 1-in-1 million from exposure to HAP emitted from both MACT and non-MACT sources of the 48 facilities in this source category. The maximum facility-wide TOSHI for the source category is estimated to be 5, driven by emissions of chlorine from a secondary aluminum fluxing process.
To examine the potential for any environmental justice issues that might be associated with the source category, we performed a demographic analysis, which is an assessment of risk to individual demographic groups of the populations living within 5 km and within 50 km of the facilities. In the analysis, we evaluated the distribution of HAP-related cancer and noncancer risk from the Surface Coating of Metal Coil source category across different demographic groups within the populations living near facilities.
The results of the demographic analysis are summarized in Table 5 of this preamble. These results, for various demographic groups, are based on the estimated risk from actual emissions levels for the population living within 50 km of the facilities.
The results of the Surface Coating of Metal Coil source category demographic analysis indicate that emissions from the source category expose approximately 19,000 people to a cancer risk at or above 1-in-1 million and no one is exposed to a chronic noncancer TOSHI greater than 1 (we note that many of those in the first risk group are the same as those in the second). The percentages of the at-risk population in each demographic group (African American and Below the Poverty Level) are greater than their respective nationwide percentages.
The methodology and the results of the demographic analysis are presented in a technical report,
As noted in section III.A of this preamble, we weigh all health risk factors in our risk acceptability determination, including the cancer MIR, the number of persons in various cancer and noncancer risk ranges, cancer incidence, the maximum noncancer TOSHI, the maximum acute noncancer HQ, the extent of noncancer risks, the distribution of cancer and noncancer risks in the exposed population, and risk estimation uncertainties (54 FR 38044, September 14, 1989).
For the Surface Coating of Metal Coil source category, the risk analysis indicates that the cancer risks to the individual most exposed could be up to 10-in-1 million due to actual emissions and allowable emissions. These risks are considerably less than 100-in-1 million, which is the presumptive upper limit of acceptable risk. The risk analysis also shows very low cancer incidence (0.005 cases per year for actual emissions and 0.006 cases per year for allowable emissions), and we did not identify potential for adverse chronic noncancer health effects.
The acute screening analysis results in a maximum acute noncancer HQ of 3 for DGME. Since there is not a specified acute dose-response value for DGME, we applied the most protective dose-response value from the other glycol ether compounds, the acute REL for ethylene glycol monomethyl ether, to estimate risk. Given that ethylene glycol monomethyl ether is more toxic than other glycol ethers, the use of this surrogate is a health-protective choice in the EPA's risk assessment.
For acute screening analyses, to better characterize the potential health risks associated with estimated worst-case acute exposures to HAP, we examine a wider range of available acute health metrics than we do for our chronic risk assessments. This is in acknowledgement that there are generally more data gaps and uncertainties in acute reference values than there are in chronic reference values. By definition, the acute REL represents a health-protective level of exposure, with effects not anticipated below those levels, even for repeated exposures; however, the level of exposure that would cause health effects is not specifically known. As the exposure concentration increases above the acute REL, the potential for effects increases. Therefore, when an REL is exceeded and an AEGL-1 or ERPG-1 level is available (
Additional uncertainties in the acute exposure assessment that the EPA conducts as part of the risk review under section 112 of the CAA include several factors. The degree of accuracy of an acute inhalation exposure assessment depends on the simultaneous occurrence of independent factors that may vary greatly, such as hourly emissions rates, meteorology, and the presence of a person at the location of the maximum concentration. In the acute screening assessment that we conduct under the RTR program, we include the conservative (health-protective) assumptions that peak emissions from each emission point in the source category and worst-case meteorological conditions co-occur, thus, resulting in maximum ambient concentrations. These two events are unlikely to occur at the same time, making these assumptions conservative. We then include the additional assumption that a person is located at this point during the same time period. For this source category, these assumptions are likely to
In addition, the risk assessment indicates no significant potential for multipathway health effects.
Considering all the health risk information and factors discussed above, including the uncertainties discussed in section III.C.7 of this preamble, we propose that the risks from the Surface Coating of Metal Coil source category are acceptable.
Although we are proposing that the risks from the Surface Coating of Metal Coil source category are acceptable, risk estimates for approximately 19,000 individuals in the exposed population are above 1-in-1 million at the actual emissions level, and 24,000 individuals in the exposed population are above 1-in-1 million at the allowable emissions level. Consequently, we further considered whether the MACT standards for the Surface Coating of Metal Coil source category provide an ample margin of safety to protect public health. In this ample margin of safety analysis, we investigated available emissions control options that might reduce the risk from the source category. We considered this information along with all the health risks and other health information considered in our determination of risk acceptability.
As described in section III.B of this preamble, our technology review focused on identifying developments in practices, processes, and control technologies for the Surface Coating of Metal Coil source category, and we reviewed various information sources regarding emission sources that are currently regulated by the Surface Coating of Metal Coil NESHAP. Based on our review, we did not identify any add-on control technologies, other equipment, or work practices and procedures that had not previously been considered during development of the Surface Coating of Metal Coil NESHAP, and we did not identify any developments since the promulgation of the NESHAP. Therefore, we are proposing that additional emissions controls for this source category are not necessary to provide an ample margin of safety.
The emissions data for the Surface Coating of Metal Coil source category indicate that two environmental HAP are emitted by sources within this source category: HF and lead. The screening-level evaluation of the potential for adverse environmental risks associated with emissions of HF from the Surface Coating of Metal Coil source category indicated that each individual concentration (
As described in section III.B of this preamble, our technology review focused on identifying developments in practices, processes, and control technologies for the Surface Coating of Metal Coil source category. The EPA reviewed various information sources regarding emission sources that are currently regulated by the Surface Coating of Metal Coil NESHAP to support the technology review. The information sources included the following: The RBLC; the California Statewide BACT Clearinghouse; regulatory actions, including technology reviews promulgated for other surface coating NESHAP subsequent to the Surface Coating of Metal Coil NESHAP; state regulations; facility operating permits; a site visit; and industry information from individual facilities and the industry trade association. The primary emission sources for the technology review are the coil coating application stations and associated curing ovens.
Based on our review, we did not identify any add-on control technologies, process equipment, work practices, or procedures that had not been previously considered during development of the Surface Coating of Metal Coil NESHAP, and we did not identify any new or improved add-on control technologies that would result in additional emission reductions. A brief summary of the EPA's findings in conducting the technology review of coil coating operations follows. For a detailed discussion of the EPA's findings, refer to the Metal Coil Technology Review memorandum in the Metal Coil Docket.
The technology basis for MACT for metal coil coating operations in the 2002 Surface Coating of Metal Coil NESHAP was emission capture and add-on control with an OCE of 98 percent for new or reconstructed sources and existing sources. This OCE represents the use of PTE to achieve 100-percent capture of application station HAP emissions and a thermal oxidizer to achieve a destruction efficiency of 98-percent. No technology was identified at that time that could achieve a better OCE than the use of a PTE to capture HAP emissions from the coating application station and a thermal oxidizer to destroy HAP emissions from the coating application and the curing oven. An alternative facility HAP emission rate limit of 0.24 pounds of HAP per gallon of solids applied was also established to provide a compliance option for facilities that chose to limit their coating line HAP emissions either through a combination of low-HAP coatings and add-on controls or through the use of waterborne, high solids, or other pollution prevention coatings. During development of that rulemaking, we identified no beyond-the-floor technology that could achieve a higher OCE.
Using the EPA's NEI and the ECHO databases, we identified 48 major source facilities that are currently subject to the Surface Coating of Metal Coil NESHAP. A search of the RBLC database for improvements in coil coating technologies resulted in no findings. Therefore, we conducted a comprehensive review of state operating permits for 39 of the 48 facilities that were available on-line to determine whether any are using improved technologies or technologies that were not considered during the development of the original NESHAP. The review revealed that 37 of the 39 facilities had add-on controls (
The state permits included VOC emission limitations issued prior to promulgation of the Surface Coating of Metal Coil NESHAP. No permit had a
We reviewed other surface coating NESHAP promulgated subsequent to the Surface Coating of Metal Coil NESHAP to determine whether any requirements exceed the Metal Coil MACT level of control or include technologies that were not considered during the development of the original Surface Coating of Metal Coil NESHAP. These NESHAP include Surface Coating of Miscellaneous Metal Parts and Products (40 CFR part 63, subpart MMMM), Surface Coating of Plastic Parts and Products (40 CFR part 63, subpart PPPP), and Surface Coating of Automobiles and Light-Duty Trucks (40 CFR part 63, subpart IIII). We also reviewed the results of the technology reviews for other surface coating NESHAP promulgated after the Surface Coating of Metal Coil NESHAP. These NESHAP include Printing and Publishing (40 CFR part 63, subpart KK), Shipbuilding and Ship Repair (40 CFR part 63, subpart II), and Wood Furniture Manufacturing (40 CFR part 63, subpart JJ). Technology reviews for these NESHAP identified PTE and/or RTO as improvements in add-on control technology. Because the Surface Coating of Metal Coil NESHAP already includes a compliance option involving the use of a PTE and an add-on control device, and because these measures were considered in the development of the Surface Coating of Metal Coil NESHAP, we concluded that these measures do not represent a development in control technology under CAA section 112(d)(6). The technology review conducted for the Wood Furniture Manufacturing NESHAP identified the use of more efficient spray guns as a technology review development and revised the requirements to prohibit the use of conventional spray guns. Because the Surface Coating of Metal Coil source category does not use spray equipment, this development is not applicable to metal coil coating operations. In conclusion, we found no improvements in add-on control technology or other equipment during review of the RBLC, the state operating permits, and subsequent NESHAP that were not already identified and considered during Surface Coating of Metal Coil NESHAP development.
Alternatives to solvent borne coatings were identified and considered during MACT development but were not considered to be suitable for all coil coating end-product applications. These alternative coatings include waterborne coatings, low energy electron beam/ultraviolet cured coatings, and powder coatings. These coatings were used by about 10 percent of coil coating facilities according to the MACT survey. Our permit review concluded that this trend continues today and only about 10 percent of the facilities use these coatings to meet the Surface Coating of Metal Coil NESHAP emission limits. Most coil coaters have solvent destruction systems in place, which enables them to use organic paint solvents as a fuel supplement. The only anticipated technology change in the area of coating reformulation for the metal coil surface coating category is the replacement of coatings that contain the hexavalent chromate ion with more benign corrosion-inhibiting species that provide the same long-term protection to metals. The coil coating producers have worked unsuccessfully on this coating reformulation for the past 20 years.
Carbon adsorption was identified and considered for add-on control during Metal Coil MACT development, and although it is technologically feasible, no U.S. coil coaters used carbon adsorption due to the high temperature of the oven exhaust. The high temperature would inhibit adsorption of VOC on activated carbon in the adsorber beds. Therefore, we do not consider these measures to represent a development under CAA section 112(d)(6).
Finally, we identified no developments in work practices or procedures for the Surface Coating of Metal Coil source category, including work practices and procedures that are currently prescribed in the NESHAP that were not previously identified and considered during MACT development. The facility survey, conducted during MACT development, revealed that several types of work practices and housekeeping techniques were being used. However, the final rule applied only to the coating application stations and the associated curing ovens (
Based on these findings, we conclude that there have not been any developments in add-on control technology or other equipment not identified and considered during MACT development, nor any improvements in add-on controls, nor any significant changes in the cost (including cost effectiveness) of the add-on controls. Therefore, we are proposing no revisions to the Surface Coating of Metal Coil NESHAP pursuant to CAA section 112(d)(6). For further discussion of the technology review results, refer to the Metal Coil Technology Review Memorandum in the Metal Coil Docket.
In addition to the proposed actions described above, we are proposing additional revisions to the NESHAP. We are proposing to amend 40 CFR 63.5090 to clarify that 40 CFR part 63, subpart SSSS does not apply to the application to bare metal coils of markings (including letters, numbers, or symbols) that are used for product identification or for product inventory control. In the public comments on the proposed initial MACT standard subpart SSSS (40 FR 44616, July 18, 2000),
In addition, we are proposing to require electronic submittal of notifications (initial and compliance status), semiannual reports, and performance test reports for metal coil surface coating facilities. We are also proposing revisions to the SSM provisions of the MACT rule in order to ensure that they are consistent with the Court decision in
The EPA is proposing that owners and operators of facilities subject to the Surface Coating of Metal Coil NESHAP submit electronic copies of initial notifications required in 40 CFR 63.9(b), notifications of compliance status required in 40 CFR 63.9(h), performance test reports, and semiannual reports through the EPA's CDX, using the CEDRI. A description of the EPA's CDX and the EPA's proposed rationale and details on the addition of these electronic reporting requirements for the Surface Coating of Metal Coil source category is the same as for the Surface Coating of Metal Cans source category, as discussed in section IV.A.4.a of this preamble. A description of the electronic submission process is provided in the memorandum
Regarding submittal of performance test reports via the EPA's ERT, as discussed in section IV.A.4.a of this preamble for the Surface Coating of Metal Cans NESHAP, the proposal to submit performance test data electronically to the EPA applies only if the EPA has developed an electronic reporting form for the test method as listed on the EPA's ERT website. For the Surface Coating of Metal Coil NESHAP, all of the EPA test methods listed under 40 CFR part 63, subpart SSSS, are currently supported by the ERT, except for EPA Method 25 and EPA Method 18 (an optional test method proposed in this action), which appears in the proposed text for 40 CFR 63.5160. As mentioned above, the rule proposes that should an owner or operator choose to use EPA Method 25 or EPA Method 18, then its results would be submitted in PDF using the attachment module of the ERT.
Also, as discussed in section IV.A.4.a of this preamble for the Surface Coating of Metal Cans NESHAP, we are proposing to provide facilities with the ability to seek extensions for submitting electronic reports for circumstances beyond the control of the facility. In proposed 40 CFR 63.5181(d), we address the situation for facilities subject to the Surface Coating of Metal Coil NESHAP where an extension may be warranted due to outages of the EPA's CDX or CEDRI, which may prevent access to the system and submittal of the required reports. In proposed 40 CFR 63.5181(e), we address the situation for facilities subject to the Surface Coating of Metal Coil NESHAP where an extension may be warranted due to a force majeure event, which is defined as an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents compliance with the requirement to submit a report electronically as required by this rule.
The EPA is proposing to eliminate the SSM exemption in the Surface Coating of Metal Coil NESHAP. The EPA's
In proposing these rule amendments, the EPA has taken into account startup and shutdown periods and, for the same reasons explained in section IV.A.4.b.1 of this preamble for the Surface Coating of Metal Cans source category, has not proposed alternate standards for those periods in the Surface Coating of Metal Coil NESHAP. Startups and shutdowns are part of normal operations for the Surface Coating of Metal Coil source category. As currently specified in 40 CFR 63.5121(a), any coating operation(s) for which you use the emission rate with add-on controls option must meet the applicable operating limits in Table 1 to 40 CFR part 63, subpart SSSS “at all times,” except for solvent recovery systems for which you conduct liquid-liquid material balances according to 40 CFR 63.5170(e)(1). (Solvent recovery systems for which you conduct a liquid-liquid material balance require a monthly calculation of the solvent recovery device's collection and recovery efficiency for volatile organic matter.)
Also, as currently specified in 40 CFR 63.3500(a)(2), any coating operation(s) for which you use the emission rate with add-on controls option or the control efficiency/outlet concentration option must be in compliance “at all times” with the applicable emission limitations in 40 CFR 63.3500(a)(2). During startup and shutdown periods, in order for a facility (using add-on controls to meet the standards) to meet the emission and operating standards, the control device for a coating operation needs to be turned on and operating at specified levels before the facility begins coating operations, and the control equipment needs to continue to be operated until after the facility ceases coating operations. In some cases, the facility needs to run thermal oxidizers on supplemental fuel before VOC levels are sufficient for the combustion to be (nearly) self-sustaining. Note that we are also proposing new related language in 40 CFR 63.5140(b) to require that the owner or operator operate and maintain the coating operation, including pollution control equipment, at all times to minimize emissions. See section IV.A.4.b.2 of this preamble for further discussion of this proposed revision.
Although no statutory language compels the EPA to set standards for malfunctions, the EPA has the discretion to do so where feasible, as discussed previously in section IV.A.4.b.1 of this preamble for the Surface Coating of Metal Can source category.
It is unlikely that a malfunction would result in a violation of the standards during metal coil surface coatings operations for facilities using the compliant material “as-purchased” or “as-applied” options or the coating materials averaging option. Facilities using these options have demonstrated that the organic HAP content of each coating material as-purchased does not exceed 0.046 kg HAP per liter of solids as purchased, or that each coating material as-applied does not exceed 0.046 kg HAP per liter of solids on a rolling 12-month average basis and determined on a monthly basis, or that the average HAP content of all coating materials used does not exceed 0.046 kg HAP per liter of solids as applied based on a rolling 12-month emission rate and determined on a monthly basis.
A malfunction event is more likely for metal coil coating facilities that use the emission rate with add-on controls option or the combination of compliant coatings and control device option. For add-on control options, facilities must demonstrate an overall organic HAP control efficiency of at least 98 percent, or that the oxidizer outlet HAP concentration is no greater than 20 ppmv and 100-percent capture efficiency and that operating limits are achieved continuously. For the combination option, facilities must demonstrate that the average equivalent emission rate does not exceed 0.046 kg HAP per liter solids on a rolling 12-month average as-applied basis, determined monthly. Operating limits for the capture and control devices are listed in Table 1 to 40 CFR part 63, subpart SSSS of the Surface Coating of Metal Coil NESHAP and must be achieved continuously. The operating limits are based on maintaining an average temperature over a 3-hour block period, which must not fall below the temperature limit established by the facility during its initial performance test.
We currently have no information to suggest that it is feasible or necessary to establish any type of standard for malfunctions associated with the Surface Coating of Metal Coil source category. We encourage commenters to provide any such information, if available.
In the unlikely event that a source fails to comply with the applicable CAA section 112(d) standards as a result of a malfunction event, the EPA would determine an appropriate response based on, among other things, the good faith efforts of the source to minimize emissions during malfunction periods, including preventative and corrective actions, as well as root cause analyses to ascertain and rectify excess emissions. Refer to section IV.A.4.b.1 of this preamble for further discussion of the EPA's actions in response to a source failing to comply with the applicable CAA section 112(d) standards as a result of a malfunction event for the Surface Coating of Metal Cans source category, which applies to this source category.
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.6(e)(1)(i) by changing the “yes” in column 3 to a “no.” Section 63.6(e)(1)(i) describes the general duty to minimize emissions. Some of the language in that section is no longer necessary or appropriate in light of the elimination of the SSM exemption. We are proposing instead to add general duty regulatory text at 40 CFR 63.5140(b) that reflects the general duty to minimize emissions while eliminating the reference to periods covered by an SSM exemption. The current language in 40 CFR 63.6(e)(1)(i) characterizes what the general duty entails during periods of SSM. With the elimination of the SSM exemption, there is no need to differentiate between normal operations,
We are also proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.6(e)(1)(ii) by changing the “yes” in column 3 to a “no.” Section 63.6(e)(1)(ii) imposes requirements that are not necessary with the elimination of the SSM exemption or are redundant with the general duty requirement being added at 40 CFR 63.5140(b).
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.6(e)(3) by changing the “yes” in column 3 to a “no.” Generally, these paragraphs require development of an SSM plan and specify SSM recordkeeping and reporting requirements related to the SSM plan. We are also proposing to remove from 40 CFR part 63, subpart SSSS, the current provisions requiring the SSM plan in 40 CFR 63.5180(f) and requiring reporting related to the SSM plan in 40 CFR 63.5180(f)(1). As noted, the EPA is proposing to remove the SSM exemptions. Therefore, affected units will be subject to an emission standard during such events. The applicability of a standard during such events will ensure that sources have ample incentive to plan for and achieve compliance, and, thus, the SSM plan requirements are no longer necessary.
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.6(f)(1) by changing the “yes” in column 3 to a “no.” The current language of 40 CFR 63.6(f)(1) exempts sources from non-opacity standards during periods of SSM. As discussed above, the Court in
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.7(e)(1) by changing the “yes” in column 3 to a “no.” Section 63.7(e)(1) describes performance testing requirements. The EPA is instead proposing to add a performance testing requirement at 40 CFR 63.5160(d)(2). The performance testing requirements we are proposing to add differ from the General Provisions performance testing provisions in several respects. The regulatory text does not include the language in 40 CFR 63.7(e)(1) that restated the SSM exemption and language that precluded startup and shutdown periods from being considered “representative” for purposes of performance testing. Also, the proposed performance testing provisions will not allow performance testing during startup or shutdown. As in 40 CFR 63.7(e)(1), performance tests conducted under this subpart should not be conducted during malfunctions because conditions during malfunctions are often not representative of normal operating conditions. Section 63.7(e) requires that the owner or operator maintain records of the process information necessary to document operating conditions during the test and include in such records an explanation to support that such conditions represent normal operation. The EPA is proposing to add language clarifying that the owner or operator must make such records available to the Administrator upon request.
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.8(a)(4) by changing the “yes” in column 3 to a “no.” Section 63.8(a)(4) describes additional monitoring requirements for control devices. Subpart SSSS of 40 CFR part 63 does not have monitoring requirements for flares.
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.8(c)(1) by changing the “yes” in column 3 to a “no.” The cross-references to the general duty and SSM plan requirements in those subparagraphs are not necessary in light of other requirements of 40 CFR 63.8 that require good air pollution control practices (40 CFR 63.8(c)(1)) and that set out the requirements of a quality control program for monitoring equipment (40 CFR 63.8(d)). Further, we are proposing to revise 40 CFR 63.5150(a) to add a requirement to maintain the monitoring equipment at all times in accordance with 40 CFR 63.5140(b) and keep the necessary parts readily available for routine repairs of the monitoring equipment, consistent with the requirements in 40 CFR 63.8(c)(1)(ii). The reference to 40 CFR 63.8(c)(1)(ii) is no longer needed since it is redundant to the requirement in 40 CFR 63.5150(a).
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.8(c)(6) by changing the “yes” in column 3 to a “no.” The reference to 40 CFR 63.8(c)(6) is no longer needed since it is redundant to the requirement in 40 CFR 63.5170 that specifies the requirements for monitoring systems for capture systems and add-on control devices at sources using these to comply.
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.8(c)(8) by changing the “yes” in column 3 to a “no.” The reference to 40 CFR 63.8(c)(8) is no longer needed since it is redundant to the requirement in 40 CFR 63.5180(i) that requires reporting of CEMS out-of-control periods.
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.8(d)-(e) by changing the “yes” in column 3 to a “no.” The requirements for quality control program and performance evaluation of CMS are not required under 40 CFR part 63, subpart SSSS.
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.8(g) by changing the “yes” in column 3 to a “no.” The reference to 40 CFR 63.8(c)(8) is no longer needed since it is redundant to the requirement in 40 CFR 63.5170, 63.5140, 63.5150, and 63.5150 that specify monitoring data reduction.
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.10(b)(2)(i) by changing the “yes” in column 3 to a “no.” Section 63.10(b)(2)(i) describes the recordkeeping requirements during startup and shutdown. These recording provisions are no longer necessary because the EPA is proposing that recordkeeping and reporting applicable to normal operations will apply to startup and shutdown. In the absence of special provisions applicable to startup and shutdown, such as a startup and shutdown plan, there is no reason to retain additional recordkeeping for startup and shutdown periods.
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.10(b)(2)(ii) by changing the “yes” in column 3 to a “no.” Section 63.10(b)(2)(ii) describes the recordkeeping requirements during a malfunction, requiring a record of “the occurrence and duration of each
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.10(b)(2)(iv) by changing the “yes” in column 3 to a “no.” When applicable, the provision requires sources to record actions taken during SSM events when actions were inconsistent with their SSM plan. The requirement is no longer appropriate because SSM plans will no longer be required. The requirement previously applicable under 40 CFR 63.10(b)(2)(iv)(B) to record actions to minimize emissions and record corrective actions is now applicable by reference to 40 CFR 63.5190(a)(5).
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.10(b)(2)(v) by changing the “yes” in column 3 to a “no.” When applicable, the provision requires sources to record actions taken during SSM events to show that actions taken were consistent with their SSM plan. The requirement is no longer appropriate because SSM plans will no longer be required.
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.10(b)(2)(x)-(xiii) by changing the “yes” in column 3 to a “no.” When applicable, the provision requires sources to record actions taken during SSM events to show that actions taken were consistent with their SSM plan. The requirement is no longer appropriate because SSM plans will no longer be required.
We are proposing to revise the General Provisions table to subpart SSSS (Table 2) entry for 40 CFR 63.10(d)(5) by changing the “yes” in column 3 to a “no.” Section 63.10(d)(5) describes the reporting requirements for startups, shutdowns, and malfunctions. To replace the General Provisions reporting requirement, the EPA is proposing to add reporting requirements to 40 CFR 63.5180(f). The replacement language differs from the General Provisions requirement in that it eliminates periodic SSM reports as a stand-alone report. We are proposing language that requires sources that fail to meet an applicable standard at any time to report the information concerning such events in the semi-annual compliance report already required under this rule. Subpart SSSS of 40 CFR part 63 currently requires reporting of the date, time period, and cause of each deviation. We are clarifying in the rule that, if the cause of a deviation from a standard is unknown, this should be specified in the report. We are also proposing to change “date and time period” or “date and time” to “date, time, and duration” (see proposed revisions to 40 CFR 63.5180(h)(2), 63.5180(h)(3), 63.5180(i)(3), and 63.5180(i)(4)). Further, we are proposing that the report must also contain the number of deviations from the standard and a list of the affected sources or equipment. For deviation reports addressing deviations from an applicable emission limit in Table 1 to 40 CFR 63.5170 or operating limit in Table 1 to 40 CFR part 63, subpart SSSS, we are proposing that the report also include an estimate of the quantity of each regulated pollutant emitted over any emission limit for which the source failed to meet the standard, and a description of the method used to estimate the emissions.
Regarding the proposed new requirement discussed above to estimate the quantity of each regulated pollutant emitted over any emission limit for which the source failed to meet the standard, and a description of the method used to estimate the emissions, examples of such methods would include product-loss calculations, mass balance calculations, measurements when available, or engineering judgment based on known process parameters (
We will no longer require owners or operators to determine whether actions taken to correct a malfunction are consistent with an SSM plan, because plans would no longer be required. The proposed amendments, therefore, eliminate 40 CFR 63.5180(f)(1) that requires reporting of whether the source deviated from its SSM plan, including required actions to communicate with the Administrator, and the cross reference to 40 CFR 63.10(d)(5) that contains the description of the previously required SSM report format and submittal schedule from this section. These specifications are no longer necessary because the events will be reported in otherwise required reports with similar format and submittal requirements.
We are proposing to remove the requirements in 40 CFR 63.5180(i)(6) that deviation reports must specify whether a deviation from an operating limit occurred during a period of SSM. We are also proposing to remove the requirements in 40 CFR 63.5180(i)(6) to break down the total duration of deviations into the startup and shutdown categories. As discussed above in this section, we are proposing to require reporting of the cause of each deviation. Further, the startup and shutdown categories no longer apply because these periods are proposed to be considered normal operation, as discussed in section IV.A.4.b.1 of this preamble for the Surface Coating of Metal Cans source category, which also applies to this source category.
We propose to amend 40 CFR 63.5160(d)(1)(vi) to add the option of conducting EPA Method 18 of appendix A to 40 CFR part 60, “Measurement of Gaseous Organic Compound Emissions
We propose to amend 40 CFR 63.5160(b)(1)(i) and 63.5160(b)(4), which describe how to demonstrate compliance with the emission limitations using the compliant material option, to remove references to OSHA-defined carcinogens as specified in 29 CFR 1910.1200(d)(4). The reference to OSHA-defined carcinogens as specified in 29 CFR 1910.1200(d)(4) is intended to specify which compounds must be included in calculating total organic HAP content of a coating material if they are present at 0.1 percent or greater by mass. We propose to remove this reference because 29 CFR 1910.1200(d)(4) has been amended and no longer readily defines which compounds are carcinogens. We propose to replace these references to OSHA-defined carcinogens at 29 CFR 1910.1200(d)(4) with a list (in proposed new Table 3 to 40 CFR part 63, subpart SSSS) of those organic HAP that must be included in calculating total organic HAP content of a coating material if they are present at 0.1 percent or greater by mass.
We propose to include organic HAP in proposed Table 3 to 40 CFR part 63, subpart SSSS if they were categorized in the EPA's
Current 40 CFR 63.5190 specifies records that must be maintained. We propose to add clarification to this provision at 40 CFR 63.5190(c) that specifies the allowance to retain electronic records applies to all records that were submitted as reports electronically via the EPA's CEDRI. We also propose to add text to the same provision clarifying that this ability to maintain electronic copies does not affect the requirement for facilities to make records, data, and reports available upon request to a delegated air agency or the EPA as part of an on-site compliance evaluation.
We propose to clarify and harmonize the general requirement in 40 CFR 63.5140(a) with the reporting requirement in 40 CFR 63.5180(g)(2)(v) and 40 CFR 63.5180(h)(4) and the recordkeeping requirement in 40 CFR 63.5190(a)(5). Section 40 CFR 63.5140(a) currently states that, “You must be in compliance with the standards in this subpart at all times . . .”. We propose to add clarification to this text to read; “You must be in compliance with the applicable emission standards in 40 CFR 63.5120 and the operating limits in Table 1 of this subpart at all times.”
If there were no deviations from the applicable emission limit, 40 CFR 63.5180(g)(2)(v) requires you to submit a semiannual compliance report containing specified information including, “A statement that there were no deviations from the standards during the reporting period, and that no CEMS were inoperative, inactive, malfunctioning, out-of-control, repaired, or adjusted.” We are proposing to revise the text to read, “A statement that there were no deviations from the applicable emission limit in § 63.5120 or the applicable operating limit(s) established according to § 63.5121 during the reporting period, and that no CEMS were inoperative, inactive, malfunctioning, out-of-control, repaired, or adjusted.” Conforming changes are also being proposed to the reporting requirement at 40 CFR 63.5180(h)(4) and the recordkeeping requirement at 40 CFR 63.5190(a)(5).
We propose to revise one instance in 40 CFR 63.5160(e) regarding performance testing in which an erroneous rule citation, “§ 63.5170(h)(2) through (4),” is specified. Section 63.5170 provides requirements to demonstrate compliance with the standards for each compliance option and refers back to the capture efficiency procedure in 40 CFR 63.5160(e). Sections 63.5170(h)(2) through (4) pertain to the mass of coatings and solvents used in the liquid-liquid material balance calculation of HAP in Equation 10 of the subpart and are unrelated to capture efficiency. Sections 63.5170(g)(2) through (4) include capture efficiency determinations which are not referenced by 40 CFR 63.5160(e); therefore, we propose to change the erroneous citation from “§ 63.5170(h)(2) through (4)” to “§ 63.5170(g)(2) through (4).”
We are proposing to amend 40 CFR 63.5130(a) to clarify that the compliance date for existing affected sources is June 10, 2005.
We are proposing to amend 40 CFR 63.5160(d)(3)(ii)(D) to correct a typographical error in a reference to paragraphs “(d)(3)(ii)(D)(1 (3).” The correct reference is to paragraphs (d)(3)(ii)(D)(1)-(3).
We are proposing to amend 40 CFR 63.5170(c)(1) and (2) to correct the cross references to 40 CFR 63.5120(a)(1) or (2). The correct cross references are to 40 CFR 63.5120(a)(1) or (3), because these are the two compliance options relying on the overall organic HAP control efficiency and the oxidizer outlet HAP concentration.
We are proposing to amend Equation 11 in 40 CFR 63.5170 so that the value calculated by the equation is correctly identified as “H
As part of an ongoing effort to improve compliance with various federal air emission regulations, the EPA reviewed the compliance demonstration requirements in the Surface Coating of Metal Coil NESHAP. Currently, if a source owner or operator chooses to comply with the standards using add-on controls, the results of an initial performance test are used to determine compliance; however, the rule does not require ongoing periodic performance testing for these emission capture systems and add-on controls. In this action we are proposing to require periodic testing of add-on control devices, in addition to the one-time initial emissions and capture efficiency testing, and ongoing temperature measurement, to ensure ongoing compliance with the standards.
As described more fully in section IV.A.4.d of this preamble for the Surface Coating of Metal Cans source category, the EPA documented potential operational problems associated with control devices in several publications;
Given the need for vigilance in maintaining equipment to stem degradation, the EPA is proposing to require periodic testing of add-on control devices, in addition to the one-time initial emissions and capture efficiency testing and ongoing temperature measurement, to ensure ongoing compliance with the Surface Coating of Metal Coil NESHAP.
In this action, the EPA is requiring periodic performance testing of add-on control devices on a regular frequency (
The proposed periodic performance testing requirement allows an exception from periodic testing for facilities using instruments to continuously measure emissions. Such CEMS would show actual emissions. The use of CEMS to demonstrate compliance would obviate the need for periodic oxidizer testing. Moreover, installation and operation of a CEMS with a timesharing component, such that values from more than one oxidizer exhaust could be tabulated in a recurring frequency, could prove less expensive (estimated to have an annual cost below $15,000) than ongoing oxidizer testing.
This proposed requirement would not require periodic testing or CEMS monitoring of facilities using the “as purchased” or “as applied” compliant coatings options because these compliance options do not use any add-on controls or control efficiency measurements in the compliance calculations.
The proposed periodic performance testing requirement would require that facilities complying with the standards using emission capture systems and add-on controls and which are not already on a 5-year testing schedule to conduct the first of the periodic performance tests within 3 years of the effective date of the revised standards. Afterward, they would conduct the periodic testing before they renew their operating permits, but no longer than 5 years following the previous performance test. Additionally, facilities that have already tested as a condition of their permit within the last 2 years before the effective date would be permitted to maintain their current 5-year schedule and not be required to move up the date of the next test to the 3-year date specified above. This proposed requirement would require periodic air emissions testing to measure organic HAP destruction or removal efficiency at the inlet and outlet of the add-on control device, or measurement of the control device outlet concentration of organic HAP. The emissions would be measured as total gaseous organic mass emissions as carbon using either EPA Method 25 or 25A of appendix A-7 to 40 CFR part 60, which are the methods currently required for the initial compliance demonstration.
We estimate that the cost to perform a control device emissions destruction or removal efficiency test using EPA Method 25 or 25A would be approximately $19,000 per control device. The cost estimate is included in the memorandum titled
We are requesting comment on adding periodic testing of add-on control devices to the Surface Coating of Metal Coil NESHAP and on the suggested 5-year schedule for the periodic testing.
The EPA is proposing new and updated test methods for the Surface Coating of Metal Coil NESHAP that include IBR. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to add the following optional EPA method and incorporate by reference the VCS described in the amendments to 40 CFR 63.14:
• EPA Method 18 of appendix A to 40 CFR part 60, Measurement of Gaseous Organic Compound Emissions by Gas Chromatography, proposed for 40 CFR 63.5160(d)(vi);
• ASTM Method D1475-13, Standard Test Method for Density of Liquid Coatings, Inks, and Related Products, proposed to be IBR approved for 40 CFR 63.5160(c);
• ASTM D2111-10 (2015), Standard Test Methods for Specific Gravity of Halogenated Organic Solvents and Their Admixtures, proposed to be IBR approved for 40 CFR 63.5160(c);
• ASTM D2369-10 (2015), Test Method for Volatile Content of Coatings, proposed to be IBR approved for 40 CFR 63.5160(b)(2);
• ASTM D2697-03 (2014), Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings, proposed to be IBR approved for 40 CFR 63.5160(c); and
• ASTM D6093-97 (2016), Standard Test Method for Percent Volume Nonvolatile Matter in Clear or Pigmented Coatings Using Helium Gas Pycnometer, proposed to be IBR approved for 40 CFR 63.5160(c).
Older versions of ASTM methods D2697 and D6093 were incorporated by reference when the Surface Coating of Metal Coil NESHAP was originally promulgated (67 FR 39794, June 10, 2002). We are proposing to replace the older versions of these methods with updated versions, which requires IBR revisions. The updated version of the method replaces the older version in the same paragraph of the rule text. We are also proposing the addition of EPA Method 18 and incorporating by reference ASTM methods D1475, D2111, and D2369 to the Surface Coating of Metal Coil NESHAP for the first time in this rulemaking. Refer to section VIII.J of this preamble for further discussion of these VCS.
The EPA is proposing that affected sources must comply with all of the amendments, with the exception of the proposed electronic format for submitting semiannual compliance reports, no later than 181 days after the effective date of the final rule, or upon startup, whichever is later. All affected facilities would have to continue to meet the current requirements of 40 CFR part 63, subpart SSSS until the applicable compliance date of the amended rule. The final action is not expected to be a “major rule” as defined by 5 U.S.C. 804(2), so the effective date of the final rule will be the promulgation date as specified in CAA section 112(d)(10).
For existing sources, we are proposing two changes that would impact ongoing compliance requirements for 40 CFR part 63, subpart SSSS. As discussed elsewhere in this preamble, we are proposing to add a requirement that notifications, performance test results, and semiannual compliance reports be submitted electronically. We are proposing that the semiannual compliance report be submitted electronically using a new template, which is available for review and comment as part of this action. We are also proposing to change the requirements for SSM by removing the exemption from the requirements to meet the standard during SSM periods and by removing the requirement to develop and implement an SSM plan. Our experience with similar industries that are required to convert reporting mechanisms to install necessary hardware and software, become familiar with the process of submitting performance test results electronically through the EPA's CEDRI, test these new electronic submission capabilities, and reliably employ electronic reporting shows that a time period of a minimum of 90 days, and, more typically, 180 days is generally necessary to successfully accomplish these revisions. Our experience with similar industries further shows that this sort of regulated facility generally requires a time period of 180 days to read and understand the amended rule requirements; to evaluate their operations to ensure that they can meet the standards during periods of startup and shutdown as defined in the rule and make any necessary adjustments; and to update their operation, maintenance, and monitoring plan to reflect the revised requirements. The EPA recognizes the confusion that multiple different compliance dates for individual requirements would create and the additional burden such an assortment of dates would impose. From our assessment of the timeframe needed for compliance with the entirety of the revised requirements, the EPA considers a period of 180 days to be the most expeditious compliance period practicable and, thus, is proposing that existing affected sources be in compliance with all of this regulation's revised requirements within 181 days of the regulation's effective date.
We solicit comment on these proposed compliance periods, and we specifically request submission of information from sources in this source category regarding specific actions that would need to be undertaken to comply with the proposed amended requirements and the time needed to make the adjustments for compliance with any of the revised requirements. We note that information provided may result in changes to the proposed compliance dates.
Currently, five major sources subject to the Surface Coating of Metal Cans NESHAP are operating in the United States. The affected source under the NESHAP is the collection of all coating operations; all storage containers and mixing vessels in which coatings, thinners, and cleaning materials are stored or mixed; all manual and automated equipment and containers used for conveying coatings, thinners, and cleaning materials; and all storage containers and all manual and automated equipment and containers used for conveying waste materials generated by a coating operation. A coating operation is defined as the equipment used to apply coating to a metal can or end (including decorative tins), or metal crown or closure, and to dry or cure the coating after application. A coating operation always includes at least the point at which a coating is applied and all subsequent points in the affected source where organic HAP emissions from that coating occur. There may be multiple coating operations in an affected source.
Currently, 48 major sources subject to the Surface Coating of Metal Coil NESHAP are operating in the United States. The affected source under the NESHAP is the collection of all the coil coating lines at a facility, including the equipment used to apply an organic coating to the surface of metal coil. A coil coating line includes a web unwind or feed section, a series of one or more work stations, any associated curing oven, wet section, and quench station. A coil coating line does not include ancillary operations such as mixing/thinning, cleaning, wastewater treatment, and storage of coating material. Metal coil is a continuous metal strip that is at least 0.15 mm (0.006 inch) thick, which is packaged in a roll or coil prior to coating. Material less than 0.15 mm (0.006 inch) thick is considered metal foil, not metal coil. The NESHAP applies to coating lines on which more than 15 percent of the material coated, based on surface area, meets the definition of metal coil. There may be multiple coating operations in an affected source.
At the current level of control, estimated emissions of volatile organic HAP from the Surface Coating of Metal Cans source category are approximately 77 tpy. Current estimated emissions of volatile organic HAP from the Surface Coating of Metal Coil source category are approximately 291 tpy.
The proposed amendments require that all 53 major sources in the Surface Coating of Metal Cans and Surface Coating of Metal Coil source categories comply with the relevant emission standards at all times, including periods of SSM. We were unable to quantify the emissions that occur during periods of SSM or the specific emissions reductions that would occur as a result of this action. However, eliminating the SSM exemption has the potential to reduce emissions by requiring facilities to meet the applicable standard during SSM periods.
Indirect or secondary air emissions impacts are impacts that would result
We estimate that each facility in these two source categories will experience costs as a result of these proposed amendments that are estimated as part of the reporting and recordkeeping costs. Each facility will experience costs to read and understand the rule amendments. Costs associated with elimination of the SSM exemption were estimated as part of the reporting and recordkeeping costs and include time for re-evaluating previously developed SSM record systems. Costs associated with the requirement to electronically submit notifications and semi-annual compliance reports using CEDRI were estimated as part of the reporting and recordkeeping costs and include time for becoming familiar with CEDRI and the reporting template for semi-annual compliance reports. The recordkeeping and reporting costs are presented in section V.III.C of this preamble.
We are also proposing a requirement for performance testing no less frequently than every 5 years for sources in each source category using the add-on controls compliance options. We estimate that one facility subject to the Metal Can Surface Coating NESHAP and using three add-on control devices would incur costs to conduct control device performance testing because it is using the emission rate with add-on controls compliance option and is not required by its permit to conduct testing every 5 years. We estimate that 21 major source facilities subject to the Surface Coating of Metal Coil NESHAP would incur costs to conduct periodic testing because they are currently using the emission rate with add-on controls compliance option and are not required by their permits to conduct testing every 5 years. These 21 metal coil coating facilities have a total of 30 add-on controls. This total does not include facilities in the Surface Coating of Metal Coil source category that have add-on controls and are currently required to perform periodic performance testing as a condition of their state operating permit. The cost for a facility to conduct a destruction or removal efficiency performance test using EPA Method 25 or 25A is estimated to be about $19,000, with tests of additional control devices at the same facility costing 25 percent less due to reduced travel costs. The total cost for the one metal can surface coating facility to test three add-on control devices in a single year would be $47,000. The total cost for all 21 facilities to test 30 add-on control devices in a single year, plus two retests to account for 5 percent of control devices failing to pass the first test, would be $560,000. The total annualized testing cost is approximately $11,000 per year for the Metal Can Surface Coating source category, and $130,000 per year for the Metal Coil Surface Coating source category, including retests. In addition to the testing costs, each facility performing a test will have an additional $5,500 in reporting costs per facility in the year in which the test occurs. For further information on the potential costs, see the cost tables in the memoranda titled
The economic impact analysis is designed to inform decision makers about the potential economic consequences of a regulatory action. For the current proposals, the EPA estimated the cost of becoming familiar with the rule and re-evaluating previously developed SSM record systems and performing periodic emissions testing at certain facilities with add-on controls that are not already required to perform testing. To assess the maximum potential impact, the largest cost expected to be experienced in any one year is compared to the total sales for the ultimate owner of the affected facilities to estimate the total burden for each facility.
For the proposed revisions to the NESHAP for the Surface Coating of Metal Cans, the total annualized cost is estimated to be $11,000 for performance testing in year 3 for the five affected entities. The five affected facilities are owned by three different parent companies, and the total costs associated with the proposed requirements range from 0.00002 to 0.77 percent of annual sales revenue per ultimate owner. These costs are not expected to result in a significant market impact, regardless of whether they are passed on to the purchaser or absorbed by the firms.
For the proposed revisions to the NESHAP for the Surface Coating of Metal Coil, the total annualized cost is estimated to be $130,000 for performance testing in year 3 for the 48 affected entities. The 48 affected facilities are owned by 25 different parent companies, and the total costs associated with the proposed requirements range from 0.00001 to 0.28 percent of annual sales revenue per ultimate owner. These costs are not expected to result in a significant market impact, regardless of whether they are passed on to the purchaser or absorbed by the firms.
The EPA also prepared a small business screening assessment to determine whether any of the identified affected entities are small entities, as defined by the U.S. Small Business Administration. One of the facilities potentially affected by the proposed revisions to the NESHAP for the Surface Coating of Metal Cans is a small entity. Ten of the facilities potentially affected by the proposed revisions to the NESHAP for the Surface Coating of Metal Coil are small entities. However, the annualized costs associated with the proposed requirements for the seven ultimate owners of these eleven affected small entities range from 0.0029 to 0.77 percent of annual sales revenues per ultimate owner. Therefore, there are no significant economic impacts on a substantial number of small entities from these proposed amendments.
More information and details of this analysis is provided in the technical documents titled
As stated above in section V.B. of this preamble, we were unable to quantify the specific emissions reductions associated with eliminating the SSM exemption, although this proposed change has the potential to reduce emissions of volatile organic HAP.
Because these proposed amendments are not considered economically significant, as defined by Executive Order 12866, we did not monetize the benefits of reducing these emissions. This does not mean that there are no benefits associated with the potential reduction in volatile organic HAP from this rule.
We solicit comments on this proposed action. In addition to general comments on this proposed action, we are also interested in additional data that may improve the risk assessments and other analyses. We are specifically interested in receiving any improvements to the data used in the site-specific emissions profiles used for risk modeling. Such data should include supporting documentation in sufficient detail to allow characterization of the quality and representativeness of the data or information. Section VII of this preamble provides more information on submitting data.
The site-specific emissions profiles used in the source category risk and demographic analyses and instructions are available for download on the RTR website at
If you believe that the data are not representative or are inaccurate, please identify the data in question, provide your reason for concern, and provide any “improved” data that you have, if available. When you submit data, we request that you provide documentation of the basis for the revised values to support your suggested changes. To submit comments on the data downloaded from the RTR website, complete the following steps:
1. Within this downloaded file, enter suggested revisions to the data fields appropriate for that information.
2. Fill in the commenter information fields for each suggested revision (
3. Gather documentation for any suggested emissions revisions (
4. Send the entire downloaded file with suggested revisions in Microsoft® Access format and all accompanying documentation to the Metal Cans Docket or Metal Coil Docket, as applicable, through the method described in the
5. If you are providing comments on a single facility or multiple facilities, you need only submit one file for all facilities. The file should contain all suggested changes for all sources at that facility (or facilities). We request that all data revision comments be submitted in the form of updated Microsoft® Excel files that are generated by the Microsoft® Access file. These files are provided on the RTR website at
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was, therefore, not submitted to OMB for review.
This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.
The information collection activities in this proposal have been submitted for approval to OMB under the PRA, as discussed for each source category covered by this proposal in sections VIII.C.1 through 2.
The ICR document that the EPA prepared has been assigned EPA ICR number 2079.07. You can find a copy of the ICR in the Metal Cans Docket (Docket ID No. EPA-HQ-OAR-2017-0684), and it is briefly summarized here.
As part of the RTR for the Surface Coating of Metal Cans NESHAP, the EPA is not proposing to revise the emission limit requirements. The EPA is proposing to revise the SSM provisions of the rule and proposing the use of electronic data reporting for future performance test data submittals, notifications, and reports. This information is being collected to assure compliance with 40 CFR part 63, subpart KKKK.
The ICR document that the EPA prepared has been assigned EPA ICR number 1957.09. You can find a copy of the ICR in the Metal Coil Docket (Docket ID No. EPA-HQ-OAR-2017-0685), and it is briefly summarized here.
As part of the RTR for the Surface Coating of Metal Coil NESHAP, the EPA is not proposing to revise the emission limit requirements. The EPA is proposing to revise the SSM provisions of the rule and proposing the use of electronic data reporting for future performance test data submittals, notifications, and reports. This information is being collected to assure compliance with 40 CFR part 63, subpart SSSS.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.
Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates, and any suggested methods for minimizing respondent burden to the EPA using the dockets identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The annualized costs associated with the proposed requirements in this action for the affected small entities is described in section V.D. above and additional detail is provided in the economic impact memorandums associated with this action.
This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.
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.
This action does not have tribal implications as specified in Executive Order 13175. No tribal facilities are known to be engaged in any of the industries that would be affected by this action (metal can surface coating and metal coil surface coating). Thus, Executive Order 13175 does not apply to this action.
This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.
This rulemaking involves technical standards. The EPA is proposing to amend the Surface Coating of Metal Coil NESHAP in this action to provide owners and operators with the option of conducting two new methods: EPA Method 18 of appendix A to 40 CFR part 60, “Measurement of Gaseous Organic Compound Emissions by Gas Chromatography” to measure and subtract methane emissions from measured total gaseous organic mass emissions as carbon, and ASTM Method D1475-13, “Standard Test Method for Density of Liquid Coatings, Inks, and Related Products.” We are proposing to add these two standards to the Surface Coating of Metal Coil NESHAP only, as these methods are already provided in the Surface Coating of Metal Cans NESHAP.
The EPA is also proposing to amend the Surface Coating of Metal Cans NESHAP to update three ASTM test methods and amend the Surface Coating of Metal Coil NESHAP to update two ASTM test methods. We are proposing to update ASTM Method D1475-90, “Standard Test Method for Density of Liquid Coatings, Inks, and Related Products,” in the Surface Coating of Metal Cans NESHAP by incorporating by reference ASTM Method D1475-13. The updated version, ASTM Method D1475-13 clarifies units of measure and reduces the number of determinations required. We are proposing to update ASTM Method D2697-86 (1998), “Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings,” in both the Surface Coating of Metal Cans and the Surface Coating of Metal Coil NESHAP by incorporating by reference ASTM D2697-03 (2014), which is the updated version of the previously approved method. We are also proposing to update ASTM Method D6093-97 (2003), “Standard Test Method for Percent Volume Nonvolatile Matter in Clear or Pigmented Coatings Using Helium Gas Pycnometer,” in both the Surface Coating of Metal Cans and the Surface Coating of Metal Coil NESHAP by incorporating by reference ASTM D6093-97 (2016), which is the updated version of the previously approved method. ASTM D2697-03 (2014) is a test method that can be used to determine the volume of nonvolatile matter in clear and pigmented coatings and ASTM D6093-97 (2016) is a test method that can be used to determine the percent volume of nonvolatile matter in clear and pigmented coatings.
For the Surface Coating of Metal Cans NESHAP and the Surface Coating of Metal Coil NESHAP, the EPA proposes to incorporate by reference the following VCS as an alternative to EPA Method 24 for the determination of the volatile matter content in surface coatings:
• ASTM D2369-10 (2015), “Test Method for Volatile Content of Coatings.” This test method allows for more accurate results for multi-component chemical resistant coatings.
For the Surface Coating of Metal Cans and the Surface Coating of Metal Coil NESHAP, the EPA proposes to incorporate by reference the following VCS for the determination of the specific gravity of halogenated organic solvents in surface coatings:
• ASTM D2111-10 (2015), “Standard Test Methods for Specific Gravity of Halogenated Organic Solvents and Their
The ASTM standards are available from the American Society for Testing and Materials (ASTM), 100 Barr Harbor Drive, Post Office Box C700, West Conshohocken, PA 19428-2959. See
The EPA is not proposing ASTM D1963-85 (1996), “Standard Test Method for Specific Gravity of Drying Oils, Varnishes, Resins, and Related Materials at 25/25 C,” as an alternative for the determination of the specific gravity because ASTM has withdrawn the method without replacement. The EPA is also not proposing CARB Method 310, “Determination of Volatile Organic Compounds in Consumer Products and Reactive Organic Compounds in Aerosol Coating Products,” as an alternative to EPA Method 24 because the EPA has approved the method only for consumer products and aerosol coatings, which do not apply to the rulemakings or source categories addressed in this action.
Although we identified another 21 VCS for the Surface Coating of Metal Cans and another 20 VCS for the Surface Coating of Metal Coil as being acceptable alternatives for methods included in these rules, we are not proposing to add these VCS in these rulemakings. See the memoranda titled
Under 40 CFR 63.7(f) and 40 CFR 63.8(f) of subpart A of the General Provisions, a source may apply to the 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 or any amendments.
The EPA welcomes comments on this aspect of the proposed rulemaking and, specifically, invites the public to identify potentially applicable VCS and to explain why such standards should be used in this regulation.
The EPA believes that this action does
The documentation for this decision is contained in sections IV.A.1 and 2 and sections IV.B.1 and 2 of this preamble and the technical reports titled
As discussed in sections IV.A.1 and IV.B.1 of this preamble, we performed a demographic analysis for each source category, which is an assessment of risks to individual demographic groups, of the population close to the facilities (within 50 km and within 5 km). In this analysis, we evaluated the distribution of HAP-related cancer risks and noncancer hazards from the Surface Coating of Metal Cans and the Surface Coating of Metal Coil source categories across different social, demographic, and economic groups within the populations living near operations identified as having the highest risks.
The results of the Surface Coating of Metal Cans source category demographic analysis indicate that approximately 700 people are exposed to a cancer risk at or above 1-in-1 million and no one is exposed to a chronic noncancer HI greater than 1. None of the percentages of the at-risk populations are higher than their respective nationwide percentages.
The proximity results (irrespective of risk) indicate that the population percentages for six demographic categories located within 5 km of metal can coating facilities are higher than their respective nationwide percentages.
The results of the Surface Coating of Metal Coil source category demographic analysis indicate that emissions from the source category expose approximately 19,000 people to a cancer risk at or above 1-in-1 million and no one is exposed to a chronic noncancer HI greater than 1. The percentages of the at-risk population in the following specific demographic groups are higher than their respective nationwide percentages: “African American,” and “Below the Poverty Level.”
The proximity results (irrespective of risk) indicate that the population percentages for the “Below the Poverty Level” demographic category within 5 km of metal coil coating facilities and the “African American” demographic category within 50 km of metal coil coating facilities are slightly higher than their respective nationwide percentages.
We do not expect this proposal to achieve significant reductions in HAP emissions. The EPA anticipates that this action does
Environmental protection, Air pollution control, Hazardous substances, Incorporation by reference, Surface coating of metal cans, Surface coating of metal coil, Reporting and recordkeeping requirements, Appendix A.
For the reasons stated in the preamble, the Environmental Protection Agency proposes to amend 40 CFR part 63 as follows:
42 U.S.C. 7401
(h) * * *
(13) ASTM Method D1475-13, Standard Test Method for Density of
(21) ASTM D2111-10 (Reapproved 2015), Standard Test Methods for Specific Gravity of Halogenated Organic Solvents and Their Admixtures, approved June 1, 2015, IBR approved for §§ 63.3531(c), 63.4141(b) and (c), 63.4741(a), and 63.5160(c).
(26) ASTM D2369-10 (Reapproved 2015)
(29) ASTM D2697-86 (Reapproved 1998), Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings, IBR approved for §§ 63.3161(f), 63.3941(b), 63.4141(b), 63.4741(b), and 63.4941(b).
(30) ASTM D2697-03 (Reapproved 2014), Standard Test Method for Volume Nonvolatile Matter in Clear or Pigmented Coatings, approved July 1, 2014, IBR approved for §§ 63.3521(b), 63.4141(b), 63.4741(a) and (b), 63.4941(b), and 63.5160(c).
(78) ASTM D6093-97 (Reapproved 2003), Standard Test Method for Percent Volume Nonvolatile Matter in Clear or Pigmented Coatings Using a Helium Gas Pycnometer, IBR approved for §§ 63.3161 and 63.3941.
(79) ASTM D6093-97 (Reapproved 2016), Standard Test Method for Percent Volume Nonvolatile Matter in Clear or Pigmented Coatings Using a Helium Gas Pycnometer, Approved December 1, 2016, IBR approved for §§ 63.3521(b), 63.4141(b), 63.4741(a) and (b), 63.4941(b), and 63.5160(c).
(c) * * *
(5) Surface coating of metal pails, buckets, and drums. Subpart MMMM of this part covers surface coating of all miscellaneous metal parts and products not explicitly covered by another subpart.
(b) For any controlled coating operation(s) on which you use the emission rate with add-on controls option or the control efficiency/outlet concentration option, except those for which you use a solvent recovery system and conduct a liquid-liquid material balance according to § 63.3541(i), you must meet the operating limits specified in Table 4 to this subpart. Those operating limits apply to the emission capture and control systems for the coating operation(s) used for purposes of complying with this subpart. You must establish the operating limits during the performance tests required in § 63.3540 or § 63.3550 according to the requirements in § 63.3546 or § 63.3556. You must meet the operating limits established during the most recent performance tests required in § 63.3540 or § 63.3550 at all times after they have been established during the performance test.
(a) * * *
(1) Any coating operation(s) for which you use the compliant material option or the emission rate without add-on controls option, as specified in § 63.3491(a) and (b), must be in compliance with the applicable emission limit in § 63.3490 at all times.
(b) Before [DATE 181 DAYS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE
(c) Before [DATE 181 DAYS AFTER DATE OF PUBLICATION OF FINAL RULE IN THE
The revisions and additions read as follows:
(a) * * *
(4)
(5)
(i) Identification of each coating used that deviated from the emission limit, each thinner used that contained organic HAP, and the date, time, and duration each was used.
(iv) Before [date 181 days after date of publication of final rule in the
(v) On and after [date 181 days after date of publication of final rule in the
(6)
(iii) Before [date 181 days after date of publication of final rule in the
(iv) On and after [date 181 days after date of publication of final rule in the
(7)
(iii) The date and time that each malfunction of the capture system or add-on control devices started and stopped.
(vi) Before [date 181 days after date of publication of final rule in the
(vii) Before [date 181 days after date of publication of final rule in the
(viii) Before [date 181 days after date of publication of final rule in the
(x) Before [date 181 days after date of publication of final rule in the
(xiii) Before [date 181 days after date of publication of final rule in the
(A) A description of the deviation; the date, time, and duration of the deviation; and the actions you took to minimize emissions in accordance with § 63.3500(b).
(B) The description required in paragraph (a)(7)(xiii)(A) of this section must include a list of the affected sources or equipment for which a deviation occurred and the cause of the deviation (including unknown cause, if applicable.
(xiv) Before [date 181 days after date of publication of final rule in the
(xv) On and after [date 181 days after date of publication of final rule in the
(8)
(i) The date and time that each malfunction of the capture system or add-on control devices started and stopped.
(iv) Before [date 181 days after date of publication of final rule in the
(v) For each instance that the CPMS was out of control as specified in § 63.8(c)(7), the date, time, and duration that the CPMS was out of control; the cause (including unknown cause) for the CPMS being out of control; and the actions you took to minimize emissions in accordance with § 63.3500(b).
(vi) Before [date 181 days after date of publication of final rule in the
(viii) Before [date 181 days after date of publication of final rule in the
(xi) Before [date 181 days after date of publication of final rule in the
(A) A description of the deviation; the date, time, and duration of the deviation; and the actions you took to minimize emissions in accordance with § 63.3500(b).
(B) The description required in paragraph (a)(8)(xi)(A) of this section must include a list of the affected sources or equipment for which a deviation occurred and the cause of the deviation (including unknown cause, if applicable).
(xii) Before [date 181 days after date of publication of final rule in the
(xiii) On and after [date 181 days after date of publication of final rule in the
(c)
(d) On and after [date 181 days after date of publication of final rule in the
(1) For data collected using test methods supported by the EPA's Electronic Reporting Tool (ERT) as listed on the EPA's ERT website (
(2) For data collected using test methods that are not supported by the EPA's ERT as listed on the EPA's ERT website at the time of the test, you must submit the results of the performance test in portable document format (PDF) using the attachment module of the ERT.
(3) If you claim that some of the performance test information being submitted under paragraph (d)(1) of this section is confidential business information (CBI), you must submit a complete file generated through the use of the EPA's ERT or an alternate electronic file consistent with the XML schema listed on the EPA's ERT website, including information claimed to be CBI, on a compact disc, flash drive, or other commonly used electronic storage medium to the EPA. The electronic medium must be clearly marked as CBI and mailed to U.S. EPA/OAPQS/CORE CBI Office, Attention: Group Leader, Measurement Policy Group, MD C404-02, 4930 Old Page Rd., Durham, NC 27703. The same ERT or alternate file with the CBI omitted must be submitted to the EPA via the EPA's CDX as described in paragraph (c)(1) of this section.
(e) On and after [date 181 days after date of publication of final rule in the
(f) On and after [date 181 days after date of publication of final rule in the
(g) If you are required to electronically submit a report through the Compliance and Emissions Data Reporting Interface (CEDRI) in the EPA's Central Data Exchange (CDX), and due to a planned or actual outage of either the EPA's CEDRI or CDX systems within the period of time beginning 5 business days prior to the date that the submission is due, you will be or are precluded from accessing CEDRI or CDX and submitting a required report within the time prescribed, you may assert a claim of EPA system outage for failure to timely comply with the reporting requirement. You must submit notification to the Administrator in writing as soon as possible following the date you first knew, or through due diligence should have known, that the event may cause or caused a delay in reporting. You must provide to the Administrator a written description identifying the date, time and length of the outage; a rationale for attributing the delay in reporting beyond the regulatory deadline to the EPA system outage; describe the measures taken or to be taken to minimize the delay in reporting; and identify a date by which you propose to report, or if you have already met the reporting requirement at the time of the notification, the date you reported. In any circumstance, the report must be submitted electronically as soon as possible after the outage is resolved. The decision to accept the claim of EPA system outage and allow an extension to the reporting deadline is solely within the discretion of the Administrator.
(h) If you are required to electronically submit a report through CEDRI in the EPA's CDX and a force majeure event is about to occur, occurs,
(i) Before [date 181 days after date of publication of final rule in the
(1) The date, time, and duration of the deviation, as reported under § 63.3511(a)(5) through (8).
(2) A list of the affected sources or equipment for which the deviation occurred and the cause of the deviation, as reported under § 63.3511(a)(5) through (8).
(3) An estimate of the quantity of each regulated pollutant emitted over any applicable emission limit in § 63.3490 or any applicable operating limit in Table 4 to this subpart, and a description of the method used to calculate the estimate, as reported under § 63.3511(a)(5) through (8).
(4) A record of actions taken to minimize emissions in accordance with § 63.3500(b) and any corrective actions taken to return the affected unit to its normal or usual manner of operation.
(j) If you use the emission rate with add-on controls option or the control efficiency/outlet concentration option, you must also keep the records specified in paragraphs (j)(1) through (8) of this section.
(1) Before [date 181 days after date of publication of final rule in the
(2) Before [date 181 days after date of publication of final rule in the
(a) Your records must be kept in a form suitable and readily available for expeditious review, according to § 63.10(b)(1). Where appropriate, the records may be maintained as electronic spreadsheets or as a database. On and after [date 181 days after date of publication of final rule in the
(a) * * *
(1) * * *
(i) Count each organic HAP in Table 8 to this subpart that is measured to be present at 0.1 percent by mass or more and at 1.0 percent by mass or more for other compounds. For example, if toluene (not listed in Table 8 to this subpart) is measured to be 0.5 percent of the material by mass, you do not have to count it. Express the mass fraction of each organic HAP you count as a value truncated to four places after the decimal point (
(2)
(4)
(b) * * *
(1)
(c)
(c)
(a) * * *
(1) All emission capture systems, add-on control devices, and CPMS must be installed and operating no later than the applicable compliance date specified in § 63.3483. Except for solvent recovery systems for which you conduct liquid-liquid material balances according to § 63.3541(i), you must conduct according to the schedule in paragraphs (a)(1)(i) and (ii) of this section initial and periodic performance tests of each capture system and add-on control device according to the procedures in §§ 63.3543, 63.3544, and 63.3545 and establish the operating limits required by § 63.3492. For a solvent recovery system for which you conduct liquid-liquid material balances according to § 63.3541(i), you must initiate the first material balance no later than the applicable compliance date specified in § 63.3483.
(i) You must conduct the initial performance test and establish the operating limits required by § 63.3492 no later than 180 days after the applicable compliance date specified in § 63.3483.
(ii) You must conduct periodic performance tests and establish the operating limits required by § 63.3492 within 5 years following the previous performance test. You must conduct the first periodic performance test before [date 3 years after date of publication of final rule in the
(4) For the initial compliance demonstration, you do not need to comply with the operating limits for the emission capture system and add-on control device required by § 63.3492 until after you have completed the initial performance tests specified in paragraph (a)(1) of this section. Instead, you must maintain a log detailing the operation and maintenance of the emission capture system, add-on control device, and continuous parameter monitors during the period between the compliance date and the performance test. You must begin complying with the operating limits established based on the initial performance tests specified in paragraph (a)(1) of this section for your affected source on the date you complete the performance tests. The requirements in this paragraph (a)(4) do not apply to solvent recovery systems for which you conduct liquid-liquid material balances according to the requirements in § 63.3541(i).
(b) * * *
(1) All emission capture systems, add-on control devices, and CPMS must be installed and operating no later than the applicable compliance date specified in § 63.3483. Except for solvent recovery systems for which you conduct liquid-liquid material balances according to § 63.3541(i), you must conduct according to the schedule in paragraphs (b)(1)(i) and (ii) of this section initial and periodic performance tests of each capture system and add-on control device according to the procedures in §§ 63.3543, 63.3544, and 63.3545 and establish the operating limits required by § 63.3492. For a solvent recovery system for which you conduct liquid-liquid material balances according to § 63.3541(i), you must initiate the first material balance no later than the compliance date specified in § 63.3483.
(i) You must conduct the initial performance test and establish the operating limits required by § 63.3492 no later than 180 days after the applicable compliance date specified in § 63.3483.
(ii) You must conduct periodic performance tests and establish the operating limits required by § 63.3492 within 5 years following the previous performance test. You must conduct the first periodic performance test before [date 3 years after date of publication of final rule in the
(h)
(i) * * *
(3) Determine the mass fraction of volatile organic matter for each coating and thinner used in the coating operation controlled by the solvent recovery system during the month, in kg volatile organic matter per kg coating. You may determine the volatile organic matter mass fraction using Method 24 of 40 CFR part 60, appendix A, ASTM D2369-10 (2015), “Test Method for Volatile Content of Coatings” (incorporated by reference, see § 63.14), or an EPA approved alternative method. Alternatively, you may determine the volatile organic matter mass fraction using information provided by the manufacturer or supplier of the coating. In the event of any inconsistency between information provided by the manufacturer or supplier and the results of Method 24 of 40 CFR part 60, appendix A, ASTM D2369-10 (2015), “Test Method for Volatile Content of Coatings” (incorporated by reference, see § 63.14), or an approved alternative method, the test method results will take precedence unless, after consultation, a regulated source can demonstrate to the satisfaction of the enforcement agency that the formulation data are correct.
(f) As part of each semiannual compliance report required in § 63.3511, you must identify the coating operation(s) for which you used the emission rate with add-on controls option. If there were no deviations from the emission limits in § 63.3490, the operating limits in § 63.3492, and the work practice standards in § 63.3493, submit a statement that you were in compliance with the emission limitations during the reporting period because the organic HAP emission rate for each compliance period was less than or equal to the applicable emission limit in § 63.3490, and you achieved the operating limits required by § 63.3492 and the work practice standards required by § 63.3493 during each compliance period.
(h) Before [date 181 days after date of publication of final rule in the
(a) Before [date 181 days after date of publication of final rule in the
(1)
You must use the procedures and test methods in this section to determine capture efficiency as part of each performance test required by § 63.3540.
You must use the procedures and test methods in this section to determine the add-on control device emission destruction or removal efficiency as part of the performance tests required by § 63.3540. For each performance test, you must conduct three test runs as specified in § 63.7(e)(3) and each test run must last at least 1 hour.
(b) Measure total gaseous organic mass emissions as carbon at the inlet and outlet of the add-on control device simultaneously using either Method 25 or 25A of appendix A-7 to 40 CFR part 60 as specified in paragraphs (b)(1) through (5) of this section. You must use the same method for both the inlet and outlet measurements.
(1) Use Method 25 of appendix A-7 to 40 CFR part 60 if the add-on control device is an oxidizer and you expect the total gaseous organic concentration as carbon to be more than 50 ppm at the control device outlet.
(2) Use Method 25A of appendix A-7 to 40 CFR part 60 if the add-on control device is an oxidizer and you expect the total gaseous organic concentration as carbon to be 50 ppm or less at the control device outlet.
(3) Use Method 25A of appendix A-7 to 40 CFR part 60 if the add-control device is not an oxidizer.
(4) You may use Method 18 of appendix A-6 to 40 CFR part 60 to subtract methane emissions from measured total gaseous organic mass emissions as carbon.
During performance tests required by § 63.3540 and described in §§ 63.3543, 63.3544, and 63.3545, you must establish the operating limits required by § 63.3492 unless you have received approval for alternative monitoring and operating limits under § 63.8(f) as specified in § 63.3492.
(a) * * *
(1) During performance tests, you must monitor and record the combustion temperature at least once every 15 minutes during each of the three test runs. You must monitor the temperature in the firebox of the thermal oxidizer or immediately downstream of the firebox before any substantial heat exchange occurs.
(2) For each performance test, use the data collected during the performance test to calculate and record the average combustion temperature maintained during the performance test. That average combustion temperature is the minimum operating limit for your thermal oxidizer.
(b) * * *
(1) During performance tests, you must monitor and record the temperature at the inlet to the catalyst bed and the temperature difference across the catalyst bed at least once every 15 minutes during each of the three test runs.
(2) For each performance test, use the data collected during the performance test to calculate and record the average temperature at the inlet to the catalyst bed and the average temperature difference across the catalyst bed maintained during the performance test. The average temperature difference is the minimum operating limit for your catalytic oxidizer.
(3) As an alternative to monitoring the temperature difference across the catalyst bed, you may monitor the temperature at the inlet to the catalyst bed and implement a site-specific inspection and maintenance plan for your catalytic oxidizer as specified in paragraph (b)(4) of this section. During performance tests, you must monitor and record the temperature at the inlet to the catalyst bed at least once every 15 minutes during each of the three test runs. For each performance test, use the data collected during the performance test to calculate and record the average temperature at the inlet to the catalyst bed during the performance test. That is the minimum operating limit for your catalytic oxidizer.
(d) * * *
(1) During performance tests, you must monitor and record the total regeneration desorbing gas (
(e) * * *
(1) During performance tests, monitor and record the condenser outlet (product side) gas temperature at least once every 15 minutes during each of the three test runs of the performance test.
(2) For each performance test, use the data collected during the performance test to calculate and record the average condenser outlet (product side) gas temperature maintained during the performance test. This average condenser outlet gas temperature is the maximum operating limit for your condenser.
(f) * * *
(1) During performance tests, monitor and record the inlet temperature to the desorption/reactivation zone of the concentrator at least once every 15 minutes during each of the three runs of the performance test.
(2) For each performance test, use the data collected during the performance test to calculate and record the average temperature. This is the minimum operating limit for the desorption/reactivation zone inlet temperature.
(3) During each performance test, monitor and record an indicator(s) of performance for the desorption/reactivation fan operation at least once every 15 minutes during each of the three runs of the performance test. The indicator can be speed in revolutions per minute (rpm), power in amps, static pressure, or flow rate.
(5) During each performance test, monitor the rotational speed of the concentrator at least once every 15 minutes during each of the three runs of the performance test.
(6) For each performance test, use the data collected during the performance test to calculate and record the average rotational speed. This is the minimum operating limit for the rotational speed of the concentrator. However, the indicator range for the rotational speed may be changed if an engineering evaluation is conducted and a determination made that the change in speed will not affect compliance with the emission limit.
(a) * * *
(4) Before [date 181 days after date of publication of final rule in the
(5) Before [date 181 days after date of publication of final rule in the
(7) A monitoring malfunction is any sudden, infrequent, not reasonably preventable failure of the CPMS to provide valid data. Monitoring failures that are caused in part by poor
(c) * * *
(3) For all thermal oxidizers and catalytic oxidizers, you must meet the requirements in paragraphs (a) and (c)(3)(i) through (ii) of this section for each gas temperature monitoring device. For the purposes of this paragraph (c)(3), a thermocouple is part of the temperature sensor.
(a) * * *
(1) All emission capture systems, add-on control devices, and CPMS must be installed and operating no later than the applicable compliance date specified in § 63.3483. You must conduct according to the schedule in paragraphs (a)(1)(i) and (ii) of this section initial and periodic performance tests of each capture system and add-on control device according to §§ 63.3553, 63.3554, and 63.3555 and establish the operating limits required by § 63.3492.
(i) You must conduct the initial performance test and establish the operating limits required by § 63.3492 no later than 180 days after the applicable compliance date specified in § 63.3483.
(ii) You must conduct periodic performance tests and establish the operating limits required by § 63.3492 within 5 years following the previous performance test. You must conduct the first periodic performance test before [date 3 years after date of publication of final rule in the
(4) For the initial compliance demonstration, you do not need to comply with the operating limits for the emission capture system and add-on control device required by § 63.3492 until after you have completed the initial performance tests specified in paragraph (a)(1) of this section. Instead, you must maintain a log detailing the operation and maintenance of the emission capture system, add-on control device, and continuous parameter monitors during the period between the compliance date and the performance test. You must begin complying with the operating limits established based on the initial performance tests specified in paragraph (a)(1) of this section on the date you complete the performance tests.
(b) * * *
(1) All emission capture systems, add-on control devices, and CPMS must be installed and operating no later than the applicable compliance date specified in § 63.3483. Except for solvent recovery systems for which you conduct liquid-liquid material balances according to § 63.3541(i), you must conduct according to the schedule in paragraphs (a)(1)(i) and (ii) of this section initial and periodic performance tests of each capture system and add-on control device according to the procedures in §§ 63.3543, 63.3544, and 63.3545 and establish the operating limits required by § 63.3492.
(i) You must conduct the initial performance test and establish the operating limits required by § 63.3492 no later than 180 days after the applicable compliance date specified in § 63.3483.
(ii) You must conduct periodic performance tests and establish the operating limits required by § 63.3492 within 5 years following the previous performance test. You must conduct the first periodic performance test before [date 3 years after date of publication of final rule in the
(g) Before [date 181 days after date of publication of final rule in the
(a) Before [date 181 days after date of publication of final rule in the
(1)
You must use the procedures and test methods in this section to determine either the outlet THC emissions or add-on control device emission destruction or removal efficiency as part of the performance tests required by § 63.3550. You must conduct three test runs as specified in § 63.7(e)(3), and each test run must last at least 1 hour.
(b) Measure total gaseous organic mass emissions as carbon at the inlet and outlet of the add-on control device simultaneously using either Method 25 or 25A of appendix A-7 to 40 CFR part 60 as specified in paragraphs (b)(1) through (3) of this section. You must use the same method for both the inlet and outlet measurements.
(1) Use Method 25 of appendix A-7 to 40 CFR part 60 if the add-on control device is an oxidizer, and you expect the total gaseous organic concentration as carbon to be more than 50 ppm at the control device outlet.
(2) Use Method 25A of appendix A-7 to 40 CFR part 60 if the add-on control device is an oxidizer, and you expect the total gaseous organic concentration as carbon to be 50 ppm or less at the control device outlet.
(3) Use Method 25A of appendix A-7 to 40 CFR part 60 if the add-on control device is not an oxidizer.
(4) You may use Method 18 of appendix A-6 to 40 CFR part 60 to subtract methane emissions from measured total gaseous organic mass emissions as carbon.
During the performance tests required by § 63.3550 and described in §§ 63.3553, 63.3554, and 63.3555, you must establish the operating limits required by § 63.3492 according to this section, unless you have received approval for alternative monitoring and operating limits under § 63.8(f) as specified in § 63.3492.
(a) * * *
(1) During performance tests, you must monitor and record the combustion temperature at least once every 15 minutes during each of the three test runs. You must monitor the temperature in the firebox of the thermal oxidizer or immediately downstream of the firebox before any substantial heat exchange occurs.
(2) For each performance test, use the data collected during the performance test to calculate and record the average combustion temperature maintained during the performance test. That average combustion temperature is the minimum operating limit for your thermal oxidizer.
(b) * * *
(1) During performance tests, you must monitor and record the temperature at the inlet to the catalyst bed and the temperature difference across the catalyst bed at least once every 15 minutes during each of the three test runs.
(2) For each performance test, use the data collected during the performance test to calculate and record the average temperature at the inlet to the catalyst bed and the average temperature difference across the catalyst bed maintained during the performance test. The average temperature difference is the minimum operating limit for your catalytic oxidizer.
(3) As an alternative to monitoring the temperature difference across the catalyst bed, you may monitor the temperature at the inlet to the catalyst bed and implement a site-specific inspection and maintenance plan for your catalytic oxidizer as specified in paragraph (b)(4) of this section. During performance tests, you must monitor and record the temperature at the inlet to the catalyst bed at least once every 15 minutes during each of the three test runs. Use the data collected during each performance test to calculate and record the average temperature at the inlet to the catalyst bed during the performance test. That is the minimum operating limit for your catalytic oxidizer.
(d) * * *
(1) You must monitor and record the total regeneration desorbing gas (
(e) * * *
(1) During performance tests, monitor and record the condenser outlet (product side) gas temperature at least once every 15 minutes during each of the three test runs.
(2) For each performance test, use the data collected during the performance test to calculate and record the average condenser outlet (product side) gas temperature maintained during the performance test. This average condenser outlet gas temperature is the maximum operating limit for your condenser.
(f) * * *
(1) During performance tests, monitor and record the inlet temperature to the desorption/reactivation zone of the concentrator at least once every 15 minutes during each of the three runs of the performance test.
(2) For each performance test, use the data collected during the performance test to calculate and record the average temperature. This is the minimum operating limit for the desorption/reactivation zone inlet temperature.
(3) During performance tests, monitor and record an indicator(s) of performance for the desorption/reactivation fan operation at least once every 15 minutes during each of the three runs of the performance test. The indicator can be speed in rpm, power in amps, static pressure, or flow rate.
(5) During performance tests, monitor the rotational speed of the concentrator at least once every 15 minutes during each of the three runs of a performance test.
(6) For each performance test, use the data collected during the performance test to calculate and record the average rotational speed. This is the minimum operating limit for the rotational speed of the concentrator. However, the indicator range for the rotational speed
(a) * * *
(4) You must maintain the CPMS at all times in accordance with § 63.3500(b) and have readily available necessary parts for routine repairs of the monitoring equipment.
(5) You must operate the CPMS and collect emission capture system and add-on control device parameter data at all times in accordance with § 63.3500(b) that a controlled coating operation is operating, except during monitoring malfunctions, associated repairs, and required quality assurance or control activities (including, if applicable, calibration checks and required zero and span adjustments).
(7) A monitoring malfunction is any sudden, infrequent, not reasonably preventable failure of the CPMS to provide valid data. Monitoring failures that are caused in part by poor maintenance or careless operation are not malfunctions. Before [date 181 days after date of publication of final rule in the
(c) * * *
(3) For all thermal oxidizers and catalytic oxidizers, you must meet the requirements in paragraphs (a) and (c)(3)(i) through (ii) of this section for each gas temperature monitoring device. For the purposes of this paragraph (c)(3), a thermocouple is part of the temperature sensor.
(1) Fails to meet any requirement or obligation established by this subpart including but not limited to any emission limit, operating limit, or work practice standard; or
(2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit; or
(3) Fails to meet any emission limit, operating limit, or work practice standard in this subpart during startup, shutdown, or malfunction regardless of whether or not such failure is permitted by this subpart.
(1) Fails to meet any requirement or obligation established by this subpart including but not limited to any emission limit, operating limit, or work practice standard; or
(2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit.
You must comply with the applicable General Provisions requirements according to the following table:
(a) The provisions of this subpart apply to each facility that is a major source of HAP, as defined in § 63.2, at which a coil coating line is operated, except as provided in paragraphs (b) and (e) of this section.
(e) This subpart does not apply to the application of incidental markings (including letters, numbers, or symbols) that are added to bare metal coils and that are used for only product identification or for product inventory control. The application of letters, numbers, or symbols to a coated metal coil is considered a coil coating process and part of the coil coating affected source.
(1) Fails to meet any requirement or obligation established by this subpart including, but not limited to, any emission limitation (including any operating limit) or work practice standard; or
(2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit; or
(3) Fails to meet any emission limitation (including any operating limit) or work practice standard in this subpart during start-up, shutdown, or malfunction, regardless of whether or not such failure is permitted by this subpart.
(1) Fails to meet any requirement or obligation established by this subpart including, but not limited to, any emission limitation (including any operating limit) or work practice standard; or
(2) Fails to meet any term or condition that is adopted to implement an applicable requirement in this subpart and that is included in the operating permit for any affected source required to obtain such a permit.
(a) Except as provided in paragraph (b) of this section, for any coil coating line for which you use an add-on control device, unless you use a solvent recovery system and conduct a liquid-liquid material balance according to § 63.5170(e)(1), you must meet the applicable operating limits specified in Table 1 to this subpart. You must establish the operating limits during performance tests according to the requirements in § 63.5160(d)(3) and Table 1 to § 63.5160. You must meet the operating limits established during the most recent performance test required in § 63.5160 at all times after you establish them.
(a) For an existing affected source, the compliance date is June 10, 2005.
The revision and addition read as follows:
(a) Before [date 181 days after publication of final rule in the
(b) Before [date 181 days after publication of final rule in the
(a) To demonstrate continuing compliance with the standards, you must monitor and inspect each capture system and each control device required to comply with § 63.5120 following the date on which the initial performance test of the capture system and control device is completed. You must install and operate the monitoring equipment as specified in paragraphs (a)(1) through (4) of this section. On and after [date 181 days after publication of final rule in the
(4) * * *
(i) The monitoring plan must identify the operating parameter to be monitored to ensure that the capture efficiency measured during compliance tests is maintained, explain why this parameter is appropriate for demonstrating ongoing compliance, and identify the specific monitoring procedures.
(b) If an operating parameter monitored in accordance with paragraphs (a)(3) and (4) of this section is out of the allowed range specified in Table 1 to this subpart it will be considered a deviation from the operating limit.
(b) * * *
(1) * * *
(i) Count only those organic HAP in Table 3 to this subpart that are measured to be present at greater than or equal to 0.1 weight percent and greater than or equal to 1.0 weight percent for other organic HAP compounds.
(2)
(4)
(c)
(d)
(1) Performance tests conducted to determine the destruction or removal efficiency of the control device must be performed such that control device inlet and outlet testing is conducted simultaneously. To determine the outlet organic HAP concentration achieved by the oxidizer, only oxidizer outlet testing must be conducted. The data must be reduced in accordance with the test methods and procedures in paragraphs (d)(1)(i) through (ix).
(vi) Method 25 or 25A in appendix A-7 of part 60 is used to determine total gaseous non-methane organic matter concentration. You may use Method 18 in appendix A-6 of part 60 to subtract methane emissions from measured total gaseous organic mass emissions as carbon. Use the same test method for both the inlet and outlet measurements, which must be conducted simultaneously. You must submit notification of the intended test method to the Administrator for approval along with notification of the performance test required under § 63.7 (b). You must use Method 25A if any of the conditions described in paragraphs (d)(1)(vi)(A) through (D) of this section apply to the control device.
(vii) Each performance test must consist of three separate runs, except as provided by § 63.7(e)(3); each run must be conducted for at least 1 hour under the conditions that exist when the affected source is operating under normal operating conditions. For the purpose of determining volatile organic matter concentrations and mass flow rates, the average of the results of all runs will apply. If you are demonstrating compliance with the outlet organic HAP concentration limit in § 63.5120(a)(3), only the average
(2) You must record such process information as may be necessary to determine the conditions in existence at the time of the performance test. Before [date 181 days after publication of final rule in the
(3)
(i) * * *
(A) During performance tests, you must monitor and record the combustion temperature at least once every 15 minutes during each of the three test runs. You must monitor the temperature in the firebox of the thermal oxidizer or immediately downstream of the firebox before any substantial heat exchange occurs.
(ii) * * *
(D) You must develop and implement an inspection and maintenance plan for your catalytic oxidizer(s) for which you elect to monitor according to paragraph (d)(3)(ii)(C) of this section. The plan must address, at a minimum, the elements specified in paragraphs (d)(3)(ii)(D)(
(e)
(c) * * *
(1) If the affected source uses one compliance procedure to limit organic HAP emissions to the level specified in § 63.5120(a)(1) or (3) and has only always-controlled work stations, then you must demonstrate compliance with the provisions of paragraph (e) of this section when emissions from the affected source are controlled by one or more solvent recovery devices.
(2) If the affected source uses one compliance procedure to limit organic HAP emissions to the level specified in § 63.5120(a)(1) or (3) and has only always-controlled work stations, then you must demonstrate compliance with the provisions of paragraph (f) of this section when emissions are controlled by one or more oxidizers.
(4) The method of limiting organic HAP emissions to the level specified in § 63.5120(a)(3) is the installation and operation of a PTE around each work station and associated curing oven in the coating line and the ventilation of all organic HAP emissions from each PTE to an oxidizer with an outlet organic HAP concentration of no greater than 20 ppmv on a dry basis. An enclosure that meets the requirements in § 63.5160(e)(1) is considered a PTE. Compliance of the oxidizer with the outlet organic HAP concentration limit is demonstrated either through continuous emission monitoring according to paragraph (c)(4)(ii) of this section or through performance tests according to the requirements of § 63.5160(d) and Table 1 to § 63.5160. If this method is selected, you must meet the requirements of paragraph (c)(4)(i) of
(e) * * *
(2)
(f) * * *
(1)
(2)
(g) * * *
(2)
(3)
(4)
(h) * * *
(6) * * *
(i)
(1) Conduct performance tests according to the schedule in Table 1 to § 63.5160 to determine the control device destruction or removal efficiency, DRE, according to § 63.5160(d) and Table 1 to § 63.5160.
The revisions and addition read as follows:
(f) Before [date 181 days after publication of final rule in the
(1) Before [date 181 days after publication of final rule in the
(g) * * *
(2) * * *
(v) A statement that there were no deviations from the applicable emission
(h) You must submit, for each deviation occurring at an affected source where you are not using CEMS to comply with the standards in this subpart, the semi-annual compliance report containing the information in paragraphs (g)(2)(i) through (iv) of this section and the information in paragraphs (h)(1) through (4) of this section:
(2) Before [date 181 days after publication of final rule in the
(3) Before [date 181 days after publication of final rule in the
(i) Number, date, time, duration, cause (including unknown cause), and descriptions of corrective actions taken for continuous parameter monitoring systems that are inoperative (except for zero (low-level) and high-level checks).
(ii) Number, date, time, duration, cause (including unknown cause), and descriptions of corrective actions taken for continuous parameter monitoring systems that are out of control as specified in § 63.8(c)(7).
(4) On and after [date 181 days after publication of final rule in the
(i) You must submit, for each deviation from the applicable emission limit in § 63.5120 or the applicable operation limit(s) established according to § 63.5121 occurring at an affected source where you are using CEMS to comply with the standards in this subpart, the semi-annual compliance report containing the information in paragraphs (g)(2)(i) through (iv) of this section, and the information in paragraphs (i)(1) through (12) of this section:
(1) The date and time that each malfunction of the capture system or add-on control devices started and stopped.
(2) Before [date 181 days after publication of final rule in the
(3) Before [date 181 days after publication of final rule in the
(4) Before [date 181 days after publication of final rule in the
(6) Before [date 181 days after publication of final rule in the
(9) Before [date 181 days after publication of final rule in the
(a) Beginning no later than [date 181 days after publication of final rule in the
(1) For data collected using test methods supported by the EPA's Electronic Reporting Tool (ERT) as listed on the EPA's ERT website (
(2) For data collected using test methods that are not supported by the EPA's ERT as listed on the EPA's ERT website at the time of the test, you must submit the results of the performance test in portable document format (PDF)
(3) If you claim that some of the performance test information being submitted under paragraph (a)(1) of this section is confidential business information (CBI), you must submit a complete file generated through the use of the EPA's ERT or an alternate electronic file consistent with the XML schema listed on the EPA's ERT website, including information claimed to be CBI, on a compact disc, flash drive or other commonly used electronic storage medium to the EPA. The electronic medium must be clearly marked as CBI and mailed to U.S. EPA/OAQPS/CORE CBI Office, Attention: Group Leader, Measurement Policy Group, MD C404-02, 4930 Old Page Rd., Durham, NC 27703. The same ERT or alternate file with the CBI omitted must be submitted to the EPA via the EPA's CDX as described in paragraph (a)(1) of this section.
(b) Beginning on [date 181 days after publication of final rule in the
(c) Beginning on [date 1 year after publication of final rule in the
(d) If you are required to electronically submit a report through the Compliance and Emissions Data Reporting Interface (CEDRI) in the EPA's Central Data Exchange (CDX), and due to a planned or actual outage of either the EPA's CEDRI or CDX systems within the period of time beginning 5 business days prior to the date that the submission is due, you will be or are precluded from accessing CEDRI or CDX and submitting a required report within the time prescribed, you may assert a claim of EPA system outage for failure to timely comply with the reporting requirement. You must submit notification to the Administrator in writing as soon as possible following the date you first knew, or through due diligence should have known, that the event may cause or caused a delay in reporting. You must provide to the Administrator a written description identifying the date, time and length of the outage; a rationale for attributing the delay in reporting beyond the regulatory deadline to the EPA system outage; describe the measures taken or to be taken to minimize the delay in reporting; and identify a date by which you propose to report, or if you have already met the reporting requirement at the time of the notification, the date you reported. In any circumstance, the report must be submitted electronically as soon as possible after the outage is resolved. The decision to accept the claim of EPA system outage and allow an extension to the reporting deadline is solely within the discretion of the Administrator.
(e) If you are required to electronically submit a report through CEDRI in the EPA's CDX and a force majeure event is about to occur, occurs, or has occurred or there are lingering effects from such an event within the period of time beginning 5 business days prior to the date the submission is due, the owner or operator may assert a claim of force majeure for failure to timely comply with the reporting requirement. For the purposes of this section, a force majeure event is defined as an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents you from complying with the requirement to submit a report electronically within the time period prescribed. Examples of such events are acts of nature (
(a) * * *
(5) On and after [date 181 days after date of publication of final rule in the
(i) The date, time, and duration of the deviation, as reported under § 63.5180(h) and (i).
(ii) A list of the affected sources or equipment for which the deviation occurred and the cause of the deviation, as reported under § 63.5180(h) and (i).
(iii) An estimate of the quantity of each regulated pollutant emitted over any applicable emission limit in § 63.5120 to this subpart or any applicable operating limit established according to § 63.5121 to this subpart, and a description of the method used to calculate the estimate, as reported under § 63.5180(h) and (i).
(iv) A record of actions taken to minimize emissions in accordance with § 63.5140(b) and any corrective actions taken to return the affected unit to its normal or usual manner of operation.
(c) Any records required to be maintained by this subpart that are in reports that were submitted electronically via the EPA's CEDRI may be maintained in electronic format. This ability to maintain electronic copies does not affect the requirement for facilities to make records, data, and reports available upon request to a delegated air agency or the EPA as part of an on-site compliance evaluation.
You must comply with the applicable General Provisions requirements according to the following table: