Animal and Plant Health Inspection Service
Industry and Security Bureau
International Trade Administration
National Oceanic and Atmospheric Administration
Army Department
Engineers Corps
National Nuclear Security Administration
Centers for Disease Control and Prevention
Centers for Medicare & Medicaid Services
Community Living Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Federal Emergency Management Agency
Bureau of Safety and Environmental Enforcement
Indian Affairs Bureau
Surface Mining Reclamation and Enforcement Office
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
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.
Federal Aviation Administration (FAA), DOT.
Final special conditions.
These special conditions are issued for the Boeing Model 787 series airplane. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport-category airplanes. This design feature is seats with inertia locking devices. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
Effective June 10, 2019.
Shannon Lennon, Cabin and Airframe Safety Section, AIR-675, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, Washington 98198; telephone and fax 206-231-3209; email
On February 14, 2019, Boeing applied for a change to Type Certificate No. T00021SE for seats with inertia locking devices in Model 787 series airplanes. The Model 787 series airplane is a twin-engine transport-category airplane with a maximum takeoff weight of 560,000 pounds and seating for 440 passengers.
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 787 series airplanes, as changed, continue to meet the applicable provisions of the regulations listed in Type Certificate No. T00021SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, Boeing Model 787 series airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
Boeing Model 787 series airplanes will incorporate the following novel or unusual design features:
Seats with inertia locking devices (ILD).
Boeing will install, in Model 787 series airplanes, Thompson Aero Seating Ltd. passenger seats that can be translated in the fore and aft direction by an electrically powered motor (actuator) that is attached to the seat primary structure. Under typical service-loading conditions, the motor internal brake is able to translate the seat and hold the seat in the translated position. However, under the inertial loads of emergency-landing loading conditions specified in 14 CFR 25.562, the motor internal brake may not be able to maintain the seat in the required position. The ILD is an “active” device intended to control seat movement (
The ILD will self-activate only in the event of a predetermined airplane loading condition such as that occurring during crash or emergency landing, and will prevent excessive seat forward translation. A minimum level of protection must be provided if the seat-locking device does not deploy.
The normal means of satisfying the structural and occupant protection requirements of § 25.562 result in a non-quantified, but predictable, progressive structural deformation or reduction of injury severity for impact conditions less than the maximum specified by the rule. A seat using ILD technology, however, may involve a step change in protection for impacts below and above that at which the ILD activates and deploys to retain the seat pan in place. This could result in structural deformation or occupant injury output being higher at an intermediate impact condition than that resulting from the maximum impact condition. It is acceptable for such step-change characteristics to exist, provided the resulting output does not exceed the maximum allowable criteria at any condition at which the ILD does or does not deploy, up to the maximum severity pulse specified by the requirements.
The ideal triangular maximum severity pulse is defined in Advisory Circular (AC) 25.562-1B. For the evaluation and testing of less-severe
Conditions 1 through 5 address ensuring that the ILD activates when intended in order to provide the necessary protection of occupants. This includes protection of a range of occupants under various accident conditions. Conditions 6 through 10 address maintenance and reliability of the ILD, including any outside influences on the mechanism, to ensure it functions as intended.
The special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The FAA issued Notice of Proposed Special Conditions No. 25-19-03-SC, for the Boeing Model 787 series airplane, which was published in the
One commenter writes:
Seats are dynamically tested in upright positions to show compliance with 14 CFR part 25.562. In this specific installation, there is a mechanical or electrical actuation of the movement of the seat, and the following points of concern may raise:
(1) If the motor loses electrical power before a crash during an actuation, can it lock the seat in a position other than that considered for [taxi, takeoff, and landing] TTL?
(2) There should be included a Special Condition to address possible interference of lightning and high-intensity radiated fields on the motor or its commands;
(3) Design features should be demanded to avoid the seat to be locked in an intermediate position (for example, because of fail in link between the seat structure and the actuator).
The FAA clarifies, regarding the commenter's concerns about seat-actuator motor disability and impact on the seat position due to loss of power or other conditions, the seat design includes a manual-override feature to restore the seat in the required position. However, while the actuator motor is part of the seat-actuation system, this feature is not the subject of the proposed special conditions. Rather, the special conditions address the ILDs, which are a different component of the seat-actuation system and are intended to ensure that the seat position is maintained in the event that the structural capability of the actuator motor brake is exceeded during emergency-landing conditions. The ILDs are a mechanical interlock feature and are not affected by loss of power or external electrical forces.
Another commenter asks if such extra safety precautions as ILDs may potentially be implemented in other airplane models, adding that seats with inertia locking devices likely enhance air-travel safety.
The FAA agrees that ILDs enhance airplane safety. It is possible that ILDs potentially will be incorporated into seat designs intended for installation on other airplane models. Incorporation of such a feature is contingent on the airplane manufacturer's determination to install seats that include ILDs as part of a seat-actuation system.
The comments do not change the special conditions, and the special conditions are adopted as proposed.
As discussed above, these special conditions are applicable to Boeing Model 787 series airplanes. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only one novel or unusual design feature on one model series of airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 787 series airplanes.
In addition to the requirements of § 25.562, passenger seats incorporating an inertia locking device (ILD) must meet the following:
1. Level of Protection Provided by ILD—It must be demonstrated by test that the seats and attachments, when subject to the emergency-landing dynamic conditions specified in § 25.562, and with one ILD not deployed, do not experience structural failure that could result in:
a. Separation of the seat from the airplane floor.
b. Separation of any part of the seat that could form a hazard to the seat occupant or any other airplane occupant.
c. Failure of the occupant restraint or any other condition that could result in the occupant separating from the seat.
2. Protection Provided Below and Above the ILD Actuation Condition—If step-change effects on occupant protection exist for impacts below and above that at which the ILD deploys, tests must be performed to demonstrate that the occupant is shown to be protected at any condition at which the ILD does or does not deploy, up to the maximum severity pulse specified by § 25.562. Test conditions must take into account any necessary tolerances for deployment.
3. Protection Over a Range of Crash Pulse Vectors—The ILD must be shown to function as intended for all test vectors specified in § 25.562.
4. Protection During Secondary Impacts—The ILD activation setting must be demonstrated to maximize the probability of the protection being available when needed, considering a secondary impact that is above the severity at which the device is intended to deploy up to the impact loading required by § 25.562.
5. Protection of Occupants other than 50th Percentile—Protection of occupants for a range of stature from a two-year-old child to a ninety-five percentile male must be shown.
6. Inadvertent Operation—It must be shown that any inadvertent operation of the ILD does not affect the performance of the device during a subsequent emergency landing.
7. Installation Protection—It must be shown that the ILD installation is protected from contamination and interference from foreign objects.
8. Reliability—The performance of the ILD must not be altered by the effects of wear, manufacturing tolerances, aging or drying of lubricants, and corrosion.
9. Maintenance and Functional Checks—The design, installation, and operation of the ILD must be such that it is possible to functionally check the
10. Release Function—If a means exists to release an inadvertently activated ILD, the release means must not introduce additional hidden failures that would prevent the ILD from functioning properly.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for the Mitsubishi Aircraft Corporation (MITAC), Model MRJ-200 airplanes. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. These design features are electrical and electronic systems that perform critical functions, the loss of which could be catastrophic to the airplane. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design features. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
This action is effective on MITAC on June 10, 2019. Send comments on or before July 25, 2019.
Send comments identified by Docket No. FAA-2019-0424 using any of the following methods:
•
•
•
•
Dean Thompson, Airplane and Flight Crew Interface Section, AIR-671, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, Federal Aviation Administration, 2200 South 216th Street, Des Moines, Washington 98198; telephone and fax 206-231-3165; email
The substance of these special conditions has been published in the
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On March 3, 2015, MITAC applied for a type certificate for their new Model MRJ-200 airplanes. The MITAC Model MRJ-200 airplane is a low-wing, conventional-tail design with two wing-mounted turbofan engines. The airplane has seating for 92 passengers and a maximum takeoff weight of 95,000 lbs.
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.17, MITAC must show that the Model MRJ-200 airplanes meet the applicable provisions of part 25, as amended by amendments 25-1 through 25-141; and part 26 continued airworthiness certification requirements, as amended by Amendments 26-1 through 26-6.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the MITAC MRJ-200 airplanes must comply with the fuel vent and exhaust emission requirements of 14 CFR part 34 and the noise certification requirements of 14 CFR part 36.
The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.17(a)(2).
The MITAC Model MRJ-200 airplanes will incorporate the following novel or unusual design features:
Electrical and electronic systems that perform critical functions, the loss of which may result in the loss of flight controls and other critical systems and may be catastrophic to the airplane.
The MITAC Model MRJ-200 airplane has a fly-by-wire flight control system that requires a continuous source of electrical power to maintain an operable flight-control system. Section 25.1351(d), Operation without normal electrical power, requires safe operation in visual flight rule (VFR) conditions for at least 5 minutes after loss of normal electrical power, excluding the battery. This rule was structured around a traditional design using mechanical control cables and linkages for flight control. These manual controls allow the crew to maintain aerodynamic control of the airplane for an indefinite time after loss of all electrical power. Under these conditions, a mechanical flight control system provided the crew with the ability to fly the airplane while attempting to identify the cause of the electrical failure, restart engine(s) if necessary, and attempt to re-establish some of the electrical power generation capability.
A critical assumption in § 25.1351(d) is that the airplane is in VFR conditions at the time of an electrical failure. This is not a valid assumption in today's airline operating environment, where airplanes fly much of the time in instrument meteorological conditions on air traffic control defined flight paths. Another assumption in the existing rule is that the loss of all normal electrical power is the result of the loss of all engines. The 5-minute period in the rule is to allow at least one engine to be restarted following an all-engine power loss in order to continue the flight to a safe landing. However, service experience on airplanes with similar electrical power system architecture as the MITAC Model MRJ-200 airplanes have shown that at least the temporary loss of all electrical power for causes other than all-engine failure is not extremely improbable.
To maintain the same level of safety envisioned by the existing rule with traditional mechanical flight controls, the MITAC Model MRJ-200 airplane design must not be time-limited in its operation under all reasonably foreseeable conditions, including loss of all normal sources of engine or auxiliary power unit (APU)-generated electrical power. Unless MITAC can show that the non-restorable loss of the engine and APU power sources is extremely improbable, MITAC must demonstrate that the airplane can maintain safe flight and landing (including steering and braking on the ground for airplanes using steer/brake-by-wire or fly-by-wire speed brake panels) with the use of its emergency/alternate electrical-power systems. These electrical-power systems, or the minimum restorable electrical-power sources, must be able to power loads that are essential for continued safe flight and landing, including those required for the maximum length of approved flight diversion.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
As discussed above, these special conditions are applicable to the MITAC Model MRJ-200 airplanes. Should MITAC apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.
This action affects only certain novel or unusual design features on one model of airplanes. It is not a rule of general applicability.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for MITAC Model MRJ-200 airplanes.
In lieu of 14 CFR 25.1351(d), the following special conditions apply:
1. The applicant must show by test or a combination of test and analysis that the airplane is capable of continued safe flight and landing with all normal electrical power sources inoperative, as prescribed by paragraphs 1.a. and 1.b., below. For purposes of these special conditions, normal sources of electrical power generation do not include any alternate power sources such as the battery, ram air turbine, or independent power systems such as the flight control permanent magnet generating system. In showing capability for continued safe flight and landing, the applicant must account for systems capability, effects on crew workload and operating conditions, and the physiological needs of the flightcrew and passengers for the longest diversion time for which the applicant is seeking approval.
a. In showing compliance with this requirement, the applicant must account for common-cause failures, cascading failures, and zonal physical threats.
b. The applicant may consider the ability to restore operation of portions of the electrical power generation and distribution system if it can be shown that unrecoverable loss of those portions of the system is extremely improbable. The design must provide an alternative source of electrical power for the time required to restore the minimum electrical power generation capability required for safe flight and landing. The applicant may exclude unrecoverable loss of all engines when showing compliance with this requirement.
2. Regardless of any electrical generation and distribution system recovery capability shown under paragraph 1 of these special conditions, sufficient electrical system capability must be provided to:
a. Allow time to descend, with all engines inoperative, at the speed that provides the best glide distance, from the maximum operating altitude to the top of the engine restart envelope, and
b. Subsequently allow multiple start attempts of the engines and auxiliary power unit (APU). The design must provide this capability in addition to the electrical capability required by existing part 25 requirements related to operation with all engines inoperative.
3. The airplane emergency electrical power system must be designed to supply:
a. Electrical power required for immediate safety, which must continue to operate without the need for crew action following the loss of the normal electrical power, for a duration sufficient to allow reconfiguration to provide a non-time-limited source of electrical power.
b. Electrical power required for continued safe flight and landing for the maximum diversion time.
4. If the applicant uses APU-generated electrical power to satisfy the requirements of these special conditions, and if reaching a suitable runway for landing is beyond the capacity of the battery systems, then the APU must be able to be started under any foreseeable flight condition prior to the depletion of the battery or the restoration of normal electrical power, whichever occurs first. Flight test must
a. The applicant must show that the APU will provide adequate electrical power for continued safe flight and landing.
b. The operating limitations section of the airplane flight manual (AFM) must incorporate non-normal procedures that direct the pilot to take appropriate actions to activate the APU after loss of normal engine-driven generated electrical power.
5. As part of showing compliance with these special conditions, the tests to demonstrate loss of all normal electrical power must also take into account the following:
a. The assumption that the failure condition occurs during night instrument meteorological conditions (IMC) at the most critical phase of the flight, relative to the worst possible electrical power distribution and equipment-loads-demand condition.
b. After the un-restorable loss of normal engine generator power, the airplane engine restart capability is provided and operations continued in IMC.
c. The airplane is demonstrated to be capable of continued safe flight and landing. The length of time must be computed based on the maximum diversion time capability for which the airplane is being certified. The applicant must account for airspeed reductions resulting from the associated failure or failures.
d. The airplane must provide adequate indication of loss of normal electrical power to direct the pilot to the non-normal procedures, and the operating limitations section of the AFM must incorporate non-normal procedures that will direct the pilot to take appropriate actions.
Federal Aviation Administration (FAA), DOT.
Final rule; request for comments.
The FAA is adopting an airworthiness directive (AD) for certain The Boeing Company Model 737-700C, -800, and -900ER series airplanes. This AD requires a maintenance records check to determine if any main slat track assembly has been removed, an inspection of the main slat track assemblies for a suspect lot number or a lot number that cannot be determined, and applicable on-condition actions. This AD was prompted by a report that certain main slat track assemblies were manufactured incorrectly and are affected by hydrogen embrittlement. The FAA is issuing this AD to address the unsafe condition on these products.
This AD is effective June 10, 2019.
The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of June 10, 2019.
The FAA must receive comments on this AD by July 25, 2019.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
You may examine the AD docket on the internet at
Greg Rutar, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3529; email:
The FAA has received a report from Boeing indicating that 148 main slat track assemblies from a set of lot numbers were manufactured incorrectly and are affected by hydrogen embrittlement. Main slat track assemblies that are affected by hydrogen embrittlement have reduced strength. After reviewing information within the report provided from Boeing, the FAA determined on May 22, 2019, that this condition, if not addressed, could result in failure of main slat track assemblies, which could cause the slat to depart and potentially strike the airplane, resulting in injury to airplane occupants and/or preventing continued safe flight and landing.
The FAA has determined that the identified unsafe condition also exists on Boeing Model 737-8 and -9 (737 MAX) airplanes. Boeing is currently developing service information that will address the unsafe condition for these airplanes. Once this service information is developed, approved, and available, the FAA might consider additional rulemaking.
The FAA reviewed Boeing Alert Requirements Bulletin 737-27A1312
The FAA is issuing this AD because the agency evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This AD requires accomplishment of the actions identified in Boeing Alert Requirements Bulletin 737-27A1312 RB, dated June 4, 2019, described previously, except for any differences identified as exceptions in the regulatory text of this AD.
For information on the procedures and compliance times, see this service information at
An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because main slat track assemblies that are affected by hydrogen embrittlement have reduced strength. This condition, if not addressed, could result in failure of main slat track assemblies, which could cause the slat to depart and potentially strike the airplane, resulting in injury to airplane occupants and/or preventing continued safe flight and landing. The compliance time for the required action that has been determined to adequately address the unsafe condition is shorter than the time necessary for the public to comment and for publication of the final rule. Therefore, the FAA finds good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, the FAA finds that good cause exists for making this amendment effective in less than 30 days.
The requirements of the RFA do not apply when an agency finds good cause pursuant to 5 U.S.C. 553 to adopt a rule without prior notice and comment. Because the FAA has determined that it has good cause to adopt this rule without notice and comment, RFA analysis is not required.
This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, the FAA invites you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the
The FAA will post all comments the agency receives, without change, to
The FAA estimates that this AD affects 32 airplanes of U.S. registry. The FAA estimates the following costs to comply with this AD:
The FAA estimates the following costs to do any necessary on-condition actions that would be required based on the results of the inspection. The FAA has no way of determining the number of aircraft that might need these on-condition actions:
According to the manufacturer, some or all of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. The FAA does not control warranty coverage for affected individuals. As a result, the FAA has included all available known costs in our cost estimate.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave. SW, Washington, DC 20591. ATTN: Information Collection Clearance Officer, AES-200.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs” describes in more detail the scope of the Agency's authority.
The FAA is issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
This AD will not have federalism implications under Executive Order 13132. This AD will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify that this AD:
(1) Is not a “significant regulatory action” under Executive Order 12866, and
(2) Will not affect intrastate aviation in Alaska.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
This AD is effective June 10, 2019.
None.
(1) This AD applies to The Boeing Company Model 737-700C, -800, and -900ER series airplanes, certificated in any category, as identified in Boeing Alert Requirements Bulletin 737-27A1312 RB, dated June 4, 2019.
(2) Installation of Supplemental Type Certificate (STC) ST00830SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST00830SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.
Air Transport Association (ATA) of America Code 27, Flight Controls.
This AD was prompted by a report that certain main slat track assemblies were manufactured incorrectly and are affected by hydrogen embrittlement. The FAA is issuing this AD to address main slat track assemblies that have reduced strength due to hydrogen embrittlement. This condition, if not addressed, could result in failure of main slat track assemblies, which could cause the slat to depart and potentially strike the airplane, resulting in injury to airplane occupants and/or preventing continued safe flight and landing.
Comply with this AD within the compliance times specified, unless already done.
Except as specified by paragraph (h) of this AD: At the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 737-27A1312 RB, dated June 4, 2019, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin 737-27A1312 RB, dated June 4, 2019.
Guidance for accomplishing the actions required by this AD can be found in Boeing Alert Service Bulletin 737-27A1312, dated June 4, 2019, which is referred to in Boeing Alert Requirements Bulletin 737-27A1312 RB, dated June 4, 2019.
(1) For purposes of determining compliance with the requirements of this AD: Where Boeing Alert Requirements Bulletin 737-27A1312 RB, dated June 4, 2019, uses the phrase “the original issue date of Requirements Bulletin 737-27A1312 RB,” this AD requires using “the effective date of this AD.”
(2) Boeing Alert Requirements Bulletin 737-27A1312 RB, dated June 4, 2019, specifies to report inspection results to Boeing within a certain compliance time. For this AD, the compliance time to report inspection results is at the applicable time specified in paragraph (h)(2)(i) or (h)(2)(ii) of this AD.
(i) If the inspection was done on or after the effective date of this AD: Submit the report within 3 days after the inspection.
(ii) If the inspection was done before the effective date of this AD: Submit the report within 3 days after the effective date of this AD.
(3) Boeing Alert Requirements Bulletin 737-27A1312 RB, dated June 4, 2019, specifies to ship affected parts to Boeing within a certain compliance time if, during the inspection, it has been determined that any main slat track assembly has a suspect lot number or has a lot number that cannot be determined. For this AD, the compliance time for shipping affected parts to Boeing is at the applicable time specified in paragraph (h)(3)(i) or (h)(3)(ii) of this AD.
(i) If the inspection was done on or after the effective date of this AD: Ship the affected part to Boeing within 30 days after removing the affected part.
(ii) If the inspection was done before the effective date of this AD: Ship the affected
(4) Where “CONDITION 5” of Boeing Alert Requirements Bulletin 737-27A1312 RB, dated June 4, 2019, uses the phrase “suspect lot number cannot be determined,” or “suspect lot number that cannot be determined,” this AD requires using, “lot number cannot be determined,” or “lot number that cannot be determined;” respectively.
(5) Where flag note (a) of Figure 5, Figure 6, Figure 7, and Figure 8, of Boeing Alert Requirements Bulletin 737-27A1312 RB, dated June 4, 2019, specifies “Only required if the main slat track assembly has a suspect lot number,” this AD requires using, “Only required if the main slat track assembly has a suspect lot number or a lot number that cannot be determined.”
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 1 hour per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW, Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.
(1) The Manager, Seattle ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (k) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by The Boeing Company Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
For more information about this AD, contact Greg Rutar, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3529; email:
(1) The Director of the Federal Register approved the incorporation by reference (IBR) of the service information listed in this paragraph under 5 U.S.C. 552(a) and 1 CFR part 51.
(2) You must use this service information as applicable to do the actions required by this AD, unless the AD specifies otherwise.
(i) Boeing Alert Requirements Bulletin 737-27A1312 RB, dated June 4, 2019.
(ii) [Reserved]
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet
(4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.
(5) You may view this service information that is incorporated by reference at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
Federal Aviation Administration (FAA), DOT.
Final rule.
This action modifies VHF Omnidirectional Range (VOR) Federal airways V-8, V-92, V-214, and V-438 due to the planned decommissioning of the Grantsville, MD, VOR/DME navigation aid which provides navigation guidance for segments of the routes. The Grantsville VOR/DME is being decommissioned as part of the FAA's VOR Minimum Operational Network (MON) program.
Effective date 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 online at
FAA Order 7400.11, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Paul Gallant, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.
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 promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the National Airspace System as necessary to preserve the safe and efficient flow of air traffic.
The FAA published a notice of proposed rulemaking for Docket No.
VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11C dated August 13, 2018, and effective September 15, 2018, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document will be subsequently published 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
The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 by amending the descriptions of VOR Federal airways V-8, V-92, V-214, and V-438, due to the planned decommissioning of the Grantsville, MD, VOR/DME. The VOR Federal airway changes are outlined below.
The first section extends between Kokomo, IN and Goshen, IN (no change from current configuration). The second section extends between the intersection of radials from the Appleton, OH, VORTAC and the Zanesville, OH, VOR/DME, and the Bellaire, OH, VOR/DME. The third section extends between the Martinsburg, WV, VORTAC and the Teterboro, NJ, VOR/DME.
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 Department of Transportation (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 of modifying VOR Federal airways V-8, V-92, V-214, and V-438 due to the planned decommissioning of the Grantsville, MD VOR/DME, qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.
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.
From INT Seal Beach, CA, 266° and Ventura, CA, 144° radials; Seal Beach; Paradise, CA; 35 miles, 7 miles wide (3 miles SE and 4 miles NW of centerline) Hector, CA;
From Chicago Heights, IL; to Goshen, IN. From Newcomerstown, OH; to Bellaire, OH.
From Kokomo IN, Marion, IN; to Muncie, IN. From INT Appleton, OH, 236° and Zanesville, OH, 274° radials; Zanesville; to Bellaire, OH. From Martinsburg, WV; INT Martinsburg 094° and Baltimore, MD, 300° radials; Baltimore; INT Baltimore 093° and Dupont, DE, 223° radials; Dupont; Yardley, PA; to Teterboro, NJ.
From Hagerstown, MD, to the INT of Hagerstown 157° and the Martinsburg, WV, 130° radials.
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective June 10, 2019. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of June 10, 2019.
Availability of matter incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC 20590-0001;
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at
Thomas J. Nichols, Flight Procedures and Airspace Group, Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration. Mailing Address: FAA Mike Monroney Aeronautical Center, Flight Procedures and Airspace Group, 6500 South MacArthur Blvd., Registry Bldg. 29, Room 104, Oklahoma City, OK 73125. Telephone: (405) 954-4164.
This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the
This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.
The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.
Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C.
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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:
Federal Aviation Administration (FAA), DOT.
Final rule.
This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.
This rule is effective June 10, 2019. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.
The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of June 10, 2019.
Availability of matters incorporated by reference in the amendment is as follows:
1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE, West Bldg., Ground Floor, Washington, DC, 20590-0001.
2. The FAA Air Traffic Organization Service Area in which the affected airport is located;
3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,
4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to:
All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at
Thomas J. Nichols, Flight Procedures and Airspace Group, Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration. Mailing Address: FAA Mike Monroney Aeronautical Center, Flight Procedures and Airspace Group, 6500 South MacArthur Blvd., Registry Bldg 29, Room 104, Oklahoma City, OK 73125. Telephone: (405) 954-4164.
This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.
The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the
The material incorporated by reference is publicly available as listed in the
The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.
This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.
The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.
Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.
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. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air Traffic Control, Airports, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:
49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.
Office of Technology Evaluation, Bureau of Industry and Security, U.S. Department of Commerce.
Interim final rule.
This interim final rule changes the process for requesting exclusions from the duties and quantitative limitations on imports of aluminum and steel discussed in two Commerce interim final rules implementing the exclusion process authorized by the President as part of the action he took to adjust imports under Section 232 of the Trade Expansion Act of 1962, as amended (“232”). The Department of Commerce (“the Department”) has developed the portal referred to henceforth as the “232 Exclusions Portal” for persons submitting exclusion requests, objections to exclusion requests, rebuttals, and surrebuttals to replace the use of the Federal rulemaking portal (
See
All comments on this interim final rule must be submitted by one of the following methods:
•
• By email directly to
• By mail or delivery to Regulatory Policy Division, Bureau of Industry and Security, U.S. Department of Commerce, Room 2099B, 14th Street and Pennsylvania Avenue NW, Washington, DC 20230. Reference RIN 0694-AH55.
Brad Botwin, Director, Industrial Studies, Office of Technology Evaluation, Bureau of Industry and Security, U.S. Department of Commerce (202) 482-5642,
On March 8, 2018, President Trump issued Proclamations 9704 and 9705, imposing duties on imports of aluminum and steel. The Proclamations also authorized the Secretary to grant exclusions from the duties if the
On September 11, 2018, the Department issued a second interim final rule,
This rule generally does not address all the comments received in response to the September 11 rule. This rule is limited to making changes necessary to implement the new 232 Exclusions Portal because many commenters, in response to the March 19 and September 11 rules, had expressed concerns over the inefficiencies of the 232 exclusions process, in particular the limitations of using
At the time of the March 19 rule, the Federal rulemaking portal at
While
Two bureaus within the Department of Commerce, the Bureau of Industry and Security (BIS) and the International Trade Administration (ITA), developed the Portal to streamline the exclusions process for external parties, including importers and domestic manufacturers, by replacing the data collection point with web-based forms, which will enhance data integrity and quality controls. The Portal allows 232 submitters to easily view all exclusion request, objection, rebuttal, and surrebuttal documents in one, web-based system. In order to benefit from using the new Portal, submitters must complete a web-based registration prior to submitting any documents. In addition, external parties will now be able to track submission deadlines in this same system. This also allows for better collaboration between government agencies processing 232 exclusion requests.
So, on November 26, 2018, the Department published the notice,
Comments on this rule allows the Department to identify additional enhancements for later incorporation.
This interim final rule only makes changes to the 232 exclusions process needed for the implementation of a new 232 Exclusions Portal. The Department will address any remaining comments from the September 11 rule and any comments received in response to this rule in a subsequent rulemaking. In order to begin transition, the Department will begin accepting new exclusion requests on the 232 Exclusions Portal on June 13, 2019 and will no longer accept new exclusion requests on
In addition, on June 10, 2019, the Department will publish a detailed user guide for the 232 Exclusions Portal (including screen shot images) on its website (
There will be a transition period during which both the
This interim final rule makes various edits to Supplements No. 1 and 2, and to Annex 1 to Supplements No. 1 and 2, to add provisions relating to the transition period and to add references to the 232 Exclusions Portal. Because
This interim final rule makes the same changes to Supplements No. 1 and No. 2 for transitioning to the 232 Exclusions Portal. The changes described below will apply to both supplements and are being made to the same paragraphs in each supplement. This interim final rule updates Annex 1 to Supplements No. 1 and 2 to part 705 to make conforming changes relating to the addition of the 232 Exclusions Portal. The majority of the changes being made to the two supplements involve adding references to the 232 Exclusions Portal wherever
The Department has tried to minimize the number of changes made to Supplements No. 1 and 2 in this interim final rule. The structure of how the transition provisions are being implemented will not require a rule to be published later to end the transition period. Thus, the end of the transition period will be self-implementing based on the criteria included in this interim final rule. However, a subsequent rule will remove provisions related to
To implement the changes described above, this interim final rule makes the following revisions in both Supplements No. 1 and 2:
In paragraph (a), six sentences are added to the end of this paragraph to specify that the supplements reference two different methods of submission for 232 exclusion submissions. The new text specifies that the first method of submission is based on a legacy system used for 232 submissions (
The new text being added to paragraph (a) specifies that the two methods of processing for exclusions are for use during a transition period that will end once the Department has made a final disposition on all exclusion requests submitted via
Shortly after the transition period for processing of exclusions is completed, the Department intends to publish another rule to update the two supplements to remove the transition related provisions to clarify that only the 232 Exclusions Portal is available for 232 exclusion submissions.
In the introductory text of paragraph (b), the first sentence after the heading is revised to specify that any exclusion request to be submitted no later than June 12, 2019, must be submitted through
Also in the introductory text of paragraph (b), three sentences are added to introduce the requirements for the required forms that will be used on the 232 Exclusions Portal for any exclusion request submitted on or after June 13, 2019. Because the 232 Exclusions Portal includes web-based fillable forms within the system, there is no need to reference filling out one of the four external forms and then uploading it into the system, as a submitter would need to do in
In paragraphs (b)(1), (2), (3) and (4), one sentence is added to the end of each of these respective paragraphs to reference the name of the web-based form on the 232 Exclusions Portal. Each of the new sentences begins by specifying what the title of the web-based fillable form in the 232 Exclusions Portal is and then provides the name of the web-based fillable form: Exclusion Request (for paragraph (b)(1)), Objection (for paragraph (b)(2)), Rebuttal (for (b)(3)), and Surrebuttal (for paragraph (b)(4)). This rule adds a new Note to paragraphs (b)(1) through (4) to describe how each filing of one of the web-based fillable forms (232 submissions) will be automatically assigned its own distinct ID# in the 232 Exclusions Portal. The new Note also specifies that each 232 submission in addition to having its own distinct ID# will also be preceded with an acronym for the file type: Exclusion requests (ER ID#), Objection (OF ID#), Rebuttals (RB ID#) and Surrebuttals (SR ID#). The new Note provides examples of this for the four types of 232 submissions. The new Note specifies that the 232 Exclusions Portal will automatically assign the two letter designator depending on the type
Under paragraph (b)(5)(iii) (
Thus, the first sentence is revised to specify that for any rebuttals and surrebuttals pertaining to 232 submissions for exclusion requests submitted no later than June 12, 2019, the email subject line must only include the original
In paragraph (c)(3), the first sentence after the heading is revised to specify that all exclusion requests submitted no later than June 12, 2019 must be in electronic form and must be submitted through
In paragraph (c)(4), the entire paragraph is revised to specify that there continues to be no time limit for submitting exclusion requests, but that the method of submission will vary based on the date, and that the correct method of submission must be used based on the date of submission. Paragraph (c)(4) is also revised to specify that the U.S. Department of Commerce will reject and require resubmission using the correct submission method for any exclusion request that does not comply with the submission requirements specified in paragraph (c)(3). The paragraph specifies that adhering to these date requirements is needed during the transition period to allow the transition period to be completed as quickly as possible and in a fair and transparent manner.
In paragraph (d)(2), this rule redesignates and slightly revises the text of the paragraph after the heading as new paragraph (d)(2)(i). Transition related text is added to specify that when submitting an objection to a submitted exclusion request that was submitted no later than June 12, 2019, the objector must locate the exclusion request and its objection form for the submitted exclusion request in
New paragraph (d)(2)(ii) is added to specify that when submitting an objection to a submitted exclusion request that was submitted on or after June 13, 2019, the objector must locate the exclusion request and submit the objection in response to the request, directly in the 232 Exclusions Portal. The new paragraph (d)(2)(ii) includes a sentence to assist objectors in how to find the web-based objection form when reviewing a posted exclusion request form.
In paragraph (d)(3), transition related provisions are added to specify that all objections to submitted exclusion requests that were submitted no later than June 12, 2019 must be in electronic form and submitted to
In the introductory text of paragraph (f), a reference to the 232 Exclusions Portal is added after the
In paragraph (f)(1), this rule redesignates the existing text after the heading as new paragraph (f)(1)(i).
New paragraph (f)(1)(ii) is added to specify how an eligible rebutter can find the web-based rebuttal form by scrolling to the bottom of the objection form and how to fill out the web-based form for submitting their rebuttal to the objection form through the 232 Exclusions Portal.
In paragraph (f)(2) (
In paragraph (f)(4), a reference to the 232 Exclusions Portal is added after
In paragraph (g), the first sentence after the paragraph heading is revised to add a reference to the 232 Exclusions Portal after
In paragraph (g)(1), this rule redesignates the existing text after the heading as new paragraph (g)(1)(i).
New paragraph (g)(1)(ii) is added to specify how an eligible surrebutter can find the web-based surrebuttal form by scrolling to the bottom of the rebuttal form and how to fill out the web-based form for submitting their surrebuttal to the rebuttal through the 232 Exclusions Portal.
In paragraph (g)(2), a reference to the 232 Exclusions Portal is added after the reference to
In paragraph (g)(4), a reference to the 232 Exclusions Portal is added after
In paragraph (h)(2)(i), this rule redesignates the existing text after the heading as paragraph (h)(2)(i)(A) to specify the requirements identified in this paragraph apply to each exclusion request submitted no later than June 12, 2019 under the two docket numbers referenced in the two respective supplements for steel and aluminum. This rule makes no other changes to this redesignated paragraph, except to add the parenthetical phrase “(decision memos)” in the first sentence to clarify that the posted responses in
New paragraph (h)(2)(i)(B) is added to specify that the requirements identified in this paragraph apply to each exclusion request submitted on or after June 13, 2019. Similar to the requirements specified in paragraph (h)(2)(i)(A), the U.S. Department of Commerce response (decision memo) to an exclusion request will also be responsive to any of the objection(s), rebuttal(s) and surrebuttal(s) for that submitted exclusion request submitted through the 232 Exclusions Portal.
In paragraph (h)(2)(ii), the reference to “the U.S. Department of Commerce will work with U.S. Customs and Border Protection (CBP) to ensure that the requester provided an accurate HTSUS statistical reporting number.” is deleted. This change is made to reflect a change in the internal business process whereby CBP is being sent the exclusion request for HTSUS validation and exclusion request administrability prior to an exclusion request being posted on
In paragraph (h)(2)(iii)(A), a reference to the 232 Exclusions Portal is added after
In paragraph (h)(3)(i), the second sentence after the paragraph heading is revised to add a reference to the 232 Exclusions Portal after
Paragraph (i) is revised by adding text directing the public to
In Annex 1 to Supplements No. 1 and 2 to Part 705—Steps for Using
The Department is not seeking comments regarding the duties or quantitative limitations themselves or the exclusion and objection process overall. Rather, the Department seeks comment on whether the specific changes included in this third interim final rule have addressed earlier concerns with the use of
The 232 Exclusions Portal should make significant improvements to the efficiency of the 232 exclusions process. The Department will continue to make improvements to the 232 Exclusions Portal, including based on comments received on this rule, and parties will be notified of any new features.
1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be a “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Pursuant to Proclamations 9704 and 9705 of March 8, 2018, and Proclamations 9776 and 9777 of August 29, 2018, the establishment of procedures for an exclusions process under each Proclamation shall be published in the
2. The Paperwork Reduction Act of 1995 (44 U.S.C. 3501
This final regulation involves three collections currently approved by OMB with the following control numbers
• Exclusions from the Section 232 National Security Adjustments of Imports of Steel and Aluminum (control number 0694-0139)
• Objections from the Section 232 National Security Adjustments of Imports of Steel and Aluminum (control number 0694-0138).
• Procedures for Submitting Rebuttals and Surrebuttals Requests for Exclusions from and Objections to the Section 232 Adjustments for Steel and Aluminum (OMB control number 0694-0141).
This rule is not expected to increase the burden hours for any of the collections associated with this rule as minimal changes are anticipated.
Any comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, may be sent to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to
3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.
4. Pursuant to 5 U.S.C. 553, the Department of Commerce generally seeks notice and comment before issuing a final rule. However, an agency may forgo notice and comment when issuing “rules of agency organization, procedure, or practice.” Section 553(b)(3)(A). “The `critical feature' of [such a] rule is that it covers agency actions that do not themselves alter the rights or interests of parties, although it may alter the manner in which the parties present themselves or their viewpoints to the agency.”
Under Section 553(b)(3)(A), the Department may issue this rule without notice and comment. This rule changes the Department's procedures but does not alter the rights or interests of parties. Before this rule, the Department managed the 232 exclusions process through the Federal rulemaking portal (
In addition, the agency may waive the requirement under Section 553(d) that a final rule be published not less than 30 days prior to its effective date when an agency finds “good cause” and publishes the good cause finding with the rule. “[T]he purpose of the thirty-day waiting period [pursuant to Section 553(d)] is to give affected parties a reasonable time to adjust their behavior before the final rule takes effect.”
Here, the Department finds good cause to waive the 30-day waiting period. Public comments received in response to the March 19 and September 11 rules asserted concerns with the use of the Federal rulemaking portal
The U.S. Department of Commerce has stated that the use of
On November 26, 2018, the U.S. Department of Commerce published the notice,
Moreover, the Department's administrative burden decreases significantly. Finally, foregoing the delay in effective date imposes no burden on submitters as they continue to provide the same information through a different, streamlined portal.
In order to provide for a smooth transition to the 232 Exclusions Portal and avoid imposing costs on the public, the Department will continue to use
Because a notice of proposed rulemaking and an opportunity for prior public comment are not required for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
Administrative practice and procedure, Business and industry, Classified information, Confidential business information, Imports, Investigations, National security.
For the reasons set forth in the preamble, part 705 of subchapter A of 15 CFR chapter VII is amended as follows:
Section 232 of the Trade Expansion Act of 1962, as amended (19 U.S.C. 1862) and Reorg. Plan No. 3 of 1979 (44 FR 69273, December 3, 1979).
The revisions read as follows:
(a)
(b)
(1)
(2)
(3)
(4)
On the 232 Exclusions Portal, each exclusion request is assigned a distinct ID #, which is also used with its associated 232 submissions, but preceded with an acronym indicating the file type: Exclusion Requests (ER ID #), Objection (OF ID #), Rebuttals (RB ID #) and Surrebuttals (SR ID #). For an example of the four possible types of 232 submissions associated with a single exclusion request, you could have ER ID 237, OF ID 237, RB ID 237 and SR ID 237. The 232 Exclusions Portal will automatically assign the two letter designator depending on the type of web-based form being submitted in the portal and will assign an ID number to the original exclusion request and that ID number will be common to any objection, rebuttal, or surrebuttal submitted pertaining to the same exclusion request.
(5) * * *
(iii) * * *
(A) On the same day that you submit your 232 submission in
(B) For rebuttals and surrebuttals pertaining to 232 submissions for exclusion requests submitted no later than June 12, 2019, the email subject line must only include the original
(C) Submit the CBI as an attachment to that email. The CBI is limited to a maximum of 5 pages per rebuttal or surrebuttal. The email is to be limited to sending your CBI. All other information for the public submission, and public versions of the CBI, where appropriate, for a 232 submission must be submitted using
(c) * * *
(3)
(4)
(d) * * *
(2)
(ii)
(3)
(f)
(1)
(ii)
(2)
(4)
(g)
(1)
(ii)
(2)
(4)
(h) * * *
(2)
(B)
(ii)
(iii)
(3)
(i)
The revisions read as follows:
(a)
(b)
(1)
(2)
(3)
(4)
On the 232 Exclusions Portal, each exclusion request is assigned a distinct ID#, which is also used with its associated 232 submissions, but preceded with an acronym identifying the file type: Exclusion Requests (ER ID#), Objection (OF ID#), Rebuttals (RB ID#) and Surrebuttals (SR ID#). For an example of the four possible types of 232 submissions associated with a single exclusion request, you could have ER ID 237, OF ID 237, RB ID 237 and SR ID 237. The 232 Exclusions Portal will automatically assign the two letter designator depending on the type of web-based form being submitted in the portal and will assign an ID number to the original exclusion request and that ID number will be common to any objection, rebuttal, or surrebuttal submitted pertaining to the same exclusion request.
(5) * * *
(iii) * * *
(A) On the same day that you submit your 232 submission in
(B) For rebuttals and surrebuttals pertaining to 232 submissions for exclusion requests submitted no later than June 12, 2019, the email subject line must only include the original
(C) Submit the CBI as an attachment to that email. The CBI is limited to a maximum of 5 pages per rebuttal or
(c) * * *
(3)
(4)
(d) * * *
(2)
(ii)
(3)
(f)
(1)
(ii)
(2)
(4)
For exclusion requests that received an objection(s) but for which the U.S. Department of Commerce has not posted a final determination on the exclusion request as of September 11, 2018, the Department will reopen the requests to allow for the submission of rebuttals. The Department will reopen the requests on a rolling basis starting on September 11, 2018, and will seek to complete the reopening process on the date that is seven days after September 18, 2018, to serve as the start date for the review periods identified in paragraph (f)(4) of this supplement for those requests.
(g)
(1)
(ii)
(2)
(4)
(h) * * *
(2)
(B)
(ii)
(iii)
(3)
(i)
These steps for how to file rebuttal and surrebuttal comments are only applicable to exclusion requests submitted no later than June 12, 2019 in
Coast Guard, DHS.
Final rule.
The Coast Guard is changing the operating schedule that governs the draws of the Union Pacific Railroad bridge, mile 227.0, and the Midsouth Railroad bridge, mile 228.2, across the Red River at Shreveport, LA. This final rule will allow for the drawbridges to remain in the closed-to-navigation position. While there is vessel traffic on the waterway, no one has requested that either drawbridge be open since 2007. Union Pacific Railroad and Midsouth Railroad, the bridge owners, requested to update the operating schedule accordingly.
This rule is effective on July 10, 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 Eric A. Washburn, Bridge Administrator, Western Rivers, Coast Guard; telephone 314-269-2378, email
On June 21, 2018, we published a notice of proposed rulemaking (NPRM) entitled
The Coast Guard is issuing this rule under authority 33 U.S.C. 499. This rule changes the operating schedule for two bridges by revising the regulations governing the Red River drawbridge operating requirements under 33 CFR 117.491(c). Currently, this operating schedule applies to the draws of all bridges on the Red River from, mile 105.8 through mile 234.4. The operating schedule changes will allow the drawbridges to remain closed to the passage of vessels. However, pursuant 33 CFR 117.39, this rule includes a provision that requires the owner or agency controlling the bridge to bring the draw into full operational capability within three months if the District Commander provides a notification that needs of navigation require resumed operation of the spans.
Navigation on the Red River in the vicinity of these bridges consists primarily of recreational craft, and commercial use of the waterway is only possible during periods of high water. Moreover, the U.S. Army Corps of Engineers does not maintain any project depth or navigable channel on this reach of the Red River, nor does the U.S. Coast Guard maintain any aids to navigation above mile 211.4. Under 33 CFR 117.491(d), the bridges above mile 234.4 need not open for the passage of vessels. There are no alternate routes for vessels transiting this section of the Red River.
Union Pacific Railroad owns the Union Pacific Railroad bridge, mile 227.0, across the Red River at Shreveport, LA, and has requested that the drawbridge regulation be amended to allow the bridge to remain in the permanently closed position. Union Pacific provided the Coast Guard with bridge logs that indicate that there has been no request for a bridge opening since 2007. In the closed position, the Union Pacific Railroad bridge, mile 227.0, provides 15.1 feet of vertical clearance at mean high water.
Midsouth Railroad owns the Midsouth Railroad bridge, mile 228.2, across the Red River at Shreveport, LA,
Under 33 CFR 117.39, the District Commander may authorize a drawbridge to remain in the closed to navigation position and be untended when there have been no requests for drawbridge openings for two years. Due to the lack of significant navigation on this portion of the Red River that requires draws to open and the fact that there has been no request to open the draws in over ten years, the Coast Guard believes that this rule is reasonable and should continue to meet the present and future needs of navigation. Based on the records provided by Union Pacific Railroad and Midsouth Railroad, it is expected that the change will have no known impact to navigation or other waterway users.
The Coast Guard provided a comment period of 60 days and nine comments were received. All nine comments were concerned the drawbridges will be permanently closed-to-navigation. The intent for the rule change is not to permanently close the draws, but allow for the drawbridges to remain in the closed-to-navigation position until the need of navigation resumes, at which time the draws will be required to open within three months notice from the District Commander.
We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on 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, it 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 logs that were provided by the bridge owners indicating that there has been no request for a bridge opening since 2007. Moreover, once the needs of navigation require the resumed operation of the spans, the owner or agency of the drawbridges will be notified by the District Commander to restore the draws to full operation within three months.
The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rule. The Coast Guard certifies under 5 U.S.C. 605(b) that this 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 bridge may be small entities, for the reasons stated in section V.A above this final rule would 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 would call for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520.).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on 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 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.
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 Commandant Instruction M16475.lD, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions which do not individually or cumulatively have a significant effect on the human environment. This rule simply promulgates the operating regulations or procedures for drawbridges. This action is categorically excluded from further review, under
A Record of Environmental Consideration and a Memorandum for the Record are not required for this rule.
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Bridges.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 117 as follows:
33 U.S.C. 499; 33 CFR 1.05-1; and Department of Homeland Security Delegation No. 0170.1.
(c) The draws of the bridges above mile 105.8 through mile 234.4 need not open for passage of vessels. The owner or agency controlling the bridge must restore the draw to full operation within three months if notified by the District Commander that the needs of navigation require resumed operation of the spans.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; quota transfer.
NMFS announces that the State of North Carolina is transferring a portion of its 2019 commercial summer flounder quota to the Commonwealth of Virginia. This quota adjustment is necessary to comply with the Summer Flounder, Scup, and Black Sea Bass Fishery Management Plan quota transfer provisions. This announcement informs the public of the revised commercial quotas for North Carolina and Virginia.
Effective June 7, 2019, through December 31, 2019.
Cynthia Ferrio, Fishery Management Specialist, (978) 281-9180.
Regulations governing the summer flounder fishery are found in 50 CFR 648.100 through 648.110. These regulations require annual specification of a commercial quota that is apportioned among the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102, and the revised 2019 allocations were published on May 17, 2019 (84 FR 22392).
The final rule implementing Amendment 5 to the Summer Flounder Fishery Management Plan, as published in the
North Carolina is transferring 36,990 lb (16,778 kg) of summer flounder commercial quota to Virginia through mutual agreement of the states. This transfer was requested to repay landings made by North Carolina-permitted vessels in Virginia under a safe harbor agreement. The revised summer flounder quotas for fishing year 2019 are now: North Carolina, 2,974,117 lb (1,349,037 kg); and Virginia, 2,378,210 lb (1,078,738 kg).
This action is taken under 50 CFR part 648 and is exempt from review under Executive Order 12866.
16 U.S.C. 1801
Office of Personnel Management.
Proposed rule.
This rule proposes to amend the geographic boundaries of several nonappropriated fund (NAF) Federal Wage System (FWS) wage areas. Based on consensus recommendations of the Federal Prevailing Rate Advisory Committee (FPRAC), the Office of Personnel Management (OPM) proposes to define St. Joseph County, Indiana, as an area of application county to the Lake, Illinois, NAF FWS wage area; Greene County, Missouri, as an area of application county to the Leavenworth-Jackson-Johnson, Kansas, NAF FWS wage area; Lucas County, Ohio, as an area of application county to the Macomb, Michigan, NAF FWS wage area; and the municipality of Mayaguez, Puerto Rico, as an area of application county to the Guaynabo-San Juan, PR, NAF FWS wage area. These changes are necessary because NAF FWS employees are now working in these locations, but the locations are not currently defined to NAF wage areas. In addition, OPM is proposing to remove the municipalities of Ceiba, Isabela, Toa Baja, and Vieques, PR, and the U.S. Virgin Islands of St. Croix and St. Thomas, from the wage area definition of the Guaynabo-San Juan NAF wage area because there are no longer NAF FWS employees working in these locations.
Send comments on or before July 10, 2019.
You may submit comments, identified by docket number and/or Regulatory Information Number (RIN) and title, by the following method:
•
All submissions received must include the agency name and docket number or RIN for this document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing at
Madeline Gonzalez, by telephone at (202) 606-2838 or by email at
OPM is issuing a proposed rule that would make changes to several NAF FWS wage area definitions. The Department of Veterans Affairs notified OPM that the Veterans Canteen Service (VCS) now employs NAF FWS employees in St. Joseph County, IN; Greene County, MO; Lucas County, OH; and the municipality of Mayaguez, PR. In addition, OPM is proposing to remove the municipalities of Ceiba, Isabela, Toa Baja, and Vieques, PR, and the U.S. Virgin Islands of St. Croix and St. Thomas, from the wage area definition of the Guaynabo-San Juan NAF FWS wage area because there are no longer NAF FWS employees working in these locations.
Under § 532.219 of title 5, Code of Federal Regulations (CFR), each NAF wage area “shall consist of one or more survey areas, along with nonsurvey areas, if any, having nonappropriated fund employees.” St. Joseph, Greene, and Lucas Counties, and the municipality of Mayaguez, PR, do not meet the regulatory criteria under 5 CFR 532.219 to be established as separate NAF wage areas; however, nonsurvey counties may be combined with a survey area to form a wage area. Section 532.219 lists the regulatory criteria that OPM considers when defining FWS wage area boundaries. This regulation allows consideration of the following criteria: Proximity of largest facilities activity in each county, transportation facilities and commuting patterns, and similarities of the counties in overall population, private employment in major industry categories, and kinds and sizes of private industrial establishments.
OPM recently completed reviews of the definitions of St. Joseph, Greene, and Lucas Counties, and the municipality of Mayaguez, and is proposing the changes described below. FPRAC, the national labor-management committee responsible for advising OPM on matters concerning the pay of FWS employees, recommended these changes by consensus. These changes would apply on the first day of the first applicable pay period beginning on or after 30 days following publication of the final regulations.
St. Joseph County, IN, would be defined as an area of application to the Lake, IL, NAF FWS wage area. The proximity criterion favors the Lake wage area. The transportation facilities and commuting patterns criterion does not favor one wage area more than another. The overall population, employment sizes, and kinds and sizes of private industrial establishments criterion does not favor one wage area more than another. While a standard review of regulatory criteria shows mixed results, the proximity criterion solidly favors the Lake wage area.
With the definition of St. Joseph County to the Lake NAF wage area, the Lake wage area would consist of 1 survey county (Lake County, IL) and 10 area of application counties (Cook, Rock Island, and Vermilion Counties, IL; Johnson County, IA; St. Joseph County, IN; Dickinson and Marquette Counties, MI; and Brown, Dane, and Milwaukee Counties, WI).
Greene County, MO, would be defined as an area of application county to the Leavenworth-Jackson-Johnson, KS, NAF FWS wage area. Although the proximity criterion does not favor one wage area more than another, the closest survey area to Greene County is the Leavenworth-Jackson-Johnson wage area. The transportation facilities and commuting patterns criterion does not favor one wage area more than another. The overall population, employment sizes, and kinds and sizes of private industrial establishments criterion does not favor one wage area more than another. Based on this analysis, we recommend that Greene County be defined to the Leavenworth-Jackson-Johnson wage area.
With the definition of Greene County to the Leavenworth-Jackson-Johnson NAF wage area, the Leavenworth-Jackson-Johnson wage area would consist of three survey counties (Leavenworth County, KS; and Jackson and Johnson Counties, MO) and five area of application counties (Shawnee County, KS; and Boone, Camden, Cass, and Greene Counties, MO).
Lucas County, OH, would be defined as an area of application county to the Macomb, MI, NAF FWS wage area. The proximity criterion favors the Macomb wage area. The transportation facilities and commuting patterns criterion does not favor one wage area more than another. The overall population, employment sizes, and kinds and sizes of private industrial establishments criterion does not favor one wage area more than another. While a standard review of regulatory criteria shows mixed results, the proximity criterion solidly favors the Macomb wage area.
With the definition of Lucas County to the Macomb NAF wage area, the Macomb wage area would consist of 1 survey county (Macomb County, MI) and 14 area of application counties (Alpena, Calhoun, Crawford, Grand Traverse, Huron, Iosco, Kent, Leelanau, Ottawa, Saginaw, Washtenaw, and Wayne, MI; and Lucas and Ottawa Counties, OH).
The municipality of Mayaguez, PR, would be defined as an area of application county to the Guaynabo-San Juan, PR, NAF FWS wage area. The Guaynabo-San Juan wage area is the only NAF wage area in Puerto Rico. VCS #373 in the Mayaguez Outpatient Clinic is located approximately 92 miles from Fort Buchanan, the wage area's host activity.
The municipalities of Ceiba, Isabela, Toa Baja, and Vieques, PR, and the U.S. Virgin Islands of St. Croix and St. Thomas would be removed from the area of application of the Guaynabo-San Juan wage area. No NAF FWS employment has been reported in the municipalities of Ceiba, Isabela, Toa Baja, and Vieques since 2009 nor in the U.S. Virgin Islands of St. Croix and St. Thomas since the closure of Army and Air Force Exchange Service (AAFES) stores in 2012 and 2015, respectively. NAF employers have no plans to establish activities in these locations in the future. Under 5 U.S.C. 5343(a)(1)(B)(i), NAF wage areas “shall not extend beyond the immediate locality in which the particular prevailing rate employees are employed.” Therefore, the municipalities of Ceiba, Isabela, Toa Baja, and Vieques and the U.S. Virgin Islands of St. Croix and St. Thomas should not be defined as part of an NAF wage area.
With the definition of the municipality of Mayaguez to the Guaynabo-San Juan NAF wage area and the removal of the municipalities of Ceiba, Isabela, Toa Baja, and Vieques and the U.S. Virgin Islands of St. Croix and St. Thomas from the Guaynabo-San Juan NAF wage area, the Guaynabo-San Juan wage area would consist of two survey municipalities (Guaynabo and San Juan) and five area of application municipalities (Aguadilla, Bayamon, Mayaguez, Ponce, and Salinas).
This action is not a “significant regulatory action” under the terms of Executive Order (E.O.) 12866 (58 FR 51735, October 4, 1993) and is therefore not subject to review under E.O. 12866 and 13563 (76 FR 3821, January 21, 2011)
This proposed rule is not expected to be subject to the requirements of E.O. 13771 because this proposed rule is not significant under E.O. 12866.
OPM certifies that this rule will not have a significant economic impact on a substantial number of small entities because they will affect only Federal agencies and employees.
We have examined this rule in accordance with Executive Order 13132, Federalism, and have determined that this rule will not have any negative impact on the rights, roles and responsibilities of State, local, or tribal governments.
This regulation meets the applicable standard set forth in Executive Order 12988.
This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.
This action pertains to agency management, personnel, and organization and does not substantially affect the rights or obligations of nonagency parties and, accordingly, is not a “rule” as that term is used by the Congressional Review Act (Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)). Therefore, the reporting requirement of 5 U.S.C. 801 does not apply.
This rule does not impose any new reporting or record-keeping requirements subject to the Paperwork Reduction Act.
Administrative practice and procedure, Freedom of information, Government employees, Reporting and recordkeeping requirements, Wages.
Accordingly, OPM is proposing to amend 5 CFR part 532 as follows:
5 U.S.C. 5343, 5346; § 532.707 also issued under 5 U.S.C. 552.
Federal Retirement Thrift Investment Board.
Proposed rule.
The Federal Retirement Thrift Investment Board (“FRTIB”) is proposing to amend its regulations to provide TSP participants with additional withdrawal options and flexibility, effective September 15, 2019.
Comments must be received on or before August 9, 2019.
You may send comments, identified by Docket ID number FRTIB-2019-0003, by any of the following methods:
•
•
•
Austen Townsend, (202) 864-8647.
The FRTIB administers the Thrift Savings Plan (TSP), which was established by the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 and 8401-79. The TSP is a tax-deferred retirement savings plan for federal civilian employees and members of the uniformed services. The TSP is similar to cash or deferred arrangements established for private-sector employees under section 401(k) of the Internal Revenue Code (26 U.S.C. 401(k)).
On November 17, 2017, the President signed the TSP Modernization Act of 2017 (the “Act”), Public Law 115-84 (131 Stat. 1272). The Act permits the TSP to offer participants additional withdrawal options and flexibility and eliminates the requirement that a TSP participant who has reached age 70
The FRTIB recognizes the importance of providing TSP participants with more flexibility to access the money in their accounts when they need it. Equally important is the need to ensure that participants have the money they need to provide sufficient income during retirement. When proposing the changes herein, the FRTIB was mindful to balance these potentially competing interests.
Currently, a TSP participant is limited to one partial post-separation withdrawal per account, unless he or she previously took an age-based, in-service withdrawal from that account. A participant who has previously taken an age-based, in-service withdrawal may not take a partial post-separation withdrawal.
As required by the Act, the FRTIB is proposing to eliminate the restriction on partial post-separation withdrawals for participants who have taken age-based, in-service withdrawals. Further, in light of the elimination of the full withdrawal requirement discussed in more detail below, the FRTIB proposes to allow all separated participants to take as many partial post-separation withdrawals as desired. In order to avoid inadvertently processing duplicate withdrawal requests, the only limitation on this flexibility is that only one post-separation withdrawal request will be processed during any 30-calendar-day period. A TSP participant with more than one account must make separate post-separation withdrawal requests for each account and the 30-calendar-day period will apply separately to each account.
A participant will be able to elect to receive any partial post-separation withdrawal in the form of a single sum payment, installment payments, a life annuity, or any combination of these options. However, a participant may only have one installment payment series in place per account at any given time.
Currently, a separated TSP participant may elect to receive all or a portion of his or her account balance in the form of fixed dollar monthly payments or monthly payments calculated based on life expectancy. TSP participants are permitted to change the amount of monthly payments (including a one-time election to change from monthly payments calculated based on life expectancy to fixed dollar monthly payments) during an annual open
The FRTIB proposes to make the following changes to its existing installment payment options. First, TSP participants will be permitted to elect to receive installment payments on an annual or quarterly basis, as well as on a monthly basis.
Second, a TSP participant may change the amount and frequency of his or her installment payments at any time throughout the year. This includes the ability of a participant to make a one-time election to change from installment payments calculated based on life expectancy to fixed dollar installment payments. As is currently the case, once a participant makes an election to receive fixed dollar installment payments, he or she may not switch to life-expectancy-based installment payments.
Third, under the new rules, a TSP participant receiving installment payments may stop these payments at any time without receiving the remainder of his or her account in a final withdrawal.
Finally, a TSP participant receiving installment payments may elect to receive some or all of his or her remaining account balance in the form of a single sum payment, an annuity, or a combination of these options.
Under existing rules, all post-separation withdrawals are taken from a participant's traditional and Roth balances on a pro rata basis. Under the proposed rules, a participant would still be permitted to use this method, but would also have the option to take his or her withdrawal only from the Roth balance or only from the traditional balance. If a participant elects to receive installment payments from either his or her Roth balance only or traditional balance only, payments will automatically continue from the non-elected balance once the elected balance has been depleted unless the participant elects to stop or change installment payments.
The FRTIB is proposing to update its rules to clarify how spousal rights will apply in light of the new post-separation withdrawal options. Specifically, spousal consent, in the case of a married Federal Employees' Retirement System (FERS) or uniformed services participant, or spousal notification, in the case of a married Civil Service Retirement System (CSRS) participant, is generally required every time a married participant makes a post-separation withdrawal election in any form other than a joint life annuity with a 50 percent survivor benefit, level payments, and no cash refund. In addition, spousal consent or notification, as appropriate, is required when a married participant elects to change the amount or frequency of his or her installment payments.
Currently, a TSP participant who is 59
Currently when a participant takes a hardship withdrawal, his or her TSP contributions are suspended for a period of six months after the withdrawal is processed. After the expiration of the six-month period, the participant may restart contributions by submitting a new TSP contribution election. Contributions are not restarted automatically.
Under the proposed rule, any six-month suspension period in effect will automatically expire on September 15, 2019 and affected participants may restart contributions by submitting a new TSP contribution election. In addition, a participant who takes a hardship withdrawals on or after September 15, 2019 will not have his or her TSP contributions suspended.
Under existing rules, all in-service withdrawals are taken from a participant's traditional and Roth balances on a pro rata basis. Under the proposed rules, a participant would still be permitted to use this method, but would also have the option to take his or her withdrawal only from the Roth balance or only from the traditional balance.
The FRTIB is proposing to update its rules to clarify how spousal rights will apply in light of the changes to its in-service withdrawal options. Specifically, spousal consent, in the case of a married FERS or uniformed services participant, or spousal notification, in the case of a married CSRS participant, is generally required every time a married participant makes an in-service withdrawal election.
Historically, TSP rules required a participant to make an election to begin receiving monthly payments, purchase a life annuity, withdraw his/her account balance in a single payment, or use a combination of these three options (a “Full Withdrawal Election”) no later than April 1 of the year following the year in which the participant reaches age 70
In addition to the TSP's Full Withdrawal Election rules, Internal Revenue Service (“IRS”) rules regarding required minimum distributions (“RMDs”) apply to TSP participants. Under IRS rules, a TSP participant must receive RMDs beginning on April 1 of the year following the year in which the participant reaches age 70
As required by the IRS RMD rules, the TSP distributed the first RMD payment to each participant by his/her Required Beginning Date regardless of whether the participant has made a Full Withdrawal Election. However, because the accounts of participants who failed to make a Full Withdrawal Election by the Full Withdrawal Deadline were abandoned later that same year, the TSP did not (and was not required to) make any additional RMD payments to those participants.
Effective January 1, 2019, the FRTIB ceased the abandonment of accounts for participants who have reached age 70
As a result of the elimination of the account abandonment process, the FRTIB will automatically distribute IRS RMDs each year to all affected participants, regardless of whether they have made Full Withdrawal Elections.
In addition, the FRTIB is proposing certain non-substantive clarifications to its rules regarding IRS RMDs to beneficiary participants. Beneficiary participants are not subject to the Full Withdrawal Election rules.
I certify that this regulation will not have a significant economic impact on a substantial number of small entities. This regulation will affect Federal employees, members of the uniformed services who participate in the TSP, and beneficiary participants.
I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act.
Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, and 1501-1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under 2 U.S.C. 1532 is not required.
Claims, Government employees, Pensions, Retirement.
Alimony, Claims, Government employees, Pensions, Retirement.
Claims, Government employees, Pensions, Retirement.
For the reasons stated in the preamble, the FRTIB proposes to amend 5 CFR chapter VI as follows:
5 U.S.C. 8351, 8432d, 8433, 8434, 8435, 8474(b)(5) and 8474(c)(1).
(b) * * *
(a) A participant who is separated from Government service can elect to withdraw all or a portion of his or her account balance by one or a combination of the withdrawal methods described in subpart B of this part.
(b) A post-employment withdrawal will not be paid unless TSP records indicate that the participant is separated from Government service. The TSP will, when possible, cancel a pending post-employment withdrawal election upon receiving information from an employing agency that a participant is no longer separated.
(f) A participant can elect to have any portion of a single or installment payment that is not transferred to an eligible employer plan, traditional IRA, or Roth IRA deposited directly, by electronic funds transfer (EFT), into a savings or checking account at a financial institution in the United States.
(g) If a participant has a civilian TSP account and a uniformed services TSP account, the rules in this part apply to each account separately. For example, the participant is eligible to make four age-based in-service withdrawals from the civilian account
(h) A participant may elect to have his or her withdrawal distributed from the participant's traditional balance only, Roth balance only, or pro rata from the participant's traditional and Roth balances. Any distribution from the traditional balance will be prorated between the tax-deferred balance and any tax-exempt balance. Any distribution from the Roth balance will be prorated between contributions in the Roth balance and earnings in the Roth balance. In addition, all withdrawals will be distributed pro rata from all TSP Funds in which the participant's account is invested. All prorated amounts will be based on the balances in each TSP Fund or source of contributions on the day the withdrawal is processed.
(a) Subject to the restrictions in this subpart, participants may elect to withdraw all or a portion of their TSP accounts in a single payment, a series of installment payments, a life annuity, or any combination of these options.
(c) Provided that the participant has not submitted a post-employment withdrawal election prior to the date the automatic payment is processed, if a participant's vested account balance is less than $200 when he or she separates from Government service, the TSP will automatically pay the balance in a single payment to the participant at his or her TSP address of record. The participant will not be eligible for any other payment option or be allowed to remain in the TSP.
(d) Only one post-employment withdrawal election per account will be processed in any 30-calendar-day period.
Provided that, in the case of a partial withdrawal, the amount elected is not less than $1,000, a participant can elect to withdraw all or a portion of his or her account balance in a single payment.
(a) A participant can elect to withdraw all or a portion of the account balance in a series of substantially equal installment payments, to be paid on a monthly, quarterly, or annual basis in one of the following manners:
(1)
(2)
(b) A participant receiving installment payments calculated based upon life expectancy can make one election, at any time, to change to a fixed dollar installment payment. A participant can change the amount of his or her fixed payments at any time as described in § 1650.17(c). A participant who is receiving installment payments based on a fixed dollar amount, however, cannot elect to change to an amount calculated based on life expectancy.
(c) If a participant elects to receive installments pro rata from his or her traditional and Roth balances, installment payments will be made until the participant's entire account balance is expended, unless the participant elects to change or stop installment payments as described in in § 1650.17(c). If a participant elects to receive installment payments from his or her traditional balance only or Roth balance only, installment payments will automatically continue from the non-elected balance once the elected balance has been expended, unless the participant elects to change or stop installment payments as described in § 1650.17(c).
(d) A participant receiving installment payments, regardless of the calculation method, can elect at any time to receive the remainder or part of his or her account balance in a single payment.
(e) A participant may only have one installment payment series in place at a time.
(f) A participant receiving installment payments may change the investment of his or her account balance among the TSP investment funds as provided in 5 CFR part 1601.
(g) Upon receiving information from an employing agency that a participant receiving installment payments is no longer separated, the TSP will cancel all pending and future installment payments.
(a) A participant electing a post-employment withdrawal can use all or a portion of his or her total account balance, traditional balance only, or Roth balance only to purchase a life annuity.
(b) If a participant has a traditional balance and a Roth balance and elects to use all or a portion of his or her total account balance to purchase a life annuity, the TSP must purchase two separate annuity contracts for the participant: One from the portion of the withdrawal distributed from his or her traditional balance and one from the portion of the withdrawal distributed from his or her Roth balance.
(c) A participant cannot elect to purchase an annuity contract with less than $3,500.
(d) Unless an amount must be paid directly to the participant to satisfy any applicable minimum distribution requirement of the Internal Revenue Code, the TSP will purchase the annuity contract(s) from the TSP's annuity vendor using the participant's entire account balance or the portion specified. In the event that a minimum distribution is required by section 401(a)(9) of the Internal Revenue Code before the date of the first annuity payment, the TSP will compute that amount prior to purchasing the annuity contract(s), and pay it directly to the participant.
(h) For each withdrawal election in which the participant elects to purchase an annuity with some or all of the amount withdrawn, if the TSP must purchase two annuity contracts, the type of annuity, the annuity features, and the joint annuitant (if applicable) selected by the participant will apply to both annuities purchased. For each withdrawal election, a participant cannot elect more than one type of annuity by which to receive a withdrawal, or portion thereof, from any one account.
(a) A separated participant must receive required minimum distributions from his or her account commencing no later than the required beginning date and, for each year thereafter, no later than December 31.
(b) A separated participant may elect to withdraw from his or her account or to begin receiving payments before the required beginning date, but is not required to do so.
(c) In the event that a separated participant does not withdraw from his or her account an amount sufficient to satisfy his or her required minimum distribution for the year, the TSP will automatically distribute the necessary amount on or before the applicable date described in paragraph (a) of this section.
(d) The TSP will disburse required minimum distributions described in paragraph (c) of this section pro rata from the participant's traditional balance and the participant's Roth balance.
(e) The rules set forth in paragraphs (a) through (d) of this section shall apply to a separated participant who reclaims an account balance that was declared abandoned.
(a)
(c)
When a TSP participant separates from Government service, his or her employing agency or service must report the separation and the date of separation to the TSP record keeper. Until the TSP record keeper receives this information from the employing agency or service, it will not pay a post-employment withdrawal.
Upon receiving information from the employing agency that a participant has been separated for more than 31 days and that any outstanding loans have been closed, provided the participant has not made a withdrawal election before the distribution is processed, if the account balance is $5.00 or more but less than $200, the TSP record keeper will automatically distribute the entire amount of his or her account balance. The TSP will not pay this amount by EFT. The participant may not elect to leave this amount in the TSP, nor will the TSP transfer any automatically distributed amount to an eligible employer plan, traditional IRA, or Roth IRA. However, the participant may elect to roll over this payment into an eligible employer plan, traditional IRA, or Roth IRA to the extent the roll over is permitted by the Internal Revenue Code.
To request a post-employment withdrawal, a participant must use the TSP website to initiate a request or submit to the TSP record keeper a properly completed paper TSP post-employment withdrawal request form.
(a) The TSP will, at the participant's election, transfer all or any portion of an eligible rollover distribution (as defined by section 402(c)(4) of the Internal Revenue Code) directly to an eligible employer plan or an IRA.
(a) A participant who has reached age 59
(c) A participant is permitted four age-based withdrawals per calendar year for an account. Only one age-based withdrawal election per account will be processed in any 30-calendar-day-period.
(a)
(b)
(i) The end of the six-month period after the withdrawal is processed, or
(ii) September 15, 2019.
(2) Therefore, the participant's employing agency will discontinue his or her contributions (and any applicable Agency Matching Contributions) for the applicable period after the agency is notified by the TSP; in the case of a FERS or BRS participant, Agency Automatic (1%) Contributions will continue. A participant whose TSP contributions are discontinued by his or her agency after a financial hardship withdrawal can resume contributions any time after expiration of the applicable period by submitting a new TSP contribution election. Contributions will not resume automatically.
(3) A participant's TSP contribution election will not be affected by a financial hardship in-service withdrawal obtained on or after September 15, 2019; therefore, his or her TSP contributions will continue without interruption.
To request an age-based withdrawal, a participant must use the TSP website to initiate a request or submit to the TSP record keeper a properly completed paper TSP age-based withdrawal request form.
(a) To request a financial hardship withdrawal, a participant must use the TSP website to initiate a request or submit to the TSP record keeper a properly completed paper TSP hardship withdrawal request form.
(a) The spousal rights described in this section apply to total post-employment withdrawals when the married participant's vested TSP account balance exceeds $3,500, to partial post-employment withdrawals without regard to the amount of the participant's account balance, and to any change in the amount or frequency of an existing installment payment series, including a change from payments calculated based on life expectancy to payments based on a fixed dollar amount.
(b) Unless the participant was granted an exception under this subpart to the spousal notification requirement within 90 days of the date the withdrawal request is processed by the TSP, the spouse of a CSRS participant is entitled to notice when the participant applies for a post-employment withdrawal or makes a change to the amount or frequency of an existing installment payment series. The participant must provide the TSP record keeper with the spouse's correct address. The TSP record keeper will send the required notice by first class mail to the spouse at the most recent address provided by the participant.
(c) The spouse of a FERS or uniformed services participant has a right to a joint and survivor annuity with a 50 percent survivor benefit, level payments, and no cash refund based on the participant's entire account balance when the participant elects a total post-employment withdrawal.
(1) The participant may make a different total withdrawal election only if his or her spouse consents to that election and waives the right to this annuity.
(2) A participant's spouse must consent to any partial withdrawal election (other than an election to purchase this type of an annuity with such amount) and waive his or her right to this annuity with respect the amount withdrawn.
(3) A spouse must consent to any change in the amount or frequency of an existing installment payment series and waive his or her right to this annuity with respect to the applicable amount. Spousal consent is not required to stop installment payments.
(4) Unless the TSP granted the participant an exception under this subpart to the spousal notification requirement within 90 days of the date the withdrawal form is processed by the TSP, to show that the spouse has consented to a different total or partial withdrawal election or installment payment change and waived the right to this annuity with respect to the applicable amount, the participant must submit to the TSP record keeper a properly completed withdrawal request form, signed by his or her spouse in the presence of a notary. If the TSP granted the participant an exception to the signature requirement, the participant should enclose a copy of the TSP's approval letter with the withdrawal form.
(5) The spouse's consent and waiver is irrevocable for the applicable withdrawal or installment payment change once the TSP record keeper has received it.
(b) Unless the participant was granted an exception under this subpart to the spousal notification requirement within 90 days of the date on which the withdrawal request is processed by the TSP, the spouse of a CSRS participant is entitled to notice when the participant applies for an in-service withdrawal. If the TSP granted the participant an exception to the notice requirement, the participant should enclose a copy of the TSP's approval letter with the withdrawal form. The participant must provide the TSP record keeper with the spouse's correct address. The TSP record keeper will send the required notice by first class mail to the spouse at the most recent address provided by the participant.
(c) Unless the participant was granted an exception under this subpart to the signature requirement within 90 days of the date the withdrawal form is processed by the TSP, before obtaining an in-service withdrawal, a participant who is covered by FERS or who is a member of the uniformed services must obtain the consent of his or her spouse and waiver of the spouse's right to a joint and survivor annuity described in § 1650.61(c) with respect to the applicable amount. To show the spouse's consent and waiver, a participant must submit to the TSP record keeper a properly completed withdrawal request form, signed by his or her spouse in the presence of a notary. Once a form containing the spouse's consent and waiver has been submitted to the TSP record keeper, the spouse's consent is irrevocable for that withdrawal.
5 U.S.C. 8424(d), 8432d, 8432(j), 8433(e), 8435(c)(2), 8474(b)(5) and 8474(c)(1).
(1) The end of the calendar year immediately following the calendar year in which the participant died, or
(2) The end of the calendar year in which the participant would have attained age 70
(c)
(2) A beneficiary participant may elect to withdraw from his or her account or to begin receiving payments before the required beginning date, but is not required to do so.
(3) In the event that a beneficiary participant does not withdraw from his or her beneficiary participant account an amount sufficient to satisfy his or her required minimum distribution for the year, the TSP will automatically distribute the necessary amount on or before the applicable date described in paragraph (1) of this section.
(4) The TSP will disburse required minimum distributions described in paragraph (3) of this section pro rata from the beneficiary participant's traditional balance and the beneficiary participant's Roth balance.
Nuclear Regulatory Commission.
Petition for rulemaking; notice of docketing and request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has received a petition for rulemaking from Michael D. Meier on behalf of Southern Nuclear Operating Company, dated February 28, 2019, requesting that the NRC revise its regulations related to the start of assessment of annual fees for certain nuclear power plants to align with commencement of their commercial operation. The petition was docketed by the NRC on March 21, 2019, and has been assigned Docket No. PRM-171-1. The NRC is examining the issues raised in PRM-171-1 to determine whether they should be considered in rulemaking. The NRC is requesting public comment on this petition at this time.
Submit comments by July 10, 2019. Comments received after this date will be considered if it is practical to do so, but the NRC is able to assure consideration only for comments received on or before this date.
You may submit comments by any of the following methods:
•
•
•
•
•
For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the
Victoria Huckabay, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-5183; email:
Please refer to Docket ID NRC-2019-0084 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:
•
•
•
Please include Docket ID NRC-2019-0084 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.
The petition was submitted by Michael D. Meier on behalf of Southern Nuclear Operating Company. Michael D. Meier is the Vice President of Regulatory Affairs for Southern Nuclear Operating Company, a nuclear energy facility operator.
The petitioner is requesting that the NRC revise part 171 of title 10 of the
The petitioner requests that the NRC change the start date of assessment of annual fees for combined license holders under part 52 to align with the date when a reactor is declared available for commercial operation, instead of the current requirement in 10 CFR 171.15(a) to commence at the date when the Commission has made the finding under § 52.103(g) that all inspections, tests, analyses, and acceptance criteria are met. The petitioner observes that a startup period of time is required, after the licensee receives NRC's authorization to operate, to complete the remaining tasks necessary to operate the power reactor commercially. The petitioner asserts that at the time of a 10 CFR 52.103(g) finding, the power reactor has not yet been loaded with fuel, undergone startup testing, power ascension, commissioning, or other actions necessary to reliably generate energy for the production of revenue. The petitioner states that (1) a licensee may not complete these startup activities and achieve commercial operation until several months after the § 52.103(g) finding is made, and (2) the licensee should not be subject to the annual fee required under § 171.15, “Annual fees: Reactor licenses and independent spent fuel storage licenses,” until the nuclear power plant receives financial benefit from commercial operation beyond minimal amounts of revenue derived from test energy. The petitioner also raises an issue regarding the fairness of charging an annual license fee before commercial operations commence.
The NRC has determined that the petition meets the threshold sufficiency requirements for docketing a petition for rulemaking under 10 CFR 2.803. The NRC is examining the issues raised in PRM-171-1 to determine whether they should be considered in rulemaking.
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), Department of Transportation (DOT).
Supplemental notice of proposed rulemaking (SNPRM); reopening of the comment period.
We are revising an earlier proposal to supersede Airworthiness Directive (AD) AD 2018-04-09 for Pacific Aerospace Limited Model 750XL airplanes. This proposed airworthiness directive (AD) results from mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and address an unsafe condition on an aviation product. The MCAI describes the unsafe condition as incorrectly marked and annunciated low oil-pressure indication warnings. This SNPRM changes the title of one of the flight manuals to be revised, so that the revision requirement applies to all operators, regardless of the issue of their flight manual. Since these actions may impose an additional burden over those in the notice of proposed rulemaking (NPRM), we are reopening the comment period to allow the public the opportunity to comment on these changes.
We must receive comments on this proposed AD by July 25, 2019.
You may send comments by any of the following methods:
•
•
•
•
For service information identified in this proposed AD, contact Pacific Aerospace Limited, Airport Road, Hamilton, Private Bag 3027, Hamilton 3240, New Zealand; telephone: +64 7 843 6144; facsimile: +64 7 843 6134; email:
You may examine the AD docket on the internet at
Mike Kiesov, Aerospace Engineer, FAA, Small Airplane Standards Branch, 901 Locust, Room 301, Kansas City, Missouri 64106; telephone: (816) 329-4144; fax: (816) 329-4090; email:
We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We issued an NPRM to amend 14 CFR part 39 by adding an AD that would remove AD 2018-04-09, Amendment 39-19205 (83 FR 9793, March 8, 2018) (“AD 2018-04-09”) and add a new AD. AD 2018-04-09 addresses an unsafe condition on Pacific Aerospace Limited Model 750XL airplanes and was based on an MCAI originated by the Civil Aviation Authority (CAA), which is the aviation authority for New Zealand.
The NPRM was published in the
After we issued the NPRM, we discovered an error in the title of one of the flight manuals to be revised. The NPRM proposed a requirement for airplanes with Pacific Aerospace Pilot's Operating Handbook and Civil Aviation Authority of New Zealand Approved Flight Manual AIR 3237, Issue 2. This SNPRM proposes to change the title, eliminating the issue level, so that the revision requirement applies to all operators, regardless of the issue of their flight manual. Because this change expands the number of operators who would be required to comply with this requirement, the FAA is reopening the comment period to provide additional opportunity for public comment. This SNPRM also includes other editorial changes that do not affect the required actions.
We reviewed Pacific Aerospace Temporary Revision Instruction Letter, dated October 2017, which includes Pacific Aerospace Temporary Revisions XL/POH/00/001, XL/POH/02/001, and XL/POH/03/001; and Pacific Aerospace Revision Instruction Letter, dated March 2018, which includes Pacific Aerospace POH AIR 3237 Revision, dated March 30, 2018, for 750XL airplanes. For the applicable configurations, the service information includes revisions to the AFM that corrects the incorrect instrument markings.
We also reviewed Pacific Aerospace Mandatory Service Bulletin PACSB/XL/088, dated August 11, 2017, which was previously approved for incorporation by reference on April 12, 2018 (83 FR 9793, March 8, 2018), and describes procedures for replacement or modification of the low oil-pressure light, pressure switch, and indicator. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with this State of Design Authority, they have notified us of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all information and determined the unsafe
The change described above expands the scope of the NPRM. As a result, we have determined that it is necessary to reopen the comment period to provide additional opportunity for the public to comment on the proposed AD.
We estimate that this SNPRM will affect 22 products of U.S. registry. We also estimate that it would take about 2 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour. Required parts would cost about $500 per product.
Based on these figures, we estimate the cost of this AD on U.S. operators to be $14,740, or $670 per product.
Since this supplemental NPRM requires the same actions as AD 2018-04-09, the costs of compliance remains the same and does not impose any additional costs on U.S. operators.
There has been no change in the Cost of Compliance section in this supplemental NPRM.
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to small airplanes, gliders, balloons, airships, domestic business jet transport airplanes, and associated appliances to the Director of the Policy and Innovation Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by Reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 25, 2019.
This AD replaces AD 2018-04-09, Amendment 39-19205 (83 FR 9793, March 8, 2018) (“AD 2018-04-09”).
This AD applies to Pacific Aerospace Limited Model 750XL airplanes, all serial numbers up to 217, certificated in any category.
Air Transport Association of America (ATA) Code 57: Wings.
This AD was prompted by mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country to identify and correct an unsafe condition on an aviation product. The MCAI describes the unsafe condition as incorrectly marked and annunciated low oil-pressure indication warnings. We are issuing this AD to prevent engine oil pressure from dropping below safe limits, which could cause possible engine damage or failure.
Unless already done, do the following actions in paragraphs (f)(1) through (4) of this AD, as applicable:
(1)
(2)
(3)
(4)
The following provisions also apply to this AD:
(1)
(2)
Refer to CAA MCAI AD No. DCA/750XL/19A, dated April 26, 2018, for related information. You may examine the MCAI on the internet at
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This AD was prompted by significant changes made to the airworthiness limitations (AWLs) related to fuel tank ignition prevention and the nitrogen generation system. This AD would require revising the existing maintenance or inspection program, as applicable, to include new or revised AWLs. We are proposing this AD to address the unsafe condition on these products.
We must receive comments on this proposed AD by July 25, 2019.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; phone: 562-797-1717; internet:
You may examine the AD docket on the internet at
Jeffrey Rothman, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3558; email:
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
The FAA has examined the underlying safety issues involved in fuel tank explosions on several large transport airplanes, including the adequacy of existing regulations, the service history of airplanes subject to those regulations, and existing maintenance practices for fuel tank systems. As a result of those findings, we issued a final rule titled “Transport Airplane Fuel Tank System Design Review, Flammability Reduction and Maintenance and Inspection Requirements” (66 FR 23086, May 7, 2001). In addition to new airworthiness standards for transport airplanes and new maintenance requirements, that rule included Amendment 21-78, which established Special Federal Aviation Regulation No. 88 (“SFAR 88”) at 14 CFR part 21. Subsequently, SFAR 88 was amended by Amendment 21-82 (67 FR 57490, September 10, 2002; corrected at 67 FR 70809, November 26, 2002) and Amendment 21-83 (67 FR 72830, December 9, 2002; corrected at 68 FR 37735, June 25, 2003, to change “21-82” to “21-83”).
Among other actions, SFAR 88 requires certain type design (
In evaluating these design reviews, we have established four criteria intended to define the unsafe conditions associated with fuel tank systems that require corrective actions. The percentage of operating time during which fuel tanks are exposed to flammable conditions is one of these criteria. The other three criteria address the failure types under evaluation: Single failures, single failures in combination with another latent condition(s), and in-service failure experience. For all four criteria, the evaluations included consideration of previous actions taken that may mitigate the need for further action.
We have determined that the actions identified in this proposed AD are necessary to address the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
We have determined that accomplishing the revision required by paragraph (g) of this proposed AD would terminate the following requirements for that airplane.
• All requirements of AD 2008-10-09 R1, Amendment 39-16148 (74 FR 69264, December 31, 2009).
• The revision required by paragraph (l) of AD 2011-12-09, Amendment 39-16716 (76 FR 33988, June 10, 2011).
• The revision required by paragraph (h) of AD 2013-13-15, Amendment 39-17503 (78 FR 42415, July 16, 2013).
• The revision required by paragraph (j) of AD 2013-25-05, Amendment 39-17701 (78 FR 78701, December 27, 2013).
• The revisions required by paragraphs (l) and (n) of AD 2016-18-16, Amendment 39-18647 (81 FR 65864, September 26, 2016).
• The revision required by paragraph (h) of AD 2017-17-09, Amendment 39-18999 (82 FR 40477, August 25, 2017).
We reviewed Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D6-38278-CMR, dated March 2019. This service information describes airworthiness limitations that include Airworthiness Limitation Instructions (ALI) and Critical Design Configuration Control Limitations (CDCCL) tasks related to fuel tank ignition prevention and the nitrogen generation system. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.
This proposed AD would require revising the existing maintenance or inspection program, as applicable, to incorporate new or revised AWLs.
This proposed AD would require revisions to certain operator maintenance documents to include new actions (
Paragraph (g) of this proposed AD would require operators to revise their maintenance or inspection program by incorporating, amongst other tasks, AWL No. 28-AWL-05, “Wire Separation Requirements for New Wiring Installed in Proximity to Wiring that Goes Into the Fuel Tanks,” in Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D6-38278-CMR, dated March 2019. Paragraph (h) of this proposed AD would allow certain changes to be made to the wire type and sleeving requirements specified in AWL No. 28-AWL-05 as an option.
We estimate that this proposed AD affects 381 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We have determined that revising the existing maintenance or inspection program takes an average of 90 work-hours per operator, although we recognize that this number may vary from operator to operator. In the past, we have estimated that this action takes 1 work-hour per airplane. Since operators incorporate maintenance or inspection program changes for their affected fleet(s), we have determined that a per-operator estimate is more accurate than a per-airplane estimate. Therefore, we estimate the total cost per operator to be $7,650 (90 work-hours x $85 per work-hour).
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
(1) Is not a “significant regulatory action” under Executive Order 12866,
(2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),
(3) Will not affect intrastate aviation in Alaska, and
(4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 25, 2019.
This AD affects the ADs specified in paragraphs (b)(1) through (b)(6) of this AD.
(1) AD 2008-10-09 R1, Amendment 39-16148 (74 FR 69264, December 31, 2009) (“AD 2008-10-09 R1”).
(2) AD 2011-12-09, Amendment 39-16716 (76 FR 33988, June 10, 2011) (“AD 2011-12-09”).
(3) AD 2013-13-15, Amendment 39-17503 (78 FR 42415, July 16, 2013) (“AD 2013-13-15”).
(4) AD 2013-25-05, Amendment 39-17701 (78 FR 78701, December 27, 2013) (“AD 2013-25-05”).
(5) AD 2016-18-16, Amendment 39-18647 (81 FR 65864, September 26, 2016) (“AD 2016-18-16”).
(6) AD 2017-17-09, Amendment 39-18999 (82 FR 40477, August 25, 2017) (“AD 2017-17-09”).
This AD applies to all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, certificated in any category.
Air Transport Association (ATA) of America Code 28, Fuel; 47, Nitrogen Generation System.
This AD was prompted by a determination that new or revised airworthiness limitations (AWLs) are necessary. We are issuing this AD to address the potential of ignition sources inside fuel tanks, which, in combination with flammable fuel vapors, could result in fuel tank explosions and consequent loss of the airplane.
Comply with this AD within the compliance times specified, unless already done.
(1) For The Boeing Company Model 737-100, -200, and -200C series airplanes: Within 60 days after the effective date of this AD, revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in Section C, including Subsections C.1, C.2, and C.3 of Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D6-38278-CMR, dated March 2019, except as provided in paragraph (h) of this AD. The initial compliance time for the airworthiness limitation instructions (ALI) tasks are within the applicable compliance times specified in paragraphs (g)(1)(i) through (g)(1)(x) of this AD.
(i) For AWL No. 28-AWL-01, “External Wires Over Center Fuel Tank”: Within 120 months after the most recent inspection was performed as specified in AWL No. 28-AWL-01, or within 12 months after the effective date of this AD if no initial inspection has been performed.
(ii) For AWL No. 28-AWL-03, “Fuel Quantity Indicating System (FQIS)—Out Tank Wiring Lightning Shield to Ground Termination”: Within 120 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1178, or within 120 months after the most recent inspection was performed as specified in AWL No. 28-AWL-03, whichever is later.
(iii) For AWL No. 28-AWL-21, “Center Tank Fuel Boost Pump Automatic Shutoff System”: Within 12 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1228, or within 12 months after the most recent inspection was performed as specified in AWL No. 28-AWL-21, whichever is later.
(iv) For AWL No. 28-AWL-22, “Auxiliary Tank Fuel Boost Pump Automatic Shutoff System”: Within 12 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1228, or within 12 months after the most recent inspection was performed as specified in AWL No. 28-AWL-22, whichever is later.
(v) For AWL No. 28-AWL-23, “Over-Current and Arcing Protection Electrical Design Features Operation—Boost Pump Ground Fault Interrupter (GFI)”: Within 12 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1212, or within 12 months after the most recent inspection was performed as specified in AWL No. 28-AWL-23, whichever is later.
(vi) For AWL No. 28-AWL-24, “Center Tank Fuel Boost Pump Power Failed On Protection System”: Within 12 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1227, or within 12 months after the most recent inspection was performed as specified in AWL No. 28-AWL-24, whichever is later.
(vii) For AWL No. 28-AWL-25, “Auxiliary Fuel Tank Boost Pump Power Failed On Protection System”: Within 12 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1227, or within 12 months after the most recent inspection was performed as specified in AWL No. 28-AWL-25, whichever is later.
(viii) For AWL No. 28-AWL-29, “AC Fuel Boost Pump Installation”: Within 72 months after the most recent inspection was performed as specified in AWL No. 28-AWL-29, or within 12 months after the effective date of this AD if no inspection has been performed in the last 72 months.
(ix) For AWL No. 47-AWL-04, “Nitrogen Generation System (NGS)—Thermal Switch”: Within 22,500 flight hours after accomplishment of the actions specified in Boeing Service Bulletin 737-47-1005; within 22,500 flight hours after accomplishment of the actions specified in Boeing Service Bulletin 737-47-1008; or within 22,500 flight hours after the most recent inspection was performed as specified in AWL No. 47-AWL-04; whichever is latest.
(x) For AWL No. 47-AWL-05, “Nitrogen Generation System (NGS)—Nitrogen Enriched Air (NEA) Distribution Ducting Integrity”: Within 14,500 flight hours after accomplishment of the actions specified in Boeing Service Bulletin 737-47-1005; within 14,500 flight hours after accomplishment of the actions specified in Boeing Service Bulletin 737-47-1008; or within 14,500 flight hours after the most recent inspection was performed as specified in AWL No. 47-AWL-05; whichever is latest.
(2) For The Boeing Company Model 737-300, -400, and -500 series airplanes: Within 60 days after the effective date of this AD, revise the existing maintenance or inspection program, as applicable, to incorporate the information specified in Section C, including Subsections C.1, C.2, and C.3 of Boeing 737-100/200/200C/300/400/500 Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs), D6-38278-CMR, dated March 2019; except as provided in paragraph (h) of this AD. The initial compliance time for the ALI tasks are within the applicable compliance times specified in paragraphs (g)(2)(i) through (g)(2)(xi) of this AD.
(i) For AWL No. 28-AWL-01, “External Wires Over Center Fuel Tank”: Within 120 months after the most recent inspection was performed as specified in AWL No. 28-AWL-01, or within 12 months after the effective date of this AD if no initial inspection has been performed.
(ii) For AWL No. 28-AWL-03, “Fuel Quantity Indicating System (FQIS)—Out Tank Wiring Lightning Shield to Ground Termination”: Within 120 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1175; within 120 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1183; within 120 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1186; or within 120 months after the most recent inspection was performed as specified in AWL No. 28-AWL-03; whichever is latest.
(iii) For AWL No. 28-AWL-20, “Center Tank Fuel Boost Pump Automatic Shutoff System”: Within 12 months after accomplishment of the actions specified in
(iv) For AWL No. 28-AWL-21, “Auxiliary Tank Fuel Boost Pump Automatic Shutoff System”: Within 12 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1216, or within 12 months after the most recent inspection was performed as specified in AWL No. 28-AWL-21, whichever is later.
(v) For AWL No. 28-AWL-22, “Over-Current and Arcing Protection Electrical Design Features Operation—Boost Pump Ground Fault Interrupter (GFI)”: Within 12 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1212, or within 12 months after the most recent inspection was performed as specified in AWL No. 28-AWL-22, whichever is later.
(vi) For AWL No. 28-AWL-23, “Center Tank Fuel Boost Pump Power Failed On Protection System”: Within 12 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1227, or within 12 months after the most recent inspection was performed as specified in AWL No. 28-AWL-23, whichever is later.
(vii) For AWL No. 28-AWL-24, “Auxiliary Fuel Tank Boost Pump Power Failed On Protection System”: Within 12 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1227, or within 12 months after the most recent inspection was performed as specified in AWL No. 28-AWL-24, whichever is later.
(viii) For AWL No. 28-AWL-27, “AC Fuel Boost Pump Installation”: Within 72 months after the most recent inspection was performed as specified in AWL No. 28-AWL-27, or within 12 months after the effective date of this AD if no inspection has been performed in the last 72 months.
(ix) For AWL No. 28-AWL-31, “Cushion Clamps and Teflon Sleeving Installed on Out-of-Tank Wire Bundles Installed on Brackets that are Mounted Directly on the Fuel Tanks”: Within 144 months after accomplishment of the actions specified in Boeing Service Bulletin 737-28A1228.
(x) For AWL No. 47-AWL-04, “Nitrogen Generation System (NGS)—Thermal Switch”: Within 22,500 flight hours after accomplishment of the actions specified in Boeing Service Bulletin 737-47-1005; within 22,500 flight hours after accomplishment of the actions specified in Boeing Service Bulletin 737-47-1008; or within 22,500 flight hours after the most recent inspection was performed as specified in AWL No. 47-AWL-04; whichever is latest.
(xi) For AWL No. 47-AWL-05, “Nitrogen Generation System (NGS)—Nitrogen Enriched Air (NEA) Distribution Ducting Integrity”: Within 14,500 flight hours after accomplishment of the actions specified in Boeing Service Bulletin 737-47-1005; within 14,500 flight hours after accomplishment of the actions specified in Boeing Service Bulletin 737-47-1008; or within 14,500 flight hours after the most recent inspection was performed as specified in AWL No. 47-AWL-05; whichever is latest.
As an option, when accomplishing the actions required by paragraph (g) of this AD, the changes specified in paragraphs (h)(1) and (h)(2) of this AD are acceptable.
(1) Where AWL No. 28-AWL-05 identifies wire types BMS 13-48, BMS 13-58, and BMS 13-60, the following wire types are acceptable: MIL-W-22759/16, SAE AS22759/16 (M22759/16), MIL-W-22759/32, SAE AS22759/32 (M22759/32), MIL-W-22759/34, SAE AS22759/34 (M22759/34), MIL-W-22759/41, SAE AS22759/41 (M22759/41), MIL-W-22759/86, SAE AS22759/86 (M22759/86), MIL-W-22759/87, SAE AS22759/87 (M22759/87), MIL-W-22759/92, and SAE AS22759/92 (M22759/92); and MIL-C-27500 and NEMA WC 27500 cables constructed from these military or SAE specification wire types, as applicable.
(2) Where AWL No. 28-AWL-05 identifies TFE-2X Standard wall for wire sleeving, the following sleeving materials are acceptable: Roundit 2000NX and Varglas Type HO, HP, or HM.
After the existing maintenance or inspection program has been revised as required by paragraph (g) of this AD, no alternative actions (
Accomplishment of the revision required by paragraph (g) of this AD terminates the requirements specified in paragraphs (j)(1) through (j)(6) of this AD for that airplane:
(1) All requirements of AD 2008-10-09 R1.
(2) The revision required by paragraph (l) of AD 2011-12-09.
(3) The revision required by paragraph (h) of AD 2013-13-15.
(4) The revision required by paragraph (j) of AD 2013-25-05.
(5) The revisions required by paragraphs (l) and (n) of AD 2016-18-16.
(6) The revision required by paragraph (h) of AD 2017-17-09.
(1) The Manager, Los Angeles ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to the attention of the person identified in paragraph (l)(2) of this AD. Information may be emailed to:
(2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.
(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO Branch, FAA, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.
(1) For more information about this AD, contact Jeffrey Rothman, Aerospace Engineer, Propulsion Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3558; email:
(2) For information about AMOCs, contact Serj Harutunian, Aerospace Engineer, Propulsion Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5254; fax: 562-627-5210; email:
(3) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; phone: 562-797-1717; internet:
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
We propose to supersede Airworthiness Directive (AD) 2005-17-14, which applies to all Airbus SAS Model A300 series airplanes; Model A300 B4-600, B4-600R, and F4-600R series airplanes, and Model A300 C4-
We must receive comments on this proposed AD by July 25, 2019.
You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:
•
•
•
•
For the incorporation by reference (IBR) material described in the “Related IBR material under 1 CFR part 51” section in
You may examine the AD docket on the internet at
Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the
We will post all comments we receive, without change, to
We issued AD 2005-17-14, Amendment 39-14235 (70 FR 50157, August 26, 2005) (“AD 2005-17-14”), for all Airbus SAS Model A300 series airplanes, Model A300-600 series airplanes, and Model A310 series airplanes. AD 2005-17-14 requires repetitive tests to detect desynchronization of the rudder servo actuators, and adjustment or replacement of the spring rods of the rudder servo actuators, if necessary; and repetitive tests, inspections, and analyses of the rudder servo actuators, and related investigative and corrective actions if necessary. AD 2005-17-14 resulted from new reports of desynchronization of the rudder servo actuators. We issued AD 2005-17-14 to address desynchronization of one of the three rudder servo actuators, which, if combined with an engine failure, could result in the loss of the related hydraulic system and could cause the loss of one of the two synchronized actuators. This condition could create additional fatigue loading and possible cracking of the attachment fittings and could result in the inability of the remaining synchronized actuator to maintain the commanded rudder deflection, leading to reduced controllability of the airplane.
Since we issued AD 2005-17-14, EASA reported that analyses of the inspection results indicate that the assumptions made in 2004 to establish the survey campaign were not adequate. This determination led to investigation and revision of the service information with revised inspection instructions and compliance times, depending on airplane configuration.
The EASA, which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2019-0017, dated January 29, 2019 (“EASA AD 2019-0017”) (also referred to as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus SAS Model A300 series airplanes, Model A300-600 series airplanes, and Model A310 series airplanes. The MCAI states:
Numerous occurrences were reported of rudder servo control de-synchronization, some of which had caused structural damages to the fin or side fittings of the rudder actuator attachments. Analyses revealed that a de-synchronization of the rudder servo control induced by misalignment of the three servo controls, or by thermal expansion, can provoke opposing loads.
This condition, if not detected and corrected, could induce failure of rudder-associated systems, possibly resulting in reduced control of the aeroplane.
Previously, DGAC [Direction Générale de l’Aviation Civile] France issued AD F-2004-063 for A300-600ST aeroplanes, and AD F-2004-092 (EASA approval 2004-6368) [which corresponds to FAA AD 2005-17-14] for A300, A310 and A300-600 aeroplanes, to require repetitive inspections of rudder servo controls, fin box and rudder structures, and, depending on findings, accomplishment of applicable corrective action(s).
Since those ADs were issued, analyses of the inspection results indicate that the assumptions made in 2004 to establish the survey campaign were not adequate. This determination induced new investigation and ATA 55 SBs [service bulletins] revision with new inspection instructions and new
For the reason described above, this [EASA] AD retains partially the requirements of DGAC France AD F-2004-063 and AD F-2004-092 (EASA approval 2004-6368), which are superseded, and requires the new inspections (latest SB revision) at new intervals.
The new repetitive intervals for the inspections specified in paragraph (2) of EASA AD 2019-0017 range from 300 flight cycles to 6,000 flight cycles, depending on inspection type.
Although this proposed AD does not explicitly restate the requirements of AD 2005-17-14, this proposed AD would retain certain requirements of AD 2005-17-14. Those requirements are referenced in EASA AD 2019-0017, which, in turn, is referenced in paragraph (g) of this proposed AD.
EASA AD 2019-0017 describes procedures for repetitive inspections of the rudder servo actuators and related investigative/corrective actions. Related investigative actions include repetitive inspections of fin box and rudder servo controls. Corrective actions include repair. This material is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the
This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of the same type design.
This proposed AD would require accomplishing the actions specified in EASA AD 2019-0017 described previously, as incorporated by reference, except for any differences identified as exceptions in the regulatory text of this AD and except as discussed under “Differences Between this Proposed AD and the MCAI.”
In the FAA's ongoing efforts to improve the efficiency of the AD process, the FAA worked with Airbus and EASA to develop a process to use certain EASA ADs as the primary source of information for compliance with requirements for corresponding FAA ADs. As a result, EASA AD 2019-0017 will be incorporated by reference in the FAA final rule. This proposed AD would, therefore, require compliance with the provisions specified in EASA AD 2019-0017, except for any differences identified as exceptions in the regulatory text of this proposed AD. Service information specified in EASA AD 2019-0017 that is required for compliance with EASA AD 2019-0017 will be available on the internet
Where paragraph (4) of EASA AD 2019-0017 refers to “during any inspection as required by paragraph (2) of this AD,” this proposed AD would require using “during any inspection as required by paragraph (2) or (3) of this AD.” EASA AD 2019-0017 did not specify a corrective action for the inspections required by paragraph (3) of EASA AD 2019-0017.
We estimate that this proposed AD affects 133 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:
We estimate that it would take about 1 work-hour per product to comply with the proposed reporting requirement in this proposed AD. The average labor rate is $85 per hour. Based on these figures, we estimate the cost of reporting the inspection results on U.S. operators to be $11,305, or $85 per product.
We estimate the following costs to do any necessary on-condition inspections that would be required based on the results of any required actions. We have no way of determining the number of aircraft that might need these on-condition actions:
We have received no definitive data that would enable us to provide cost estimates for the on-condition repair specified in this proposed AD.
A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this NPRM is 2120-0056. The paperwork cost associated with this NPRM has been detailed in the Costs of
Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.
We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.
This proposed AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to transport category airplanes and associated appliances to the Director of the System Oversight Division.
We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.
For the reasons discussed above, I certify this proposed regulation:
1. Is not a “significant regulatory action” under Executive Order 12866;
2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);
3. Will not affect intrastate aviation in Alaska; and
4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.
Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:
49 U.S.C. 106(g), 40113, 44701.
We must receive comments by July 25, 2019.
This AD replaces AD 2005-17-14, Amendment 39-14235 (70 FR 50157, August 26, 2005) (“AD 2005-17-14”).
This AD applies to the Airbus SAS airplanes, certificated in any category, specified in paragraphs (c)(1) through (c)(3) of this AD, as identified in European Aviation Safety Agency (EASA) AD 2019-0017, dated January 29, 2019 (“EASA AD 2019-0017”).
(1) Model A300 B2-1A, B2-1C, B2K-3C, B2-203, B4-2C, B4-103, and B4-203 airplanes.
(2) Model A300 B4-601, B4-603, B4-620, B4-622, B4-605R, B4-622R, F4-605R and F4-622R airplanes, and Model A300 C4-605R Variant F airplanes.
(3) Model A310-203, -204, -221, -222, -304, -322, -324, and -325 airplanes.
Air Transport Association (ATA) of America Code 27, Flight controls; 55, Stabilizers.
This AD was prompted by reports of desynchronization of the rudder servo actuators. We are issuing this AD to address desynchronization of one of the three rudder servo actuators, which, if combined with an engine failure, could result in the loss of the related hydraulic system and could cause the loss of one of the two synchronized actuators. This condition could create additional fatigue loading and possible cracking of the attachment fittings and could result in the inability of the remaining synchronized actuator to maintain the commanded rudder deflection, leading to reduced controllability of the airplane.
Comply with this AD within the compliance times specified, unless already done.
Except as specified in paragraph (h) of this AD: Comply with all required actions and compliance times specified in, and in accordance with, EASA AD 2019-0017.
(1) For purposes of determining compliance with the requirements of this AD: Where EASA AD 2019-0017 refers to its effective date, this AD requires using the effective date of this AD.
(2) For purposes of determining compliance with the requirements of this AD: Where paragraph (1) of EASA AD 2019-0017 specifies “after the last inspection as previously required by DGAC France AD F-2004-092,” this AD requires using “after the most recent inspection done as specified in Airbus Service Bulletin A300-27-0188, Revision 2, dated October 1, 1997; A300-27-6036, Revision 2, dated October 1, 1997; A300-55-0044, dated October 22, 1996; A300-55-6023, dated October 22, 1996; A310-27-2082, Revision 2, dated October 1, 1997; or A310-55-2026, dated October 22, 1996.”
(3) For purposes of determining compliance with the requirements of this AD: Where paragraph (1) of EASA AD 2019-0017 refers to “the 03 July 2004,” this AD requires using “September 30, 2005” (the effective date of AD 2005-17-14).
(4) For purposes of determining compliance with the requirements of this AD: Where paragraph (4) of EASA AD 2019-0017 refers to “during any inspection as required by paragraph (2) of this AD,” this AD requires using “during any inspection as required by paragraph (2) or (3) of this AD.”
(5) Where any service information referenced in EASA AD 2019-0017 specifies reporting, this AD requires reporting all inspection results at the applicable time specified in paragraph (h)(5)(i) or (h)(5)(ii) of this AD. If operators have reported findings as part of obtaining any corrective actions approved by Airbus SAS's EASA Design Organization Approval (DOA), operators are not required to report those findings as specified in this paragraph.
(i) If the inspection was done on or after the effective date of this AD: Submit the report within 30 days after the inspection.
(ii) If the inspection was done before the effective date of this AD: Submit the report within 30 days after the effective date of this AD.
(6) The “Remarks” section of EASA AD 2019-0017 does not apply to this AD.
The following provisions also apply to this AD:
(1)
(2)
(3)
(4)
(1) For information about EASA AD 2019-0017, contact the EASA, Konrad-Adenauer-Ufer 3, 50668 Cologne, Germany; telephone +49 221 89990 6017; email
(2) For more information about this AD, contact Dan Rodina, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3225.
Bureau of Indian Affairs, Interior.
Proposed rule and Tribal consultation.
The Bureau of Indian Education (BIE) is proposing a rule developed using a negotiated rulemaking process, as required by the 2015 Every Student Succeeds Act (ESSA), for implementation of the Secretary of the Interior's obligation to define the standards, assessments, and accountability system consistent with ESSA for BIE-funded schools.
Please submit comments by August 9, 2019. Please see “V. Consultation Schedule” of this preamble for dates of consultation sessions on this proposed rule.
You may submit comments by any of the following methods:
Comments on the information collections contained in this proposed regulation (see “Paperwork Reduction Act” section, below) are separate from those on the substance of the rule. Send comments on the information collection burden to OMB by facsimile to (202) 395-5806 or email to the OMB Desk Officer for the Department of the Interior at
Please see “V. Consultation Schedule” of this preamble for addresses of consultation sessions on this proposed rule.
Elizabeth Appel, Director, Office of Regulatory Affairs & Collaborative Action, (202) 273-4680;
The Office of Indian Education Programs (OIEP), now the BIE, published the existing rule for Adequate Yearly Progress (AYP), codified at 25 CFR part 30 (part 30), in the
There are BIE-funded schools in 23 different States, each State having its own accountability system. As a result, under the existing rule, each State system has produced student achievement data for BIE-funded schools that is not comparable with data from BIE-funded schools following the requirements of other States. This outcome has created problems for the BIE in identifying under-performing schools, reporting, and in directing resources effectively.
On November 9, 2015, BIE published a notice of intent requesting nominations for members of a proposed negotiated rulemaking committee to recommend revisions to the existing part 30 AYP regulations (80 FR 69161). On December 10, 2015, ESEA was reauthorized and amended by the ESSA (Pub. L. 114-95). The ESSA requires the Secretary to use a negotiated rulemaking process to develop regulations to implement the Secretary's responsibility to define the standards, assessments, and accountability system, consistent with ESEA section 1111, for BIE-funded schools on a national, regional, or Tribal basis, as appropriate, taking into account the unique circumstances and needs of the schools and the students served by the schools. The requirement that the Secretary define the standards, assessments, and accountability system marks a significant expansion of requirements in the ESEA as amended by NCLB. The reauthorization of ESEA therefore required an update to the subject, scope, and issues that the proposed committee would address. On April 14, 2016, BIE announced its intent to expand the scope of the work of the committee and reopened the comment and nomination period, requesting comments and nominations by May 31, 2016 (81 FR 22039). The request for nominations was extended on August 17, 2016 (81 FR 54768). On January 18, 2017, a notice of proposed membership, request for nominations, and a request for comments was published (82 FR 5473). On September 14, 2017, taking into consideration the interests of the new Administration in participating fully in the negotiated rulemaking process, BIE published a new request for nominations and notice of intent to establish a negotiated rulemaking committee (82 FR 43199). On April 17, 2018, the BIE published a notice of proposed membership of the committee and a request for further nominations (83 FR 16806).
On July 26, 2018, the Secretary signed a charter for the Bureau of Indian Education Standards, Assessments, and Accountability System Negotiated Rulemaking Committee (Committee). The Secretary established the Committee to advise the Secretary, through the BIE and the Assistant Secretary-Indian Affairs, on the development of regulations to fulfill the Secretary's responsibility to define the standards, assessments, and accountability system consistent with ESEA section 1111, as amended, for schools funded by BIE on a national, regional, or Tribal basis, as appropriate, taking into account the unique circumstances and needs of BIE-funded schools and the students served, and the process for waiving certain requirements, with a focus on the regulations in part 30, Adequate Yearly Progress. On August 2, 2018, the BIE published a notice of the Committee's establishment and a notice of meetings (83 FR 37822). The Committee first met in September of 2018 and agreed on protocols and a definition of consensus. The Committee met again in October and December of 2018. On February 11, 2019, the BIE published a notice announcing a fourth public Committee meeting that was held in March 2019 (84 FR 3135). In compliance with the Negotiated Rulemaking Act and the Federal Advisory Committee Act, the meetings were open to the public to provide the public with an opportunity to participate in the rulemaking process.
There were a combined 17 primary and alternate members of the Committee, consisting of both Federal and non-Federal members. Members of the Committee consisted of representatives capable of representing the interests of students enrolled at the 174 BIE-funded schools,
The work of the Committee required committee members to develop an understanding of the technical aspects of the topics of standards, assessments, and accountability systems. The Committee divided itself into subcommittees tasked with developing recommendations and reporting back to the Committee as a whole for each of the topics of standards, assessments, accountability systems, and waivers and technical assistance. The Committee focused on establishing a rule that would provide a framework in which the Secretary could develop or adopt requirements for standards, assessments, and accountability system and which would provide flexibility in implementing these requirements in order to allow for periodic revision of requirements as necessary consistent with the provision in ESEA section 1111 requiring the periodic review and revision of such requirements by States. During Committee discussion, some Committee members expressed concerns related to certain parts of title 25 of the Code of Federal Regulations (CFR) relating to the BIE for which the NCLB Rulemaking Committee made recommendations, but that were unrelated to the BIE Standards, Assessments, and Accountability System Committee's charge. While not within the scope of the Committee's charge, the Committee documented its concerns and recommendations on those items in the final report.
BIE commends the Committee for their dedicated work on developing an understanding of a complicated subject matter and for reaching consensus on recommendations for many aspects of regulations necessary to implement requirements for standards, assessments, and accountability system at BIE-funded schools. The members' work resulted in the development of a recommendation on a rule that would ensure that, through a unified system of requirements, both BIE-funded schools and the students served by those schools receive all of the support and guidance that they need to provide for a high-quality education at BIE-funded schools. In addition, the Committee reached consensus on recommendations to assure that Tribal governing bodies or school boards that waive the Secretary's requirements and submit proposals for alternative requirements are properly supported in their efforts to do so.
In April 2019, the Committee transmitted the Standards, Assessments, and Accountability System Negotiated Rulemaking Committee Final Consensus Report (report) to the Secretary summarizing recommendations on which the Committee reached consensus for regulations that would allow the Secretary to implement unified requirements for standards, assessments, and accountability system for BIE-funded schools and also support Tribal governing bodies or school boards that wish to pursue requirements alternative to the ones established by the Secretary. The report forms the basis for this proposed rule and is an essential part of the history for this proposed rulemaking. The Committee's recommendations to revise existing part 30, is found in Appendix E of the report. You can find the report, along with the minutes and other supporting materials for all meetings at the Committee's website at
The Secretary is mandated by section 8204 of ESEA to establish requirements for standards, assessments, and accountability system for BIE-funded schools consistent with ESEA section 1111, as amended, on a national, regional, or Tribal basis, as appropriate, taking into account the unique circumstances and needs of BIE-funded schools and the students served by those schools. Within this context, the purpose of this negotiated rulemaking is to ensure that the Secretary and BIE are able to meet this requirement and their obligations to both BIE-funded schools and the children served by such schools. It is the intent of this proposed rule to provide simplicity, certainty, clarity, and consistency for the 174 BIE-funded schools, the students served by those schools, the parents of those students, school administrators, Tribes, and the Indian communities served by BIE-funded schools.
Among other things, the proposed rule would:
• Require the Secretary to be guided by the principles described in 25 CFR part 32 when engaging in activities under the proposed part 30;
• Require the BIE to develop a Standards, Assessments, and Accountability Plan in consultation with stakeholders that would provide Indian Tribes, parents, and stakeholders with quality, transparent, information about how the requirements of ESEA, as amended, will be implemented at BIE-funded schools;
• Reflect the language and requirements of section 1111 of ESEA for the standards, assessments, and accountability system, taking into account the unique circumstances and needs of BIE-funded schools and the students served by those schools;
• Require standards and assessments in Tribal civics;
• Incorporate Tribal civics and science into the accountability system of BIE-funded schools;
• Recognize the right of Tribal governing bodies or school boards to use Native American languages as a medium of instruction at BIE-funded immersion schools;
• Incorporate certain provisions from U.S. Department of Education regulations relating to assessments;
• Generally require BIE-funded schools to follow the requirements established by the Secretary for the standards, assessments, and accountability system unless those requirements have been waived by a Tribal governing body or school board and a proposal for alternative requirements has been approved by the Secretary and the Secretary of Education, as described in section 8204(c)(2) of ESEA;
• Require the Secretary to respond to proposals for alternative requirements in a timely manner;
• Require the Secretary to provide technical assistance to Tribal governing bodies or school boards in the development of proposals for alternative requirements and to respond to such requests in a timely manner;
• Include provisions on school supports and interventions; and
• Modify language in the current regulations not directly addressed by the Committee to align with the requirements of ESEA, as amended by ESSA.
Before reading the additional explanatory information below, please turn to the proposed rule language that immediately follows the “List of Subjects in 25 CFR part 30” in this document. DOI will codify this language in the CFR if we finalize the proposed rule as written. After you have read the proposed rule language, please return to the preamble discussion below. The preamble contains additional information about this proposed rule, such as why language might differ from the recommendation, why we defined a term in a certain manner, or why a specific standard was chosen.
BIE proposes to amend part 30 as a whole. The title of part 30 would change from “Adequate Yearly Progress” to “Standards Assessments, and Accountability System.” Some of the provisions are similar in substance, the same, or mostly the same as in the existing rule. However, the increase in scope of subject matter to be covered in the proposed rule over the existing rule required replacing certain sections and adding others. The main substantive change is the elimination of sections describing the definition of AYP and consequences for failing to make AYP, and replacing them with sections describing rules for defining the standards, assessments, and accountability system and school supports and intervention. The proposed rule would largely refer to “requirements” as opposed to “definitions” as used in the existing part 30 to provide for more accuracy and clarity.
This proposed section would be substantially the same as the current § 30.100, “What is the purpose of this part?” However, we propose to change a reference to AYP to reflect the new requirement that the Secretary define the standards, assessments, and accountability system for BIE-funded schools. Further, the Committee reached consensus on including language regarding the responsibilities of the BIE with regard to providing a high-quality education for students served at BIE-funded schools. The Committee liked the language found in 25 CFR 32.3, containing the mission statement for the BIE, but felt that the text, including legal citations, was distracting. We propose to incorporate a statement that in carrying out activities under part 30 the Secretary will be guided by the policies
As proposed, this section would be substantially the same as the current § 30.101, “What definitions apply to terms in this part?” However, we propose to update the terms to refer to the “Bureau of Indian Education” as opposed to the “Office of Indian Education Programs” or “Bureau of Indian Affairs.” We also propose to add definitions for “Alternative proposal,” “Foster care,” “Native American language,” “Standards, Assessments, and Accountability Plan,” “Tribal governing body or school board,” and “Waiver.” These new definitions are proposed for addition in response to recommendations from Committee members, or are intended to address issues raised by Committee members.
This proposed Subpart would be similar to the existing §§ 30.102 through 30.104 of Subpart A, “Defining Adequate Yearly Progress,” of part 30. As proposed, this subpart will contain the rules for how the Secretary will develop or implement requirements for standards, assessments, and accountability system at BIE-funded schools.
This proposed section would be similar to the existing § 30.102, “Does the Act require the Secretary of the Interior to develop a definition of AYP for Bureau-funded schools?” It describes what ESEA, as amended, requires of the Secretary.
This proposed section would replace the existing § 30.103, “Did the Committee consider a separate Bureau definition of AYP?” As proposed, this section would describe a process for developing a Standards, Assessments, and Accountability Plan that would provide Indian Tribes, parents, and other stakeholders with quality, transparent, information about how the Act will be implemented for BIE-funded schools. The proposed section would require periodic review and revision of the Secretary's requirements established under part 30 as is required of States in ESEA section 1111. The proposed section describes ongoing and meaningful consultation with a diverse group of stakeholders. In parity with State authorities, the proposed section also would allow the BIE to voluntarily partner with States or Federal agencies in the development or implementation of challenging academic standards and assessments. This proposed section would incorporate language recommended by the Committee recognizing the right of Tribal governing bodies or school boards to use Native American languages as a medium of instruction at BIE-funded immersion schools but moving the proposed subsection from § 30.104(g) to § 30.103(e). BIE proposes to omit language recommended by the Committee for the proposed § 30.103(e) stating that the BIE would provide technical assistance if requested because BIE and the Department of Education are required under section 8204 of the ESEA to provide technical assistance within the context of the waivers and alternative requirements. The rule as proposed eliminates some redundancies in the language recommended by the Committee by consolidating the Committee's recommendations on paragraphs (b) and (c) and paragraphs (d) and (e) into paragraphs (b) and (c), but retains the meaning intended by the Committee.
This and the following three proposed sections would replace the existing § 30.104, “What is the Secretary's definition of AYP?” They would describe the parameters around which the Secretary will develop or implement requirements for the standards, assessments, and accountability system and largely mirror the requirements of section 1111 of the Act. As proposed this section would describe how the Secretary will develop or implement requirements for standards at BIE-funded schools.
The rule as proposed would delete language recommended by the Committee regarding the implementation of standards “on a national, regional, or Tribal basis, as appropriate, taking into account the unique circumstances and needs of such schools and the students served by such schools” both because the general requirements of section 8204 of the ESEA are already described in the proposed 25 CFR 30.102, and also because the Committee expressed an interest in national requirements subject to the process for waiving such requirements and approval of proposed alternative requirements. As proposed, the rule would specify a gradual requirement to have an “other” standard in Tribal civics. The Tribal civics standards would, as described by the Committee in the final report, be created and implemented for grades K-12 and would encompass elements such as Tribal sovereignty, self-determination, treaty law, land and water rights, laws based on Tribal customs and beliefs, Tribal and State relations, Tribal government processes, contemporary issues such as gaming, rights around taxation, and sacred lands as well as historical events and policies that have impacted Native peoples from a Native American perspective, including ideas on colonization, termination, and Manifest Destiny. As proposed, the Tribal civics standards would be developed after the regulations in this part are final. As noted above, the rule as proposed would move the Committee's recommendation on § 30.104(g) to § 30.103(e).
The Committee did not reach consensus on a recommendation with regard to assessments. The BIE proposes to separate into two sections the general requirements for assessments and provisions on the inclusion of all students in assessments. As proposed, this section would describe how the Secretary would develop or implement requirements for assessments at BIE-funded schools. The section would gradually require assessments in Tribal civics.
The proposed section would omit a provision discussed by the Committee that would have been similar to a provision in the Department of Education's regulations.
As proposed, this section would incorporate certain sections within the Department of Education's regulations of which the Committee took note during the fourth Committee meeting. As proposed, the section would also delete language discussed by the Committee regarding locally selected assessments. BIE proposes to omit this language because this provision might conflict with the process described in section 8204(c) of the ESEA for waiving requirements established by the Secretary and for approval of alternative requirements, including the role of the Secretary of Education in the process. Omitting this language will not limit the options that are available for alternative requirements since the use of such locally selected assessments could be proposed as an alternative requirement. As proposed, the section also clarifies that all required BIE assessments must undergo peer review.
As proposed, this section would describe how the Secretary would provide for the inclusion of all students in assessments.
As proposed, this section would describe how the Secretary would provide for the inclusion of all students with disabilities in assessments and have appropriate accommodations. This section would also incorporate information conforming to certain sections of the Department of Education's regulations highlighted by the Committee during the fourth Committee meeting.
As proposed, this section would describe how the Secretary would align alternative assessments for students with the most significant cognitive difficulties with alternate academic achievement standards. This section would also incorporate information conforming to certain sections of the Department of Education's regulations highlighted by the Committee during the fourth Committee meeting.
As proposed, this section would describe how the Secretary would include English learners in content assessments, this section would incorporate information conforming to certain sections of the Department of Education's regulations highlighted by the Committee during the fourth Committee meeting. This section would also clarify the requirements for English learners, and that the BIE may ask for the assistance of the Secretary of Education to meet such requirements.
As proposed, this section would describe how the Secretary would provide for annual assessments of English language proficiency for English learners. This section would also incorporate information conforming to certain sections of the Department of Education's regulations highlighted by the Committee during the fourth Committee meeting.
As proposed, this section would describe how the Secretary would develop or implement accountability system requirements at BIE-funded schools. As proposed, the section would gradually incorporate Tribal civics into the BIE-funded school accountability system as a School Quality and Student Success (SQSS) indicator. The proposed rule would require the review of the use of Tribal civics as an SQSS and allow for the later implementation of Tribal civics as an Academic Achievement Indicator. The Committee discussed the inclusion of science in the BIE's accountability system, but did not discuss how. As such, the proposed section would incorporate science into the BIE's accountability system and would provide the Secretary with discretion as to how to incorporate science. As proposed, the section would use the extended-year adjusted cohort graduation rate in addition to the four-year adjusted cohort graduation rate for long-term goals.
This proposed subpart would be similar to the existing §§ 30.105-30.113 in the existing subpart A of part 30 regarding alternative definitions of AYP, technical assistance, and approval of alternative definitions. Throughout this subpart, the BIE proposes to change the use of the word “plan” as recommended by the Committee to “proposal” to better align the language of the proposed rule with the language of section 8204(c)(2) of the ESEA describing submission of proposals for alternative requirements.
This proposed section would be similar to the existing § 30.105, “May a Tribal governing body or school board use another definition of AYP?” As proposed, this section confirms that Tribal governing bodies and school boards at Public Law 100-297 grant or Public Law 93-638 contract schools may waive the Secretary's requirements in part in or whole. As proposed, this section would also clarify that the Secretary's requirements apply until the Secretary and the Secretary of Education have approved an alternative proposal, unless a BIE-funded school is following a State system as described in § 30.113.
This proposed section would be similar to the existing § 30.106, “How does a Tribal governing body or school board propose an alternative definition of AYP?” As proposed, this section deletes language recommended by the Committee to the effect that “Bureau-operated schools are not eligible for waivers.” This proposed section omits this language because the definition of “Tribal governing body or school board” provided in the proposed § 30.101 would exclude Bureau-operated school boards. This proposed section would describe a process for submission of notice of a waiver to the Secretary and the Secretary of Education, and submission of a proposal for alternative requirements within the statutorily prescribed 60 days of notice of a waiver. The proposed section would encourage Tribal governing bodies or school boards to request technical assistance in advance of providing notice of a waiver. The section would authorize a Tribal
As proposed, the section would provide that during the transition to the Secretary's requirements established under this part, and at any time thereafter, a Tribal governing body or school board may elect to follow the standards and assessments of a State without having to submit such requirements under the process for approval of alternative requirements, provided that the Secretary is notified of this intention and provided that the State agrees.
This proposed section would be similar to the existing § 30.107, “What must a Tribal governing body or school board include in its alternative definition of AYP?” As proposed, this section would require proposals for alternative requirements to include an explanation of how the alternative proposal meets the requirements of ESEA section 1111, taking into account the unique circumstances and needs of BIE-funded schools and the students served at those schools.
This proposed section would be similar to the existing § 30.108, “May an alternative definition of AYP use parts of the Secretary's definition?” As proposed, this section would explain that proposals for alternative requirements may use parts of the Secretary's requirements and that, where these are incorporated, the alternative proposal should identify those requirements.
This section would be similar to the existing § 30.109, “Will the Secretary provide assistance in developing an alternative AYP definition?” As proposed, this section would explain that the Secretary and the Secretary of Education are required to provide technical assistance. The section would require a Tribal governing body or school board to submit a request for technical assistance to the Director of the BIE and would provide for technical assistance on an ongoing and timely basis.
This section would be similar to the existing § 30.110, “What is the process for requesting technical assistance to develop an alternative definition of AYP?” As proposed, this section would require requests for technical assistance to be in writing to the Director of the BIE from a Tribal governing body or school board. It would provide that the Director would acknowledge receipt of such a request and identify a point of contact within 30 days. The section would also provide that the Director and a Tribal governing body or school board would work together to identify the form, substance, and timeline for providing technical assistance.
This section would be similar to the existing § 30.111, “When should the Tribal governing body or school board request technical assistance?” As proposed, this section would provide that a Tribal governing body or school board may request technical assistance at any time, and would encourage Tribal governing bodies or school boards to request technical assistance prior to providing notice of a waiver. The section as proposed would alter wording recommended by the Committee slightly from “to issue a waiver” to “to waive the requirements established by the Secretary” for clarity.
This section would be similar to the existing § 30.113, “How does the Secretary review and approve an alternative definition of AYP?” As proposed, this section would describe the process for review and approval of proposals for alternative requirements by the Secretary and the Secretary of Education. It would also describe that such proposals would be approved unless the Secretary of Education determines that the alternative requirements do not meet the requirements of section 1111 of ESEA, taking into account the unique circumstances and needs of BIE-funded schools and the students served at those schools. The section would describe how the Secretary would begin to coordinate with the Secretary of Education upon receipt of a proposal for alternative requirements. The section would require the Secretary to provide a status update within 120 days of receipt of a proposal for alternative requirements and every 30 days thereafter. The section would explain that Tribal governing bodies or school boards would be notified promptly of approval of a proposal for alternative requirements as well as the effective date of such alternative requirements. The section would provide for technical assistance and an explanation if a proposal for alternative requirements is not approved. Finally, the section would provide that a Tribe could request formal consultation if a proposal for alternative requirements is not approved or if progress is not being made towards approval.
This proposed subpart would be analogous to the existing subpart B, “Assessing Adequate Yearly Progress,” and subpart C, “Failure to make Adequate Yearly Progress” of the existing part 30, §§ 30.114-30.125. As proposed, the subpart would describe requirements for comprehensive support and improvement for schools as well as targeted support and improvement for schools.
This section would provide that the Secretary would notify BIE-funded schools identified for comprehensive support and improvement.
This section would provide for the development, implementation, and monitoring of comprehensive support and improvement plans.
This section would provide that the Secretary would notify schools in which any subgroup of students is currently underperforming and would provide for the development and implementation of targeted support and improvement plans.
This section would provide that where a school is, for any subgroup, within the lowest-performing 5 percent of all schools within the BIE-funded school system using the BIE's system for annual meaningful differentiation, the targeted support and improvement plan would also identify resource inequalities to be addressed through implementation of the plan. For the first year of implementation of the Secretary's requirements, the section would provide that the Secretary will identify any BIE-funded school in which any subgroup of students on its own would lead to identification because it would be within the lowest-performing 5 percent of all schools.
This section would provide that the Secretary would establish exit criteria for schools identified for comprehensive support and improvement and schools identified for additional targeted support. The section would also provide for the periodic review by the Secretary of resource allocations to support school improvement.
This proposed subpart would be similar to the existing subpart D, “Responsibilities and Accountability,” §§ 30.126 and 30.150.
This section would be similar to the existing § 30.126, “What is required for the Bureau to meet its reporting responsibilities?” regarding BIE reporting requirements, but updated to reflect current requirements.
This section would be similar to the existing § 30.150, “Information collection,” regarding the collection of information by the BIE.
BIE is considering the advisability of, and whether and to what extent, a requirement for a Standards, Assessments, and Accountability Plan as described in § 30.103(b) of this proposed rule should be incorporated into the final rule and welcomes comments, including comments on whether such a requirement should be regulatory or addressed elsewhere (such as in the agreement with the Secretary of Education required by section 8204(a) of ESEA).
BIE is considering whether and to what extent stakeholder consultation as described in § 30.103(c) of this proposed rule should be incorporated into the final rule. For instance, such requirements could be duplicative of, or in conflict with, existing Departmental policies and statutory responsibilities, or might require statutory authorization. BIE welcomes comments on these matters.
The BIE is considering whether and to what extent to specify Tribal civics as described in §§ 30.104(c)(1)(iv), 30.105(a), and 30.111(d) in the final rule. For instance, the regulation would otherwise authorize the Secretary to implement “other” requirements without having to specify the other requirements in regulation. Further, the BIE thinks that it might be more appropriate for Tribal civics to be implemented by a Tribal governing body or school board through a proposal for alternative requirements as described in subpart B of the proposed rule.
The Committee recommended the incorporation of science into the BIE's accountability system, but did not specify how it should be incorporated. BIE is considering whether and to what extent to specify the incorporation of science into the Secretary's accountability system as described in § 30.111(c). As with Tribal civics, the regulation would otherwise authorize the Secretary to incorporate science and other subjects into the accountability system without having to specify such other requirements in regulation. Also as with Tribal civics, a Tribal governing body could accomplish incorporation of science into the requirements applicable at a particular school or school board through a proposal for alternative requirements as described in subpart B of the proposed rule, as the Miccosukee Tribe of Indians of Florida did under the NCLB regulations.
Some States have incorporated science into their accountability systems. However, the majority of States have not. In ESEA, as amended, States are required to adopt challenging science academic content standards and to implement aligned science assessments in selected grades, and in this proposed rule BIE would also be held to those requirements. Science requires higher-level literacy and numeracy skills, which students in low performing schools generally require support to accomplish. Including science as an academic indicator could therefore raise the threshold of success for certain students and schools. One committee member voiced the opinion that science should be included as a weighted indicator because of the importance of the subject. BIE agrees with the Committee with regard to the importance of science and notes that Congress has also recognized the importance of the subject by making it a requirement for all schools in the nation. BIE welcomes comments on these matters and on the effect of a requirement to incorporate science into the accountability system. BIE also welcomes comments on specifying a weight in the regulation for a proposed academic indicator for science.
The rulemaking committee recommended two School Quality and Student Success (SQSS) indicators: Tribal civics and science. BIE welcomes comments on whether, to what extent, and the appropriate method for, the inclusion of such indicators. The proposed regulation would otherwise require periodic review and revision of the Secretary's requirements generally, and would otherwise authorize the Secretary to exercise discretion in the inclusion of other subjects into the accountability system. BIE notes that some Committee members expressed an interest in ensuring that BIE would be held to the same or similar requirements as States, and that States generally have discretion in the selection and implementation of indicators such as SQSS in response to the interests of students. In addition, as with Tribal civics and science generally, a Tribal governing body or school board wishing to implement Tribal civics and science could likely propose doing so in a variety of ways through a proposal for alternative requirements as described in Subpart B of the proposed rule.
Section 30.104(f) of the proposed rule contains provisions describing the right of Tribal governing bodies or school
The Committee did not discuss school supports and interventions as described in the proposed rule at subpart C, §§ 30.120 through 30.124. However, BIE is considering whether and to what extent to incorporate school supports and interventions into the final rule and welcomes comments on the provisions included in this proposed rule, or whether such matters should be addressed elsewhere such as in the Secretary's Standards, Assessments, and Accountability Plan or in the ESEA section 8204(a) agreement with the Secretary of Education. BIE also welcomes comment on the amount of autonomy BIE-operated schools should have under this process.
The proposed provisions in § 30.112(g) regarding an option for Tribal governing bodies of school boards to opt in to State requirements apart from the waiver and alternative proposal process described in the proposed subpart B, §§ 30.112 through 30.119, might conflict with statutory intent in ESEA section 8204(c) regarding the approval of alternative requirements, including the statutorily prescribed role of the Secretary of Education. In addition, the Committee expressed an interest in the establishment of a unified system of accountability for BIE-funded schools, and this or similar opt-out provisions might conflict with that goal and complicate efforts to hold schools accountable. BIE welcomes comments on whether or how to incorporate this or similar concepts.
BIE is considering changes to the timelines recommended by the Committee for waivers and the processing of proposals for alternative requirements described in subpart B, §§ 30.112 through 30.119, and welcomes comments on the proposed timelines. For instance, the requirement for status updates on the processing of a proposal for alternative requirements every 30 days might require unnecessary or redundant communication with a Tribal governing body or school board even if there, for instance, is robust and ongoing communication. The BIE is further considering changes to the proposed § 30.118 to more closely reflect the language of the existing § 30.115 or generally amend the language for clarity. The BIE may also omit § 30.119(e) from the final rule as it may be duplicative of or in conflict with the Department's existing Tribal consultation policies.
The proposed rule contains a subpart C, “Support and Improvement,” intended to be similar to the existing subpart B, “Assessing Adequate Yearly Progress,” and subpart C, “Failure to make Adequate Yearly Progress.” The BIE is still considering whether or how these or similar provisions should be included in the final rule and welcomes comments on this topic. If these provisions are included, they may also be included after § 30.111, “How will the Secretary implement requirements for accountability system?” and before subpart B, “Waiver of Requirements, Technical Assistance, and Approval of Proposals for Alternative Requirements.”
The BIE will conduct a series of consultation sessions regarding its proposed rule. The Committee provided advice to the Secretary on a proposed rule that would provide a framework around which the Secretary could develop requirements for the standards, assessments, and accountability system and which would provide flexibility in implementing these requirements in order to allow for periodic revision of requirements as necessary consistent with the provisions in ESEA section 1111 requiring the periodic review and revision of the requirements. The interests that are likely to be significantly affected by the proposed rule are: Students enrolled, or parents of students enrolled at the 174 BIE-funded schools, school teachers and administrators, Tribes, and Indian communities served by these schools.
The BIE will conduct five on-site consultation sessions and one telephonic sessions. The on-site consultation sessions will be held at geographically diverse locations across the country to maximize input. BIE will accept both oral and written comments. The following table lists dates and locations for the consultations. You can find additional information, along with the minutes and other supporting materials for all meetings at the Committee's website at
Additional consultation sessions will be announced on the website above.
Executive Order (E.O.) 12866 provides that the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) will review all significant rules. OIRA has determined that this rule is not significant.
E.O. 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The E.O. directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The BIE has developed this proposed rule in a manner consistent with these requirements. In addition, section 8204 of the ESEA, as amended, directs the Secretary of the Interior, in consultation with the Secretary of Education, if so requested, to use a negotiated rulemaking process to develop regulations for implementation of the Secretary of the Interior's obligation to define the standards, assessments and accountability system that will be utilized at BIE-funded schools. This rule is also part of the Department's commitment under the Executive Order to reduce the number and burden of regulations.
E.O. 13771 of January 30, 2017, directs Federal agencies to reduce the regulatory burden on regulated entities and control regulatory costs. E.O. 13771, however, applies only to significant regulatory actions, as defined in Section 3(f) of E.O. 12866. Therefore, E.O. 13771 does not apply to this rule.
The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This rule would not be a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
(a) Does not have an annual effect on the economy of $100 million or more because it is the responsibility and goal for the Federal government to provide comprehensive education programs and services for Indian Tribes and Alaska Natives.
(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, Indian or local government agencies, or geographic regions because this proposed rule affects only the children served at BIE-funded schools.
(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises because this rule affects only the children served at BIE-funded schools.
This rule would not impose an unfunded mandate on State, local, or Tribal governments or the private sector of more than $100 million per year. The proposed rule would not have a significant or unique effect on State, local, or Tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1501
Under the criteria in section 2 of E.O. 12630, this rule would not have any significant takings implications. This rule would not impose conditions or limitations on the use of any private property or otherwise have taking implications under Executive Order 12630 because this rule does not affect individual property rights protected by the Fifth Amendment or involve a compensable “taking.” A takings implication assessment is not required.
Under the criteria in section 1 of Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. This rulemaking would not substantially and directly affect the relationship between the Federal and State government. The Secretary of the Interior is responsible for managing BIE-funded schools and interacting with Tribal governments or Tribal organizations operating Tribally-controlled grant and contract schools. Because this rule would not alter that relationship, a Federalism summary impact statement is not required.
This rule complies with the requirements of Executive Order 12988. Specifically, this rule:
(a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be writing to minimize litigation.
(b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.
The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian Tribes and recognition of their right to self-governance and Tribal sovereignty.
Under the Department's consultation policy and the criteria in E.O. 13175, we evaluated this rule and determined that it would have no Tribal implications that would impose substantial direct compliance costs on Indian Tribal governments.
Also, under this consultation policy and Executive Order criteria with Indian Tribes and other individual stakeholders, BIE has scheduled consultations that are listed in Section V. Consultation Schedule.
This rule contains information collections requiring approval under the Paperwork Reduction Act (PRA), 44 U.S.C. 3501
This rule would not constitute a major Federal action significantly affecting the quality of the human environment. We are not required to provide a detailed statement under the National Environmental Policy Act of 1969 (NEPA) because this rule qualifies for categorical exclusion under 43 CFR 46.210(f) and (i) and the DOI Departmental Manual, part 516, section 15.4.D: (f)-(i). We have also determined that this rulemaking is not involved in any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.
This rule would not be a significant energy action under the definition in Executive Order 13211, and therefore, would not require a Statement of Energy Effects.
We are required by Executive Orders 12866 (section 1(b)(12)), and 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and,
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
Before including your address, phone number, 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.
Elementary and secondary education, Grant programs—Indians, Indians—education, Schools.
For the reasons set forth in the preamble, the Department of the Interior, Bureau of Indian Affairs, proposes to revise 25 CFR part 30 to read as follows:
Pub. L. 114-94, 129 Stat. 1312, 20 U.S.C. 6311
(a) This part establishes regulations regarding standards, assessments, and accountability system at BIE-funded schools consistent with section 1111 of the Elementary and Secondary Education Act of 1965. Nothing in this part:
(1) Diminishes the Secretary's trust responsibility for Indian education or any statutory rights in law;
(2) Affects in any way the sovereign rights of Indian Tribes; or
(3) Terminates or changes the trust responsibility of the United States to Indian Tribes or individual Indians.
(b) In carrying out activities under this part, the Secretary will be guided by the policies stated in 25 CFR part 32.
(1) Economically disadvantaged students;
(2) Students from major racial and ethnic groups;
(3) Children with disabilities; and
(4) English learners.
(a) The Act requires the Secretary to define a standards, assessments, and accountability system, consistent with section 1111 of the Act, for schools on a national, regional, or Tribal basis, as appropriate, taking into account the unique circumstances and needs of the schools and the students served, using regulations developed through a negotiated rulemaking process.
(b) If it has determined that the requirements described in paragraph (a) are inappropriate, a Tribal governing body or school board may waive these requirements, in part or in whole, and propose alternative requirements for standards, assessments, and accountability system that meets the requirements of section 1111 of the Act, taking into account the unique circumstances and needs of the school or schools and the students served.
(c) The Secretary and the Secretary of Education will provide technical assistance, upon request, either directly or through a contract, to a Tribal governing body or school board.
(a) The Secretary, through the Director, must prescribe requirements for standards, assessments, and accountability system for use at BIE-funded schools in accordance with this part. The Secretary must periodically review and revise these requirements.
(b) The Director will implement a Standards, Assessments, and Accountability Plan that will provide Indian Tribes, parents, and stakeholders with quality, transparent information about how the Act will be implemented at BIE-funded schools, including the requirements that have been established for standards, assessments, and accountability system for BIE-funded schools.
(c) The Secretary will engage in active, meaningful, ongoing consultation with a diverse group of stakeholders inclusive of parents, educators (such as administrators and educators from BIE-operated schools and Tribally controlled grant schools), students and community members, and government-to-government consultation with Tribal governments, when creating, implementing, reviewing, and revising the requirements for standards, assessments, and accountability system for BIE-funded schools. These stakeholder and government-to-government consultations will include transparent reporting, recording, and responding to input obtained therein.
(d) The Secretary may voluntarily partner with States, or another Federal agency, to develop and implement challenging academic standards and assessments.
(e) Tribal governing bodies or school boards may create their own Native American language academic standards and Native American language assessments in addition to those required by section 1111 of the Act. The Secretary shall not have the authority to mandate, direct, control, coerce, or exercise any direction or supervision over such standards or assessments or require the submission of such standards and assessments to the Secretary for review or approval.
(a) The Secretary will implement requirements for academic standards for BIE-funded schools by adopting:
(1) Challenging academic content standards, and
(2) Aligned academic achievement standards consistent with paragraph (c) of this section.
(b) The requirements for academic standards include at least three levels of achievement and are hereinafter collectively referred to as “challenging academic standards.”
(c) The academic standards will apply to all BIE-funded schools and the students served at those schools unless the standards have been waived by a Tribal governing body or school board and a proposal for alternative requirements approved.
(1) The academic standards will include:
(i) Mathematics;
(ii) Reading or Language Arts;
(iii) Science;
(iv) Tribal civics; and
(v) Any other subject determined by the Secretary.
(2) Tribal civics will be phased into the Secretary's requirements for assessments and accountability system starting as a school quality indicator and revisited as implemented. Assessments and an assessment schedule will be developed for Tribal civics at the conclusion of the processes described in § 30.103.
(d) The standards, except Tribal civics, must be aligned to entrance requirements for credit-bearing coursework in higher education and relevant career and technical education standards.
(e) This paragraph applies to academic achievement standards for students with the most significant cognitive disabilities. The Secretary must, through a documented and validated standards-setting process, adopt alternate academic achievement standards for students with the most significant cognitive disabilities that:
(1) Are aligned with the challenging BIE academic content standards under paragraphs (a) and (b) of this section;
(2) Promote access to the general education curriculum, consistent with the Individuals with Disabilities Education Act (IDEA) (20 U.S.C. 1400
(3) Reflect professional judgment as to the highest possible standards achievable by the students;
(4) Are designated in the individualized education program developed under section 614(d)(3) of IDEA (20 U.S.C. 1414(d)(3)) for each such student as the academic achievement standards that will be used for the student; and
(5) Are aligned to ensure that a student who meets the alternate academic achievement standards is on track to pursue postsecondary education or competitive integrated employment, consistent with the purposes of the Rehabilitation Act of 1973, as amended by the Workforce Innovation and Opportunity Act, as in effect on July 22, 2014.
(f) The Secretary will adopt English language proficiency standards that:
(1) Are derived from the four (4) recognized domains of speaking, listening, reading, and writing;
(2) Address the different proficiency levels of English learners; and
(3) Are aligned with the BIE's challenging academic standards.
(a) The BIE will implement a set of high quality student academic assessments in mathematics, reading or language arts, science, and Tribal civics. Tribal civics assessments and an assessment administration schedule will be developed at the conclusion of the processes described in § 30.103, except that the Secretary will phase in the requirement for assessments aligned with the Tribal civics standards. The BIE retains the right to implement the assessments in any other subject chosen by the BIE.
(b) The assessment requirements must:
(1) Except with respect to alternate assessments for students with the most significant cognitive disabilities, be:
(i) The same academic assessments used to measure the achievement of all BIE-funded school students; and
(ii) Administered to all BIE-funded school students, including the following highly-mobile student populations:
(A) Students with status as a migratory child;
(B) Students with status as a homeless child or youth;
(C) Students with status as a child in foster care;
(D) Students with status as a student with a parent who is a member of the armed forces on active duty or serves on full-time National Guard duty;
(2) Be aligned with the BIE's challenging academic standards, and provide coherent and timely information about student attainment of such standards and whether the student is performing at the student's grade level;
(3) Be used for purposes for which such assessments are valid and reliable, consistent with relevant, nationally recognized professional and technical testing standards; objectively measure academic achievement, knowledge, and skills; and use tests that do not evaluate or assess personal or family beliefs and attitudes, or publicly disclose personally identifiable information, except that this provision does not preclude the use of:
(i) Constructed-response, short answer, or essay questions; or
(ii) Items that require a student to analyze a passage of text or to express opinions;
(4) Be of adequate technical quality for each purpose required under the Act and consistent with the requirements of this section, the evidence of which shall be made public, including on the BIE website;
(5) Be administered:
(i) In the case of mathematics and reading or language arts:
(A) In each of grades three (3) through eight (8); and
(B) At least once in grades nine (9) through twelve (12);
(ii) In the case of science, not less than one time during:
(A) Grades three (3) through five (5);
(B) Grades six (6) through nine (9); and
(C) Grades ten (10) through twelve (12);
(iii) In the case of any other subject chosen by the BIE, at the discretion of the BIE; and
(6) Involve multiple up-to-date measures of student academic achievement, including measures that assess higher-order thinking skills, such as critical thinking, reasoning, analysis, complex problem solving, effective communication, and understanding of challenging content, which may:
(i) Include valid and reliable measures of student academic growth at all achievement levels to help ensure that the assessment results could be used to improve student instruction; and
(ii) Be partially delivered in the form of portfolios, projects, or extended performance tasks;
(7) At the BIE's discretion, be administered through:
(i) A single summative assessment; or
(ii) Multiple Bureau-wide interim assessments during the course of the academic year that result in a single summative score that provides valid, reliable, and transparent information on student achievement or growth;
(8) Produce individual student interpretive, descriptive, and diagnostic reports, consistent with paragraph (b)(3) of this section, regarding achievement on such assessments that allow parents, teachers, principals, and other school leaders to understand and address the specific academic needs of students, and that are provided to parents, teachers, and school leaders, as soon as is practicable after the assessment is given, in an understandable and uniform format, and to the extent practicable, in a language that parents can understand;
(9) Enable results to be disaggregated:
(i) Within the Bureau and each BIE-funded school by:
(A) Each major racial and ethnic group;
(B) Economically disadvantaged students as compared to students who are not economically disadvantaged;
(C) Children with disabilities as compared to children without disabilities;
(D) English proficiency status;
(E) Gender;
(F) Migrant status;
(G) Status as a homeless child or youth as defined in section 725(2) of title VII, subtitle B of the McKinney-Vento Homeless Assistance Act, as amended;
(H) Status as a child in foster care; and
(I) Status as a student with a parent who is a member of the armed forces on active duty or serves on full-time National Guard duty.
(ii) Disaggregation is not required in the cases in which the number of students in a subgroup is insufficient to yield statistically reliable information or the results would reveal personally identifiable information about an individual student.
(10) Enable itemized score analyses to be produced and reported, consistent with paragraph (b)(3) of this section, to BIE-funded schools, so that parents, teachers, principals, other school leaders, and administrators can interpret and address the specific academic needs of students as indicated by the students' achievement on assessment items; and
(11) Be designed and developed:
(i) To be valid and accessible for use by all students, including students with disabilities and English learners; and
(ii) To the extent practicable, using the principles of universal design for learning. For the purposes of this section, “universal design for learning” means a scientifically valid framework for guiding educational practice that:
(A) Provides flexibility in the ways information is presented, in the ways students respond or demonstrate knowledge and skills, and in the ways students are engaged; and
(B) Reduces barriers in instruction, provides appropriate accommodations, supports, and challenges, and maintains high achievement expectations for all students, including students with disabilities and English learners.
(c)
(1) The student takes the mathematics assessment required to be administered at least once in grades nine (9) through twelve (12);
(2) The student's performance on the high school assessment is used in the year in which the student takes the assessment in mathematics ordinarily administered in grade eight (8) for purposes of measuring academic achievement in mathematics, and participation in assessments is used for purposes of § 30.111(e)(4); and
(3) In high school, such student takes a mathematics assessment required to be administered at least once in grades nine (9) through twelve (12) that:
(i) Is any end-of-course assessment or other assessment that is more advanced than the assessment required to be administered at least once in grades nine (9) through twelve (12);
(ii) Shall be used to measure such student's academic achievement for purposes of § 30.111(e)(1);
(iii) Provides for appropriate accommodations; and
(iv) The student's performance on the more advanced mathematics assessment is used for purposes of measuring academic achievement under § 30.111(e) and participation in assessments under § 30.111(g).
(4) The BIE will describe in its Standards, Assessments, and Accountability Plan, with regard to this exception, its strategies to provide all students at BIE-funded schools the opportunity to be prepared for and to take advanced mathematics coursework in middle school.
(d)
(i) The requirement that the same academic assessments must be used to measure the achievement of all BIE-funded school students and that the assessments must be administered to all BIE-funded school students may not be interpreted to require that all students taking the computer adaptive assessment be administered the same assessment items; and
(ii) Such assessment:
(A) Must measure, at a minimum, each student's academic proficiency based on the BIE's challenging academic standards for the student's grade level and growth toward such standards; and
(B) May measure the student's level of academic proficiency and growth using items above or below the student's grade level, including for use as part of the BIE's accountability system.
(2) In developing and administering computer adaptive assessments for students with the significant cognitive disabilities and English learners:
(i) The BIE will ensure that the computer adaptive assessments for students with the most significant cognitive disabilities:
(A) Assess a student's academic achievement based on the challenging academic content standards for the grade in which the student is enrolled;
(B) Meet the requirements of this section and §§ 30.106 through 30.110, including § 30.108, except the assessments are not required to meet the requirements of § 30.108(a)(4); and
(C) Assess the student's academic achievement to measure, in the subject being assessed, whether the student is performing at the student's grade level; and
(ii) The BIE will ensure that computer adaptive assessments for English learners:
(A) Meet the requirements §§ 30.106 through 30.110, including § 30.108, except the assessments are not required to meet the requirements of § 30.108(a)(4); and
(B) Assess the student's English language proficiency, which may include growth towards such proficiency, in order to measure the student's acquisition of English.
(e) All required BIE assessments must undergo peer review to ensure that the assessments meet all applicable requirements.
(f)
(g)
Assessments must provide for:
(a) The participation of all students;
(b) The participation of students with disabilities, as detailed in § 30.107 and § 30.108; and
(c) The participation of English learners, as detailed in § 30.109.
(a) The Secretary must include students with disabilities in all assessments, with appropriate accommodations. For purposes of this
(1) All children with disabilities as defined under section 602(3) of the IDEA;
(2) Students with the most significant cognitive disabilities who are identified from among the students in paragraph (a)(1) of this section; and
(3) Students with disabilities covered under other acts, including:
(i) Section 504 of the Rehabilitation Act of 1973, as amended; and
(ii) Title II of the Americans with Disabilities Act (ADA), as amended.
(b)
(2) A student with the most significant cognitive disabilities may be assessed with:
(i) The general assessment under § 30.106(b); or
(ii) The alternate assessment under § 30.108 aligned with the BIE's challenging academic content standards for the grade in which the student is enrolled and the BIE's alternate academic achievement standards.
(c) The BIE must ensure that students with disabilities have the appropriate accommodations, such as interoperability with, and ability to use, assistive technology, for students with disabilities, including students with the most significant cognitive disabilities, necessary to measure the academic achievement of such children relative to the BIE's challenging academic standards or alternate academic achievement standards described in § 30.104(d) and § 30.104(e).
(d) The BIE must ensure that general and special education teachers, paraprofessionals, teachers of English learners, specialized instructional support personnel, and other appropriate staff receive necessary training to administer assessments and know how to administer assessments, including, as necessary, alternate assessments, and know how to make use of appropriate accommodations during assessment for all students with disabilities, consistent with section 1111(b)(2)(B)(vii)(III) of the Act.
(e) The BIE must ensure that the use of appropriate accommodations under paragraph (c) of this section does not deny a student with a disability:
(1) The opportunity to participate in the assessment; and
(2) Any of the benefits from participation in the assessment that are afforded to students without disabilities.
(a) Alternative assessments aligned with alternate academic achievement standards. The BIE will provide for alternate assessments aligned with the BIE's challenging academic content standards and alternate academic achievement standards described in § 30.104(d) and § 30.104(e) for students with the most significant cognitive disabilities. The BIE must:
(1) Consistent with paragraph (b) of this section, ensure that, for each subject, the total number of students assessed in the subject using the alternate assessments does not exceed one (1) percent of the total number of all students in the BIE-funded school system who are assessed in the subject;
(2) With regard to the percentage of students assessed under this paragraph:
(i) Not prohibit a BIE-funded school from assessing more than one (1) percent of its assessed students in any subject for which assessments are administered with an alternate assessment aligned with alternate academic achievement standards;
(ii) Require that a BIE-funded school submit information justifying the need of the BIE-funded school to assess more than one (1) percent of its assessed students in any such subject with such an alternate assessment;
(iii) Provide appropriate oversight of a BIE-funded school that is required to submit information to the BIE; and
(iv) Make the information submitted by a BIE-funded school under paragraph (a)(2)(ii) of this section publicly available, provided that such information does not reveal personally identifiable information about an individual student.
(3) With regard to Individual Education Plan (IEP) teams:
(i) Establish, consistent with section 612(a)(16)(C) of the IDEA, and monitor implementation of clear and appropriate guidelines for IEP teams to apply in determining, on a case-by-case basis, which students with the most significant cognitive disabilities will be assessed based on alternate academic achievement standards. Such guidelines must include a BIE definition of “students with the most significant cognitive disabilities” that addresses factors related to cognitive functioning and adaptive behavior, such that:
(A) The identification of a student as having a particular disability as defined in the IDEA or as an English learner does not determine whether a student is a student with the most significant cognitive disabilities;
(B) A student with the most significant cognitive disabilities is not identified solely on the basis of the student's previous low academic achievement, or the student's previous need for accommodations to participate in general BIE assessments; and
(C) A student is identified as having the most significant cognitive disabilities because the student requires extensive, direct individualized instruction and substantial supports to achieve measurable gains on the BIE's challenging academic content standards for the grade in which the student is enrolled;
(ii) Provide to IEP teams a clear explanation of the differences between assessments based on grade-level academic achievement standards and those based on alternate academic achievement standards, including any effects of BIE and BIE-funded school policies on a student's education resulting from taking an alternate assessment aligned with alternate academic achievement standards, such as how participation in such assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma.
(4) Ensure that the parents of such students are clearly informed, as part of the process for developing the individualized education program (as defined in section 614(d)(1)(A) of the Individuals with Disabilities Education Act (20 U.S.C. 1414(d)(1)(A))):
(i) That their child's academic achievement will be measured based on the alternate standards; and
(ii) How participation in the assessments may delay or otherwise affect the student from completing the requirements for a regular high school diploma;
(5) Promote, consistent with the IDEA (20 U.S.C. 1400
(6) Describe the steps the Bureau has taken to incorporate universal design for learning, to the extent feasible, in alternate assessments;
(7) Describe that general and special education teachers, and other appropriate staff:
(i) Know how to administer the alternate assessments; and
(ii) Make appropriate use of accommodations for students with disabilities on all assessments required under this paragraph;
(8) Develop, disseminate information on, and promote the use of appropriate accommodations to increase the number
(i) Participating in academic instruction and assessments for the grade level in which the student is enrolled; and
(ii) Who are tested based on the BIE's challenging academic standards for the grade level in which the student is enrolled; and
(9) Not preclude a student with the most significant cognitive disabilities who takes an alternate assessment based on alternate academic achievement standards from attempting to complete the requirements for a regular high school diploma.
(b) Responsibility under IDEA. Subject to the authority and requirements for the IEP team for a child with a disability under section 614(d)(1)(A)(i)(VI)(bb) of the Individuals with Disabilities Education Act (20 U.S.C. 1414(d)(1)(A)(i)(VI)(bb)), such team, consistent with the guidelines established by the BIE and required under section 612(a)(16)(C) of such Act (20 U.S.C. 1412(c)(16)(C)) and paragraph (a)(1) of this section, will determine when a child with a significant cognitive disability shall participate in an alternate assessment aligned with the alternate academic achievement standards.
(a)
(1) Assessed in a valid and reliable manner; and
(2) Provided appropriate accommodations on assessments administered under this paragraph, including, to the extent practicable, assessments in the language and form most likely to yield accurate data on what the students know and can do in academic content areas, until the students have achieved English language proficiency, consistent with standardized BIE-determined exit procedures.
(b)
(c)
(1) Disseminate information and resources regarding English learners to, at a minimum, BIE-funded schools, and parents; and
(2) Promote the use of accommodations for English learners to ensure that all English learners are able to participate in academic instruction and assessments.
(d)
(1) Exclude:
(i) The English learner from one administration of the reading or language arts assessment required under § 30.105; and
(ii) The English learner's results on any of the assessments required under § 30.105(b)(5)(i) or § 30.110 for the first year of the English learner's enrollment in the school for the purposes of the BIE-determined accountability system under § 30.111; or
(2) Or the BIE may choose to:
(i) Assess, and report the performance of, the English learner on the reading or language arts and mathematics assessments required under § 30.105(b)(5)(i) in each year of the student's enrollment in such a school; and
(ii) For the purposes of the BIE-determined accountability system:
(A) For the first year of the student's enrollment in the school, exclude the results on the assessments described in paragraph (d)(1)(i) of this section;
(B) Include a measure of student growth on the assessments described in paragraph (d)(1)(i) of this section in the second year of the student's enrollment in the school; and
(C) Include proficiency on the assessments described in paragraph (c) of this section in the third year of the student's enrollment in such a school, and each succeeding year of enrollment.
(e)
(a) The BIE will ensure that BIE-funded schools will provide for an annual assessment of English proficiency of all English learners in the schools served by the BIE.
(b) The BIE will require BIE-funded schools to use the assessments to assess annually the English language proficiency, including reading, writing, speaking, and listening skills, of all English learners in kindergarten through grade twelve (12).
(c) The English language proficiency assessment must be aligned with the BIE's English language proficiency standards described in § 30.104(f).
(d) The assessments will be implemented, developed, and used consistent with the requirements of this section.
(e) The assessments will provide coherent and timely information about each student's attainment of the BIE's English language proficiency standards to parents.
(f) If an English learner has a disability that precludes assessment of the student in one or more domains of the English language proficiency assessment such that there are no appropriate accommodations for the affected domain(s) (
(g) The BIE must provide for an alternate English language proficiency assessment for each English learner covered under this section who cannot participate in the assessment under this paragraph even with appropriate accommodations.
(a) The Secretary will define accountability system for BIE-funded schools consistent with this section and subpart C, including provisions for a single Bureau-wide accountability system and school support and improvement activities, taking into account the unique circumstances and needs of BIE-funded schools and the students served by BIE-funded schools.
(b) To improve student academic achievement and school success among all elementary and secondary schools within the BIE-funded school system, the Secretary will develop and implement a single, Bureau-wide accountability system in consultation with Tribes and stakeholders (parents, educators, etc.) that:
(1) Is based on the Bureau's challenging academic standards and academic assessments;
(2) Is informed by ambitious long-term goals and measurements of interim progress;
(3) Includes all of the accountability indicators described paragraph (f) of this section;
(4) Takes into account the achievement of all elementary and secondary school students within the BIE-funded school system;
(5) Is the same accountability system used to annually, meaningfully differentiate all schools within the BIE-funded school system and the same accountability system used to identify schools for comprehensive and targeted support and improvement;
(6) Includes the process that the Bureau will use to ensure effective development and implementation of school support and improvement plans, including evidence-based interventions, to hold all schools within the BIE-funded school system accountable for student academic achievement and school success; and
(7) Will be reviewed in consultation with Tribes and stakeholders for continuous improvements as necessary, but not less often than every four (4) years beginning on the date the plan is implemented.
(c) The Secretary will incorporate science in the accountability system.
(d) Tribal civics will be phased into the Secretary's requirements for accountability system starting as a school quality indicator and will be revisited as the accountability system is implemented.
(e) For all students and separately for each subgroup of students within the BIE-funded school system, the Bureau's long-term goals and measurements of interim progress will:
(1) Include, at a minimum, improved academic achievement, as measured by proficiency on the Bureau's annual assessments in mathematics and reading or language arts under § 30.105(b)(5)(i), and high school graduation rates, including the four-year adjusted cohort graduation rate and the extended-year adjusted cohort graduation rate, except that the Secretary will set a more rigorous long-term goal for the graduation rate as compared to the long-term goal set for the four-year adjusted cohort graduation rate;
(2) Have the same multi-year length of time set to meet goals for all students and for each subgroup of students within the BIE-funded school system;
(3) Take into account, for subgroups of students who are behind on the measurements of academic achievement and high school graduations rates, the improvement necessary to make significant progress in closing Bureau-wide proficiency and graduation rate gaps; and
(4) Include a measurement of increases in the percentage of English learner students making progress in achieving English language proficiency as defined by the Secretary and measured by the assessments under § 30.105(f) within a timeline determined by the Secretary.
(f) For all students and separately for each subgroup of students within the BIE-funded school system, the Bureau's accountability indicators will at a minimum include distinct indicators for each school that, except for the English language proficiency indicator, will:
(1) Measure performance for all students and separately for each subgroup of students;
(2) Use the same measures within each indicator for all schools within the BIE-funded school system except that measures within the Academic Progress and School Quality or Student success indicators may vary by each grade span; and
(3) Incorporate an Academic Achievement indicator, an Academic Progress indicator, a Graduation rate indicator, a Progress in Achieving English Language Proficiency indicator, and one or more indicators of School Quality or Student Success.
(g) The Bureau's accountability system will annually measure the achievement of at least ninety-five (95) percent of all students, and ninety-five (95) percent of each subgroup of students, who are enrolled in schools within the BIE-funded school system on the Bureau's assessments. The denominator for the purpose of measuring, calculating, and reporting on each indicator shall be the greater of:
(1) Ninety-five (95) percent of all students, or ninety-five (95) percent of each subgroup of students; or
(2) The number of students participating in the assessments.
(h) The performance of students that have not attended the same BIE-funded school for at least half of a school year will not be used in the system of meaningful differentiation of school for that school year, but will be used for the purpose of reporting on the Bureau and school report cards for that school year. In calculating the high school graduation rate, a high school student who has not attended the same school for at least half of a school year and has exited high school without a regular high school diploma and without transferring to another high school that grants a regular high school diploma during such a school year will be assigned to the high school at which the student was enrolled for the greatest proportion of school days while enrolled in grades nine (9) through twelve (12), or to the high school in which the student was most recently enrolled.
Yes. A Tribal governing body or school board may waive the Secretary's requirements for standards, assessments, and accountability system in part or in whole, and the Tribal governing body or school board's alternative will apply if approved by the Secretary. If the Secretary does not approve the Tribal governing body or school board's alternative proposal, the Secretary's requirements apply.
(a) A Tribal governing body or school board may waive the Secretary's requirements for standards, assessments, and accountability system, in part or in whole.
(b) The Tribal governing body or school board must notify the Secretary and the Secretary of Education of the decision to waive the Secretary's requirements in part or in whole.
(c) Within sixty (60) days of the decision to waive the Secretary's requirements in part or in whole, the Tribal governing body or school board must submit to the Secretary for review, and in coordination with the Secretary
(d) A Tribal governing body or school board may request an extension of the sixty (60) day deadline for the provision of technical assistance.
(e) A Tribal governing body or school board must use this process anytime a Tribal governing body or school board proposes alternative requirements for standards, assessments, and accountability system, or proposes changes to approved alternative requirements.
(f) The Secretary will work with the Secretary of Education to develop and make available templates for plans for alternative requirements that Tribal governing bodies and school boards may use to assist in the development of such proposals for alternative requirements.
(g) During the transition to the Secretary's requirements for standards and assessments under this part, or at any time thereafter, a Tribal governing body or school board may elect to use the standards and assessments of a State without submitting such standards and assessments for approval as an alternative proposal under paragraph (c) of this section, provided that the Tribal governing body or school board notifies the Secretary of the intention to use the State standards and assessments and the State agrees to allow the use of its standards and assessments.
Alternative plans must include an explanation of how the alternative proposal meets the requirements of section 1111 of the Act, taking into consideration the unique circumstances and needs of BIE-funded schools and the students served at such schools.
Yes, a Tribal governing body or school board may use the Secretary's requirements in part or in whole. Alternative proposals must clearly identify any retained portions of the Secretary's requirements.
The Secretary and the Secretary of Education are required by statute to provide technical assistance, upon request, either directly or through contract, to a Tribal governing body or a school board that seeks to develop alternative requirements. A Tribal governing body or school board seeking such assistance must submit a request to the Director. The Secretary will provide such technical assistance on an ongoing and timely basis.
(a) Requests for technical assistance must be in writing from a Tribal governing body or school board to the Director of BIE.
(b) The Director, or designee, will acknowledge receipt of a request for technical assistance.
(c) No later than thirty (30) days after receiving the original request, the Director will identify a point of contact and begin the process of providing technical assistance. The Director and requesting Tribal governing body or school board will work together to identify the form, substance, and timeline for the assistance.
A Tribal governing body or school board may request technical assistance at any time. A Tribal governing body or school board is welcomed and encouraged to request technical assistance before formally notifying the Secretary of its intention to waive the requirements established by the Secretary in order to maximize the time available for technical assistance.
(a) The Secretary and the Secretary of Education will jointly approve plans for alternative requirements for standards, assessments, and accountability system or determine that the proposed alternative requirements do not meet the requirements of section 1111 of the Act.
(1) The Secretary will consult with the Secretary of Education through the review of a proposal for alternative requirements.
(2) Upon receipt of a proposal for alternative requirements for standards, assessments, and accountability system, in part or in whole, the Secretary will begin coordination with the Secretary of Education on review and approval of the proposal.
(3) The Secretary will provide a status update regarding the processing of the proposal within 120 days of receipt of the proposal and every thirty (30) days thereafter to discuss the stage of the review process.
(b) If the Secretary and the Secretary of Education approve a proposal for alternative requirements, the Secretary will:
(1) Promptly notify the Tribal governing body or school board; and
(2) Indicate the date for which the alternative proposal will be effective.
(c) If a proposal for alternative requirements is not approved, the Tribal governing body or school board will be notified that:
(1) The proposal has not been approved; and
(2) The reasons why the alternative proposal was not approved.
(d) If a proposal for alternative requirements is not approved, the Secretary will provide technical assistance to the Tribal governing body or school board to help to overcome the reasons why the alternative proposal was not approved.
(e) If a proposal for alternative requirements is not approved, or is not moving forward, then Tribes may individually request formal consultation with the Secretary and Secretary of Education.
The Secretary will notify each BIE-funded school that has been identified for comprehensive support and improvement.
(a) Once notified that it has been identified for comprehensive support and improvement, each BIE-funded school is required to develop and implement, in partnership with stakeholders (including principals and other school leaders, teachers, and parents), a comprehensive support and improvement plan to improve student outcomes consistent with the Act. The comprehensive support and improvement plan must be approved by the school and the BIE. Once approved
(b) In regards to high schools that have been identified as having failed to graduate one-third or more of their students, the BIE may:
(1) Permit differentiated improvement activities that use evidence-based interventions in the case of a school that predominantly serves students:
(i) Returning to education after having exited secondary school without a regular high school diploma, or
(ii) Who, based on their grade or age, are significantly off track to accumulate sufficient academic credits to meet high school graduation requirements; and
(2) In the case of a school that has a total enrollment of fewer than 100 students, permit the BIE-funded school to forego implementation of improvement activities.
(a) Using the system of annual meaningful differentiation of schools, the Secretary will notify each BIE-funded school in which any subgroup of students is consistently underperforming.
(b) Each school that has been notified must develop and implement, in partnership with stakeholders (including principals and other school leaders, teachers, and parents), a school-level targeted support and improvement plan to improve student outcomes based on the BIE's indicators for each subgroup of students that was the subject of such notification consistent with the Act. Targeted support and improvement plans must include evidence-based interventions, will be approved by the BIE prior to implementation, and will be monitored by the BIE upon submission and implementation. Targeted support and improvement plans must result in additional action following unsuccessful implementation of the plan after a number of years as determined by the BIE.
Where a school would be identified for comprehensive support and improvement because, for any subgroup, it is within the lowest-performing five (5) percent of all schools in the BIE system using the BIE's system of annual meaningful differentiation of schools, a school-level targeted support and improvement plan must also identify resource inequities (which may include a review of BIE-funded school level budgeting), to be addressed through implementation of the plan.
(a) The Secretary will establish exit criteria for:
(1) Schools identified for comprehensive support and improvement, which, if not satisfied within a BIE-determined number of years (not to exceed four (4) years), will result in more rigorous BIE-determined action, such as implementation of interventions (which may include addressing school-level operations); and
(2) Schools identified for additional targeted support.
(b) The Secretary will also periodically review resource allocation to support school improvement.
The Bureau is required to prepare and disseminate widely to the public an annual report card for the BIE-funded school system as a whole, and also report cards for individual BIE-funded schools, consistent with the requirements of section 1111(h) of the Act. The BIE's annual report card will be made available on the internet along with all BIE-funded school report cards.
The collections of information in this part have been approved by the Office of Management and Budget under 44 U.S.C. 3501
Office of Surface Mining Reclamation and Enforcement, Interior.
Proposed rule; reopening of the public comment period and opportunity for public hearing on proposed amendment.
We, the Office of Surface Mining Reclamation and Enforcement (OSMRE), are reopening the public comment period and providing an opportunity for a public hearing on a proposed amendment to the Illinois regulatory program (Illinois program) under the Surface Mining Control and Reclamation Act of 1977 (SMCRA or the Act) published on May 1, 2019. The public comment period is being reopened and an opportunity for a public hearing is being provided at the request of three Illinois citizen's organizations. The granting of this request affords the public additional time to provide written comment and the opportunity to request to speak at a public hearing.
Illinois proposes revisions to its regulations, including allowing the extraction of coal as an incidental part of a government-financed construction project, revising its Ownership and Control rules, and clarifying land use changes requiring a significant permit revision. Illinois intends to revise its program to be as effective as the Federal regulations.
This document gives the times and locations where the Illinois program documents and this proposed amendment to that program are available for your inspection, establishes the new comment period during which you may submit written comments on the amendment, and describes the procedures that we will follow for the public hearing, if one is requested.
We will accept written comments on this amendment until 4:00 p.m., CDT, June 24, 2019. We will hold a public hearing on the amendment at 5:30 p.m. on June 18, 2019 at our office location listed in
You may submit comments, identified by SATS No. IL-109-FOR, by any of the following methods:
•
•
•
In addition, you may review a copy of the amendment during regular business hours at the following location: Office of Mines and Minerals, Illinois Department of Natural Resources, One Natural Resources Way, Springfield, IL 62702-1271, Telephone: (618) 439-9111.
Joy Schieferstein, Acting Chief, Alton Field Division. Telephone: (618) 463-6460, Email:
On May 1, 2019 (84 FR 18428), we published a proposed rule that would revise the Illinois program. By letter dated December 5, 2018 (Administrative Record No. IL-5100), Illinois sent us an amendment to its program under SMCRA (30 U.S.C. 1201
Illinois proposes to revise the Illinois Surface Coal Mining Land Conservation and Reclamation Act (225 ILCS 720), Section 1.06, “Scope of the Act,” by adding language allowing coal extraction as an incidental part of a government-financed project. The language added is nearly identical to that found in Section 528 of SMCRA (30 U.S.C. 1278).
Illinois also proposes to revise the following Parts of Title 62 of the Illinois Administrative Code:
Illinois proposes to revise its regulation at section 1701 Appendix A, amending a number of its definitions, including those for “ownership,” “control,” and “violations,” to conform with the Federal definitions at 30 CFR 701.5 and 707.5.
Illinois proposes adding a new section 1703 to allow the extraction of coal as an incidental part of a government-financed construction project, which incorporates language identical to the Federal regulations at 30 CFR part 707.
Illinois proposes to amend section 1773.15, “Review of Permit Applications” to comport with changes made to the Federal regulations at 30 CFR 773.12. These changes preclude the Department from considering violations upstream of the permit applicant by removing “person who owns or controls the applicant” from this section.
Illinois also proposes to amend section 1773.25, “Standards for Challenging Ownership or Control Links and the Status Violations,” to update a subsection reference.
Illinois proposes to amend section 1774.13, “Permit Revisions,” to provide further clarification as to which reclamation plan land use changes require a significant revision for a permit application. Illinois proposes to remove the requirement for a significant revision for land use changes involving greater than five percent of the total permit acreage after finding the five percent limitation to be unduly restrictive and burdensome. Instead, the Department will consider changes in the reclamation plan for post-mining land use in determining whether a significant revision to the permit must be obtained. These changes are proposed in order to make the Illinois rules as effective as the Federal regulations at 30 CFR 774.13.
Illinois proposes adding a new section 1778.9, “Certifying and Updating Existing Permit Application Information,” which incorporates language identical to the Federal regulations at 30 CFR 778.9.
Illinois proposes to amend section 1778.13, “Identification of Interests,” to comport with changes made to the Federal regulations at 30 CFR 778.11 and 778.12.
Illinois proposes to amend section 1778.14, “Violation Information,” to comport with changes made to the Federal regulations at 30 CFR 778.14.
Illinois proposes to amend section 1778.15, “Right of Entry Information,” to add language found in the Federal regulations at 30 CFR 778.13 related to property interest information to the existing right of entry language in this section, which corresponds to 30 CFR 778.15, so that all property related rules are located in one section.
During the initial comment period, we received requests from three citizen's organizations (Administrative Record No. IL-5104, IL-5106 and IL-5108) to extend the public comment period and the date to request to testify at a public hearing. Based on that request, we have extended both time periods as described in
The hearing will be open to anyone who would like to attend and/or testify. The primary purpose of the public hearing is to obtain your comments on the proposed rule so that we can prepare a complete and objective analysis of the proposal. The purpose of the hearing officer is to conduct the hearing and receive the comments submitted. Comments submitted during the hearing will be responded to in the preamble to the final rule, not at the hearing. If you wish to speak at the public hearing, contact the person listed under
At the hearing, a court report will record and make a written record of the statements presented. This written record will be made part of the administrative record for the rule. To assist the transcriber and ensure an accurate record, we request, if possible, that each person who speaks at the public hearing provide us with a written copy of his or her comments. The public hearing will continue until everyone scheduled to speak has been given an opportunity to be heard. If you are in the audience and have not been scheduled to speak and wish to do so, you will be allowed to speak after those who have been scheduled. We will end the hearing after everyone scheduled to speak and others present in the audience who wish to speak, have been heard. We appreciate all comments but those most useful and likely to influence decisions on the final rule will be those that either involve personal experience or include citations to, and analyses of SMCRA, its legislative history, its implementing regulations, case law, other State or Federal laws and regulations, data, technical literature, or relevant publications.
Intergovernmental relations, Surface mining, Underground mining.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve revisions to the Maricopa County Air Quality Department (MCAQD) portion of the Arizona State Implementation Plan (SIP). These revisions concern emissions of volatile organic compounds (VOCs) from graphic arts and from coating of wood furniture and fixtures. We are proposing to approve two local rules to regulate these emission sources under the Clean Air Act (CAA or the Act). We are taking comments on this proposal and plan to follow with a final action.
Any comments must arrive by July 10, 2019.
Submit your comments, identified by Docket ID No. EPA-R09-OAR-2019-0105 at
Nicole Law or Robert Schwartz, EPA Region IX, 75 Hawthorne Street, San Francisco, CA 94105, (415) 947-4126 or (415) 972-3286,
Throughout this document, “we,” “us” and “our” refer to the EPA.
Table 1 lists the rules addressed by this proposal with the dates that they were adopted by the local air agency and submitted by the Arizona Department of Environmental Quality.
On March 5, 2014, the EPA determined that the submittal for MCAQD Rule 337 met the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.
On December 22, 2017, the submittal for MCAQD Rule 342 was deemed by operation of law to meet the completeness criteria in 40 CFR part 51 Appendix V, which must be met before formal EPA review.
We approved earlier versions of Rule 337 and Rule 342 into the SIP on February 9, 1998 (63 FR 6489). The MCAQD adopted revisions to the SIP-approved version of Rule 337 on August
Emissions of VOCs contribute to ground-level ozone (“smog”) and particulate matter, which harm human health and the environment. Section 110(a) of the CAA requires states to submit regulations that control VOC emissions. The current SIP-approved Rule 337 contains VOC limits for various graphic arts materials and cleaning solutions associated with lithographic printing. It also contains requirements pertaining to labeling, operation and maintenance plans, monitoring, recordkeeping, reporting, and test methods. The submitted revisions expand requirements for specific types of graphic arts operations such as lithographic and letter press operations, rotogravure and flexographic operations, and screen-printing operations. A work practice section was also added describing VOC material use, storage and disposal, and minimization of spills.
The current SIP-approved Rule 342 establishes VOC content limits and workplace standards for all persons involved in the surface preparation and coating of wood furniture and fixtures. Revisions to the SIP-approved rule include the addition of leak detection and repair requirements, annual operator training requirements, and more comprehensive recordkeeping requirements; updates to definitions; revised test methods; and removal of outdated compliance dates and spray gun tagging requirements. The EPA's technical support documents (TSDs) have more information about these rules.
Rules in the SIP must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater emissions reductions (see CAA section 193).
Generally, SIP rules must require Reasonably Available Control Technology (RACT) for each category of sources covered by a Control Techniques Guidelines (CTG) document as well as each major source of VOCs in ozone nonattainment areas classified as Moderate or above (see CAA section 182(b)(2)). The MCAQD regulates an ozone nonattainment area classified as Moderate for the 2008 8-hour ozone NAAQS (40 CFR 81.303). Therefore, these rules must implement RACT.
Guidance and policy documents that we used to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:
1. “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990,” 57 FR 13498 (April 16, 1992); 57 FR 18070 (April 28, 1992).
2. “Issues Relating to VOC Regulation Cutpoints, Deficiencies, and Deviations,” EPA, May 25, 1988 (the Bluebook, revised January 11, 1990).
3. “Guidance Document for Correcting Common VOC & Other Rule Deficiencies,” EPA Region 9, August 21, 2001 (the Little Bluebook).
4. “Control of Volatile Organic Compound Emissions from Wood Furniture Manufacturing Operations,” EPA-453/R-96-007, April 1996.
5. “Control of Volatile Organic Emissions from Existing Stationary Sources—Volume VIII: Graphic Arts—Rotogravure and Flexography,” EPA-450/2-78-033, December 1978.
6. “Control Techniques Guidelines for Offset Lithographic Printing and Letterpress Printing,” EPA 453/R-06-002, September 2006.
These rules are consistent with CAA requirements and relevant guidance regarding enforceability, RACT and SIP revisions. The TSDs have more information on our evaluation.
The TSDs include recommendations for the next time the local agency modifies the rules.
As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rules because they fulfill all relevant requirements. We will accept comments from the public on this proposal until July 10, 2019. If we take final action to approve the submitted rules, our final action will incorporate these rules into the federally enforceable SIP.
In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the MCAQD rules described in Table 1 of this preamble. The EPA has made, and will continue to make, these materials available through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this proposed action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement
• does not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) revisions submitted by the State of Montana on August 6, 2018. The revisions include an update to incorporate by reference the 2016 version of the Code of Federal Regulations (CFR) and 2015 version of the United States Code (U.S.C.) within the Adminstrative Rules of Montana (ARM) that are part of the Montana SIP. The revisions also include administrative changes that consolidate the ARM's references to the CFR and U.S.C. and remove two CFR exemptions from incorporation by reference into the ARM. Additional revisions remove incorporation by reference of certain EPA standards for which the state already has delegated authority from the EPA, and correct an internal reference in the ARM.
Submit your comments, identified by Docket ID No. EPA-R08-OAR-2019-0268, to the Federal Rulemaking Portal:
Chris Dresser, Air Quality Planning Branch, EPA, Region 8, Mailcode 8ARD-QP, 1595 Wynkoop Street, Denver, Colorado 80202-1129, (303) 312-6385,
On September 29, 2017, and February 9, 2018, the Montana Board of Environmental Review conducted public hearings pursuant to 40 CFR 51.102 to consider the adoption of revisions to the ARM. The approved changes were submitted to the EPA for approval into Montana's SIP on August 6, 2018. The SIP submittal includes changes that: (1) Amend ARM 17.8.103, 17.8.302, 17.8.602, 17.8.767, 17.8.802, 17.8.902, 17.8.1002, 17.8.1102, and 17.8.1402 to remove repetitive text describing the location of rule reference material and centralize and consolidate those reference citations into sections 17.8.102(3) and (4); (2) Modify air quality rules by correcting an internal reference in ARM 17.8.904; (3) Amend ARM 17.8.102(2), to remove the exemptions of 40 CFR part 63, subparts JJJJJ and KKKKK; (4) Remove references to 40 CFR parts 60, 61, and 63 in sections 17.8.102(2), 17.8.103(1)(f)-(i), 17.8.302(1)(a)-(c), 17.8.767(1)(c)-(d), 17.8.802(1)(c)-(d), 17.8.902(1)(a)-(b), and 17.8.1002(1)(a)-(b), for which Montana is already delegated authority; and (5) Update ARM 17.8.102(1) to incorporate by reference the 2016 version of the CFR and the 2015 version of the U.S.C.
The EPA evaluated the proposed SIP revisions (amendments to the ARM) submitted by the State on August 6, 2018. The subsequent analysis for each rule change in the SIP is as follows:
(1) The State of Montana is requesting that the EPA revise the SIP to remove text in ARM sections 17.8.103, 17.8.302, 17.8.602, 17.8.767, 17.8.802, 17.8.902, 17.8.1002, 17.8.1102, and 17.8.1402 describing the location of references to the CFR and U.S.C. The location of rule reference material would be consolidated into ARM sections 17.8.102(3) and (4). Identifying this information once, in the General Provisions of ARM 17.8.102(3) and (4), would eliminate repetition of the information in ARM 17.8.103, 17.8.302, 17.8.602, 17.8.767, 17.8.802, 17.8.902, 17.8.1002, 17.8.1102 and 17.8.1402. The EPA proposes to find that this revision is necessary and appropriate to efficiently describe the location of referenced material.
(2) The State of Montana is requesting to revise the SIP to incorporate an amendment to ARM 17.8.904(7) which corrects an internal reference. In 2011, the State amended the rule, which was submitted to the EPA the following year for inclusion in
(3) The State of Montana is requesting to revise the SIP to incorporate an amendment to ARM 17.8.102(2) which removes the exemptions for 40 CFR part 63, subparts JJJJJ and KKKKK. Subparts JJJJJ and KKKKK are National Emission Standards for Hazardous Air Pollutants (NESHAP) for brick and structural clay products manufacturing and clay ceramics manufacturing, respectively. Originally adopted into the ARM in 2003, these NESHAPS were vacated and remanded by the Federal Court of Appeals for the District of Columbia Circuit on March 13, 2007, leading to their exemption in the ARM. The EPA addressed the vacatur and remand by issuing new subparts JJJJJ and KKKKK on October 26, 2015. Therefore, the EPA proposes to find it necessary and appropriate to remove the exemptions for JJJJJ and KKKKK; effectively incorporating the most recent federal rules covering emissions from brick and structural clay products manufacturing and clay ceramics manufacturing into Montana's SIP.
(4) The State of Montana is requesting removal from the SIP certain rules that incorporate by reference 40 CFR parts 60, 61, and 63. These rules include: ARM 17.8.103(1)(f)-(i)—pertaining to EPA emission source reference test methods for stationary sources, EPA performance specification and test procedures for continuous emission monitoring systems, EPA emission source reference test methods for sources subject to national emission standards for hazardous air pollutants, and emission standards for hazardous air pollutant source categories; 17.8.302(1)(a)-(c)—pertaining to standards of performance for new stationary sources and modifications, emission standards for hazardous air pollutants; and emission standards for hazardous air pollutant source categories; 17.8.767(1)(c)-(d)—specifying standards of performance for new stationary sources and for hazardous air pollutants; 17.8.802(1)(c)-(d)—specifying standards of performance for new stationary sources and for hazardous air pollutants; 17.8.902(1)(a)-(b)—specifying standards of performance for new stationary sources and for hazardous air pollutants; and 17.8.1002(1)(a)-(b)—specifying standards of performance for new stationary sources and for hazardous air pollutants. Each of these sections references federal requirements for which the State has already received federal delegation of authority. The EPA proposes to find that this update is necessary and appropriate to remove the redundancy. The EPA also proposes to find that removing the previously mentioned references to 40 CFR parts 60, 61, and 63 in the ARM does not impact any other part of the State's SIP (
(5) The State of Montana is requesting revisions to the SIP concerning ARM 17.8.102 to update incorporation by reference dates to reflect federal regulations published in the July 1, 2016, edition of the CFR as it is published on the website of the U.S. Government Printing Office, and the 2015 edition of the U.S.C., as it is published on the website of the U.S. Government Printing Office. The EPA proposes to find that this change is necessary and appropriate to cite the 2015 and 2016 versions of the U.S.C. and CFR, respectively.
In this action, the EPA is proposing to approve the SIP submittal, containing recent amendments to the ARM, submitted by the State of Montana on August 6, 2018. This action proposes updates to: (1) Amend ARM 17.8.103, 17.8.302, 17.8.602, 17.8.767, 17.8.802, 17.8.902, 17.8.1002, 17.8.1102, and 17.8.1402 to remove repetitive text describing the location of rule reference material and centralize and consolidate those reference citations into sections 17.8.102(3) and (4); (2) Modify air quality rules by correcting an internal reference in ARM 17.8.904; (3) Amend ARM 17.8.102(2), to remove the exemptions of 40 CFR part 63, subparts JJJJJ and KKKKK; (4) Remove references to 40 CFR parts 60, 61, and 63 in sections 17.8.102(2), 17.8.103(1)(f)-(i), 17.8.302(1)(a)-(c), 17.8.767(1)(c)-(d), 17.8.802(1)(c)-(d), 17.8.902(1)(a)-(b), and 17.8.1002(1)(a)-(b), for which Montana is already delegated authority; and (5) Update ARM 17.8.102(1) to incorporate by reference the 2016 version of the CFR and the 2015 version of the U.S.C.
In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the amendments described in section II. The EPA has made, and will continue to make, these materials generally available through
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the SIP is not proposed to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements.
42 U.S.C. 7401
Animal and Plant Health Inspection Service, USDA.
Notice of proposed scope of study.
The Animal and Plant Health Inspection Service plans to prepare an environmental impact statement (EIS) analyzing alternatives for predator damage management in Idaho. This notice proposes issues and alternatives for consideration in the EIS and requests public comments to further delineate the scope of the alternatives, the environmental issues, and other issues of public concern to be considered.
We will consider all comments that we receive on or before July 10, 2019.
You may submit comments by either of the following methods:
•
•
Supporting documents and any comments received on this topic may be viewed at
Mr. Kirk Gustad, Idaho Predator Damage EIS Project Manager, USDA-APHIS-Wildlife Services, 2150 Centre Avenue, Building B, Mail Stop 3W9, Fort Collins, CO 80526-8117; phone 970-494-7214.
On March 4, 2019, the Animal and Plant Health Inspection Service (APHIS) published in the
APHIS-WS in Idaho currently uses an integrated approach to PDM involving access to the full range of legally available nonlethal and lethal PDM methods to reduce conflicts with coyotes, gray wolves, black bears, grizzly bears, mountain lions, bobcats, red foxes, striped skunks, raccoons, badgers, feral and free-ranging dogs and cats, western spotted skunks, mink, long-tailed weasels, short-tailed weasels, common ravens, black-billed magpies, American crows, bald eagles, and golden eagles. Assistance may be in the form of advice, depredation investigations, information on sources of PDM materials, training and loan of equipment (technical assistance), or hands-on assistance with implementing PDM methods (operational assistance). Methods are applied in accordance with applicable Federal, State, Tribal, and local regulations. Work plans are developed and renewed annually with land management agencies to address specific activities and restrictions required to safely conduct PDM on public lands in a manner consistent with applicable land management agency policies and resource management plans.
Methods used or recommended for use by APHIS-WS may include changes to agricultural practices, capture and relocation, livestock guarding animals, habitat modification, exclusion, frightening devices, avian repellents, carcass disposal, human behavior modification (
APHIS-WS' authorization to provide this service was established by Congress in the Acts of March 2, 1931 (7 U.S.C. 8351-8352), as amended, and December 22, 1987 (7 U.S.C. 8353). APHIS-WS' PDM activities in Idaho also are authorized and coordinated through memoranda of understanding with the Idaho Department of Fish and Game, Idaho State Department of Agriculture, Idaho Wolf Depredation Control Board, Idaho State Animal Damage Control Board, Idaho Department of Lands, the U.S. Forest Service, and the U.S. Department of the Interior's Bureau of Land Management. APHIS-WS' actions also must be conducted in accordance with applicable Federal, State, and Tribal laws, regulations, species management plans, and land management plans.
APHIS-WS is preparing an EIS to evaluate alternatives for agency
Please review the information in this notice and the supplemental information in our supplement, “Invitation for Public Involvement,” which may be obtained from the person listed under
The EIS will consider a range of reasonable alternatives that will include a “no action” alternative, which can be defined as a continuation of the ongoing management practices described above, in accordance with the Council on Environmental Quality's regulations for implementing the procedural provisions of the National Environmental Policy Act (NEPA) (7 CFR parts 1500-1508). Suggestions for other alternatives that could be considered are listed below. Additional recommendations for management alternatives to be advanced for detailed analysis are welcome.
• Current integrated PDM activities with PDM activities in Wilderness and Wilderness Study Areas limited to the protection of human health and safety.
• APHIS-WS uses and recommends only nonlethal PDM methods.
• APHIS-WS only uses lethal PDM methods after it is confirmed and recorded that reasonable nonlethal methods were employed by APHIS-WS or the cooperator and were ineffective in resolving the problem.
• Current integrated PDM activities, with the exception that APHIS-WS would not use toxicants for PDM.
• Current integrated PDM activities, but PDM for the protection of natural resources would be limited to protection of species federally listed under the Endangered Species Act.
• Option for the use of M-44s under any alternative that allows for the use of toxicants for PDM. APHIS-WS currently does not use this method in Idaho.
In considering reasonable alternatives, the EIS will study the effects of the project on environmental issues and other issues of public concern identified as important for understanding the impacts of PDM activities. APHIS-WS and the cooperating agencies have identified the following issues for consideration in the EIS. The public is encouraged to submit comments identifying other issues that should be considered.
• Impacts on State and regional predator populations;
• Effects on nontarget animal populations including species federally listed under the Endangered Species Act;
• Impacts of the alternatives on predator-prey relationships and ecosystem processes (
• Impacts on Special Management Areas, including Wilderness and Wilderness Study Areas;
• Humaneness and ethical perspectives regarding actions proposed in the alternatives;
• Effects on recreation and people's aesthetic enjoyment of wildlife, including hunting and non-consumptive uses;
• Impacts of the alternatives on Native American culture and resource uses;
• Economic costs and benefits of the proposed alternatives; and
• Risks and benefits to human and pet safety from PDM activities.
After the comment period closes, APHIS-WS will review and consider all comments received during the comment period and any other relevant information in the development of the EIS. All comments received will be available for public review as required and allowed by law. Upon completion of the draft EIS, a notice announcing its availability and an opportunity to comment will be published in the
The EIS will be prepared in accordance with: (1) NEPA, as amended (42 U.S.C. 4321
Animal and Plant Health Inspection Service, USDA.
Notice.
We are advising the public that we have added Mongolia to the list of regions that the Animal and Plant Health Inspection Service considers to be affected with African swine fever (ASF). We are taking this action because of the confirmation of ASF in Mongolia.
Mongolia was added to the APHIS list of regions considered affected with ASF on January 10, 2019.
Dr. Rebecca Gordon, Import Risk Analyst, Strategy and Policy, VS, APHIS, 920 Main Campus Drive, Suite 200, Raleigh, NC 27606; (919) 855-7741; email:
The regulations in 9 CFR part 94 (referred to below as the regulations) govern the importation of specified animals and animal products to prevent the introduction into the United States of various animal diseases, including foot-and-mouth disease, bovine spongiform encephalopathy, swine vesicular disease, classical swine fever, and African swine fever (ASF). These are dangerous and destructive diseases of ruminants and swine.
Section 94.8(a)(3) of the regulations states that the Animal and Plant Health Inspection Service (APHIS) will consider a region to have ASF and add it to the list referenced in § 94.8(a)(2) upon determining ASF exists in the region, based on reports APHIS receives of outbreaks of the disease from veterinary officials of the exporting country, from the World Organization for Animal Health (OIE), or from other sources the Administrator determines to be reliable.
ASF is a highly contagious disease of wild and domestic swine that can spread rapidly in swine populations
In a report dated January 15, 2019, the veterinary authorities of Mongolia reported to the OIE confirmation of an ASF outbreak on January 10, 2019. Therefore, in response to this outbreak, APHIS has added Mongolia to the list of regions where ASF exists or is reasonably believed to exist.
Although the importation of most swine commodities from Mongolia into the United States is already restricted based on that country's classical swine fever, foot-and-mouth disease, and swine vesicular disease status, APHIS has determined that it is necessary to impose ASF-related restrictions on the importation of pork and pork products from Mongolia into the United States.
As a result, pork and pork products from Mongolia, including casings, are subject to APHIS import restrictions designed to mitigate the risk of ASF introduction into the United States.
7 U.S.C. 1633, 7701-7772, 7781-7786, and 8301-8317; 21 U.S.C. 136 and 136a; 31 U.S.C. 9701; 7 CFR 2.22, 2.80, and 371.4.
Commission on Civil Rights.
Announcement of meeting.
Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that a planning meeting of the South Dakota Advisory Committee to the Commission will convene at 12:00 p.m. (MDT) on Thursday, June 27, 2019 via teleconference. The purpose of the meeting is review and vote on an Advisory Memorandum to wrap up the Committee's work on subtle racism in South Dakota.
Thursday, June 27, 2019, at 12:00 p.m. (MDT)
To be held via teleconference: 1-800-458-4121, Conference ID: 4148595.
Evelyn Bohor,
Members of the public may listen to the discussion by dialing the following Conference Call Toll-Free Number: 1-800-458-4121; Conference ID: 4148595. Please be advised that before being placed into the conference call, the operator will ask callers to provide their names, their organizational affiliations (if any), and an email address (if available) prior to placing callers into the conference room. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free phone number.
Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service (FRS) at 1-800-877-8339 and provide the FRS operator with Conference Call Toll-Free Number: 1-800-458-4121; Conference ID: 4148595. Members of the public are invited to submit written comments; the comments must be received in the regional office by Monday, July 29, 2019. Written comments may be mailed to the Rocky Mountain Regional Office, U.S. Commission on Civil Rights, 1961 Stout Street, Suite 13-201, Denver, CO 80294, faxed to (303) 866-1050, or emailed to Evelyn Bohor at
Records and documents discussed during the meeting will be available for public viewing as they become available at
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) continues to find that Tianjin Magnesium International, Co., Ltd. (TMI) and Tianjin Magnesium Metal Co., Ltd. (TMM) had no shipments of subject merchandise covered by the antidumping duty order on magnesium metal from the People's Republic of China (China) for the period of review (POR) April 1, 2017, through March 31, 2018.
Applicable June 10, 2019.
Kyle Clahane or Brendan Quinn, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5449 or (202) 482-5848, respectively.
On February 1, 2019, Commerce published the
Commerce conducted this review in accordance with section 751(a)(1)(B) of
The product covered by this antidumping duty order is magnesium metal from China, which includes primary and secondary alloy magnesium metal, regardless of chemistry, raw material source, form, shape, or size. Magnesium is a metal or alloy containing by weight primarily the element magnesium. Primary magnesium is produced by decomposing raw materials into magnesium metal. Secondary magnesium is produced by recycling magnesium-based scrap into magnesium metal. The magnesium covered by this order includes blends of primary and secondary magnesium.
The subject merchandise includes the following alloy magnesium metal products made from primary and/or secondary magnesium including, without limitation, magnesium cast into ingots, slabs, rounds, billets, and other shapes; magnesium ground, chipped, crushed, or machined into rasping, granules, turnings, chips, powder, briquettes, and other shapes; and products that contain 50 percent or greater, but less than 99.8 percent, magnesium, by weight, and that have been entered into the United States as conforming to an “ASTM Specification for Magnesium Alloy”
The scope of this order excludes: (1) All forms of pure magnesium, including chemical combinations of magnesium and other material(s) in which the pure magnesium content is 50 percent or greater, but less than 99.8 percent, by weight, that do not conform to an “ASTM Specification for Magnesium Alloy”;
The merchandise subject to this order is classifiable under items 8104.19.00, and 8104.30.00 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS items are provided for convenience and customs purposes, the written description of the merchandise is dispositive.
In the
Commerce determined, and U.S. Customs and Border Protection (CBP) shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with section 751(a)(2)(C) of the Act and 19 CFR 351.212(b). Commerce intends to issue assessment instructions to CBP 15 days after the date of publication of the final results of this review.
Additionally, consistent with Commerce's refinement to its assessment practice in non-market economy cases, for TMI and TMM, the exporters under review, which we determined had no shipments of the subject merchandise during the POR, any suspended entries of subject merchandise from these companies (
The following cash deposit requirements will be effective upon publication of these final results of administrative review for shipments of subject merchandise from China entered, or withdrawn from warehouse, for consumption on or after the publication date, as provided by section 751(a)(2)(C) of the Act: (1) For previously investigated or reviewed Chinese and non-Chinese exporters that received a separate rate in a prior segment of this proceeding, including TMI, the cash deposit rate will continue to be the existing exporter-specific rate; (2) for all Chinese exporters of subject merchandise that have not been found to be entitled to a separate rate, including TMM, the cash deposit rate will be the China-wide rate of 141.49 percent;
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 POR. Failure to comply with this requirement could result in Commerce'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
We are issuing and publishing these final results and this notice in accordance with sections 751(a)(1) and 777(i) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that xanthan gum from the People's Republic of China (China) is being sold in the United States at less than fair value (LTFV). The period of review (POR) is July 1, 2017, through June 30, 2018. Interested parties are invited to comment on these preliminary results.
Applicable June 10, 2019.
Aleksandras Nakutis or Thomas Hanna, 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) 482-3147 or (202) 482-0835, respectively.
This administrative review is being conducted in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act). On July 3, 2018, Commerce published in the
The product covered by this order is dry xanthan gum, whether or not coated or blended with other products, from China. For a complete description of the scope of this order,
On September 25, 2017, and October 9, 2018, Shanghai Smart Chemicals Co., Ltd. (Shanghai Smart), Jianlong Biotechnology Co., Ltd. (Jianlong), and Inner Mongolia Jianlong Biochemical Co., Ltd. (IMJ), respectively, timely filed certifications that they had no exports, sales, or entries of subject merchandise during the POR. Based on an analysis of the U.S. Customs and Border Protection (CBP) information and Shanghai Smart, Jianlong's, and IMJ's, no shipment certifications, Commerce preliminarily determines that Shanghai Smart, Jianlong, and IMJ had no shipments and, therefore, no reviewable transactions, during the POR.
Consistent with our practice in non-market economy (NME) cases, Commerce is not rescinding this administrative review with respect to Shanghai Smart, Jianlong, or IMJ, for which it has preliminarily found no shipments during the POR, but intends to complete the review, and issue appropriate instructions to CBP based on the final results of the review.
Commerce is conducting this review in accordance with section 751(a)(1)(B) of the Act. We calculated, where applicable, export price and constructed export price for the mandatory respondents Deosen Biochemical (Ordos) Ltd. and Deosen Biochemical Ltd. (collectively Deosen), and Meihua Group International Trading (Hong Kong) Limited, Langfang Meihua Biotechnology Co., Ltd., and Xinjiang Meihua Amino Acid Co., Ltd. (collectively Meihua) in accordance with section 772 of the Act. Because China is an NME country within the meaning of section 771(18) of the Act, we calculated NV in accordance with section 773(c) of the Act.
For a full description of the methodology underlying our results,
Consistent with prior segments of this proceeding, we have continued to treat Deosen Biochemical (Ordos) Ltd. and Deosen Biochemical Ltd. as a single entity; and Meihua Group International Trading (Hong Kong) Limited, Langfang Meihua Biotechnology Co., Ltd., and Xinjiang Meihua Amino Acid Co., Ltd. as a single entity, pursuant to 19 CFR 351.401(f)(1)-(2). For additional information,
Commerce preliminary determines that the information placed on the record by Deosen, Meihua, and the other companies listed in the rate table below demonstrates that these companies are entitled to separate rate status. However, we preliminarily determine that Hebei Xinhe Biochemical Co., Ltd. and A.H.A. International Co., Ltd. did not demonstrate their entitlement to separate rates status. Therefore, we are preliminarily treating Hebei Xinhe Biochemical Co., Ltd. and A.H.A. International Co., Ltd. as part of the China-wide entity. For additional information,
The statute and Commerce's regulations do not address what rate to apply to respondents not selected for individual examination when Commerce limits its examination in an administrative review pursuant to section 777A(c)(2) of the Act. Generally, Commerce looks to section 735(c)(5) of the Act, which provides instructions for calculating the all-others rate in an investigation, for guidance when calculating the rate for non-selected respondents that are not examined individually in an administrative review. Section 735(c)(5)(A) of the Act states that the all-others rate should be calculated by averaging the weighted-average dumping margins for individually-examined respondents, excluding rates that are zero,
Commerce preliminarily determines that the following weighted-average dumping margins exist for the period July 1, 2017, through June 30, 2018:
Commerce intends to disclose the calculations performed for these preliminary results of review within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b). Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than 30 days after the publication of these preliminary results of review, unless the Secretary alters the time limit.
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.
Unless otherwise extended, Commerce intends to issue the final results of this administrative review, which will include the results of our analysis of the issues raised in the case briefs, within 120 days of publication of these preliminary results in the
Upon issuance of the final results of review, Commerce will determine, and CBP shall assess, antidumping duties on all appropriate entries covered by this review.
For the respondents that were not selected for individual examination in this administrative review, but which qualified for a separate rate, the assessment rate will be based on the weighted-average dumping margin(s) assigned to the respondent(s), as appropriate, in the final results of this review.
For entries that were not reported in the U.S. sales databases submitted by the companies individually examined during this review, Commerce will
The following cash deposit requirements will be effective for all shipments of xanthan gum from China entered, or withdrawn from warehouse, for consumption on or after the date of publication of the notice of the final results of this administrative review, as provided for by section 751(a)(2)(C) of the Act: (1) For the companies listed above that have a separate rate, the cash deposit rate will be that rate established in the final results of this review (except, if the rate is zero or
This notice also serves as a preliminary reminder to importers of their responsibility under 19 CFR 351.402(f) to file a certificate regarding the reimbursement of antidumping and/or countervailing duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in Commerce's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of double antidumping duties.
We are issuing and publishing these preliminary results of review in accordance with sections 751(a)(l) and 777(i)(l) of the Act and 19 CFR 351.213.
United States Section, NAFTA Secretariat, International Trade Administration, Department of Commerce.
Notice of NAFTA requests for Panel Review in the matter Light-Walled Rectangular Pipe and Tube from Mexico; Final Results of Antidumping Duty Administrative Review (Secretariat File Number: USA-MEX-2019-1904-01).
A Request for Panel Review was filed on behalf of Maquilacero S.A. de C.V. (“Maquilacero”) and Perfiles LM, S.A. de C.V. (“Perfiles”) with the United States Section of the NAFTA Secretariat on May 22, 2019, pursuant to NAFTA Article 1904. Panel Review was requested of the Department of Commerce's final antidumping duty determination regarding Light-Walled Rectangular Pipe and Tube from Mexico. The final determination was published in the
Paul E. Morris, United States Secretary, NAFTA Secretariat, Room 2061, 1401 Constitution Avenue NW, Washington, DC 20230, (202) 482-5438.
Chapter 19 of Article 1904 of NAFTA provides a dispute settlement mechanism involving trade remedy determinations issued by the Government of the United States, the Government of Canada, and the Government of Mexico. Following a Request for Panel Review, a Binational Panel is composed to review the trade remedy determination being challenged and issue a binding Panel Decision. There are established NAFTA Rules of Procedure for Article 1904 Binational Panel Reviews, which were adopted by the three governments for panels requested pursuant to Article 1904(2) of NAFTA which requires Requests for Panel Review to be published in accordance with Rule 35. For the complete Rules, please see
The Rules provide that:
(a) A Party or interested person may challenge the final determination in whole or in part by filing a Complaint in accordance with Rule 39 within 30 days after the filing of the first Request for Panel Review (the deadline for filing a Complaint is June 21, 2019);
(b) A Party, investigating authority or interested person that does not file a Complaint but that intends to appear in support of any reviewable portion of the final determination may participate in the panel review by filing a Notice of Appearance in accordance with Rule 40 within 45 days after the filing of the first Request for Panel Review (the deadline
(c) The panel review shall be limited to the allegations of error of fact or law, including challenges to the jurisdiction of the investigating authority, that are set out in the Complaints filed in the panel review and to the procedural and substantive defenses raised in the panel review.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
On May 1, 2019, the Department of Commerce (Commerce) initiated the sunset reviews of the antidumping duty orders on prestressed concrete steel rail tie wire (PC tie wire) from Mexico and the People's Republic of China (China). Because the domestic interested parties did not participate in these sunset reviews, Commerce is revoking these antidumping duty orders.
Applicable June 10, 2019.
Samantha Kinney, AD/CVD Operations, Office VIII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: 202-482-2285.
On June 24, 2014, Commerce issued antidumping duty orders on PC tie wire from Mexico and China.
We did not receive a notice of intent to participate from domestic interested parties in either sunset review by the deadline date.
The products covered by these orders are high carbon steel wire; stress relieved or low relaxation; indented or otherwise deformed; meeting at a minimum the physical, mechanical, and chemical requirements of the American Society of Testing Materials (ASTM) A881/A881M specification; regardless of shape, size, or other alloy element levels; suitable for use as prestressed tendons in concrete railroad ties (“PC tie wire”). High carbon steel is defined as steel that contains 0.6 percent or more of carbon by weight.
PC tie wire is classified under the Harmonized Tariff Schedule of the United States (HTSUS) subheading 7217.10.8045, but may also be classified under subheadings 7217.10.7000, 7217.10.8025, 7217.10.8030, 7217.10.8090, 7217.10.9000, 7229.90.1000, 7229.90.5016, 7229.90.5031, 7229.90.5051, 7229.90.9000 and 7312.10.3012. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the orders is dispositive.
Pursuant to section 751(c)(3)(A) of the Act, and 19 CFR 351.218(d)(1)(iii)(B)(3), if no domestic interested parties respond to a notice of initiation, Commerce shall, within 90 days after the date of publication of the notice of initiation of the review, revoke the order. Because no domestic interested party filed a notice of intent to participate in these sunset reviews, we are revoking these antidumping duty orders on PC tie wire from Mexico and China.
Pursuant to sections 751(c)(3)(A) and 751(c)(6)(A)(iii) of the Act and 19 CFR 351.222(i)(2)(i), Commerce intends to instruct U.S. Customs and Border Protection to terminate the suspension of liquidation of, and discontinue the collection of AD cash deposits on, the merchandise subject to the antidumping duty orders on PC tie wire from Mexico and China entered, or withdrawn from warehouse, on or after June 24, 2019, the fifth anniversary of the date on which Commerce published in the
These five-year (sunset) reviews and this notice are issued and published in accordance with sections 751(c) and 777(i)(1) of the Act, and 19 CFR 351.218(f)(4).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) preliminarily determines that United Renewable Energy Co., Ltd. (URE) is the successor-in-interest to Gintech Energy Corporation (Gintech), Neo Solar Power Corporation (Neo Solar), and Solartech Energy Corporation (Solartech). If these preliminary results are adopted in our final results, we will assign URE the cash deposit rate assigned to Gintech, Neo Solar, and Solartech. We invite parties to comment on these preliminary results.
Applicable June 10, 2019.
Robert Galantucci, AD/CVD Operations,
On February 18, 2015, Commerce published in the
On April 10, 2019, SunPower Manufacturing Oregon LLC, a domestic producer of subject merchandise and successor to SolarWorld Americas (the petitioner), filed a letter in support of an affirmative successor-in-interest determination.
The merchandise covered by this order is crystalline silicon photovoltaic cells, and modules, laminates and/or panels consisting of crystalline silicon photovoltaic cells, whether or not partially or fully assembled into other products, including building integrated materials.
Merchandise covered by the order is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 8501.61.0000, 8507.20.8030, 8507.20.8040, 8507.20.8060, 8507.20.8090, 8541.40.6020, 8541.40.6030 and 8501.31.8000. These HTSUS subheadings are provided for convenience and customs purposes; the written description of the scope of the order is dispositive. For a full description of the scope of the order, please refer to the accompanying Preliminary Decision Memorandum.
We are conducting this CCR in accordance with section 751(b)(1) of the Tariff Act of 1930, as amended (the Act). For a full description of the methodology underlying our analysis, please refer to the accompanying Preliminary Decision Memorandum. For a list of topics addressed in the Preliminary Decision Memorandum, please see the Appendix to this notice.
In accordance with 19 CFR 351.216, we preliminarily determine that URE is the successor-in-interest to Gintech, Neo Solar, and Solartech. Record evidence indicates that URE's management, board of directors and ownership are materially similar to those of Gintech, Neo Solar, and Solartech prior to their merger. Moreover, we preliminarily find that URE assumed the production facilities of Gintech, Neo Solar, and Solartech, and substantially assumed the supplier relationships and customer base of the predecessor companies. For the complete successor-in-interest analysis, please refer to the accompanying Preliminary Decision Memorandum.
Furthermore, we preliminarily determine that, as the successor-in-interest to Gintech, Neo Solar, and Solartech, URE should receive the same antidumping duty treatment with respect to the subject merchandise as Gintech, Neo Solar, and Solartech. If we continue to reach the same determination for the final results of this CCR, we will assign URE the cash deposit rate assigned to Gintech, Neo Solar, and Solartech, effective on the publication date of the final results in the
Pursuant to 19 CFR 351.310(c), any interested party may request a hearing within 10 days of publication of this notice in the
Consistent with 19 CFR 351.216(e), we intend to issue the final results of this CCR no later than 270 days after the date on which this review was initiated, or within 45 days if all parties agree to our preliminary finding.
This notice is published in accordance with sections 751(b)(1) of the Act and 19 CFR 351.216(b), 351.221(b), and 351.221(c)(3).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
Applicable June 10, 2019.
As a result of these sunset reviews, the Department of Commerce (Commerce) finds that revocation of the antidumping duty orders on certain hot-rolled carbon steel flat products from India, Indonesia, the People's Republic of China (China), Taiwan, Thailand, and Ukraine would be likely to lead to continuation or recurrence of dumping. The magnitude of the dumping margins likely to prevail are indicated in the “Final Results of Sunset Review” section of this notice.
Chelsey Simonovich, AD/CVD Operations, Office VI, Enforcement and Compliance, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-1979.
In 2001, Commerce published in the
On March 7, 2019, Commerce received complete substantive responses to the notices of initiation from Nucor Corporation; AK Steel Corporation; ArcelorMittal USA LLC; United States Steel Corporation; California Steel Industries; SSAB Enterprises LLC; and Steel Dynamics, Inc. (collectively, the domestic interested parties) within the 30-day deadline specified in 19 CFR 351.218(d)(3)(i). The domestic interested parties claimed interested party status under section 771(9)(C) of the Act, as manufacturers, producers, or wholesalers of a domestic like product in the United States. Commerce received comments from the Government of Ukraine,
The merchandise subject to the
All issues raised in these reviews, including the likelihood of continuation or recurrence of dumping in the event of revocation, and the magnitude of dumping margins likely to prevail if the orders were revoked, are addressed in the accompanying Issues and Decision Memorandum dated concurrently with, and hereby adopted by, this notice. A list of the topics discussed in the Issues and Decision Memorandum is attached to this notice as an Appendix. The Issues and Decision Memorandum is a public document, which 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
Pursuant to sections 752(c)(1) and (3) of the Act, we determine that revocation of the antidumping duty orders on certain hot-rolled carbon steel flat products from India, Indonesia, China, Taiwan, Thailand, and Ukraine would be likely to lead to continuation or recurrence of dumping. We determine that the weighted-average dumping margins likely to prevail are up to the following percentages:
This notice serves as the only reminder to parties subject to the administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a). Timely written notification of the 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 which is subject to sanction.
We are issuing and publishing these results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act.
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (Commerce) determines that certain corrosion-resistant steel products (CORE) from India are being, or are likely to be sold, at less than normal value during the period of review (POR) July 1, 2017, through June 30, 2018.
Applicable June 10, 2019.
Rachel Greenberg or Kabir Archuletta, 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) 482-0652 or (202) 482-2593, respectively.
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.
The product covered by this review is CORE from India. For a full description of the scope, see the Issues and Decision Memorandum dated concurrently with, and hereby adopted by, this notice.
In the
All issues raised in the case and rebuttal briefs by parties to this administrative review are addressed in the Issues and Decision Memorandum.
Based on our analysis of the record and comments received from interested parties regarding our
We determine that, for the period of July 1, 2017, through June 30, 2018, the following weighted-average dumping margin exists:
Normally, Commerce discloses
Pursuant to section 751(a)(2)(A) of the Act, and 19 CFR 351.212(b), Commerce has determined, and CBP shall assess, antidumping duties on all appropriate entries of subject merchandise in accordance with the final results of this review. Commerce shall instruct CBP to
We intend to issue instructions to CBP 15 days after the publication date of the final results of this review.
The following cash deposit requirements will be effective upon publication of the notice of final results of administrative review for all shipments of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the publication date of the final results of this administrative review, as provided by section 751(a)(2)(C) of the Act: (1) The cash deposit rate for Uttam Galva will be the rate established in the final results of this administrative review; (2) for merchandise exported by producers or exporters not covered in this administrative review but covered in a prior segment of the proceeding, the cash deposit rate will continue to be the company-specific rate published for the most recently completed segment of this proceeding; (3) if the exporter is not a firm covered in this review, a prior review, or the original investigation, but the producer is, the cash deposit rate will be the rate established for the most recently completed segment of this proceeding for the producer of the subject merchandise; and (4) the cash deposit rate for all other manufacturers or exporters will continue to be 0.00 percent, the all-others rate established in the investigation.
This notice also 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 POR. Failure to comply with this requirement could result in the Secretary's presumption that reimbursement of antidumping and/or countervailing duties occurred and the subsequent assessment of doubled antidumping duties.
This notice also serves as a reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), 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 the terms of an APO is a sanctionable violation.
We are issuing and publishing this notice in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(h).
Army & Air Force Exchange Service (Exchange), DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by August 9, 2019.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Army & Air Force Exchange Service, Office of the General Counsel, Compliance Division, ATTN: Teresa Schreurs, Privacy Manager, 3911 South Walton Walker Blvd., Dallas, TX 75236-1598 or call the Exchange Compliance Division at 800-967-6067.
Respondents are Exchange employees, family members, customers, guests, visitors, and members of the public who have been involved in incidences relative to damage to Exchange property or facilities, have been suspected of shoplifting or theft, have been injured, or developed an illness on any incident occurring at Exchange facilities.
Department of the Army, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by July 10, 2019.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Angela James, 571-372-7574, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Ms. James at
Office of the Chief Management Officer (CMO), DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by July 10, 2019.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Angela James, 571-372-7574, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Ms. James at
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by August 9, 2019.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to Defense Health Agency, 7700 Arlington Blvd., Suite 5101, Falls Church, VA 22042-5101, ATTN: Melanie Richardson, or call 703.681.8494.
Missile Defense Agency, Department of Defense.
Notice of decision to extend the scoping period for the Environmental Impact Statement (EIS) for the Long Range Discrimination Radar (LRDR) at Clear Air Force Station (CAFS).
The Missile Defense Agency (MDA) has decided to extend the scoping period for the Environmental Impact Statement (EIS) for the Long Range Discrimination Radar (LRDR) at Clear Air Force Stations (CAFS) that published in the
Interested persons are invited to submit comments on or before July 5, 2019.
Written comments, statements, and/or concerns regarding the scope of the EIS or requests to be added to the EIS distribution list should be addressed to MDA CAFS EIS and sent by email to
Mark Wright, MDA Public Affairs at 256-450-1599 or by email:
MDA invites interested agencies, organizations, and members of the public to submit comments or suggestions to assist in identifying significant environmental issues, measures that might be adopted to reduce environmental impacts, and in determining the appropriate scope of the EIS. The public scoping period began with the publication of a Notice of Intent to Prepare an Environmental Impact Statement in the
Public scoping periods are designed to provide opportunities to offer comments on the environmental review for the proposed project. Interested individuals and groups are encouraged to present comments on the environmental issues they believe should be addressed in the EIS consistent with NEPA and its implementing regulations.
The EIS will support the FAAs SUA rule-making process and meet National Historic Preservation Act requirements, including Section 106 Consultation.
National Guard Bureau, DoD.
30-Day information collection notice.
The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.
Consideration will be given to all comments received by July 10, 2019.
Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at
Angela James, 571-372-7574, or
You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:
•
Requests for copies of the information collection proposal should be sent to Ms. James at
Office of the Assistant Secretary of Defense for Health Affairs, DoD.
Information collection notice.
In compliance with the
Consideration will be given to all comments received by August 9, 2019.
You may submit comments, identified by docket number and title, by any of the following methods:
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Psychological Health Center of Excellence (PHCoE), 1335 East West Highway, 3-315, Silver Spring, MD 20910 ATTN: LT Evette Pinder,
U.S. Army Corps of Engineers, DoD.
Notice.
The National Wetland Plant List (NWPL) is used to delineate wetlands for purposes of the Clean Water Act and the Wetland Conservation Provisions of the Food Security Act. Other applications of the list include wetland restoration, establishment, and enhancement projects. To update the NWPL, the U.S. Army Corps of Engineers (Corps), as part of an interagency effort with the U.S. Environmental Protection Agency (EPA), the U.S. Fish and Wildlife Service (FWS) and the U.S. Department of Agriculture, Natural Resources Conservation Service (NRCS), is announcing the availability of the draft 2018 National Wetland Plant List (NWPL) and its web address to solicit public comments. The public will now have the opportunity to comment on the proposed update or addition of wetland indicator status ratings for 20 plant species in select Corps wetland regions.
Comments must be submitted on or before August 9, 2019.
U.S. Army Corps of Engineers, Attn: CECW-CO (Ms. Brianne McGuffie), 441 G Street NW, Washington, DC 20314-1000.
Ms. Brianne McGuffie, Headquarters, Operations and Regulatory Community of Practice, Washington, DC at 202-761-4750.
The U.S. Army Corps of Engineers (Corps) administers the National Wetland Plant List (NWPL) for the United States (U.S.) and its territories. Responsibility for the NWPL was transferred to the Corps from the U.S. Fish and Wildlife Service (FWS) in 2006. The Corps led interagency efforts to update the list in 2012, 2013, 2014, and 2016. The 2012 list contained 7,828 species, the 2013 list contained 7,937 species, the 2014 list contained 8,061 species, and the 2016 list contained 8,085 species. The 2018 draft NWPL is proposed to contain 8,093 species. Additions to and subtractions from these lists represent new records, range extensions, nomenclatural changes, and newly proposed species.
On the NWPL, there are five categories of wetland indicator status ratings, used to indicate a plant's likelihood for occurrence in wetlands versus uplands (
For the purposes of determining how often a species occurs in wetlands, wetlands are defined as those areas that are inundated or saturated by surface or ground water at a frequency and duration sufficient to support, and under normal circumstances do support, a prevalence of vegetation typically adapted for life in saturated soil conditions (33 CFR 328.3 and 40 CFR 230.3). Such wetlands are identified using the Corps 1987 Wetland Delineation Manual or relevant regional supplements, whichever is more recent. Wetlands are identified using the three-factor approach. Because each species being evaluated occurs as part of a vegetation assemblage, examining the other species present in relation to their assigned wetland fidelity may be useful in assessing hydrophytic vegetation.
For the 2018 NWPL update, the NWPL National Panel (NP) and Regional Panels (RPs) reviewed proposed wetland rating changes or additions for 20 species and 37 regional ratings (some species were reviewed for multiple regions) submitted by the general public. Eight of these species were proposed for addition to the NWPL, and 12 species were submitted for a rating change request in one or more regions. Submitted information was reviewed by the NP and RPs, and proposed 2018 ratings for these species were determined, as detailed below. Note that all submitted species are included here, regardless of whether or not the NP and RPs proposed a rating change. Hence, for those species where the current and proposed ratings are the same, a rating change request was submitted, but after review of the submitted information no rating change is being proposed for the 2018 update.
The Corps encourages public input in the form of data, comments, literature references, or field experiences, to help clarify the status of the species reviewed for this update. The list of these same 20 reviewed species, and their draft 2018 wetland ratings by region, can be viewed at the NWPL homepage,
The Corps is also seeking comments on the NWPL update process. Detailed information on the update process, protocol, and technical issues can be found in the following documents (available on the NWPL Publications web page):
• Lichvar, Robert W. and Minkin, Paul. Concepts and Procedures for Updating the National Wetland Plant List. Sept 2008. ERDC/CRREL TN-08-3
• Lichvar, Robert W. and Gillrich, Jennifer J. Final Protocol for Assigning Wetland Indicator Status Ratings during National Wetland Plant List Update. Sept 2011. ERDC/CRREL TN-11-1
Future updates to the NWPL will occur biennially. A change in indicator status for a given species, or a proposed species addition, may be requested at any time at
National Advisory Committee on Institutional Quality and Integrity (NACIQI), Office of Postsecondary Education, U.S. Department of Education.
Announcement of an open meeting.
This notice sets forth the agenda, time, and location for the July 30-31, 2019 meeting of the National Advisory Committee on Institutional Quality and Integrity (NACIQI) and provides information to members of the public regarding the meeting, including requesting to make oral comments. The notice of this meeting is required under section 10(a)(2) of the Federal Advisory Committee Act (FACA) and section 114(d)(1)(B) of the Higher Education Act (HEA) of 1965, as amended.
The NACIQI meeting will be held on July 30-31, 2019, from 8:30 a.m. to 5:30 p.m.
Hilton Hotel—Old Town Alexandria, Grand Ballroom, 1767 King Street, Alexandria, VA 22314.
Jennifer Hong, Executive Director/Designated Federal Official, NACIQI, U.S. Department of Education, 400 Maryland Avenue SW, Room 271-03, Washington, DC 20202, telephone: (202) 453-7805, or email:
• The establishment and enforcement of the standards of accrediting agencies or associations under subpart 2, part G, Title IV of the HEA, as amended.
• The recognition of specific accrediting agencies or associations.
• The preparation and publication of the list of nationally recognized accrediting agencies and associations.
• The eligibility and certification process for institutions of higher education under Title IV of the HEA and part C, subchapter I, chapter 34, Title 42, together with recommendations for improvement in such process.
• The relationship between (1) accreditation of institutions of higher education and the certification and eligibility of such institutions, and (2) State licensing responsibilities with respect to such institutions.
• Any other advisory function relating to accreditation and institutional eligibility that the Secretary of Education may prescribe by regulation.
1. National League for Nursing Commission for Nursing Education Accreditation. Requested Scope of Recognition: The pre-accreditation and accreditation of nursing education programs, in the United States and its territories, which offer a certificate, diploma or degree at the practical/vocational, diploma, associate, baccalaureate, masters, doctoral levels, including those offered via distance education.
1. Accrediting Council for Continuing Education and Training. Scope of Recognition: The accreditation throughout the United States of institutions of higher education that offer continuing education and vocational programs that confer certificates or occupational associate degrees, including those programs offered via distance education.
2. American Veterinary Medical Association, Council on Education. Scope of Recognition: The accreditation and preaccreditation (“Provisional Accreditation”) in the United States of programs leading to professional degrees (D.V.M. or D.M.D.) in veterinary medicine.
3. Council on Education for Public Health. Scope of Recognition: The accreditation within the United States of schools of public health and public health programs outside schools of public health, at the baccalaureate and graduate degree levels, including those offered via distance education.
4. National Association of Schools of Dance, Commission on Accreditation. Scope of recognition: The accreditation throughout the United States of freestanding institutions that offer dance and dance-related programs (both degree and non-degree-granting), including those offered via distance education.
5. National Association of Schools of Music, Commission on Accreditation. Scope of recognition: The accreditation throughout the United States of freestanding institutions that offer music and music related programs (both degree and non-degree-granting), including those offered via distance education.
6. National Association of Schools of Theatre, Commission on Accreditation. Scope of recognition: The accreditation throughout the United States of freestanding institutions that offer theatre and theatre-related programs (both degree and non-degree-granting), including those offered via distance education.
7. Western Association of Schools and Colleges, Accrediting Commission for Community and Junior Colleges. Scope of Recognition: The accreditation and preaccreditation (“Candidate for Accreditation”) of community and other colleges with a primarily pre-baccalaureate mission located in California, Hawaii, the United States territories of Guam and American Samoa, the Republic of Palau, the Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, and the Republic of the Marshall Islands, which offer certificates, associate degrees, and the first baccalaureate degree by means of a substantive change review offered by institutions that are already accredited by the agency, and such programs offered via distance education and correspondence education at these colleges. This recognition also extends to the Committee on Substantive Change of the Commission, for decisions on substantive changes, and the Appeals Panel.
1. The Council on Chiropractic Education. Compliance report includes the following: Finding identified in the May 25, 2017 letter from the senior Department official following the
2. Commission on English Language Program Accreditation. Compliance report includes the following: Finding identified in the May 25, 2017 letter from the senior Department official following the February 22, 2017 NACIQI meeting available at:
3. Middle States Commission on Secondary Schools. Compliance report includes the following: Finding identified in the September 20, 2017 letter from the senior Department official following the June 20, 2017 NACIQI meeting available at:
4. Southern Association of Colleges and Schools, Commission on Colleges (SACSCOC). Compliance report includes the following: Finding identified in the September 20, 2017 letter from the senior Department official following the June 20, 2017 NACIQI meeting available at:
1. Association for Clinical Pastoral Education, Inc. Scope of Recognition: The accreditation of both clinical pastoral education (CPE) centers and supervisory CPE programs located within the United States and territories. Requested Scope of Recognition: The provisional accreditation and accreditation of both clinical pastoral education (CPE) centers and certified educator CPE programs within the United States and territories, including those that offer those programs via distance education.
2. Western Association of Schools and Colleges, Accrediting Commission for Community and Junior Colleges. Scope of Recognition: The accreditation and preaccreditation (“Candidate for Accreditation”) of community and other colleges with a primarily prebaccalaureate mission located in California, Hawaii, the United States territories of Guam and American Samoa, the Republic of Palau, the Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, and the Republic of the Marshall Islands, which offer certificates, associate degrees, and the first baccalaureate degree by means of a substantive change review offered by institutions that are already accredited by the agency, and such programs offered via distance education and correspondence education at these colleges. This recognition also extends to the Committee on Substantive Change of the Commission, for decisions on substantive changes, and the Appeals Panel. Requested Scope of Recognition: The accreditation and preaccreditation (“Candidate for Accreditation”) of community and other colleges in California, Hawaii, the United States territories of Guam and American Samoa, the Republic of Palau, the Federated States of Micronesia, the Commonwealth of the Northern Marianas, and the Republic of the Marshall Islands, which have as a primary mission the granting of associate degrees, but which may also award certificates and other credentials, including bachelor's degrees, where the provision of such credentials is within the institution's mission and, if applicable, is authorized by their governmental authorities, and the accreditation of such programs offered via distance education and correspondence education at these colleges. This recognition also extends to the Committee on Substantive Change of the Commission, for decisions on substantive changes.
The subcommittee on substantive change will report out to the full committee on its charge from the May 22-24, 2018 meeting to look at the issue of substantive changes, including, but not limited to, for-profit institutions' conversions to non-profit entities.
The Principal Deputy Under Secretary Delegated the Duties to Perform the Duties of Under Secretary will provide remarks on the Administration's implementation of regulations under 34 CFR 602. The Department reached consensus on rules governing the Secretary's recognition process during negotiated rulemaking sessions on April 3, 2019.
In addition to following the HEA, the FACA, implementing regulations, and the NACIQI charter, as well as its customary procedural protocols, NACIQI inquiries will include the questions and topics listed in the pilot plan it adopted at its December 2015 meeting. A document entitled “June 2016 Pilot Plan” available at:
• Decision activities of and data gathered by the agency.
○ NACIQI will inquire about the range of accreditation activities of the agency since its prior review for recognition, including discussion about the various favorable, monitoring, and adverse actions taken. Information about the primary standards cited for the monitoring and adverse actions that have been taken will be sought.
○ NACIQI will also inquire about what data the agency routinely gathers about the activities of the institutions it
• Standards and practices with regard to student achievement.
○ How does your agency address “success with respect to student achievement” in the institutions it accredits?
○ Why was this strategy chosen? How is this appropriate in your context?
○ What are the student achievement challenges in the institutions accredited by your agency?
○ What has changed/is likely to change in the standards about student achievement for the institutions accredited by your agency?
○ In what ways have student achievement results been used for monitoring or adverse actions?
• Agency activities in improving program/institutional quality.
○ How does this agency define “at risk?”
○ What tools does this agency use to evaluate “at risk” status?
○ What tools does this agency have to help “at risk” institutions improve?
○ What can the agency tell us about how well these tools for improvement have worked?
To the extent NACIQI's questions go to improvement of institutions and programs that are not at risk of falling into noncompliance with agency requirements, the responses will be used to inform NACIQI's general policy recommendations to the Department rather than its recommendations regarding recognition of any individual agency.
The discussions and issues described above are in addition to, rather than substituting for, exploration by NACIQI members of any topic relevant to recognition.
Submission of requests to make an oral comment regarding a specific accrediting agency under review, or to make an oral comment or written statement regarding other issues within the scope of NACIQI's authority: Opportunity to submit a written statement regarding a specific accrediting agency under review was solicited by two previous
Oral comments about an agency's recognition after review of a compliance report must relate to issues identified in the compliance report and the criteria for recognition cited in the senior Department official's letter that requested the report, or in the Secretary's appeal decision, if any. Oral comments about an agency seeking expansion of scope must be directed to the agency's ability to serve as a recognized accrediting agency with respect to the kinds of institutions or programs requested to be added. Oral comments about the renewal of an agency's recognition based on a review of the agency's petition must relate to its compliance with the Criteria for the Recognition of Accrediting Agencies, which are available at
To request to make a third-party oral comment of three minutes at the July 30-31, 2019 meeting, please follow either Method One or Method Two. To submit a written statement to NACIQI concerning its work outside a specific accrediting agency under review, please follow Method One.
20 U.S.C. 1011c.
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 School Climate Transformation Grant Program—Local Educational Agency Grants, Catalog of Federal Domestic Assistance (CFDA) number 84.184G. This notice relates to the approved information collection under OMB control number 1894-0006.
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
Carlette KyserPegram. Telephone: (202) 453-6732. 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.
In April 2019, the Department released a Parent and Educator Guide to School Climate Resources (Guide) document. The purpose of the Guide is to provide general information about the concept of school climate improvement, suggestions for leading an effective school climate improvement effort, and additional resources for those interested in more information.
Implementing a multi-tiered system of support (MTSS) framework is one strategy schools can use to address their school climate concerns. MTSS frameworks are designed to assist schools in providing the appropriate level of instruction and intervention for their students. The successful implementation of an MTSS can support many areas of students' needs including academic growth and achievement, behavior, and social and emotional needs. In schools with healthy learning environments, students tend to score higher on standardized tests.
In March 2018, the President emphasized a national need to examine the safety and security of our schools. He also appointed a Federal Commission on School Safety.
Moreover, LEAs that implement these school climate improvement efforts as part of a coordinated strategy will enhance their ability to achieve the goals and objectives of both this program and others that are included in the coordinated effort. A coordination of all programs that use evidence-based practices for improving school engagement, safety, and environment for all students will facilitate interagency partnerships and strategies to address
Through this program, the Department will prioritize supporting certain communities that may uniquely benefit from implementing a multi-tiered system of support. In particular, the Department is establishing an absolute priority for an LEA that is a rural LEA (as defined in this notice) or serves a Tribal community. The Department is also establishing a separate absolute priority for an LEA that is in a Qualified Opportunity Zone (as defined in this notice).
These priorities are:
Projects designed to develop, enhance, or expand systems of support for, and technical assistance to, schools implementing a multi-tiered system of support for improving school climate, which may include a multi-tiered behavioral framework, by using evidence-based efforts that are designed to foster safety; promote supportive academic, disciplinary, and physical environments; and/or encourage and maintain respectful, trusting, and caring relationships throughout the school community.
An LEA, including a BIE-funded school, meets this absolute priority if it provides evidence that it meets one of the following criteria: (1) It is a rural LEA, as defined in this notice; or (2) it predominantly serves members of one federally recognized Tribe. In determining whether a charter school LEA meets criteria (1) of this absolute priority, we consider where the school is located, regardless of where the students it serves live.
An LEA meets this priority if it includes, as a portion of the area served by the LEA, a Qualified Opportunity Zone under section 1400Z-1 of the Internal Revenue Service Code, as amended by the Tax Cuts and Jobs Act, as defined in this notice. In determining whether a charter school LEA meets this absolute priority, we consider where the school is located, regardless of where the students it serves live.
An LEA meets this absolute priority if it indicates in its application that it is not a rural LEA, as defined in this notice, does not serve a Qualified Opportunity Zone, and does not predominantly serve members of one federally recognized Tribe.
These priorities are:
Projects that are designed to develop positive learning environments that promote strong relationships among students and school personnel to help prevent bullying, violence, and disruptive actions that diminish the opportunity for each student to receive a high-quality education.
Projects that are likely to improve student academic performance and better prepare students for employment, responsible citizenship, and fulfilling lives, including by preparing children or students to do one or more of the following:
(i) Develop positive personal relationships with others.
(ii) Develop determination, perseverance, and the ability to overcome obstacles.
(iii) Develop self-esteem through perseverance and earned success.
(iv) Develop problem-solving skills.
(v) Develop self-regulation in order to work toward long-term goals.
Applications that propose a high-quality plan to implement opioid abuse prevention and mitigation strategies. The plan must describe how the LEA will use funds to implement evidence-based strategies for preventing opioid abuse by students, and/or address the mental health needs of students who are negatively impacted by family or community members who are (or have been) abusers. The plan may also include providing technical assistance to, or support for, schools that implement or plan to implement high-quality approaches to opioid abuse prevention such as the Screening, Brief Intervention, and Referral to Treatment (SBIRT) approach supported by the U.S. Department of Health and Human Services, Substance Abuse and Mental Health Services Administration.
(a) Developing, enhancing, or expanding systems of support for, and technical assistance to, schools implementing a multi-tiered system of support for improving school climate by using evidence-based efforts that are designed to foster safety; promote supportive academic, disciplinary, and physical environments; and/or encourage and maintain respectful, trusting, and caring relationships throughout the school community;
(b) Improving the skills of LEA personnel to assist schools' efforts to improve school climate through, for example, policies, funding, professional development, coaching, and coordination of providing services and implementing programs;
(c) Improving the quality, accessibility, and usefulness of any relevant districtwide data collection and analysis related to data-based decision making in areas related to improved school climate;
(d) Defining what it means to implement the multi-tiered system of support with fidelity and determining annually the extent to which the impacted schools are implementing such model with fidelity, for example, by using a tool or rubric to review implementation;
(e) Encouraging the use of evidence-based practices and reliable and valid tools and processes for evaluating the fidelity of efforts related to improved school climate; and
(f) Coordinating LEA efforts with appropriate Federal, State, and local resources.
(a) Describe the current efforts by the LEA to support schools implementing evidence-based efforts that are designed to foster safety; promote a supportive academic, disciplinary, and physical environment; and/or encourage and maintain respectful, trusting, and caring relationships throughout the school community;
(b) Describe how the LEA used the EDSCLS or similar assessment tool to help determine program needs and will use the EDSCLS or similar assessment tool for program decision making and improvements;
(c) Describe its plan to build, improve, or enhance LEA capacity to provide effective training, technical assistance, and support to schools related to implementing evidence-based efforts that are designed to foster safety; promote a supportive academic, disciplinary, and physical environment; and/or encourage and maintain respectful, trusting, and caring relationships throughout the school community, including—
(1) When and how often the applicant plans to conduct technical assistance activities;
(2) How the applicant plans to garner buy-in from participants and other stakeholders; and
(3) The estimated number of schools that will be assisted; and
(d) Describe how the proposed project will address the needs of schools identified for comprehensive support and improvement under section 1111(d)(1) of the Elementary and Secondary Education Act of 1965, as amended (ESEA), and schools identified for targeted support and improvement under section 1111(d)(2) of the ESEA.
These definitions are:
(i) A randomized controlled trial employs random assignment of, for example, students, teachers, classrooms, or schools to receive the project component being evaluated (the treatment group) or not to receive the project component (the control group).
(ii) A regression discontinuity design study assigns the project component being evaluated using a measured variable (
(iii) A single-case design study uses observations of a single case (
(i) A public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary schools or secondary schools in a city, county, township, school district, or other political subdivision of a State, or of or for a combination of school districts or counties that is recognized in a State as an administrative agency for its public elementary schools or secondary schools;
(ii) Any other public institution or agency having administrative control and direction of a public elementary school or secondary school;
(iii) An elementary school or secondary school funded by the Bureau of Indian Education but only to the extent that including the school makes
(iv) Educational service agencies and consortia of those agencies; or
(v) The State educational agency in a State in which the State educational agency is the sole educational agency for all public schools.
(i) A practice guide prepared by the WWC using version 2.1 or 3.0 of the WWC Handbook reporting a “strong evidence base” or “moderate evidence base” for the corresponding practice guide recommendation;
(ii) An intervention report prepared by the WWC using version 2.1 or 3.0 of the WWC Handbook reporting a “positive effect” or “potentially positive effect” on a relevant outcome based on a “medium to large” extent of evidence, with no reporting of a “negative effect” or “potentially negative effect” on a relevant outcome; or
(iii) A single experimental study or quasi-experimental design study reviewed and reported by the WWC using version 2.1 or 3.0 of the WWC Handbook, or otherwise assessed by the Department using version 3.0 of the WWC Handbook, as appropriate, and that—
(A) Meets WWC standards with or without reservations;
(B) Includes at least one statistically significant and positive (
(C) Includes no overriding statistically significant and negative effects on relevant outcomes reported in the study or in a corresponding WWC intervention report prepared under version 2.1 or 3.0 of the WWC Handbook; and
(D) Is based on a sample from more than one site (
(i) A practice guide prepared by WWC reporting a “strong evidence base” or “moderate evidence base” for the corresponding practice guide recommendation;
(ii) An intervention report prepared by the WWC reporting a “positive effect” or “potentially positive effect” on a relevant outcome with no reporting of a “negative effect” or “potentially negative effect” on a relevant outcome; or
(iii) A single study assessed by the Department, as appropriate, that—
(A) Is an experimental study, a quasi-experimental design study, or a well-designed and well-implemented correlational study with statistical controls for selection bias (
(B) Includes at least one statistically significant and positive (
(i) A practice guide prepared by the WWC using version 2.1 or 3.0 of the WWC Handbook reporting a “strong evidence base” for the corresponding practice guide recommendation;
(ii) An intervention report prepared by the WWC using version 2.1 or 3.0 of the WWC Handbook reporting a “positive effect” on a relevant outcome based on a “medium to large” extent of evidence, with no reporting of a “negative effect” or “potentially negative effect” on a relevant outcome; or
(iii) A single experimental study reviewed and reported by the WWC using version 2.1 or 3.0 of the WWC Handbook, or otherwise assessed by the Department using version 3.0 of the WWC Handbook, as appropriate, and that—
(A) Meets WWC standards without reservations;
(B) Includes at least one statistically significant and positive (
(C) Includes no overriding statistically significant and negative effects on relevant outcomes reported in the study or in a corresponding WWC intervention report prepared under version 2.1 or 3.0 of the WWC Handbook; and
(D) Is based on a sample from more than one site (
Contingent upon the availability of funds and the quality of applications, we may make additional awards in FY 2020 and subsequent years from the list of unfunded applications from this competition.
1.
2.
3.
1.
2.
3.
1.
(a) Need for project. (15 points)
(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) Significance. (15 points)
(1) The Secretary considers the significance of the proposed project.
(2) In determining the significance of the proposed project, the Secretary considers the extent to which the proposed project is likely to build local capacity to provide, improve, or expand services that address the needs of the target population.
(c) Quality of the project design. (20 points)
(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 design of the proposed project includes a thorough, high-quality review of the relevant literature, a high-quality plan for project implementation, and the use of appropriate methodological tools to ensure successful achievement of project objectives. (15 points)
(ii) The extent to which the proposed project represents an exceptional approach to the priority or priorities
(d) Quality of the project services. (30 points)
(1) The Secretary considers the quality of the services to be provided by the proposed project.
(2) In determining the quality of the services to be provided by the proposed project, the Secretary considers the quality and sufficiency of strategies for ensuring equal access and treatment for eligible project participants who are members of groups that have traditionally been underrepresented based on race, color, national origin, gender, age, or disability.
(3) In addition, the Secretary considers the extent to which the training or professional development services to be provided by the proposed project are of sufficient quality, intensity, and duration to lead to improvements in practice among the recipients of those services.
(e) Quality of the project evaluation. (20 points)
(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. (10 points)
(ii) The extent to which the methods of evaluation will provide performance feedback and permit periodic assessment of progress toward achieving intended outcomes. (10 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
5.
(a) The number of training and/or technical assistance events to support implementation with fidelity provided annually by LEAs to schools implementing a multi-tiered system of support.
(b) Number and percentage of schools annually that report an improved school
(c) Number and percentage of schools annually that are implementing a multi-tiered system of support framework with fidelity.
(d) Number and percentage of schools annually that are implementing opioid abuse prevention and mitigation strategies.
(e) Number and percentage of schools that report an annual decrease in suspensions and expulsions related to possession or use of alcohol.
(f) Number and percentage of schools that report an annual decrease in suspensions and expulsions related to possession or use of other drugs.
These measures constitute the Department's indicators of success for this program. Consequently, we advise an applicant for a grant under this program to give careful consideration to these measures in conceptualizing the approach and evaluation for its proposed project. Each grantee will be required to provide, in its annual performance and final reports, data about its progress in meeting these measures. This data will be considered by the Department in making continuation awards.
Consistent with 34 CFR 75.591, grantees funded under this program shall comply with the requirements of any evaluation of the program conducted by the Department or an evaluator selected by the Department.
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 Environmental Management, U.S. Department of Energy.
Notice.
In this Supplemental Notice, the U.S. Department of Energy (Department or DOE) supplements and updates its 2018
James Joyce, U.S. Department of Energy, Office of Environmental Management, Office of Waste and Materials Management (EM-4.2), 1000 Independence Avenue SW, Washington, DC 20585. Telephone: (301) 903-2151. Email:
As DOE stated in the October 10 Notice and as this Supplemental Notice reiterates, DOE interprets this statutory term to mean that not all wastes from the reprocessing of spent nuclear fuel (reprocessing wastes) are HLW. DOE interprets the statutory term such that some reprocessing wastes may be classified as not HLW (non-HLW) and may be disposed of in accordance with their radiological characteristics. This Supplemental Notice provides additional explanation of DOE's interpretation as informed by public review and comment and further consideration by DOE following the October 10 Notice. DOE has not made, and does not presently propose, any changes or revisions to current policies, legal requirements or agreements with respect to HLW. Decisions about whether and how this interpretation of HLW will apply to existing wastes and whether such wastes may be managed as non-HLW will be the subject of subsequent actions.
The Department sought public comments on its HLW interpretation through its
All input is important to the process and all comments were carefully and fully considered by DOE. DOE is issuing this Supplemental Notice to provide the public additional information about its HLW interpretation, informed by public comments. This interpretation does not change or revise any current policies, legal requirements, or agreements with respect to HLW. Decisions about whether and how this interpretation of HLW will apply to existing wastes and whether such wastes may be managed as non-HLW will be the subject of subsequent actions. The following
As a first step in determining whether and how to implement this HLW interpretation specific to a particular waste stream, DOE is initiating a public process under the National Environmental Policy Act (NEPA) to analyze the potential environmental impacts associated with disposing of certain waste from the Savannah River Site at a commercial disposal facility outside South Carolina licensed by either the Nuclear Regulatory Commission (NRC) or an Agreement State under 10 CFR part 61 to receive low-level radioactive waste. This NEPA process is explained further in a separate Notice,
In this Supplemental Notice, DOE explains its interpretation of the term HLW, as defined in the Atomic Energy Act of 1954, as amended (AEA, 42 U.S.C. 2011
(A) the highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations; and
(B) other highly radioactive material that the Commission, consistent with existing law, determines by rule requires permanent isolation.
42 U.S.C. 10101(12);
DOE has revised the interpretation stated in its October 10 Notice after consideration of public comments, in particular those of the NRC and affected state and local stakeholders, in order to clarify its meaning and import. Based on those comments, DOE interprets the statutes to provide that a reprocessing waste may be determined to be non-HLW if the waste meets either of the following two criteria:
(I) does not exceed concentration limits for Class C low-level radioactive waste as set out in section 61.55 of title 10, Code of Federal Regulations, and meets the performance objectives of a disposal facility; or
(II) does not require disposal in a deep geologic repository and meets the performance objectives of a disposal facility as demonstrated through a performance assessment conducted in accordance with applicable requirements.
Performance objectives are the quantitative radiological standards set by the NRC or DOE to ensure protection of the health and safety of individuals and the environment during operation, and after permanent closure of the disposal facility. The technical means to demonstrate compliance with performance objectives are through a modeling and analytical tool commonly referred to as a performance assessment. Safe disposal also entails compliance with other facility requirements, such as waste acceptance criteria—the technical and administrative requirements associated with waste acceptance, including but not limited to: Allowable radionuclide content; waste form and packaging; and required waste generator certifications and approvals. Reprocessing waste meeting either I or II of the above criteria is non-HLW, and—pursuant to appropriate processes—may be classified and disposed in accordance with its radiological characteristics in an appropriate facility provided all applicable requirements of the disposal facility are met.
As noted, additional, subsequent DOE action is required before the interpretation in this Supplemental Notice can be implemented. This Supplemental Notice, therefore, does not alter the Department's current management of reprocessing waste for any specific waste stream. Each reprocessing waste stream has unique radiological characteristics and, accordingly, the interpretation will be implemented in subsequent actions on a site-specific basis, following consideration of: Evaluation and characterization of specific reprocessing waste streams in conjunction with the waste acceptance criteria and requirements of a specific waste disposal facility; input from affected stakeholders (
DOE received 5,555 comments on its proposed interpretation that break down to roughly 360 distinct comments (that is, excluding duplicative form comments). DOE received both critical and supportive comments, with the majority of comments expressing concerns or questions relating to health and safety and environmental outcomes associated with the interpretation. The following sections of this Supplemental Notice provide additional detail and explanation of DOE's HLW interpretation in response to the significant and recurring comments received. DOE is providing this additional information in response to comments, while recognizing that not all of this information is central to, or necessary for an understanding of DOE's interpretation. To aid in organizing the comments, this section categorizes public comments in broad terms relating to the legal authority, technical basis, implementation, and other comments on the HLW interpretation.
As DOE explained in the October 10 Notice, DOE interprets the term “high-level radioactive waste,” as stated in the AEA and the NWPA, in a manner that defines DOE reprocessing wastes to be classified as either HLW or non-HLW based on the radiological characteristics of the waste and whether the waste can be disposed of safely in a facility other than a deep geologic repository. Having fully considered all comments received, DOE continues to believe that the HLW interpretation is legally sound, technically appropriate, and fully protective of human health and the environment.
DOE's purpose in issuing the interpretation in the form of an interpretative rule within the meaning of section 553(b) of the Administrative Procedure Act (APA, 5 U.S.C. 553(b)) is to provide the public with a clear and transparent explanation of DOE's view of a specific legal question—the meaning of the term HLW, including the authority that Congress conferred on DOE through that term. DOE's interpretation is, however, only one factor in initiating a broader process of identifying potential options for disposing of reprocessing wastes that are determined to not require disposal in a deep geologic repository. DOE will continue its current practice of managing all its reprocessing wastes as if they were HLW unless and until a specific waste is determined to be another category of waste based on detailed technical assessments of its characteristics and an evaluation of potential disposal pathways.
Consistent with its long-standing authority under the AEA to ensure that radioactive waste from the United States' defense program is managed and disposed of in a safe manner, DOE has the legal authority to interpret the term HLW in the AEA and the NWPA to determine that certain of its reprocessing wastes are not HLW based on their radiological characteristics. This interpretation is consistent with the AEA, the NWPA, and Section 3116 of the 2005 Ronald Reagan National Defense Authorization Act (Section 3116, Pub. L. 108-375).
The AEA and NWPA define HLW as:
(A) the highly radioactive material resulting from the reprocessing of spent nuclear fuel, including liquid waste produced directly in reprocessing and any solid material derived from such liquid waste that contains fission products in sufficient concentrations; and
(B) other highly radioactive material that the Commission, consistent with existing law, determines by rule requires permanent isolation.
The terms “highly radioactive” and “sufficient concentrations” are not defined in the AEA or the NWPA. By providing in Paragraph A that liquid reprocessing waste is HLW only if it is “highly radioactive,” and that solid material derived from liquid reprocessing waste is HLW only if it is “highly radioactive” and contains fission products in “sufficient concentrations” without further defining these standards, Congress left it to DOE, for its reprocessing wastes, to determine when the standards are met. That is what DOE has done through its interpretation. DOE has evaluated the meaning of those terms based on its historical knowledge, experience, and expertise in managing reprocessing wastes. DOE's interpretation is an articulation of the technical criteria that can be applied to individual waste streams on a case-by-case basis to determine whether the standard for HLW has been met. DOE also notes that in their comments on the interpretation, the NRC staff stated that they “agree with the concept proposed in
As discussed above, without further defining the terms “highly radioactive” and “sufficient concentrations,” Congress left it to DOE to determine when reprocessing waste meets the standards. The statutory context is fundamental to determining the meaning of the terms “highly radioactive” and “sufficient concentrations.” Through the AEA Congress conferred on DOE the responsibility to “provide for safe storage, processing, transportation, and disposal of” reprocessing and other radioactive wastes resulting from the United States' defense program.
Th[e] combination of highly-concentrated, short-lived nuclides together with other very long-lived nuclides has historically been described by the term `high-level radioactive wastes' (HLW). There has long been a recognition that such waste materials require long- term isolation from man's biological environment . . .
In its regulations, the NRC has identified classes of LLW—Class A, B, or C—for which near-surface disposal is safe for public health and the environment. Waste that exceeds the Class C tables in 10 CFR 61.55 also may be safely disposed in a near-surface disposal facility under certain conditions. This waste classification regime is based on the concentration levels of a combination of specified short-lived and long-lived radionuclides in a waste stream, with Class C LLW having the highest concentration levels. In accordance with NRC regulations, 10 CFR 61.55(a)(2)(iv) and 10 CFR 61.58, waste that exceeds the Class C levels is evaluated on a case-specific basis to determine whether it requires disposal in a deep geologic repository, or whether an alternative disposal facility can be demonstrated to provide safe disposal.
The AEA vested in the AEC the exclusive responsibility to regulate the materials covered by the Act.
In 1974, Congress enacted the Energy Reorganization Act of 1974 (ERA), 88 Stat. 1233, as amended, 42 U.S.C. 5801
The ERDA was assigned all other AEC functions, including its weapons production and defense waste management authority. 42 U.S.C. 5814(c). The ERA also authorized the ERDA Administrator to “prescribe such policies, standards, criteria, procedures, rules, and regulations as he may deem to be necessary or appropriate to perform functions now or hereafter vested in him.” 42 U.S.C. 5815(a). In 1977, Congress abolished the ERDA and transferred its functions to DOE.
Accordingly, it is well within DOE's authority and responsibility to interpret Paragraph A of the HLW definition to determine whether reprocessing wastes within the DOE complex meet the technical criteria of “highly radioactive” and “sufficient concentrations.” Paragraph B, on the other hand, is a different type of function granted to NRC. The authority to define other “highly radioactive materials” that require permanent isolation is consistent with the NRC's licensing and regulatory role under the AEA and NWPA. In assigning NRC this authority, however, Congress did not change DOE authority under the AEA to interpret this statutory term to ensure it is safely storing, managing, and disposing of its radioactive wastes in accordance with applicable law.
Notwithstanding the clear division of responsibilities, DOE and the NRC have historically worked closely together on various issues relating to the safe management and disposal of radioactive waste, including HLW. As stated above, DOE places significant weight on the NRC staff's agreement with the concept in DOE's interpretation that HLW, like other radioactive waste, may be disposed of in accordance with its radiological characteristics.
Section 3116 sets forth a process for determining that specified DOE reprocessing waste is not HLW. This Section 3116 process is similar to the process in DOE's Order 435.1,
Commenters stated that the HLW interpretation represents a change in DOE's existing policy for determining whether reprocessing waste is HLW, and that DOE did not adequately explain the basis for that change. Some commenters also stated that DOE should update its existing authorities to be consistent with the HLW interpretation. Other commenters stated that the HLW interpretation is unnecessary in light of DOE's existing mechanisms for determining whether reprocessing waste is HLW.
As noted above, through this Supplemental Notice DOE is only stating its understanding of the proper interpretation of the statutory text in light of the language and purpose of the two Acts, which is also consistent with Congress's direction and the expert community's consensus, while remaining fully protective of the health and welfare of the public and the environment. This interpretation does not, by itself, change existing applicable DOE regulations, orders, or policies regarding the classification of wastes or the treatment of any particular waste stream. Implementation of this interpretation at a particular site or for a particular waste stream, and any changes to existing policies that may be appropriate in light of this interpretation will be the subject of subsequent actions.
DOE acknowledges, as explained below, that the HLW interpretation in this Supplemental Notice differs from the existing WIR evaluation method under DOE Order 435.1 for determining whether reprocessing waste is HLW or WIR that is set forth in the Manual and Implementation Guide. DOE disagrees, however, that the HLW interpretation is unnecessary in light of the existing DOE Order 435.1 WIR evaluation method. DOE believes in light of further consideration that the HLW interpretation is the proper reading of the statutory definitions of that term, informed by DOE's expert understanding of the risks presented to the public and the environment by different types of reprocessing wastes. As explained elsewhere in this Supplemental Notice, hereafter DOE will consider what actions may be needed and appropriate to update applicable DOE directives in light of this interpretation and will, as part of that process, assess whether any additional elements of its current policies should be amended. Accordingly, any changes in policy, including revisions to DOE Order 435.1, related documents, or the WIR process and its application, will be addressed in future actions.
DOE Order 435.1 breaks down DOE's waste management activities by waste type including HLW, transuranic (TRU) waste, and LLW. With regard to HLW, the Manual also formalizes the long-
The 435.1 WIR Criteria provide that wastes being managed as HLW can be determined to be WIR,
(1) Have been processed, or will be processed, to remove key radionuclides to the maximum extent that is technically and economically practical;
(2) Will be managed to meet safety requirements comparable to the performance objectives set out in 10 CFR part 61, subpart C,
(3) Are to be managed, pursuant to DOE's authority under the
If DOE determines that waste meets the 435.1 WIR Criteria, the waste is not HLW and DOE manages it as LLW or TRU waste.
The above describes the WIR process in DOE Manual 435.1-1. DOE has applied the 435.1 WIR Criteria in limited circumstances to determine that certain waste is not HLW. The 435.1 WIR Criteria would not apply to reprocessing waste disposed of in South Carolina or Idaho, pursuant to Section 3116. As previously noted, reprocessing wastes that are transported out of South Carolina or Idaho and disposed of in a different state are not covered by Section 3116.
With respect to the HLW interpretation, however, nothing in the statutory text of the AEA or the NWPA requires that radionuclides be removed to the maximum extent technically and economically practical prior to determining whether waste is HLW. DOE's HLW interpretation is consistent with and informed by analysis of the risk presented to the public and the environment from reprocessing wastes. Reprocessing wastes that already meet existing regulatory requirements for safe disposal as LLW without any radionuclide removal do not present risks to the public and the environment that would necessitate their classification as HLW under the AEA and NWPA. Accordingly, DOE Manual 435.1-1's requirement to remove radionuclides to the maximum extent technically and economically practical is not a component of DOE's HLW interpretation as reflected in this Supplemental Notice. However, DOE continues to operate under DOE Manual 435.1-1 and any change to the terms or applicability of that document will be the subject of appropriate agency action.
Most recently, in enacting the National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91), Congress specifically tasked DOE with “conduct[ing] an evaluation of the feasibility, costs, and cost savings of classifying covered defense nuclear waste as other than high-level radioactive waste, without decreasing environmental, health, or public safety requirements.” Public Law 115-91, Sec. 3139. DOE's report responsive to Congress' directive is currently undergoing interagency review. Even before this Congressional directive, in 2012, for example, the Blue Ribbon Commission on America's Nuclear Future (BRC)—a group of experts, including a former NRC Chairman, tasked by the Secretary of Energy at the request of the President with reviewing the existing policies for managing the back end of the nuclear fuel cycle—reported that “[t]he most important overarching criticism of the U.S. waste classification system is that it is not sufficiently risk-based. Rather, it is (for the most part) directly or indirectly source-based—that is, based on the type of facility or process that produces the waste rather than on factors related to human health and safety risks.” (Blue Ribbon Commission on America's Nuclear Energy Future, Report to the Secretary of Energy, January 26, 2012
Consistent with Congress' directive, the BRC's report, and other similar reports and findings, DOE has re-examined its existing authorities and the statutory requirements for managing and disposing of reprocessing wastes, including the HLW definition and the 435.1 WIR Criteria. Consistent with the statutory text, DOE's HLW interpretation is more fully based on radiological characteristics that determine risk. As such, it is the first step in a process of potentially opening new disposal pathways for reprocessing
DOE's interpretation of HLW could, upon implementation, provide a range of benefits to both DOE and the public, including: Enhancing safety at DOE sites by using lower-complexity waste treatment and immobilization approaches to reduce the risks of long-term waste storage and management; reducing time that untreated radioactive waste is stored on-site at DOE facilities; furthering DOE's commitment to state and local communities to move radioactive material out of the generator state; utilizing mature and available commercial facilities and capabilities to shorten mission completion schedules and reduce taxpayer financial liability; aligning with international guidelines for management and disposal of radioactive waste based on radiological risk; and establishing risk-informed disposal practices, consistent with current regulatory requirements for LLW.
Commenters stated that DOE's HLW interpretation should be issued as a regulation. Commenters also stated that DOE should provide the public with more information about how the Department intends to implement the interpretation at each site where reprocessing waste is stored, and that DOE should provide additional opportunities for public participation beyond the 90 days of public comment provided on the interpretation.
DOE wishes to make clear that an interpretative rule is a type of rule or regulation within the meaning of those terms in the APA,
When DOE considers this statutory interpretation in the context of taking an action in the future with regard to specific wastes, it will evaluate its internal orders and policies to determine if any require revision to accommodate this interpretation, and if so, DOE will follow applicable procedures to make any necessary changes. However, DOE's internal system of orders are not rules or regulations under the APA, and do not themselves constitute agency action.
Furthermore, DOE disagrees that the public required additional information about how DOE intends to implement the HLW interpretation in order to comment on it. The wealth of substantive comments received, including comments that led to revisions in the HLW interpretation as reflected in this Supplemental Notice, indicate that the public had a meaningful opportunity to comment on DOE's general interpretation. Finally, DOE disagrees that additional process is necessary before DOE adopts the interpretation. As DOE indicated in the request for comments and is reiterating in this Supplemental Notice, there will be additional processes after the interpretation has been issued but before any specific waste classification or disposal decisions are implemented, as outlined in greater detail below.
• Identifying potential disposal facilities.
• Evaluating disposal facility waste acceptance criteria and impacts on performance objectives of the disposal facility (the licensee or permittee for the disposal facility may also be required to obtain appropriate regulatory authorizations to accept waste).
• Coordinating with stakeholders.
• Preparing or revising necessary permits.
• Preparing NEPA or Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) documentation, if needed, to retrieve, treat, package, characterize, and certify the wastes for disposal.
• Modifying affected contracts, if necessary.
• Including a fiscal year budget request to plan for and/or execute disposal of the waste stream.
• Initiating project planning and execution activities in accordance with DOE Order 413.3B,
• Developing waste loading, packaging, and transportation cask systems as needed to remove the waste from the site and deliver to the disposal facility.
As explained above and in the NOI, DOE's first step in determining whether and how to implement the HLW interpretation specific to a particular waste stream is initiating a NEPA process to analyze the potential environmental impacts associated with disposing of certain waste from the Savannah River Site at a commercial disposal facility located outside South Carolina licensed by either the Nuclear Regulatory Commission (NRC) or an Agreement State under 10 CFR part 61 to receive low-level radioactive waste. At this time, DOE is not considering whether to implement the HLW interpretation at any other site or for any other waste stream. While DOE will continue in the normal course to evaluate its waste inventories and related management and disposal options, and expects to engage openly with stakeholders regarding potential future opportunities to implement the HLW interpretation more broadly, any decisions about whether and how the interpretation will apply to other wastes at any specific site will be the subject of subsequent actions.
Commenters stated that DOE did not address the application of the interpretation to the West Valley Demonstration Project (WVDP) in New York. As commenters pointed out, the WVDP operates under a distinct statutory and regulatory basis pursuant to the West Valley Demonstration Project Act (Pub. L. 96-368), which provides a definition of HLW separate from the AEA and the NWPA. As such, DOE is now clarifying that: (1) The interpretation does not apply to the reprocessing wastes from the WVDP governed by Public Law 96-368; and (2) the interpretation therefore will not be used in connection with the disposition
Commenters stated that the HLW interpretation is a major federal action affecting the quality of the human environment, and that DOE is required to prepare a NEPA analysis that specifically addresses the potential environmental impacts of the interpretation. DOE disagrees that the HLW interpretation requires the NEPA analysis suggested by the commenters.
As discussed above, through this Supplemental Notice, DOE is only stating its understanding of the proper interpretation of the statutory text in light of the language and purpose of the two Acts. Again, issuance of this Notice does not change how DOE will manage any particular reprocessing wastes, and it does not commit DOE to any specific disposal pathways for any reprocessing wastes. Rather, DOE's interpretation helps initiate a waste-specific decision-making process that will include appropriate engagement with stakeholders before any final decisions could or will be made that potentially would result in any environmental impacts. As explained above, and in the NOI, DOE is separately initiating a NEPA process to study the potential environmental impacts associated with implementing the interpretation to dispose of certain waste from the Savannah River Site at a commercial disposal facility located outside South Carolina licensed by either the Nuclear Regulatory Commission (NRC) or an Agreement State under 10 CFR part 61 to receive low-level radioactive waste. If, in the future, DOE proposes an additional action to which NEPA would apply, such as implementation of this interpretation with respect to other specific wastes, DOE will likewise analyze such a proposal pursuant to NEPA.
DOE is committed to the safe and environmentally sound disposal of all its radioactive waste, and the HLW interpretation enhances rather than lessens DOE's commitment to that outcome. Commenters expressed concern that, in effect, DOE's HLW interpretation would lead to the less rigorous and safe disposal of radioactive wastes without a sufficient technical basis. However, the source of the waste does not dictate its safe disposal—the radiological characteristics of the waste and the requirements of the disposal facility operate together to ensure safe disposal. Reprocessing wastes that meet the criteria for non-HLW can be safely disposed along with other non-reprocessing wastes (with similar waste characteristics) that meet the disposal facility's requirements. The requirements that ensure the health and safety of the public, workers, and the environment are long-standing and embedded in DOE's and the NRC's regulations and implementing procedures and documents (
The HLW interpretation and the two criteria for non-HLW are based on well-established approaches for waste classification and disposal. The first criterion is derived directly from the NRC's waste classification system established in the 1980's under 10 CFR 61.55. The second criterion is consistent with both the NRC's alternative classification system (10 CFR 61.58,
Both criteria 1 and 2 directly incorporate the requirement that a reprocessing waste must meet the performance objectives of a LLW disposal facility to be determined as non-HLW. As further explained below, performance objectives set forth the overarching radiological standards necessary to protect the health and safety of individuals and the general population from radiological releases, both during operation and following the closure of the disposal facility. Disposal facilities have other requirements that must be met for disposal of the waste, including for example satisfaction of waste acceptance criteria (WAC). The WAC are the technical and administrative requirements a waste must meet to be accepted at a disposal facility (
Although DOE's plain reading of the statutory definition of HLW stands on its own, the following information is provided to further public understanding of the interpretation from a technical perspective.
Criterion 1, as stated in the October 10 Notice, provided that a reprocessing waste is non-HLW if the waste: “does not exceed concentration limits for Class C low-level radioactive waste as set out in section 61.55 of title 10, Code of Federal Regulations.” This criterion has been revised to clarify that a waste must also meet the performance objectives of a disposal facility. The revised criterion provides that a reprocessing waste is non-HLW if the waste: “does not exceed concentration limits for Class C low-level radioactive waste as set out in section 61.55 of title 10, Code of Federal Regulations, and meets the performance objectives of a disposal facility.” This criterion would be applicable only to DOE waste suitable for off-site disposal at a commercial disposal facility regulated by the NRC or an Agreement State.
Commenters offered a number of observations about criterion 1, as originally stated. Commenters noted that this criterion does not require that the waste comply with the performance objectives of a LLW facility, only that it meet the 10 CFR 61.55 concentration limits. Other commenters believed it to be unreasonable because, for example, it would permit DOE to convert HLW to non-HLW by dilution or concentration averaging (
Regarding 10 CFR 61.55, table 1 addresses seven specific radionuclides and alpha emitters with half-lives greater than five years, and table 2 includes four additional specific radionuclides with the Class C limits. These nuclides identified by NRC are the most mobile and problematic of all possible key radionuclides and their concentration determine the classification of the waste. Regardless of classification, compliance with performance objectives is ensured through compliance with the disposal facility waste acceptance criteria for all key radionuclides. For DOE facilities, which do not follow the 10 CFR 61.55 waste classification tables, and the NRC/Agreement State facilities, the full range of radionuclides would be considered as part of the regulatory review of a facility's ability to meet applicable performance objectives.
Criterion 2, as stated in the October 10 Notice, provided that a reprocessing waste is non-HLW if the waste: “does not require disposal in a deep geologic repository and meets the performance objectives of a disposal facility as demonstrated through a performance assessment conducted in accordance with applicable regulatory requirements.” This criterion has been revised from “applicable regulatory requirements” to “applicable requirements.” The revision was made to more precisely reflect that performance assessments are conducted pursuant to DOE and NRC requirements, guidance, and standards.
Commenters raised several concerns about criterion 2, as originally stated. Comments regarding this criterion centered on DOE as a self-regulator, with the ability to unilaterally determine or change performance standards for its own facilities, and DOE's reliance on performance assessments. Commenters also noted more specific concerns, such as DOE's use of performance objectives rather than waste acceptance criteria and the need for DOE to counteract the purported motivation of a commercial disposal facility to accept any waste for a profit. As with criterion 1, these comments are addressed below, and Appendix A of this document contains a comparison of NRC and DOE safety goals and performance objectives for LLW disposal facilities.
In addition, there are several organizations involved in oversight of DOE's Office of Environmental Management and that office's waste management and disposal activities, including: State agencies and EPA for activities under RCRA and CERCLA; the Defense Nuclear Facilities Safety Board (DNFSB) for defense nuclear facilities; DOE's Low-Level Waste Disposal Facility Federal Review Group (LFRG)
Other forms of guidance or external accountability exist such that it would be highly difficult and unlikely for DOE to unilaterally change its requirements to be inconsistent with established norms and regulatory requirements for radioactive waste management. For example, the National Council on Radiation Protection and Measurements (NCRP), a Congressionally-chartered corporation (Pub. L. 88-376, July 14, 1964), plays a key role supporting radiation protection by providing independent scientific analysis, information, and recommendations that represent the consensus of leading scientists. NCRP draws from collaboration with the International Commission on Radiological Protection (ICRP), which has developed and maintained the International System of Radiological Protection used world-wide as the common basis for radiological protection standards, legislation, guidelines, programs, and practice.
Further, the Interagency Steering Committee on Radiation Standards (ISCORS) operates at the federal level to ensure that comparable standards of protection are afforded to workers, the public, and the environment across agencies that develop and enforce regulations for nuclear-related activities and facilities. DOE is a member of the ISCORS, which is comprised of eight Federal agencies, three Federal observer agencies, and two state observer agencies that facilitate consensus on acceptable levels of radiation risk to the public and workers, and promote consistent risk approaches in setting and implementing standards for protection from ionizing radiation. The NRC and EPA play prime roles on ISCORS and, like DOE, set standards for the level of acceptable risk from radiation exposures by considering ICRP and NCRP recommended guidelines. Unilateral proposals to change practices would be met with significant scrutiny and oversight from ISCORS, as the actions of one agency reflect on policies in other agencies.
The disposal facility's wide-ranging requirements—derived from the performance objectives of the facility and coupled with other quantitative and qualitative elements,
The HLW interpretation does not change, and will not require any changes to NRC or DOE regulatory requirements or facility performance objectives. The same high standards for safety and technical rigor will be maintained across commercial and DOE disposal sites, recognizing that each site will have its own site-specific requirements. In addition, the disposal facility's compliance period for ensuring protection of public health and safety is established by the regulator (
Commenters were concerned by DOE's interpretation, which does not include the removal of key radionuclides “to the maximum extent practicable” as a condition for a reprocessing waste stream to be determined non-HLW. This concern related to all forms of disposal, whether in situ (
As previously explained, there is nothing in the statutory text of the AEA or the NWPA that requires radionuclides to be removed to the maximum extent technically and economically practical prior to determining whether waste is HLW. Rather, the statutory text is focused on examining a waste in terms such as whether it is highly radioactive, contains fission products in sufficient concentrations, or requires permanent isolation. As a consequence, DOE believes that reprocessing wastes that already meet existing regulatory requirements for safe disposal as LLW without any radionuclide removal do not present risks to the public and the environment that would necessitate their classification as HLW under the AEA and NWPA.
Commenters, in particular government officials of states with underground radioactive waste tanks, voiced concern with DOE's approach to the extent it would result in classifying tank reprocessing wastes as non-HLW and disposing of it in place. Commenters believed the interpretation is unreasonable in its application to tank wastes, based on the concern that tank waste from reprocessing is highly radioactive as a matter of fact and, additionally, that this interpretation should not be applied to close tanks without retrieving wastes.
As noted previously and reiterated below, this Supplemental Notice does not propose or finalize any decisions about the classification or disposal of any waste stream, or this interpretation's potential application to the closure of waste tanks. DOE understands the complex history and practice with regard to tank closure activities, and existing arrangements that may affect implementation. In this case as with its other wastes, DOE will pursue any waste classification or disposal decisions in separate actions, in accordance with applicable law, regulations and agreements, and based on appropriate interactions with affected stakeholders and regulators.
DOE received a number of comments, from state and local representatives, non-governmental organizations, and individual members of the public suggesting the need for and inquiring about more detailed information,
DOE also received an assortment of comments not directly related to its interpretation. Some commenters wanted DOE to expand the scope of the interpretation to include all radioactive waste, specifically uranium-233 waste, while others questioned the need for the interpretation at all if DOE pursued the development of a deep geologic repository at Yucca Mountain for SNF and HLW disposal.
Notwithstanding that at present DOE has not made any implementation decisions, as mandated by law (Pub. L. 115-91, Sec. 3139), DOE prepared a Report to Congress providing in part the type of information requested by commenters (and several commenters specifically asked about the status of the report). The report is undergoing interagency review and will not be publicly available until that review is complete and the report is submitted to Congress.
The Department bases its interpretation of the statutory term HLW on the statutory text and purpose. DOE's interpretation is consistent with and informed by its comprehensive understanding and experience in the safe and technically sound disposal of many types of radioactive wastes, including those from its legacy reprocessing activities. On this basis, the Department interprets the AEA and NWPA as establishing that not all reprocessing wastes are HLW by law, and that where wastes can be safely disposed based on the radiological characteristics of the waste, such wastes may properly be classified as non-HLW. DOE anticipates continued engagement and productive involvement of members of the public and the regulatory community in subsequent activities that may follow this HLW interpretation, including the NEPA process described in the NOI.
This Appendix provides additional detail comparing the requirements of DOE and NRC for the disposal of LLW. While there are some differences in the two systems, both are based on technical and administrative requirements that ensure an essentially identical level of public health and safety protection.
Office of Environmental Management, U.S. Department of Energy.
Notice.
The U.S. Department of Energy (DOE) announces its intent to prepare an environmental assessment (EA) pursuant to the National Environmental Policy Act of 1969 (NEPA) to dispose of up to 10,000 gallons of stabilized (grouted) Defense Waste Processing Facility (DWPF) recycle wastewater from the Savannah River Site (SRS) at a commercial low-level radioactive waste (LLW) disposal facility located outside of South Carolina licensed by either the Nuclear Regulatory Commission (NRC) or an Agreement State. This effort will analyze capabilities for alternative treatment and disposal options through the use of existing, permitted, off-site commercial treatment and disposal facilities.
This
James Joyce, U.S. Department of Energy, Office of Environmental Management, Office of Waste and Materials Management (EM-4.2), 1000 Independence Avenue SW, Washington, DC 20585. Telephone: (301) 903-2151. Email:
The DWPF recycle wastewater would be treated, characterized, and if the performance objectives and waste acceptance criteria of a specific disposal facility are met, DOE could consider whether to dispose of the waste as LLW under the Department's high-level radioactive waste (HLW) interpretation published elsewhere in this issue of the
SRS occupies approximately 300 square miles primarily in Aiken and Barnwell Counties, South Carolina. Until the early 1990s, the primary SRS mission was the production of special radioactive isotopes to support national defense programs. More recently, the SRS mission has emphasized waste management, environmental restoration, and the decontamination and decommissioning of facilities that are no longer needed for SRS's traditional defense activities.
SRS generated large quantities of liquid radioactive waste as a result of its nuclear materials production mission. This waste resulted from dissolving spent nuclear fuel and nuclear targets to recover valuable isotopes.
The sludge portion in the underground tanks is being transferred on-site to the DWPF for vitrification in borosilicate glass to immobilize the radioactive constituents, as described in the
DOE's purpose and need for this action is analyze capabilities for alternative treatment and disposal options for DWPF recycle wastewater through the use of existing, permitted, off-site commercial treatment and disposal facilities. At the time DOE prepared the 1994 and 2006 supplemental environmental impact statements for DWPF (DOE/EIS-0082-S) and Savannah River Site Salt Processing Alternatives (DOE/EIS-0082-S2), respectively, it did not analyze the potential environmental impacts associated with potential commercial treatment and disposal options for DWPF recycle wastewater. DOE now proposes to use commercial LLW disposal facilities for up to 10,000 gallons of DWPF recycle wastewater to provide treatment and disposal options for completion of the tank closure program. Any proposal to dispose of more than 10,000 gallons, would be evaluated in separate NEPA documentation. Treatment or disposal of this waste at a commercial LLW facility could help facilitate and accelerate completion of the environmental cleanup mission at SRS and would provide an alternative disposal option in the event on-site treatment and disposal capabilities become unavailable.
Under the proposed action, DOE would dispose of up to 10,000 gallons of stabilized (grouted) DWPF recycle wastewater at SRS at a commercial LLW facility outside of South Carolina licensed by either the NRC or an Agreement State under 10 CFR part 61. The EA will analyze the potential environmental impacts of up to 10,000 gallons proposed for commercial disposal. Prior to a disposal decision, DOE would characterize the DWPF recycle wastewater to verify with the licensee of the commercial LLW disposal facility whether the waste meets DOE's HLW interpretation for disposal as non-HLW (the interpretation is published elsewhere in this issue of the
•
•
•
The EA will also analyze a no action alternative under which the DWPF recycle wastewater would remain in the SRS liquid waste system until disposition occurs. As currently planned, beginning in FY 2024, the DWPF recycle wastewater would undergo a pre-treatment process prior to transfer to the SRS Effluent Treatment Project and the Saltstone Production Facility. The potential environmental impacts of the no action alternative are anticipated to be similar to those analyzed by the supplemental environmental impact statements for DWPF (DOE/EIS-0082-S) and Savannah River Site Salt Processing Alternatives (DOE/EIS-0082-S2), relative to the quantities of waste involved. DOE's purpose and need for this proposal is to expand its disposal options, and hence no NEPA analyses on treatment and disposal at Federal disposal facilities will be conducted.
DOE has tentatively identified the following areas for detailed analysis in the EA. The list is not intended to be comprehensive or to predetermine the potential impacts to be analyzed.
• Impacts to the general population and workers from radiological and non-radiological releases, and other public and worker health and safety impacts.
• Impacts of emissions on air and water quality, including impacts of greenhouse gas emissions.
• Impacts on ecological systems and threatened and endangered species.
• Impacts on waste management activities.
• Impacts of transportation of radioactive materials to commercial treatment and disposal facilities.
• Impacts that could occur as a result of postulated accidents and intentional destructive acts (terrorist actions and sabotage).
• Potential disproportionately high and adverse effects on low-income and minority populations (environmental justice).
• Short-term and long-term land use impacts, including potential impacts of disposal.
• Cumulative impacts.
DOE will issue a
National Nuclear Security Administration, Department of Energy.
Notice of intent.
The Department of Energy (DOE) National Nuclear Security Administration (NNSA) hereby announces its intent, consistent with the National Environmental Policy Act (NEPA), to prepare an environmental impact statement (EIS) for plutonium pit production at the Savannah River Site (SRS) in South Carolina (the SRS EIS). The 2018 Nuclear Posture Review announced that the United States will pursue initiatives to ensure the necessary capability, capacity, and responsiveness of the nuclear weapons infrastructure and the needed skill of the workforce, including providing the enduring capability and capacity to produce no fewer than 80 plutonium pits per year by 2030. To achieve the Department of Defense (DoD) requirement, NNSA is proposing to repurpose the Mixed Oxide Fuel Fabrication Facility (MFFF) at SRS to produce plutonium pits while also maximizing pit production activities at Los Alamos National Laboratory (LANL) in New Mexico. NNSA also hereby provides information regarding its overall NEPA strategy related to fulfilling national requirements for pit production. NNSA will first conduct a programmatic review to assist in decisions and second conduct site-specific reviews. NNSA anticipates that it will prepare at least three documents including: A supplement analysis (SA) to the
NNSA invites Federal and state agencies, state and local governments, Native American tribes, industry, other organizations, and members of the public to submit comments to assist in identifying environmental issues and in determining the appropriate scope of the SRS EIS until July 25, 2019. Comments received after this date will be considered to the extent practicable. NNSA will hold one public scoping meeting for the proposed EIS as follows:
• June 27, 2019 (5:00 p.m.-9:00 p.m. EST) at the North Augusta Community Center, 495 Brookside Ave. North Augusta, SC 29841.
Doors will open at 5:00 p.m. on June 27, 2019 at the community center for the public to view posters on display. NNSA will provide a brief presentation on the EIS beginning at 6:00 p.m. and then NNSA will accept public comments on the scope of the EIS.
Written comments on the scope of the EIS, requests to be placed on the EIS distribution list, and comments or questions on the scoping process should be sent to: Ms. Jennifer Nelson, NEPA Document Manager, National Nuclear Security Administration Savannah River Field Office, P.O. Box A, Aiken, SC 29802 or email to
For further information about this Notice, please contact Mr. James R. Sanderson, Office of NEPA Policy and Compliance, U.S. Department of Energy, 1000 Independence Avenue SW, Washington, DC 20585-0119, email to:
This Notice will be available on the internet at:
National security policies require DOE, through NNSA, to maintain the United States' nuclear weapons stockpile, as well as the nation's core competencies in nuclear weapons. NNSA, a semi-autonomous agency within the DOE, has the mission to maintain and enhance the safety, security, and effectiveness of the nuclear weapons stockpile.
Plutonium pits are critical components of every nuclear weapon, with nearly all current stockpile pits having been produced from 1978-1989. Today, the United States' capability to produce plutonium pits is limited. To produce pits with enhanced safety features to meet NNSA and DoD requirements, mitigate against the risk of plutonium aging, and respond to changes in deterrent requirements driven by growing threats from peer competitors, the Department of Defense (DoD) requires NNSA to produce no fewer than 80 plutonium pits per year by 2030, and to sustain the capacity for future (Life Extension Programs and follow-on) programs.
NNSA's pit production mission was emphasized as a national security imperative by the 2018 Nuclear Posture Review, issued in February 2018 by the Office of the Secretary of Defense and subsequent Congressional statements of the policy of the United States. The 2018 Nuclear Posture Review announced that the United States will pursue initiatives to ensure the necessary capability, capacity, and responsiveness of the nuclear weapons infrastructure and the needed skill of the workforce, including providing the enduring capability and capacity to produce no fewer than 80 pits per year by 2030. The 2018 Nuclear Posture Review concludes that the United States must have sufficient research, design, development, and production capacity to support the sustainment of its nuclear forces.
To that end, DoD Under Secretary of Defense for Acquisition and Sustainment Ellen M. Lord and Under Secretary for Nuclear Security and Administrator of the NNSA Lisa Gordon-Hagerty issued a Joint Statement on May 10, 2018, identifying their recommended alternative to meet the pit production requirement based on the completion of an Analysis of Alternatives, an Engineering Assessment and a Workforce Analysis. To achieve the nation's requirement of producing no fewer than 80 pits per year by 2030, NNSA is proposing to repurpose the MFFF at SRS to produce plutonium pits while also maximizing pit production activities at LANL. This two-pronged approach—with a minimum of 50 pits per year produced at SRS and a minimum of 30 pits per year at LANL—is proposed as the best way to manage the cost, schedule, and risk of such a vital undertaking. This approach improves the resiliency, flexibility, and redundancy of our Nuclear Security Enterprise by reducing reliance on a single production site.
The security policies of the United States require the maintenance of a safe, secure, and reliable nuclear weapons stockpile and the maintenance of core competencies to design, manufacture, and maintain nuclear weapons. NNSA will pursue initiatives to meet national security requirements and ensure the necessary capability, capacity, and responsiveness of the nuclear weapons infrastructure and the needed skill of the workforce, including providing the enduring capability and capacity to produce no fewer than 80 plutonium pits per year by 2030. This need follows the requirements identified by the 2018 Nuclear Posture Review and Congressional statement of the policy of the United States (Pub. L. 115-232).
NNSA proposes to prepare an EIS for the proposed action to repurpose the MFFF to produce a minimum of 50 pits per year at SRS. NNSA intends to evaluate the following alternatives in the EIS: (1) Proposed action to repurpose MFFF to produce a minimum of 50 pits per year; and (2) No Action Alternative. If any other reasonable alternatives are identified during the scoping period, NNSA will also evaluate those alternatives in the EIS. The EIS will include an analysis of potential impacts to the environment and human health from the proposed action, and an evaluation of potential impacts of the No Action Alternative.
The proposed action to repurpose the MFFF to produce a minimum of 50 pits per year would include, but not be limited to: Reconfiguration (including disassembly and removal of equipment and utility commodities) of the MFFF; installation of equipment necessary for activities associated with pit production (disassembly/metal preparation, pit assembly, machining, aqueous processing, foundry operations, material characterization and analytical chemistry operations for certification); constructing and repurposing other facilities surrounding the MFFF for support activities (
The scoping process is intended to involve all interested agencies (Federal, State, county, and local), public interest groups, Native American Tribes, businesses, and members of the public. Interested parties are invited to participate in the EIS process, both to refine the preliminary alternatives and environmental issues to be analyzed in depth and to eliminate from detailed study those alternatives and environmental issues that are not reasonable or pertinent. Input from the scoping meeting will assist NNSA in formulating the proposed action, refining the alternatives, and defining the scope of EIS analyses.
Following the scoping period announced in this Notice, and after consideration of comments received during scoping, NNSA will prepare a draft EIS for the production of plutonium pits at SRS. NNSA will announce the availability of the draft EIS in the
NNSA is responsible for management and implementation of the requirements of NEPA and the regulations and policies promulgated thereunder, including but not limited to the Council of Environmental Quality NEPA regulations (40 CFR parts1500-1508), the DOE NEPA implementing procedures (10 CFR part 1021), and NNSA Policy (NAP) 451.1.
Previously, NNSA prepared the Complex Transformation SPEIS to analyze the potential environmental
NNSA anticipates that it will prepare at least three documents including: A SA to the
NNSA is preparing a SA to the Complex Transformation SPEIS related to the proposed action for pit production. NNSA will use the SA to determine if there are significant changes in the proposed action which are substantial and relevant to environmental concerns or whether new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts are significant. The SA would inform the site-specific documentation for the proposed pit production activities at both SRS and LANL. Although pertinent regulations do not require public comment on a SA, NNSA has decided, in its discretion, that public comment in this instance would be helpful and will issue a draft SA.
If the SA identifies no new significant circumstances or information relevant to environmental concerns that effect NNSA's decisions concerning pit production at a programmatic level, NNSA would announce the determination from the SA to the Complex Transformation SPEIS at the same time it would announce an amended ROD. If NNSA determines that a supplement to the Complex Transformation SPEIS or a new EIS is required, NNSA will announce those decisions as appropriate.
NNSA also intends to conduct site-specific NEPA analysis for expanded pit production activities at LANL to determine if there are significant changes in the proposed action which are substantial and relevant to environmental concerns or whether new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts are significant. The type of site-specific analysis for producing a minimum of 30 pits per year at LANL will include a SA to the 2008 LANL Sitewide Environmental Impact Statement.
Depending on the results of the site-specific review at LANL, NNSA may announce an amended ROD or prepare additional NEPA documentation for the proposed action.
NNSA expects to issue the draft EIS in 2020.
Environmental Protection Agency (EPA).
Notice.
Public notice is hereby given that the state of Utah has revised its Public Water System Supervision (PWSS) Program by adopting federal regulations for the Revised Total Coliform Rule (RTCR) that correspond to the National Primary Drinking Water Regulations (NPDWR). The EPA has reviewed Utah's regulations and determined they are no less stringent than the federal regulations. The EPA is proposing to approve Utah's primacy revision for the RTCR.
This approval action does not extend to public water systems in Indian country. Please see
Any member of the public is invited to request a public hearing on this determination by July 10, 2019. Please see
Requests for a public hearing should be addressed to: Robert Clement, Drinking Water B Section, EPA Region 8, 1595 Wynkoop Street, Denver, CO 80202-1129.
All documents relating to this determination are available for inspection at: EPA Region 8, Drinking Water Section (5th Floor), 1595 Wynkoop Street, Denver, Colorado.
Robert Clement, Drinking Water B Section, EPA Region 8, 1595 Wynkoop Street, Denver, CO 80202-1129, phone 303-312-6653.
In accordance with the provisions of section 1413 of the Safe Drinking Water Act (SDWA), 42 U.S.C. 300g-2, and 40 CFR 142.13, public notice is hereby given that the state of Utah has revised its PWSS program by adopting federal regulations for the RTCR that correspond to the NPDWR in 40 CFR parts 141 and 142. The EPA has reviewed Utah's regulations and determined they are no less stringent than the federal regulations. The EPA is proposing to approve Utah's primacy revision for the RTCR.
This approval action does not extend to public water systems in Indian country as defined in 18 U.S.C. 1151. Please see
States with primary PWSS enforcement authority must comply with the requirements of 40 CFR part 142 to maintain primacy. They must adopt regulations that are at least as
The EPA's approval of Utah's revised PWSS program does not extend to Indian country as defined in 18 U.S.C. 1151. Indian country in Utah generally includes (1) lands within the exterior boundaries of the following Indian reservations located within Utah, in part or in full: The Goshute Reservation, the Navajo Indian Reservation, the reservation lands of the 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), the Skull Valley Indian Reservation, the Uintah and Ouray Reservation (subject to federal court decisions removing certain lands from Indian country status within the Uintah and Ouray Reservations), and the Washakie Reservation; (2) any land held in trust by the United States for an Indian tribe; and (3) any other areas which are “Indian country” within the meaning of 18 U.S.C. 1151. The EPA or eligible Indian tribes, as appropriate, will retain PWSS program responsibilities over public water systems in Indian country.
Any member of the public may request a hearing on this determination within thirty (30) days of this notice. All requests shall include the following information: Name, address, and telephone number of the individual, organization, or other entity requesting a hearing; a brief statement of interest and information to be submitted at the hearing; and a signature of the interested individual or responsible official, if made on behalf of an organization or other entity. Frivolous or insubstantial requests for a hearing may be denied by the RA.
Notice of any hearing shall be given not less than fifteen (15) days prior to the time scheduled for the hearing and will be made by the RA in the
Please bring this notice to the attention of any persons known by you to have an interest in this determination.
Environmental Protection Agency (EPA).
Notice; final approval.
This document announces our approval of an alternative work practice (AWP) under the Clean Air Act (CAA) in response to a request to use new technology and work practices developed for removal and replacement of asbestos cement (A/C) pipe, which is regulated under the National Emission Standard for Hazardous Air Pollutants (NESHAP) for Asbestos. This approval specifies the operating conditions, notifications, work practices, disposal, recordkeeping and reporting requirements that must be followed to demonstrate compliance with the NESHAP for Asbestos and the approved AWP.
The AWP request for the use of close tolerance pipe slurrification (CTPS) for replacement of A/C pipes is approved as of June 10, 2019.
The U.S. Environmental Protection Agency (EPA) has established a docket for this document under Docket ID No. EPA-HQ-OAR-2017-0427. All documents in the docket are listed on the
For questions about this final action, contact Mr. Korbin Smith, 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) 541-2416; fax number: (919) 541-4991; and email address:
For questions about the applicability of this action, contact Mr. John Cox, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, WJC South Building, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 564-1395; and email address:
In a
Because A/C pipes may be located beneath and beside major roadways and structures, and may overlap or lie beneath other utilities (
Categories and entities potentially affected by this action include those listed in Table 1 of this document.
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities potentially affected by this final action. To determine whether your asbestos cement (A/C) pipe replacement project (ACPRP) would be affected by this final action, you should examine the applicability criteria in the Asbestos NESHAP (40 CFR part 61, subpart M). If you have any questions regarding the applicability of any aspect of this final action, please contact the appropriate person listed in the preceding
The docket number for this final action regarding the Asbestos NESHAP is Docket ID No. EPA-HQ-OAR-2017-0427. In addition to being available in the docket, an electronic copy of this document will also be available on the internet. The EPA will post a copy of this final action at
The Asbestos NESHAP is a set of work practice standards prescribed for the handling, processing, and disposal of asbestos-containing materials (ACM), and designed to minimize the release of asbestos into the atmosphere. Asbestos is a known human carcinogen and the primary route of exposure is through
Asbestos Cement pipes are conventionally remediated in one of three ways: Cured-in place pipe (CIPP) lining, abandoned in place, and open trenching. The CIPP lining is used only on pipes that are still in good condition, and strong enough to withstand the daily pressures of their intended use. The CIPP lining is sprayed on the interior of unbroken, inline pipes, and is used to extend the useful life of the pipe. More information on various CIPP linings, formulation, and application is available in the docket to this document. Asbestos cement pipes may also be abandoned in place, with the new pipeline laid in a separate area. The EPA issued an applicability determination (AD) on A/C pipes that are abandoned in place, which is available in the docket for this document.
Open trenching is the practice under which the entire A/C pipe is excavated and open to the ambient air. After excavation, the A/C pipe is wet-cut into 6- and 8-foot sections using a snap cutter or similar tool, wrapped for containment, and removed for disposal. For more information on snap cutters and similar tools, see “Asbestos Pipe Safety Awareness and Compliance” and “Updated Procedures for Cutting and Handling Asbestos Cement Pipe Client Revision City of Richmond Nov 2008,” available in the docket for this action. Guidance documents on open trenching work practices that comply with the Asbestos NESHAP have been developed by state and municipal agencies and are included in the docket for this document for reference. The AWP was compared to open trenching because open trenching was the only conventional work practice that involves the replacement of A/C pipe.
As explained at proposal, the 40 CFR part 61 General Provisions include what the EPA must determine in order to approve an alternative means of emission limitation. At 40 CFR 61.12(d)(1) and (2), the General Provisions require that the alternative must achieve a reduction in emissions at least equivalent to the reduction achieved by the work practices required under the existing standard, and that the
Additionally, the Asbestos NESHAP itself contains specific provisions under which the EPA should review applications for prior written approval of an alternative emission control and waste treatment method. 40 CFR 61.150(a)(4) authorizes “[u]se [of] an alternative emission control and waste treatment method that has received prior approval by the Administrator according to the procedure described in 40 CFR 61.149(c)(2).” Before approval may be granted for an AWP under 40 CFR 61.150(a)(4), 40 CFR 61.149(c)(2) explains that a written application must be submitted to the Administrator demonstrating that the following criteria are met: (1) The alternative method will control asbestos emissions equivalent to currently required methods; (2) the suitability of the alternative method for the intended application; (3) the alternative method will not violate other regulations; and (4) the alternative method will not result in increased water pollution, land pollution, or occupational hazards.
As stated in the proposal document at section V. Request for Comments, the EPA solicited comments on all aspects of this request for approval of CTPS as an AWP for the work practice standards specified in 40 CFR part 61, subpart M, the Asbestos NESHAP.
The EPA received several comments that resulted in changes to the AWP from proposal. We are responding to some of the most significant comments in this document, including those comments that resulted in changes to the AWP. Comments not appearing in this document are included in the Responses to Comments Document available in the docket (Docket ID No. EPA-HQ-OAR-2017-0427).
The Asbestos NESHAP does not prescribe a method for pipe replacement, but requires that the work practices used to remove, contain, and dispose of ACM release no visible emissions (VE) to the outside air (or control emissions). We evaluated the alternative and found that it meets all requirements for no VE, adequate wetting, waste handling, and disposal under the Asbestos NESHAP. Therefore, it satisfies the first criteria, that it controls asbestos emissions equivalently to the work practices of the standard.
Second, the CTPS AWP is specifically designed for the intended application. The primary consideration of the Asbestos NESHAP is to minimize emissions of asbestos to the air, which is accomplished by both open trench methods and by the CTPS AWP.
Third, the CTPS AWP does not violate other regulations, and does not supplant any other requirements pertaining to the removal, containment, transportation, or disposal of ACWM. We note specifically that any applicable OSHA requirements (including for employees covered by 40 CFR part 763, subpart G), which protect workers, remain in full effect.
Fourth, we believe use of the CTPS AWP will not result in increased water pollution, land pollution, or occupational hazards compared with open-trench and replacement, which is not required by the Asbestos NESHAP, but has been accepted as a NESHAP-compliant method for A/C pipe replacement. We compared the CTPS AWP to open-trench replacement because it is the traditional procedure for A/C pipe replacement. The CTPS AWP only exposes A/C pipe sections that must be removed before replacement using the underground trenchless method. The bentonite clay provides a seal on the inner surface area of the annular space (tunnel) created by the CTPS equipment train and the surrounding soils, thereby trapping the slurry between the pipe perimeter and the soil, while preventing ground water intrusion into this closed space. The slurry is `squeegeed out' of the close tolerance space between the cavity and the new pipe and is removed at the vertical access points. This results in lowering the exposure potential to workers and the general public, not an increase in the potential exposure. This sealed surface area prevents slurry from contaminating the surrounding soils, and the ACM (which is made nonfriable by the curing process of the cementitious slurry) is not free to migrate to the surface as a result of soil movement, such as frost heaves. See the April 25, 2018, document for more information on frost heaves, and see the document titled, “Bentonite Clay: Properties and Uses,” in the docket to this action.
We are including in the docket a study conducted by Arizona State University (ASU) on the use of the horizontal direction drill (HDD) technique to lay underground pipe. While this was not a `close tolerance' study, it does show that the bentonite clay effectively seals the annular space between the new pipe and the surrounding soil (evaluated in both sandy and clay soils), supports the soils above the vacant space, and prevents migration of soils into the space surrounding the new pipe. See “Evaluation of the Annular Space Region in Horizontal Directional Drilling Installations.” Samuel T. Ariaratnam, Ph.D., P.Eng., ASU, 2001. The 2001 ASU study also presents in Section 2.1 an “Introduction to Drilling Fluids and Additives,” which explains the properties of bentonite clay and use of both bentonite and drilling fluids in the HDD industry.
Both open trench replacement and the CTPS AWP use water to adequately wet the A/C. Additionally, the CTPS AWP uses drilling fluids and bentonite clay in suspension underground while the equipment train distributes these fluids within the close-tolerance tunnel. As explained in 83 FR 18045, the purpose of the Asbestos NESHAP is to prevent excessive emissions of asbestos to the ambient air. Because the CTPS AWP conducts most of the pipe removal underground, sealing the cylindrical cavity before and during replacement with bentonite clay, the AWP prevents the migration of asbestos into the surrounding soils, and the skim coat (the portion of waste slurry that remains on the exterior of the new pipe) that remains is both fixed and nonfriable on the new pipe. Additionally, water pollution is reduced when A/C wastewater and storm water pipes in poor condition are replaced, resulting in a reduction in water pollution; and fresh water is conserved when leaking A/C pipes are remediated. For further information on the CTPS process, see the document in the Docket to this rule, titled “Guidelines for Replacing Asbestos Cement Pipe by Close Tolerance Pipe Slurrification (CTPS),” Portland Utilities Construction Corporation, November 2018. While we considered this document during the development of the CTPS AWP, it predates the approval of the AWP. Any owner/operator performing the CTPS AWP must follow the guidelines stated in IV.D of this document.
We believe the use of the CTPS AWP will not result in increased water pollution, land pollution, or occupational hazards compared with open-trench and replacement, which is not required by the Asbestos NESHAP, but has been accepted as a NESHAP-compliant method for A/C pipe replacement. While open trenching exposes the entire length of A/C pipe to the workers and the atmosphere during removal operations, the CTPS AWP exposes A/C pipe only at the trenches at the beginning and end of the project, and at vertical access points. These areas are at the beginning of the ACPRP, the end of the ACPRP, and at a few points in between as determined by the pipe depth, soil type (used to estimate the drag on the line), knuckles, joints, dropped sections of pipe, or broken sections of pipe. Workers are not exposed to the slurry as it is underground during pipe replacement and in containment at both the vertical access points and the vacuum truck. The slurry is contained during transportation, and is disposed of in sealed leak-tight containers. However, if workers' clothing or other materials became contaminated with slurry, it would need to be treated as ACWM and disposed of accordingly (see the definition of ACWM at 40 CFR 61.141).
When replacing an A/C pipe with a new pipe of the same size (size-on-size), the A/C pipe slurry mixture is not significantly impacted by the outer soil composition, and that soil type does not play a significant role in the amount of ACWM to be disposed of when using the CTPS AWP.
The term ‘close tolerance' is used to denote that the soil displacement is at a minimum for an HDD technology. The volume of waste generated using the CTPS AWP is less than that generated using open trenching because pipe disposal using open trenching landfills the A/C pipe in its unaltered form, so most of the space is taken up by the interior open space of the pipe. In comparison, CTPS AWP waste has no open, empty spaces, and all ACM waste is compactly disposed in containment.
However, when simultaneously replacing the A/C pipe with a new pipe that has a larger diameter (upsizing), the additional soil from the perimeter of the old pipe is removed with the slurry while pulling the new pipe behind the equipment train. For example, replacing an 8-inch old pipe with a 12-inch new pipe would potentially include the soil within a 2-inch margin of the old pipe. However, this is a matter of pipe size, not soil type; that is, it is dependent upon the size of new pipe in relation to the size of the old pipe being replaced.
The soil displacement would be similar when replacing an A/C pipe with a larger pipe using open trenching and, depending on the condition of the A/C pipe, could result in a similar amount of ACWM to be disposed. For instance, conducting open trenching on an A/C pipe in poor condition could easily result in the contamination of all the surrounding soil. In that case, the soil surrounding the pipe would have to be disposed as ACWM (see 40 CFR 61.150). In such a case, the asbestos contaminating the soils would be in a friable state, rather than in a nonfriable state as it is with the CTPS procedure. We, therefore, think the two methods are generally equivalent in this regard.
We, therefore, believe the CTPS AWP does not result in an increase in water pollution, land pollution, or occupational hazards, and that it is at least equivalent to open trench replacement procedures for A/C pipe replacement.
Persons conducting ACPRPs using the CTPS AWP may choose to either decontaminate the equipment so that no ACM remains within or on the equipment after each ACPRP, or may use disposable linings/containers that prevent slurry from coming into direct contact with machinery, that are disposed of as ACWM. We recommend that excess wash water be properly disposed of in containment, or filtered before being allowed to be discharged as wastewater and that the filtrate be placed in containment and disposed of with other ACWM at the disposal facility. All work practices must be consistent with those required by the Asbestos NESHAP. For additional information on decontamination see section III.E below.
We note specifically that any applicable OSHA requirements (including for employees covered by 40 CFR part 763, subpart G), which protect workers, remain in full effect.
Any decontamination effort must comply with the Asbestos NESHAP
The EPA received a number of comments questioning the effectiveness of CTPS to abate A/C pipe. Some of these commenters made suggestions to improve the work practice.
The EPA received inquiries regarding what inspection requirements would apply to ensure the work practices were completed correctly.
By the time the ACPRP is started, the location of the A/C pipe is known. For both safety and ease, when the A/C pipe to be replaced is a confined space, or is less than 6 feet in diameter, standard industry practice for underground pipe replacement projects is for the owner/operator to use robotic cameras and videography to determine the location of the pipe, including all sections of A/C pipe. The cameras are mounted on robotics that are controlled remotely by the owner/operator. The camera makes a video recording of the interior of the pipe, and records its location within the pipe in feet and inches (or meters and centimeters); stopping and examining all suspicious areas to record the size, depth, and character of any pipe abnormality. This video enables the owner/operator to precisely locate any areas of interest in the pipeline from an above-ground location. This video is then referred to as needed by the owner/operator while conducting the ACPRP and must be made available to the on-site supervisor and/or inspector immediately upon request.
Thus, for the pipe inspection, the positive identification of ACM is accomplished by the remote videography. This is not analogous to ASTM E2356-14, for building inspections which guides the inspector through sampling of suspect ACM building materials (where the presence and/or type of asbestos is not yet known).
A thorough inspection must be conducted as part of the planning of a successful ACPRP. A leaking pipe is not necessarily one that is crushed or otherwise structurally compromised. The EPA's intent is for the owner/operator to use open trenching to remove sections of pipe that are no longer in the area encompassed by the cylindrical volume that the CTPS train will retain in the slurry, or that will impede the normal passage of the CTPS equipment train through the pipe.
However, it is unlikely that sections of pipe are collapsed in an active pipeline that is being replaced because all pipe most likely has been repaired if there were any collapsed sections. (The gravity sewer would back up if it had collapsed and water would be bursting out of the ground from force main pipes if there was a collapse.)
Once inspection has occurred (which is completed before CTPS is used) the owner/operator knows the location, diameter, and length of A/C pipe sections to be replaced. These inspections identify areas of the pipe that may be compromised (crushed, off-center, broken) and the inspection is compared to existing utility records, the records are updated, and after pipe replacement, the records are saved electronically and/or in paper format for future maintenance activities.
In this final document, we are also clarifying the difference between an inaccessible section of pipe, and an obstructed section of pipe. An inaccessible section of pipe is one that is overlain by buildings or other installments that cannot be moved, and that prevents or significantly impedes access to the pipe and replacement using open trenching procedures. Roads and sidewalks do not necessarily create a situation where a pipe is inaccessible. An obstructed pipe is one that has section(s) that are structurally compromised to the point that they may cause or contribute to a malfunction of the HDD equipment for the CTPS AWP.
The EPA is, therefore, clarifying the above language to indicate what types of situations require removal of the pipe using other techniques before CTPS can be implemented. Obstructions that would impede or prevent the progress of the CTPS equipment train through the pipe passageway must be removed using open trenching or another method compliant with Asbestos NESHAP requirements (such as abandon in-place) before the CTPS AWP can be used. However, when obstructions occur at an inaccessible location (such as beneath a building) a different approach may be needed to complete the ACPRP (such as sealing off the old pipe and rerouting new pipes around the structure, or using HDD to lay a new pipeline beneath the structure).
In a previous AD from the EPA on August 7, 2015, the EPA discussed what constitutes a thorough inspection. In that AD, the EPA stated, “When EPA promulgated the regulations, the Agency elected not to define `thorough inspection' at § 61.145(a) and did not provide a definition at § 61.141. The EPA did not adopt a `one-size fits all' approach in order to accommodate the wide variety of techniques and practices that can be used to locate and identify asbestos and asbestos-containing materials used in the construction industry.”
Additionally, this AD cited an ASTM standard for thorough inspection of buildings and building components. The purpose of these inspections is to identify all ACM in a building or building components, for the purposes of demolition or renovation. The EPA does not see the inspection guidance for buildings as relevant, because its use is to identify ACM in buildings before demolition or renovation where the building materials are unknown. For the CTPS AWP, the pipe has already been identified as asbestos-containing, and the decision to consider using the CTPS AWP as a replacement technique would already be under consideration. Therefore, the inspection guidance for buildings is irrelevant.
In our observation of the demonstrated CTPS AWP in Greenville, South Carolina, the operator of the ACPRP maintained a video of the pipe inspection that was conducted in advance of the actual pipe replacement work, and referred to it periodically during the ACPRP work as that work progressed. We are requiring owners/operators who use the CTPS AWP to save a video of the pipe inspection and make it available at the ACPRP work site for reference as needed by inspectors, owners, and operators during the ACPRP work. The recorded inspection must be made available for use during the replacement work so that workers can know the exact location of any structurally compromised areas of pipe during the replacement process. The EPA is clarifying that a thorough inspection of the A/C pipe under the CTPS AWP is a visual inspection, conducted using remote robotic technology, of the entire length of pipe to be replaced, and identifies any areas of the pipe that are obstructed to the point that the CTPS equipment train cannot pass without instigating a malfunction as a result of the pipe's condition. In the event an A/C pipe has been obstructed to the point that the CTPS equipment train cannot pass through, the owner and operator must follow appropriate work practice standards in the Asbestos NESHAP such as open trench or abandon in place techniques.
The EPA received several inquiries as to the source and extent of training opportunities for using the CTPS AWP, and what inspection requirements would apply to ensure the work practices were completed correctly.
In terms of recordkeeping, this final document has updated the requirements for the CTPS AWP after consideration of the comments. Under the CTPS AWP, the owner/operator is required to record waste shipment records (as already required by 40 CFR 61.150(d)), records of the standard operating procedures for the certain key equipment, and malfunction records (if applicable). The owner (typically the state or municipality) is also required to record the certificate from each sample friability test.
The requirement to record waste shipment records is consistent with the NESHAP and accounts for all ACWM. These records are used to certify that the proper steps were taken in disposal of ACWM. Records regarding the standing operating procedure are used to provide consistency through the ACPRP, as well as document equipment used to show compliance with the requirements of the AWP. Malfunction records allow the review of any malfunction events as well as how each malfunction was
In this final document, the EPA also removed certain recordkeeping requirements that appeared in the April 25, 2018, document. The recordkeeping requirements in section IV.F.1.a-g of the proposal document were removed in the final document: For information on the dates, ACPRP location, and amount of pipe, due to overlap with the existing notification requirements in 40 CFR 61.145(b)(4); for information on the disposal amount, disposal site, and disposal manifest, due to overlap with the existing waste shipment record required by 40 CFR 61.150(d); and for the amount of slurry generated, due to a determination that this detail would not provide significant information in assisting with this AWP. Additionally, the requirement for the ACPRP report was removed, due to a determination that the report would not provide significant information in assisting with this AWP beyond the information already available in the notification and records.
The EPA received several comments asking about the characteristics of the slurry and questioning whether the work practices afford effective management of the slurry.
As we stated in the April 25, 2018, document for the AWP at 83 FR 18049, “The owner/operator would be required to ensure that the slurry remains in an adequately wet state during the slurrification process and remains in containment throughout the removal, transportation, and disposal processes, meeting the requirements of 40 CFR 61.145 and 40 CFR 61.150. The slurry must be contained and in slurry form at the time of disposal in a landfill permitted to accept ACWM and meeting the requirements of 40 CFR 61.154. The slurry must be managed at the disposal site using procedures meeting the requirements of 40 CFR 61.154.”
We disagree with the comment that using the AWP would be a violation of the Asbestos NESHAP. As we stated in the AWP proposal at pages 10846-47, “All ACWM must be kept adequately wet and sealed in leak-tight containers (40 CFR 61.150(a)(1)) or processed into a nonfriable form, such as a nonfriable pellet or other shape (40 CFR 61.150(a)(2)).” We continued on page 18047 that, “The EPA is proposing to consider the slurry that is formed by the CTPS AWP for A/C pipe to be nonfriable once hardened” (as determined by hand pressure testing on a collected sample), and on page 18048, that, “The EPA is proposing that when the CTPS work practices are adhered to as described in this document, and when the test for friability confirms that the resulting hardened slurry (skim coating) is nonfriable ACM, the resulting material can be regulated as nonfriable ACM.” Note that the slurry must be disposed of in containment.
Thus, disposal of the ACWM from the CTPS process does not differ from the disposal requirements of the Asbestos NESHAP, including the requirement for disposal as soon as practical. Therefore, this is not a violation of the Asbestos NESHAP.
Additionally, the no VE requirements of the rule have not been dismissed by approval of this AWP, so if the slurry were to be friable when dry, and if, as the commenter states, the surface of the slurry were to dry as a result of the air passing over the upper surface of the slurry and cause VE, this would be a violation of the rule, and work would have to stop to correct the VE.
Several commenters asked the EPA to explain the status of the new pipe once it has been installed, and what requirements apply to the asbestos coating of the new pipe.
The EPA received other comments on the proposed CTPS AWP, and these are addressed in the document, “Responses to Comments on 83 FR 18042 Notification of Request for Comments on the Proposed Approval of an Alternative Work Practice for Asbestos Cement Pipe Replacement,” which is available in the docket to this document.
The EPA is making several changes to the AWP as a result of comments received on the April 25, 2018, document, as explained below.
The EPA is tailoring the notification requirements for the CTPS AWP based on comments received. We are requiring that the 6-digit latitudinal and longitudinal coordinates of each ACPRP conducted using the CTPS AWP be included on the notification because a street address (such as would be included for notification of renovation or demolition of a building) does not necessarily apply to an ACPRP. We believe the 6-digit latitudinal and longitudinal coordinates are analogous to a street address and can be used instead of a street address in the notification at no additional burden to the owner/operator. The latitudinal/longitudinal coordinates can be used by regulatory authorities to locate and inspect the ACPRP effectively to ensure the work practices are conducted properly, ensure the slurry is managed correctly, and verify that all transportation and disposal requirements are followed.
The EPA made changes to the recordkeeping and reporting requirements as a result of comments received on the document. In our April 25, 2018, document, the proposed AWP required owners/operators to include the 6-digit latitudinal/longitudinal coordinates of the ACPRP on the utility record notation. In addition to the utility record notation, the EPA is requiring owners/operators to include the 6-digit latitudinal/longitudinal coordinates of the ACPRP on the notification and on any report generated as a result of a malfunction. The purpose of this requirement is to ensure that environmental regulatory authorities have the correct information on the location of any ACPRP conducted using the CTPS AWP for compliance assurance purposes.
To be consistent with the current requirements of the Asbestos NESHAP and in response to comments, we have changed the proposed recordkeeping and reporting requirements, as well as removed the requirement of an ACPRP report, as discussed in section II.G of this document.
Lastly, the signed friability certificate discussed in section IV.E.2 of this document should be kept by the owner (typically the state or municipality) for the lifespan of the newly installed pipe. The purpose of this requirement is to ensure that the relevant information on ACPRPs remains at the ready access of persons responsible for the maintenance of the pipe.
The EPA made changes to the AWP as a result of comments received on the document. We are revising the process description to read, “the CTPS AWP removes A/C pipe that may be friable and/or in poor condition, while replacing it with non-asbestos material and non-friable ACM.”
The EPA is also clarifying the difference between pipe that is inaccessible and pipe that is obstructed. An inaccessible length of pipe is one that cannot be directly removed by open trenching due to other structures (such as sidewalks, roadways, thoroughfares, buildings, and underground utilities) in close proximity to the A/C pipe to be replaced. An obstructed length of pipe is one with a section that has dropped or collapsed in a way that precludes passage of the guide line and/or the CTPS HDD line during the replacement process.
Additionally, we are requiring owners/operators of the CTPS AWP to document on the notification that sealed pipe will be used during the ACPRP and that no slurry (which contains ACM) is able to come in contact with the inside of the new pipe.
Lastly, the EPA is clarifying that the original intention of this work practice is for the replacement of a A/C pipe with a pipe of the same diameter. Due to the nature of close tolerance pipe Slurrification, which only uses an HDD chain
The EPA is adding to the thorough inspection requirements that owners/operators of any ACPRP must save a video recording of the inspection and make it available at the ACPRP work site for reference as needed by inspectors, owners, and operators during the ACPRP work. This is the current standard work practice across the underground construction industry.
The EPA is requiring that a slurry sample be made available to the air quality regulatory authority within 15 days of the request. In our April 25, 2018, notice we stated that owners/operators must store a slurry sample
Containment of all ACWM is required under the Asbestos NESHAP. The decontamination of equipment used for ACPRPs by the CTPS AWP procedure may generate wastewater bearing asbestos fibers. To achieve containment of this ACWM, we recommend owners/operators conduct decontamination so that all water is contained and filtered before being released to a storm water collection system. For more information on potential decontamination procedures that can be used to control asbestos-contaminated wash water, see “Guidelines for Enhanced Management of Asbestos in Water at Ordered Demolitions,” EPA-453/B-16-002a, July 2016, which is available at
The EPA is clarifying the disposal requirements as a result of comments received on the proposed document. The EPA is prohibiting use of the slurry in any public thoroughfare, in any private use as fill material, as cover material at a landfill, or in any other use. The EPA is clarifying that, in accordance with the Asbestos NESHAP, the slurry must be disposed of as soon as practicable.
The EPA found that, with some changes, the AWP described in our April 25, 2018, proposed document is at least equivalent to the work practice in the Asbestos NESHAP. The changes to the AWP in the April 25, 2018, proposed document are based on comments received as previously discussed in sections II and III of this document.
Based upon our review of the proposed AWP request, the demonstrations of the work practice, studies on HDD technology, industry guidelines, and written materials including equipment, materials, slurry characteristics, testing, and waste specifications; we conclude that, by complying with the following list of requirements, this CTPS AWP will achieve emission reductions at least equivalent to emission reductions achieved under 40 CFR 61.145, 40 CFR 61.150, and 40 CFR 61.154, as required by the applicable Asbestos NESHAP, provided that adequate wetting accompanies all vertical access points, access trenches, and manholes to prevent VE, and that the A/C cementitious material resulting from this process is properly handled and contained during and after removal and properly disposed of as required by the Asbestos NESHAP.
The patent related to this process, “Method of Replacing an Underground Pipe Section,” is available from the U.S. Patent Office, patent number US8,641,326B2; February 4, 2014, and a copy is available in the docket. That patent deals with the replacement of low-pressure sewer pipes and indicates some parameters that may be different from the work practices in this document, depending on the soil composition, depth of pipe, and serviceable use of the pipe (
The owner/operator of a CTPS method system is required to install, operate, and maintain the drilling head train, CTPS liquid delivery system, and all equipment used to deliver adequate wetting at all vertical access points and cut lengths of pipe in accordance with their written standard operating procedures. Records of the standard operating procedures must be kept in accordance with section IV.C.2.b of this document.
1. If an underground ACPRP meets the applicability and threshold requirements under the NESHAP, then the Administrator must be notified in advance of the replacement in accordance with the requirements of the Asbestos NESHAP at 40 CFR 61.145(b). The owner/operator must note the location of the ACPRP on the notification form according to its 6-digit latitudinal/longitudinal coordinates. See 40 CFR 61.145(b) for more information on the notification requirements. Also see 40 CFR 61.04 for more information on the appropriate entity(ies) to notify on behalf of the Administrator. The appropriate entity(ies) are the same as the entity(ies) for other typical Asbestos NESHAP notifications under 40 CFR 61.145(b), which vary by jurisdiction as 40 CFR 61.04 explains.
2. The owner/operator is required to record and maintain for a period of 2 years:
i. Records of VE events, including duration, time, and date of any VE event;
ii. Records of when and how each VE event was resolved. Indicate the date and time for each VE period, whether the VE event occurred at an exposed manhole, trench, or other vertical access
iii. Records of a failed friability test, resulting in a sample that can be crushed, crumbled, or reduced to powder by hand pressure.
3. The owner (typically the state or municipality) is required to record and maintain for the lifetime of the new pipe, and provide to the regulatory authority within 15 days of request, the certificate from each sample friability test as required by section IV.E.2 of this document.
4. Each owner/operator is required to submit a malfunction report to the Administrator after any malfunction occurrence. The malfunction report must include the records in section IV.C.2.c of this document. The malfunction report must be submitted as soon as practical after the occurrence, but in no case later than 30 days. See 40 CFR 61.04 for more information on the appropriate entity(ies) to notify on behalf of the Administrator. The appropriate entity(ies) are the same as the entity(ies) for other typical Asbestos NESHAP notifications or reports, which vary by jurisdiction as 40 CFR 61.04 explains.
1. By complying with the following list of requirements, this AWP will achieve emission reductions at least equivalent to emission reductions achieved under 40 CFR 61.145, 40 CFR 61.150, and 40 CFR 61.154, as required by the applicable Asbestos NESHAP.
i. If the sample cannot be crushed, crumbled, or reduced to powder by hand pressure, the owner/operator would be required to certify this as follows: “The hardened slurry sample
ii. If the sample can be crushed, crumbled, or reduced to powder by hand pressure, the owner/operator would be required to follow the malfunction reporting requirements in section IV.C.4 of this document.
iii. If a malfunction occurs, resulting in friable ACM left along the new pipe, the friable ACM must be retrieved and properly disposed of, or the site must be treated as an active asbestos waste disposal site under 40 CFR 61.154 of the Asbestos NESHAP and, upon closure, must comply with 40 CFR 61.151, including a notation on the deed or similar instrument as required by 40 CFR 61.151(e).
i. Because the owner (typically the state or municipality) is required to maintain storage of ACPRP samples, the air quality regulatory authority should go to the storage site to examine the slurry sample, rather than to request the sample be delivered or mailed, because otherwise, the owner (typically the state or municipality) would no longer be in custody of the slurry sample for a minimum of 2 years, as required by this AWP.
The owner/operato
1. The slurry is removed at vertical access points using a vacuum attached to a tank (
2. The owner/operator would be required to ensure that the slurry remains in an adequately wet state during the slurrification process and in containment throughout the removal, transportation, and disposal processes meeting the requirements of 40 CFR 61.145 and 40 CFR 61.150.
3. All slurry produced as a result of conducting an ACPRP using the CTPS AWP must be labeled and transported in accordance with the corresponding requirements of 40 CFR 61.145 and 40 CFR 61.150 in the Asbestos NESHAP. The only slurry that may remain is the skim coat on the new pipe from that ACPRP. This skim coat is not subject to the removal and disposal requirements (subject to confirmation as nonfriable by the friability test), if left undisturbed in the ground.
The following requirements apply to disposal of the slurry resulting from an ACPRP conducted using the CTPS AWP:
1. The slurry must be disposed of in slurry form and placed in leak tight containers in a landfill authorized to accept ACWM and meeting the requirements of 40 CFR 61.154.
2. The slurry must be managed at the disposal site using procedures meeting the requirements of 40 CFR 61.154.
3. The slurry must not be used in any public thoroughfare, in any private use as fill material, as cover material at a landfill, or in any other use.
4. In accordance with the Asbestos NESHAP, the slurry must be disposed of as soon as practicable.
Persons conducting ACPRPs using the CTPS AWP may choose to either decontaminate the equipment so that no ACM remains within or on the equipment after each ACPRP or may use disposable linings/containers that prevent slurry from coming into direct contact with machinery and are disposed of as ACWM.
As noted in section III.E above, containment of all ACWM is required under the Asbestos NESHAP. The decontamination of equipment used for ACPRPs by the CTPS AWP procedure may generate wastewater bearing asbestos fibers. To achieve containment of this ACWM, we recommend owners/operators conduct decontamination so that all water is contained and filtered before being released to a storm water collection system. For more information on potential decontamination procedures that can be used to control asbestos-contaminated wash water, see “Guidelines for Enhanced Management of Asbestos in Water at Ordered Demolitions,” EPA-453/B-16-002a, July 2016, which is available at
Except as noted in section IV.G.3 of this document, all other requirements of the Asbestos NESHAP that apply to renovations, including notification requirements found in 40 CFR 61.145(b), also apply to the CTPS AWP. Additionally, waste handling and disposal requirements found in 40 CFR 61.150 and 40 CFR 61.154 apply to the slurry (except as noted in section IV.G.3 of this document) and any other ACWM that is removed at the ACPRP. This document also uses terminology as defined in 40 CFR 61.141.
It is important to note that projects may not be broken up to avoid regulation under the Asbestos NESHAP, and the EPA has clarified the requirements of the Asbestos NESHAP as they relate to a project on several occasions. The “EPA considers demolitions planned at the same time or as part of the same planning or scheduling period to be part of the same project. In the case of municipalities, a scheduling period is often a calendar year or fiscal year or the term of the contract.” See 60 FR 38725 (July 28, 1995, Footnote 1). As stated in the circumvention section of the 40 CFR
Environmental Protection Agency (EPA).
Notice.
Section 5(g) of the Toxic Substances Control Act (TSCA) requires EPA to publish in the
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitters of the PMNs addressed in this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2018-0097, is available at
This document lists the statements of findings made by EPA after review of notices submitted under TSCA section 5(a) that certain new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment. This document presents statements of findings made by EPA during the period from November 1, 2018 to December 31, 2018.
TSCA section 5(a)(3) requires EPA to review a TSCA section 5(a) notice and make one of the following specific findings:
• The chemical substance or significant new use presents an unreasonable risk of injury to health or the environment;
• The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the chemical substance or significant new use;
• The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects and the chemical substance or significant new use may present an unreasonable risk of injury to health or the environment;
• The chemical substance is or will be produced in substantial quantities, and such substance either enters or may reasonably be anticipated to enter the environment in substantial quantities or there is or may be significant or substantial human exposure to the substance; or
• The chemical substance or significant new use is not likely to present an unreasonable risk of injury to health or the environment.
Unreasonable risk findings must be made without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant under the conditions of use. The term “conditions of use” is defined in TSCA section 3 to mean “the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”
EPA is required under TSCA section 5(g) to publish in the
Anyone who plans to manufacture (which includes import) a new chemical substance for a non-exempt commercial purpose and any manufacturer or processor wishing to engage in a use of a chemical substance designated by EPA as a significant new use must submit a notice to EPA at least 90 days before
The submitter of a notice to EPA for which EPA has made a finding of “not likely to present an unreasonable risk of injury to health or the environment” may commence manufacture of the chemical substance or manufacture or processing for the significant new use notwithstanding any remaining portion of the applicable review period.
In this unit, EPA provides the following information (to the extent that such information is not claimed as Confidential Business Information (CBI)) on the PMNs, MCANs and SNUNs for which, during this period, EPA has made findings under TSCA section 5(a)(3)(C) that the new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment:
• EPA case number assigned to the TSCA section 5(a) notice.
• Chemical identity (generic name, if the specific name is claimed as CBI).
• Website link to EPA's decision document describing the basis of the “not likely to present an unreasonable risk” finding made by EPA under TSCA section 5(a)(3)(C).
15 U.S.C. 2601
Environmental Protection Agency (EPA).
Notice.
Section 5(g) of the Toxic Substances Control Act (TSCA) requires EPA to publish in the
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitters of the PMNs addressed in this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2018-0097, is available at
This document lists the statements of findings made by EPA after review of notices submitted under TSCA section 5(a) that certain new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment. This document presents statements of findings made by EPA during the period from October 1, 2018 to October 31, 2018.
TSCA section 5(a)(3) requires EPA to review a TSCA section 5(a) notice and make one of the following specific findings:
• The chemical substance or significant new use presents an unreasonable risk of injury to health or the environment;
• The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the chemical substance or significant new use;
• The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects and the chemical substance or significant new use may present an unreasonable risk of injury to health or the environment;
• The chemical substance is or will be produced in substantial quantities, and such substance either enters or may reasonably be anticipated to enter the environment in substantial quantities or there is or may be significant or substantial human exposure to the substance; or
• The chemical substance or significant new use is not likely to present an unreasonable risk of injury to health or the environment.
Unreasonable risk findings must be made without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant under the conditions of use. The term “conditions of use” is defined in TSCA section 3 to mean “the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”
EPA is required under TSCA section 5(g) to publish in the
Anyone who plans to manufacture (which includes import) a new chemical substance for a non-exempt commercial purpose and any manufacturer or processor wishing to engage in a use of a chemical substance designated by EPA as a significant new use must submit a notice to EPA at least 90 days before commencing manufacture of the new chemical substance or before engaging in the significant new use.
The submitter of a notice to EPA for which EPA has made a finding of “not likely to present an unreasonable risk of injury to health or the environment” may commence manufacture of the chemical substance or manufacture or processing for the significant new use notwithstanding any remaining portion of the applicable review period.
In this unit, EPA provides the following information (to the extent that such information is not claimed as Confidential Business Information (CBI)) on the PMNs, MCANs and SNUNs for which, during this period, EPA has made findings under TSCA section 5(a)(3)(C) that the new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment:
• EPA case number assigned to the TSCA section 5(a) notice.
• Chemical identity (generic name, if the specific name is claimed as CBI).
• Website link to EPA's decision document describing the basis of the “not likely to present an unreasonable risk” finding made by EPA under TSCA section 5(a)(3)(C).
15 U.S.C. 2601
Environmental Protection Agency (EPA).
Notice.
Section 5(g) of the Toxic Substances Control Act (TSCA) requires EPA to publish in the
This action is directed to the public in general. As such, the Agency has not attempted to describe the specific entities that this action may apply to. Although others may be affected, this action applies directly to the submitters of the PMNs addressed in this action.
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPPT-2018-0097, is available at
This document lists the statements of findings made by EPA after review of notices submitted under TSCA section 5(a) that certain new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment. This document presents statements of findings made by EPA during the period from January 1, 2019 to March 31, 2019.
TSCA section 5(a)(3) requires EPA to review a TSCA section 5(a) notice and make one of the following specific findings:
• The chemical substance or significant new use presents an unreasonable risk of injury to health or the environment;
• The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects of the chemical substance or significant new use;
• The information available to EPA is insufficient to permit a reasoned evaluation of the health and environmental effects and the chemical substance or significant new use may present an unreasonable risk of injury to health or the environment;
• The chemical substance is or will be produced in substantial quantities, and such substance either enters or may reasonably be anticipated to enter the environment in substantial quantities or there is or may be significant or substantial human exposure to the substance; or
• The chemical substance or significant new use is not likely to present an unreasonable risk of injury to health or the environment.
Unreasonable risk findings must be made without consideration of costs or other non-risk factors, including an unreasonable risk to a potentially exposed or susceptible subpopulation identified as relevant under the conditions of use. The term “conditions of use” is defined in TSCA section 3 to mean “the circumstances, as determined by the Administrator, under which a chemical substance is intended, known, or reasonably foreseen to be manufactured, processed, distributed in commerce, used, or disposed of.”
EPA is required under TSCA section 5(g) to publish in the
Anyone who plans to manufacture (which includes import) a new chemical substance for a non-exempt commercial purpose and any manufacturer or processor wishing to engage in a use of a chemical substance designated by EPA as a significant new use must submit a notice to EPA at least 90 days before commencing manufacture of the new chemical substance or before engaging in the significant new use.
The submitter of a notice to EPA for which EPA has made a finding of “not likely to present an unreasonable risk of injury to health or the environment” may commence manufacture of the chemical substance or manufacture or processing for the significant new use notwithstanding any remaining portion of the applicable review period.
In this unit, EPA provides the following information (to the extent that such information is not claimed as Confidential Business Information (CBI)) on the PMNs, MCANs and SNUNs for which, during this period, EPA has made findings under TSCA section 5(a)(3)(C) that the new chemical substances or significant new uses are not likely to present an unreasonable risk of injury to health or the environment:
• EPA case number assigned to the TSCA section 5(a) notice.
• Chemical identity (generic name, if the specific name is claimed as CBI).
• Website link to EPA's decision document describing the basis of the
15 U.S.C. 2601
Farm Credit System Insurance Corporation.
Notice, regular meeting.
Notice is hereby given of the regular meeting of the Farm Credit System Insurance Corporation Board (Board).
The meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on June 13, 2019, from 2:00 p.m. until such time as the Board concludes its business.
Farm Credit System Insurance Corporation, 1501 Farm Credit Drive, McLean, Virginia 22102. Submit attendance requests via email to
Dale Aultman, Secretary to the Farm Credit System Insurance Corporation Board, (703) 883-4009, TTY (703) 883-4056,
Parts of this meeting of the Board will be open to the public (limited space available), and parts will be closed to the public. Please send an email to
Federal Communications Commission.
Notice.
In this document, the Federal Communications Commission (FCC or Commission) announces the June 24, 2019, meeting and agenda of the Advisory Committee on Diversity and Digital Empowerment (ACDDE).
June 24, 2019, beginning at 10:00 a.m.
Federal Communications Commission, 445 12th Street SW, Room TW-C305, Washington, DC 20554.
Jamila Bess Johnson, Designated Federal Officer (DFO), Federal Communications Commission, Media Bureau, (202) 418-2608,
This meeting is open to members of 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 and video coverage of the meeting over the internet at
Open captioning will be provided for this event. Other reasonable accommodations for persons with disabilities are available upon request. Requests for such accommodations should be submitted via email to
The Committee's mission is to provide recommendations to the FCC on how to empower disadvantaged communities and accelerate the entry of small businesses, including those owned by women and minorities, into the media, digital news and information, and audio and video programming industries, including as owners, suppliers, and employees. The Committee's role is to provide recommendations on how to ensure that disadvantaged communities are not denied the wide range of opportunities made possible by next-generation networks and develop best practices regarding training and hiring opportunities for women and minorities to encourage diversity in the tech industry.
This agenda may be modified at the discretion of the ACDDE Chair and the DFO.
In accordance with the Paperwork Reduction Act of 1995, the Centers for Disease Control and Prevention (CDC) has submitted the information collection request titled
CDC will accept all comments for this proposed information collection project. The Office of Management and Budget is particularly interested in comments that:
(a) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) Evaluate the accuracy of the agencies estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
(c) Enhance the quality, utility, and clarity of the information to be collected;
(d) Minimize the burden of the collection of information on those who are to respond, including, through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
(e) Assess information collection costs.
To request additional information on the proposed project or to obtain a copy of the information collection plan and instruments, call (404) 639-7570 or send an email to
National Environmental Assessment Reporting System (NEARS) (OMB Control No. 0920-0980, Expiration Date: 08/31/2019)—Revision—National Center for Environmental Health (NCEH), Centers for Disease Control and Prevention (CDC).
CDC is requesting OMB approval for the National Environmental Assessment Reporting System (NEARS) to collect data from foodborne illness outbreak environmental assessments routinely conducted by local, state, territorial, or tribal food safety programs during outbreak investigations. Prior to the development of NEARS, environmental assessment data were not collected at the national level. The data reported through this surveillance system provides timely information on the causes of outbreaks, including environmental factors associated with outbreaks, and are essential to environmental public health regulators' efforts to respond more effectively to outbreaks and prevent future, similar outbreaks. This surveillance system was specifically designed to link to CDC's National Outbreak Reporting System (NORS), a disease (
While conducting environmental assessments during outbreak investigations is routine for food safety program officials, reporting information from the environmental assessments to CDC is not routine. Local, state, federal, territorial, and tribal food safety programs are the primary respondents for this data collection. One official from each participating program will report environmental assessment data on outbreaks. These programs are typically located in public health or agriculture agencies. In the U.S., there are approximately 3,000 such agencies. Currently, 31 state and local health departments are registered to report data on outbreaks to NEARS. Based on our experience over the past five years, we expect up to 10 additional local and state public health departments to register to report outbreak data to NEARS over the next three years. It is not possible to determine exactly how many outbreaks will occur in the future, nor where they will occur. Based on past trends, it is likely that up to 300 foodborne illness outbreaks may be reported annually to NEARS from up to 41 entities for the duration of the next PRA clearance. Only programs in the jurisdictions in which these outbreaks occur would report to NEARS. Thus, not every program of the approximate 3,000 programs will respond every year. Assuming each outbreak occurs in a different jurisdiction, there will be one respondent per outbreak.
The activities associated with NEARS that require a burden estimate consist of training, observing, data recording, and data reporting events. The first activity is the training for the food safety program personnel participating in NEARS. These staff will be encouraged to attend a Skype Meeting (
Food safety program personnel participating in NEARS will also be encouraged to complete CDC's Environmental Assessment Training Series (EATS). This eCourse provides training to staff on how to use a systems approach in foodborne illness outbreak environmental assessments. We estimate the burden of this training to be a maximum of 10 hours. Respondents will only have to take this training one time. Assuming a maximum participation of up to 10 programs and approximately five staff being trained at each program, the estimated burden associated with this training is 500 hours.
Data reporting activities for NEARS will be done once for each establishment involved in the outbreak. Information collection activities for NEARS consist of the following: NEARS data reporting and NEARS manager interview. For each outbreak, the respondent (one official from each participating program) will spend around 30 minutes recording environmental assessment data on pen and paper. Assuming a maximum of 300 outbreaks, the estimated annual burden is 150 hours for recording observations.
The manager interview will be conducted at each establishment associated with an outbreak and data is initially recorded using pen and paper. The respondents for this activity are the retail food managers of the outbreak establishments. Most outbreaks are associated with only one establishment; however, some are associated with multiple establishments. We estimate that a maximum of four manager interviews will be conducted per outbreak. Each interview and data reporting will take about 20 minutes. Assuming a maximum of 300 outbreaks, the estimated annual burden is 400 hours. Web-based data entry for both data recording and the manager interview will be combined. Data entry into the NEARS system is expected to take approximately 40 minutes for the combined activities, for a total of 200 burden hours. The total estimated annual burden for this information collection is 1,350 hours.
Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).
Notice with comment period.
The Centers for Disease Control and Prevention (CDC), as part of its continuing effort to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies the opportunity to comment on a proposed and/or continuing information collection, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed information collection project titled Prevalence Survey of Healthcare-Associated Infections and Antimicrobial Use in U.S. Acute Care Hospitals. This project examines the numbers and types of Healthcare-Associated Infections and causative pathogens, types of antimicrobial drugs (such as antibiotics) used, and the quality of antimicrobial prescribing in U.S. acute care hospitals.
CDC must receive written comments on or before August 9, 2019.
You may submit comments, identified by Docket No. CDC-2019-0026 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact Jeffrey M. Zirger, Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE, MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (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. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
The OMB is particularly interested in comments that will help:
1. Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
2. Evaluate the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used;
3. Enhance the quality, utility, and clarity of the information to be collected; and
4. Minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology,
5. Assess information collection costs.
Prevalence Survey of Healthcare-Associated Infections and Antimicrobial Use in U.S. Acute Care Hospitals (OMB Control No. 0920-0852, Exp. 12/31/2019)—Extension—National Center for Emerging and Zoonotic Infectious Diseases (NCEZID), Centers for Disease Control and Prevention (CDC).
Preventing healthcare-associated infections (HAIs) and improving antimicrobial use (AU) are CDC and national priorities. An essential step in reducing the occurrence of HAIs is to estimate accurately the burden of these infections in U.S. acute care hospitals and to describe the types of HAIs and causative pathogens. Periodic assessments of the magnitude and types of HAIs and AU occurring in all patient populations within acute care hospitals are needed to inform decisions by policy makers and hospital infection control personnel (ICP) regarding appropriate targets and strategies for HAI prevention and antimicrobial stewardship.
Since 2009, CDC has conducted four prevalence surveys (
Minor adjustments to data collection instruments since the previous 2016 OMB approval have been made. These
In the 2020 survey, data collection will occur within acute care general hospitals of varying size in each of the 10 EIP sites (
ICP in participating hospitals may assist EIP site personnel in collecting demographic and limited clinical data from the electronic or paper-based medical records of a sample of randomly selected patients on a single day in 2020. Patients will not be interviewed, and no direct interaction with patients will occur. Hospital and patient-level data will be collected using unique identification codes. EIP site personnel will submit hospital and patient-level data to CDC using a secure data management system.
Based on experiences from previous surveys, the time required to complete the Healthcare Facility Assessment Form (HFA) and Patient Information Form (PIF) is estimated to be 45 and 17 minutes, respectively. To conduct the full-scale survey in a three-year approval period, 100 hospital respondents will complete the HFA one time and the PIF on average 63 times per year. The total estimated annualized public burden is 1,860 hours, which represents no change from the 2016 OMB approval.
To assess changes in HAIs and AU over time, EIP sites will seek participation from the same hospitals that participated in prior surveys. These hospitals were originally selected for participation using a stratified random sampling scheme based on the number of staffed acute care beds (
Centers for Medicare & Medicaid Services, HHS.
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 (PRA), federal agencies are required to publish notice in the
Comments on the collection(s) of information must be received by the OMB desk officer by July 10, 2019.
When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395-5806
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 Parham at (410) 786-4669.
Under the Paperwork Reduction Act of 1995 (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.
1.
The collection and verification of reassignment information defends and protects our beneficiaries from illegitimate providers/suppliers. These procedures also protect the Medicare Trust Fund against fraud. It gathers information that allow Medicare contractors to ensure that the provider/supplier is not sanctioned from the Medicare and/or Medicaid program(s), or debarred, or excluded from any other Federal agency or program. The data (
Notice is hereby given that I have delegated to the Administrator of the Administration for Community Living the following authorities vested in the Secretary:
• The authority to oversee and administer the implementation of the Recognize, Assist, Include, Support, and Engage Family Caregivers Act of 2017 (Pub. L. 115-119), commonly referred to as the “RAISE Family Caregivers Act”. This authority may be redelegated, but only to an officer or inferior officer as those terms are used in Art. II, § 2, cl. 2 of the U.S. Constitution.
This delegation excludes the authority to issue regulations and appoint non-federal council members, and shall be exercised in accordance with the Department's applicable policies, procedures, and guidance.
Notice is hereby given that I have delegated to the Administrator of the Administration for Community Living the following authorities vested in the Secretary:
• The authority to oversee and administer the implementation of the Supporting Grandparents Raising Grandchildren Act (Pub. L. 115-196). This authority may be redelegated, but only to an officer or inferior officer as those terms are used in Art. II, § 2, cl. 2 of the U.S. Constitution.
This delegation excludes the authority to issue regulations and appoint non-federal council members, and shall be exercised in accordance with the Department's applicable policies, procedures, and guidance. This delegation is effective upon date of signature.
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 10, 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.
To minimize the risk of serious adverse health consequences or death from consumption of contaminated produce, we have established science-based minimum standards for the safe growing, harvesting, packing, and holding of produce, meaning fruits and vegetables grown for human consumption. The standards are codified in part 112 (21 CFR part 112) and set forth procedures and processes that include information collection activities such as establishing monitoring and sampling plans, documenting data and training, and ensuring disclosure that produce for human consumption meets these requirements. The regulations also provide for certain exemptions and variances to qualified respondents. We use the information to verify that the standards established by the regulation are followed such that produce entering the marketplace is reasonably unlikely to be associated with foodborne illness.
In addition to the referenced regulations, we developed two draft guidance documents: “Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption” and “Compliance with and Recommendations for Implementation of the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption for Sprout Operations;” both are available at
The latter (the Sprouts draft guidance) was developed to assist sprout operations also subject to the Produce Safety regulation. Sprouts represent a special food safety concern because the conditions under which they are produced (time, temperature, water activity, pH, and available nutrients) are ideal for the growth of pathogens, if present. The Sprouts draft guidance, when finalized, will assist sprout operations subject to the regulations in part 112 in complying with the sprout-specific requirements in subpart M.
In the
(Comment 1) One comment suggested that some entities such as tree nut hullers and shellers may be overly burdened by the definition of a secondary activities farm, which may cause it to be covered by regulations promulgated under the Preventive Controls rule as well as the Produce Safety rule. The comment argues that an entity of this sort should be covered only by the Produce Safety regulation.
(Response) In the
Our intent is to exercise enforcement discretion for any operation not located on a primary production farm that is dedicated to harvesting, packing, and/or holding raw agricultural commodities while we pursue future rulemaking/solutions to relevant issues. The guidance provides examples of the types of facilities likely to fit within this category as facilities engaged in nut hulling and shelling operations.
(Comment 2) One comment suggested that there should be documentation for the source of all products used for processing produce as well as for daily testing of the water used for produce.
(Response) We assume that the phrase “products used for processing produce” refers to herbicides, pesticides, or fertilizers used when growing produce. Under various regulations of FDA and the Environmental Protection Agency, these substances are regulated for proper usage to not endanger human health.
We estimate the burden of this collection of information as follows:
Section 112.7 (21 CFR 112.7) requires farms eligible for the qualified exemption in accordance with § 112.5 (21 CFR 112.5) to maintain the records necessary to demonstrate that the farm satisfies the criteria for the qualified exemption, including a written record reflecting that the owner, operator, or agent in charge of the farm has performed an annual review and verification of the farm's continued eligibility for the qualified exemption. We estimate that 3,285 farms are eligible for the qualified exemption and that each farm will spend an average of 0.5 hours per year to maintain one record. Therefore, 3,285 recordkeepers × 0.5 average hours per recordkeeping = 1,642.5 hours (rounded to 1,643) to meet the recordkeeping requirements of § 112.7.
Section 112.30 (21 CFR 112.30) requires the maintenance of records of required training of personnel, including the date of training, topics covered, and persons trained. We estimate that 24,420 farms maintain one record of required training and spend an average of 7.25 hours per year on recordkeeping. Therefore, 24,420 recordkeepers × 7.25 average hours per recordkeeping = 177,045 hours to meet the recordkeeping requirements of § 112.30.
Although compliance dates for the agricultural water provisions (subpart E) for covered produce other than sprouts are delayed to January 26, 2024, for very small businesses, January 26, 2023, for small businesses, and January 26, 2022, for all other businesses, we have estimated the burden. Section 112.46 (21 CFR 112.46) requires testing agricultural water subject to the requirements of §§ 112.44 and 112.45 (21 CFR 112.44 and 112.45). We estimate that 48,361 farms that will conduct these tests. Thus, it is estimated that about three (2.990) records for each farm will spend an average of 0.825 hours per record on testing water. Therefore, 48,361 farms × 2.990 records × 0.825 average hours per recordkeeping = 119,294.175 hours (rounded to 119,294) to meet the recordkeeping requirements of §§ 112.44 and 112.45.
For records related to agricultural water, we estimate that there are 160,605 recordkeepers each maintaining just over 2 records (2.242), with each recordkeeping taking just over 2 hours (2.160). Therefore, 160,605 recordkeepers × 2.242 records × 2.160 hours = 777,765.046 hours (rounded to 777,765) for the recordkeeping burden related to agricultural water.
Sections 112.144, 112.145, and 112.147 (21 CFR 112.144, 112.145, and 112. 147) require testing for sprouts. We estimate that 126 recordkeepers will maintain records for these tests. Thus, it is estimated that for about 246 (245.660) records each recordkeeper will spend an average of 0.825 hour per record on testing sprouts. Therefore, 126 recordkeepers × 245.660 records × 0.825 average hours per recordkeeping = 25,536.357 hours (rounded to 25,536) to meet the recordkeeping requirements of §§ 112.144, 112.145, and 112.147.
We estimate that there are 126 recordkeepers for other records related to sprouts. Thus, it is estimated that for about 62 (62.061) records each recordkeeper will spend an average of 1.412 hours per record. Therefore, 126 recordkeepers × 62.061 records × 1.412 average hours per recordkeeping = 11,041.397 (rounded to 11,041) hours for the burden to maintain records related to sprouts.
We estimate 126 recordkeepers will utilize the recommendations in the draft guidance document entitled “Compliance with and Recommendations for Implementation of the Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption for Sprout Operations,” once finalized, to maintain additional records related to sprouts. We estimate each recordkeeper will keep 233 records and recordkeeping will take about an hour per record for a recordkeeping burden of 29,358 hours.
Section 112.2 relates to documentation supporting compliance. We estimate that there are 4,568 recordkeepers each maintaining a record of compliance. We estimate that each recordkeeper will spend 0.079 hour maintaining their record. Therefore, 4,568 recordkeepers × 0.079 hour = 360.872 (rounded to 361) hours for the burden to maintain documentation supporting compliance.
Sections 112.2, 112.6, 112.31, 112.33, and 112.142 (21 CFR 112.2, 112.6, 112.31, 112.33, and 112.142) require third-party disclosures. We estimate that 77,165 respondents are making these disclosures. Thus, it is estimated that each respondent has around three (3.459) disclosures and will spend an average of 1.422 hours per disclosure. Therefore, 77,165 respondents × 3.459 disclosures × 1.422 average hours per disclosure = 379,551.331 hours (rounded to 379,551) for the third-party disclosure burden to meet the requirements of §§ 112.2, 112.6, 112.31, 112.33, and 112.142.
The burden estimate reflects adjustments resulting in an overall increase of 8,515 hours. Although we removed the one-time burden that has been realized since establishing the regulations, we have added burden attributed to recommendations found in the Sprouts draft guidance.
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
Fax written comments on the collection of information by July 10, 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
JonnaLynn Capezzuto, Office of Operations, Food and Drug Administration, Three White Flint North, 10A-12M, 11601 Landsdown St., North Bethesda, MD 20852, 301-796-3794,
In compliance with 44 U.S.C. 3507, FDA has submitted the following proposed collection of information to OMB for review and clearance.
Section 505(o)(4) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 355(o)(4)) authorizes FDA to require and, if necessary, order labeling changes if FDA becomes aware of new safety information that it believes should be included in the labeling of certain prescription drug and biological products approved under section 505 of the FD&C Act or section 351 of the Public Health Service Act (PHS Act) (42 U.S.C. 262). Section 505(o)(4) of the FD&C Act applies to prescription drug products with an approved new drug application (NDA) under section 505(b) of the FD&C Act, biological products with an approved biologics license application under section 351 of the PHS Act, or prescription drug products with an approved abbreviated new drug application under section 505(j) of the FD&C Act if the reference listed drug with an approved NDA is not currently marketed. Section 505(o)(4) establishes time frames by which application holders must submit, and FDA staff must review, information necessary to ensure timely and appropriate labeling changes. To communicate how we implement these provisions we developed the guidance entitled “Guidance for Industry: Safety Labeling Changes—Implementation of Section 505(o)(4) of the Federal Food, Drug, and Cosmetic Act,” which provides instruction on: (1) A description of the types of safety labeling changes that ordinarily might be required; (2) how FDA plans to determine what constitutes new safety information; (3) the procedures involved in requiring safety labeling changes, and (4) enforcement of the requirements for safety labeling changes. The guidance is currently posted to the docket and available on FDA's website at
As explained in the guidance, we send application holders a notification letter when safety labeling changes are required. Under section 505(o)(4)(B) of the FD&C Act, the application holder must respond to our notification by either submitting a labeling supplement, or a rebuttal statement explaining why it believes the labeling change is unwarranted. Based on our experience to date with safety labeling changes requirements under section 505(o)(4) of the FD&C Act, we estimate that 36 application holders will elect to submit 1 rebuttal statement each year and that each rebuttal statement will take approximately 6 hours to prepare.
In addition, the guidance explains that labeling prepared in response to a safety labeling change notification should be available on the application holder's website within 10 calendar days of approval. We estimate that 351 application holders will post new labeling one time each year in response to a safety labeling change notification and that the posting of the labeling will take approximately 4 hours to prepare.
In the
Since last OMB review and approval, we have adjusted our estimated annual number of respondents downward by 62. The decrease reflects that we have issued fewer safety labeling notifications, and thus fewer postings
Food and Drug Administration, HHS.
Notice of public workshop.
The Food and Drug Administration (FDA, the Agency, or we) is announcing the following public workshop entitled “Leveraging Randomized Clinical Trials to Generate Real-World Evidence for Regulatory Purposes.” Convened by Duke University's Robert J. Margolis, MD, Center for Health Policy (Duke Margolis) and supported by a cooperative agreement with FDA, the purpose of the public workshop is to bring the stakeholder community together to explore key considerations for using randomized designs, such as large simple trials or those that incorporate pragmatic elements to generate real-world evidence (RWE).
The public workshop will be held on July 11, 2019, from 8:30 a.m. to 5 p.m., Eastern Time and July 12, 2019, from 9 a.m. to 1 p.m., Eastern Time. See the
The public workshop will be held at The Westin City Center, 1400 M St. NW, Washington, DC 20005. For additional travel and hotel information, please refer to the following website:
Dianne Paraoan, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 51, Rm. 3326, Silver Spring, MD 20993, 301-796-2500,
Section 3022 of the 21st Century Cures Act (Cures Act) amended the Federal Food, Drug, and Cosmetic Act (FD&C Act) to add section 505F,
The RWE Framework includes information describing sources of RWE, gaps in data collection activities, standards and methodologies for collecting and analyzing RWE, and priority areas, remaining challenges, and potential pilot opportunities to address the overarching Cures Act requirements. The RWE Framework also discusses the integration of clinical trials into clinical care settings and FDA's intent to issue guidance on this subject. The public workshop announced in this notice is a part of FDA's ongoing efforts to implement the RWE Framework by exploring the utility of RWE for regulatory decision making. This workshop will focus on how randomized clinical trial designs can use real-world data (RWD) to generate RWE, particularly in clinical care settings.
This workshop will explore key considerations for using randomized clinical trial designs and RWD to generate RWE, particularly in clinical care settings. Considerations for discussion include: (1) Selection of interventions appropriate in clinical care settings, (2) study design elements and study populations, (3) capturing outcomes in clinical care settings, and (4) addressing potential challenges around blinding, randomization, and bias. The workshop will also explore regulatory considerations for randomized clinical trials using RWD, such as safety and product monitoring and maintaining data integrity.
Registration is free and based on space availability, with priority given to early registrants. Persons interested in attending this public workshop must register by July 10, 2019, 11:59 p.m. Eastern Time. Early registration is recommended because seating is limited; therefore, FDA may limit the number of participants from each organization. Registrants will receive confirmation when they have been registered. We will let registrants know if registration closes before the day of the public workshop.
If you need special accommodations due to a disability, please contact Sarah Supsiri at the Duke-Margolis Center for Health Policy (phone: 202-791-9561, email:
Office of the Secretary, HHS.
Notice.
In compliance with the requirement of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment.
Comments on the ICR must be received on or before July 10, 2019.
Submit your comments to
Sherrette Funn,
Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency's functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden.
The State-Level Paid Family Leave Policy Project involves the collection of information on new mothers' health, health behaviors, and ability to fulfill their roles in the workplace, family and community. Data will be collected through 16 one-time focus groups in the four states with fully functioning state-level PFL programs (California, New Jersey, Rhode Island, and New York) with both women who used and women who did not use the program. A questionnaire will be administered prior to the focus groups to collect information on participants' demographic characteristics and other external factors that may affect health. Data collection and analysis will take approximately one year.
Interested individuals will be screened for eligibility. Participants must be mothers with a child under the age of one and be eligible for their state's respective PFL program. To participate as a state-level PFL user, mothers must have used the entire state-level PFL benefit. To participate as a state-level PFL non-user, mothers must have a baby older than the “state-level PFL threshold” and have not taken any state-level PFL. We define the threshold as the time after which mothers are typically out of the temporary disability insurance (TDI) and state-level PFL window (approximately 12 weeks).
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.
Notice is hereby given of a change in the meeting of the National Cancer Institute Clinical Trials and Translational Research Advisory Committee, Translational Research Strategy Subcommittee, June 19, 2019, 10 a.m. to 11 a.m. which was published in the
This meeting notice is amended to change the meeting date and time of the Translational Research Strategy Subcommittee from June 19, 2019 from 10 a.m. to 11 a.m. to July 8, 2019 from 4 p.m. to 5 p.m. The meeting is open to the public.
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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, 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.
This notice is being published less than 15 days prior to the meeting due to the timing limitations imposed by the review and funding cycle.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended, notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Notice is hereby given of a change in the meeting of the National Institute of Child Health and Human Development Special Emphasis Panel, July 18, 2019, 08:00 a.m. to July 18, 2019, 05:00 p.m., Residence Inn Bethesda, 7335 Wisconsin Avenue, Bethesda, MD 20814 which was published in the
The meeting, ZHD1 DSR Z 50, will be a two-day meeting, July 17-18, 08:00 a.m. to 05:00 p.m. The meeting is closed to the public.
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.
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Federal Regulations. The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will be finalized on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Insurance and Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Rick Sacbibit, Chief, Engineering Services Branch, Federal Insurance and Mitigation Administration, FEMA, 400 C Street SW, Washington, DC 20472, (202) 646-7659, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW, Washington, DC 20410; email Colette Pollard at
This notice informs the public that HUD has submitted to OMB a request for approval of the information collection
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of Strategic Planning and Management, HUD.
Notice.
In accordance with the Department of Housing and Urban Development Reform Act of 1989, this announcement notifies the public of funding decisions made by the Department in competitions for funding under the Notices of Funding Availability (NOFAs) for the following programs: Fiscal Year (FY) 2015 Violence Against Women Act (VAWA) and Housing Opportunities for Persons With AIDS (HOPWA) Project Demonstration; FY 2013 Housing Opportunities for Persons with AIDS (HOPWA) Permanent Supportive Housing (PSH) renewal grants; FY 2014 Housing Opportunities for Persons with AIDS (HOPWA) Permanent Supportive Housing (PSH) renewal grants; FY 2015 Housing Opportunities for Persons with AIDS (HOPWA) Permanent Supportive Housing (PSH) Renewal Grants; FY 2016 Housing Opportunities for Persons with AIDS (HOPWA) Permanent Supportive Housing (PSH) Renewal Grants; FY 2017 Housing Opportunities for Persons with AIDS (HOPWA) Permanent Supportive Housing (PSH) Renewal Grants; and FY 2018 Housing Opportunities for Persons with AIDS (HOPWA) Permanent Supportive Housing (PSH) Renewal Grants; FY 2017 Self Help Homeownership Opportunity; FY 2017 Continuum of Care Program Competition; and FY 2017 Research and Evaluation, Demonstrations and Data Analysis and Utilization Program (HUDRD).
Office of Strategic Planning and Management, Grants Management and Oversight Division at
The FY 2015 Violence Against Women Act (VAWA) and Housing Opportunities for Persons With AIDS (HOPWA) Project Demonstration competition was announced in the NOFA published on
The FY 2013 Housing Opportunities for Persons with AIDS (HOPWA) Permanent Supportive Housing (PSH) renewal grants was announced on December 20, 2012 as Memorandum to eligible applicants and which closed on January 29, 2013. HUD awarded $32,336,685 to 30 recipients pursuant to the authority provided by the Continuing Appropriations Act, 2013 (Pub. L. 112-175, approved September 14, 2012), and successor authority for FY 2013. The Department renewed all eligible expiring HOPWA competitive grants that provide permanent supportive housing (PSH) and meet applicable program requirements.
The FY 2014 Housing Opportunities for Persons with AIDS (HOPWA) Permanent Supportive Housing (PSH) renewal grants was announced on January 31, 2014 as a Memorandum to eligible applicants and which closed on March 14, 2014. HUD awarded $29,066,748 to 26 recipients pursuant to the authority provided by the Consolidated Appropriations Act of 2014, continuing resolution, and/or appropriations act. The Department renewed all eligible expiring HOPWA permanent supportive housing (PSH) competitive grants that met applicable program requirements.
The FY 2015 Housing Opportunities for Persons with AIDS (HOPWA) Permanent Supportive Housing (PSH) Renewal Grants was announced on January 20, 2015, Notice CPD-15-01,
The FY 2016 Housing Opportunities for Persons with AIDS (HOPWA) Permanent Supportive Housing (PSH) Renewal Grants was announced on March 21, 2016, Notice CPD-16-03, and which closed on April 15, 2016. HUD awarded $24,005,214 to 25 recipients pursuant to the authority provided by the Consolidated Appropriations Act, 2016, (Pub. L. 114-113, approved December 8, 2015). The Department renewed all eligible expiring HOPWA permanent supportive housing competitive grants initially funded with appropriated funds from FY 2010 or earlier that met applicable program requirements.
The FY 2017 Housing Opportunities for Persons with AIDS (HOPWA) Permanent Supportive Housing (PSH) Renewal Grants was announced on February 16, 2017, Notice CPD-16-02, and which closed on March 31, 2017. HUD awarded $37,733,248 to 32 recipients pursuant to the authority provided by the Consolidated Appropriations Act, 2017, (Pub. L. 115-31, approved May 5, 2017). The Department renewed all eligible expiring HOPWA permanent supportive housing competitive grants initially funded with appropriated funds from FY 2010 or earlier that met applicable program requirements.
The FY 2018 Housing Opportunities for Persons with AIDS (HOPWA) Permanent Supportive Housing (PSH) Renewal Grants was announced on May 9, 2018, Notice CPD-18-07, and which closed on June 11, 2018. HUD awarded $23,811,493 to 22 recipients pursuant to the authority provided by the Department of Housing and Urban Development Appropriations Act, 2018 (Pub. L. 115-141, Div. L, Title II, approved March 23, 2018). The Department renewed all eligible expiring HOPWA permanent supportive housing (PSH) competitive grants initially funded with appropriated funds from FY 2010 or earlier provided they meet applicable program requirements.
HUD announced the FY 2017 Self-Help Homeownership Opportunity competition in the NOFA published on
HUD announced the FY 2017 Continuum of Care Program competition in the NOFA published on
HUD announced the FY 2017 Research and Evaluation, Demonstrations and Data Analysis and Utilization Program (HUDRD) competition in the NOFA published on
In accordance with section 102(a)(4)(C) of the Department of Housing and Urban Development Reform Act of 1989 (103 Stat. 1987, 42 U.S.C. 3545(a)(4)(C)), the Department is publishing the awardees and the amounts of the awards in the Appendices A-J to this document.
Bureau of Safety and Environmental Enforcement, Interior.
Rescindment of systems of records notices.
In accordance with the Privacy Act of 1974, as amended, the Department of the Interior is rescinding six systems of records notices from its existing inventory. These systems were managed by the former Minerals Management Service when they were superseded by Department-wide system of records notices; however, they were not formally rescinded. Subsequently, upon the dissolution of Minerals Management Service, responsibility for the six systems of records was transferred to the Bureau of Safety and Environmental Enforcement. This notice formally rescinds the six systems of records notices identified below.
These changes take effect upon publication.
You may submit comments, identified by docket number [DOI-2018-0016], by any of the following methods:
•
•
• Hand-delivering comments to Teri Barnett, Departmental Privacy Officer, U.S. Department of the Interior, 1849 C Street NW, Room 7112, Washington, DC 20240.
•
All submissions received must include the agency name and docket number. All comments received will be posted without change to
Rowena Dufford, Associate Privacy Officer, Bureau of Safety and Environmental Enforcement, 45600 Woodland Road, Mail Stop VAE-MSD, Sterling, VA 20166, email at
Pursuant to the provisions of the Privacy Act of 1974, as amended, the Department of the Interior (DOI), Bureau of Safety and Environmental Enforcement (BSEE) is rescinding the following six systems of records notices, which were previously managed by the former Minerals Management Service (MMS), from its inventory of system notices.
The systems of records identified above were last published in their entirety in the
In May 2010, Secretary's Order 3299 directed the division of MMS into three independent entities with separate and clearly defined missions: BSEE, the Bureau of Ocean Energy Management, and the Office of Natural Resources Revenue. Responsibilities for these system of records notices transferred to BSEE. These six systems of records have been incorporated into DOI systems of records that are covered by published Department-wide systems of records notices, and are no longer being maintained under MMS systems of records notices. Rescinding these systems of records will have no adverse impacts on individuals. This rescindment will also promote the overall streamlining and management of Department of the Interior Privacy Act systems of records. This notice hereby rescinds the MMS system of records notices identified below.
1. INTERIOR/MMS-2, Personal Property Accountability Records, 64 FR 8111 (February 18, 1999). The records contained in the system of records are covered by and maintained in INTERIOR/DOI-58, Employee Administrative Records, 64 FR 19384 (April 20, 1999).
2. INTERIOR/MMS-3, Accident Reports and Investigations, 64 FR 8112 (February 18, 1999). The records contained in the system of records are covered by and maintained in INTERIOR/DOI-60, Safety Management Information System, 81 FR 73135 (October 24, 2016).
3. INTERIOR/MMS-4, Personnel Security System, 64 FR 8113 (February 18, 1999). The records contained in the system of records are covered by and maintained in INTERIOR/DOI-45, HSPD-12: Identity Management System and Personnel Security Files, 72 FR 11036 (March 12, 2007); INTERIOR/DOI-46, HSPD-12: Physical Security Files, 72 FR 11043 (March 12, 2007); and INTERIOR/DOI-47, HSPD-12: Logical Security Files (Enterprise Access Control Service/EACS), 72 FR 11040 (March 12, 2007).
4. INTERIOR/MMS-5, Telephone/Employee Locator System, 64 FR 8115 (February 18, 1999). The records contained in the system of records are covered by and maintained in INTERIOR/DOI-58, Employee Administrative Records, 64 FR 19384 (April 20, 1999).
5. INTERIOR/MMS-8, Advanced Budget/Accounting Control and Information System, 64 FR 8116 (February 18, 1999). The records contained in the system of records are covered by and maintained in three Department-wide systems of records: INTERIOR/DOI-86, Accounts Receivable: FBMS, 73 FR 43772 (July 28, 2008); INTERIOR/DOI-87, Acquisition of Goods and Services: FBMS, 73 FR 43766 (July 28, 2008); INTERIOR/DOI-88, Travel Management: FBMS, 73 FR 43769 (July 28, 2008).
6. INTERIOR/MMS-9, Employee Counseling Services Program, 64 FR 8117 (February 18, 1999). The records contained in the system of records are covered by and maintained in INTERIOR/DOI-04, Employee Assistance Program Records, 64 FR 20011 (April 23, 1999).
1. INTERIOR/MMS-2, Personal Property Accountability Records, 64 FR 8111 (February 18, 1999); modification published at 74 FR 42922 (August 25, 2009).
2. INTERIOR/MMS-3, Accident Reports and Investigations, 64 FR 8112 (February 18, 1999); modification published at 74 FR 42922 (August 25, 2009).
3. INTERIOR/MMS-4, Personnel Security System, 64 FR 8113 (February 18, 1999); modification published at 74 FR 42922 (August 25, 2009).
4. INTERIOR/MMS-5, Telephone/Employee Locator System, 64 FR 8115 (February 18, 1999); modification published at 74 FR 42922 (August 25, 2009).
5. INTERIOR/MMS-8, Advanced Budget/Accounting Control and Information System, 64 FR 8116 (February 18, 1999); modification published at 74 FR 42922 (August 25, 2009).
6. INTERIOR/MMS-9, Employee Counseling Services Program, 64 FR 8117 (August 25, 2009); modification published at 74 FR 42922 (August 25, 2009).
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to institute a rescission proceeding, to rescind a November 30, 2018 limited exclusion order and four cease-and-desist orders (“the remedial orders”), and to terminate the rescission proceeding.
Robert Needham, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-5468. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
The Commission instituted an investigation on May 23, 2017, based on a complaint filed by iRobot Corporation of Bedford, Massachusetts (“iRobot”). 82 FR 23593-94. The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain robotic vacuum cleaning devices and components thereof that infringe certain claims of,
On November 30, 2018, the Commission found,
On May 7, 2019, iRobot, bObsweep, and Silver Star filed a joint petition for rescission of the limited exclusion order and the cease and desist orders that issued on November 30, 2018. The parties state that they have entered into settlement agreements that resolve all disputes among the parties regarding the subject matter of the investigation. No response to the petition was filed.
Having considered the petition, the Commission has determined to institute a rescission proceeding and to rescind the remedial orders. The rescission proceeding is hereby terminated.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission (“the Commission”) has determined not to review an initial determination (“ID”) (Order No. 53) issued by the presiding administrative law judge (“ALJ”) that terminates the enforcement proceeding. The investigation is terminated.
Robert Needham, Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 708-5468. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW, Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
The Commission instituted an investigation on May 23, 2017, based on a complaint filed by iRobot Corporation of Bedford, Massachusetts (“iRobot”). 82 FR 23593-94. The complaint, as supplemented, alleged violations of section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain robotic vacuum cleaning devices and components thereof that infringe certain claims of,
On November 30, 2018, the Commission found,
On January 30, 2019, Silver Star filed a request for an advisory opinion that eight of its new products do not violate the LEO. On March 21, 2019, the Commission instituted an advisory
On February 21, 2019, iRobot filed an enforcement complaint against bObsweep. On April 1, 2019, the Commission instituted a formal enforcement proceeding, and named as parties iRobot, bObsweep, and OUII. 84 FR 12289 (Apr. 1, 2019). The Commission consolidated the formal enforcement proceeding with the advisory opinion proceeding described above.
On April 12, 2019, iRobot and Silver Star filed a joint motion to terminate the advisory opinion proceeding based on a settlement agreement. The Commission terminated the advisory opinion proceeding on May 15, 2019.
On May 7, 2019, iRobot and bObsweep filed a joint motion to terminate the enforcement proceeding based on a settlement agreement. On May 15, 2019, OUII filed a response arguing that the Commission should grant the motion.
On May 20, 2019, the ALJ issued the subject ID, granting the motion and terminating the enforcement proceeding based on a settlement agreement. The ALJ found that the motion complied with Rule 210.21(b) and that there is no evidence that termination by settlement has any adverse effect on the public interest. No petitions for review of the ID were filed.
The Commission has determined not to review the subject ID. The investigation is terminated.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
Criminal Division, United States Department of Justice.
Notice of a modified System of Records.
Pursuant to the Privacy Act of 1974 and Office of Management and Budget (OMB) Circular No. A-108, notice is hereby given that the Criminal Division (CRM), a component within the United States Department of Justice (DOJ or Department), proposes to modify the existing System of Records Notice titled “United States Victims of State Sponsored Terrorism Fund (USVSSTF) File System,” JUSTICE/CRM-029, last published in its entirety in the
In accordance with 5 U.S.C. 552a(e)(4) and (11), this notice is effective upon publication, subject to a 30-day comment period for the routine uses claimed in the “ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM” section of this system of records notice. Therefore, please submit any comments by July 10, 2019.
The public, OMB, and Congress are invited to submit any comments to the Department of Justice, ATTN: Privacy Analyst, Office of Privacy and Civil Liberties, Department of Justice, Two Constitution Square, 145 N Street NE, Suite 8W.300, Washington, DC 20530, by facsimile at 202-307-0693, or by email at
Amanda Marchand Jones, Chief, FOIA/PA Unit, Criminal Division, 1301 New York Avenue NW, Washington, DC 20530; phone at (202) 616-0307; facsimile at (202) 514-6117.
The United States Victims of State Sponsored Terrorism Fund (“Fund”) was established by the Justice for United States Victims of State Sponsored Terrorism Act (“Act”), 34 U.S.C. 20144, formerly codified as 42 U.S.C. 10609. Pursuant to the Act, the Fund may compensate eligible United States persons who (1) hold a final judgment issued by a United States district court awarding the applicant compensatory damages arising from acts of international terrorism for which a foreign state sponsor of terrorism was found not immune from the jurisdiction of the courts of the United States under the Foreign Sovereign Immunities Act; or (2) were taken and held hostage from the United States Embassy in Tehran, Iran, during the period beginning November 4, 1979, and ending January 20, 1981, or are spouses and children of these hostages, if also identified as a member of the proposed class in case number 1:00-CV-03110 (EGS) of the United States District Court for the District of Columbia.
The Department previously published the current System of Records Notice, “United States Victims of State Sponsored Terrorism Fund (USVSSTF) File System,” JUSTICE/CRM 029, in the
CRM proposes two substantive modifications. First, CRM proposes an update to the statutory citation of the Act, to reflect its recodification from 42 U.S.C. 10609 to 34 U.S.C. 20144. Second, CRM proposes to add three routine uses that would permit the disclosure of information in the system to: (1) Professional organizations or associations with which individuals covered by this system of records may be affiliated, to meet their responsibilities in connection with the administration and maintenance of standards of conduct and discipline; (2) agencies, organizations, and individuals for the purposes of audit and oversight operations, and meeting reporting requirements; and (3) recipients as mandated by Federal statute or treaty.
These additional routine uses were not originally proposed when JUSTICE/CRM-029 was first published. The new routine uses will promote transparency and accountability, and assist the Department and the Special Master in administering the Fund. First, the disclosure to professional organizations or associations allows the Fund to, for example, share information with appropriate authorities related to an
In accordance with 5. U.S.C. 552a(r), the Department has provided a report to OMB and Congress on this notice of a modified system of records.
United States Victims of State Sponsored Terrorism Fund (USVSSTF) File System, JUSTICE/CRM-029.
Unclassified.
Records in this system are located at: U.S. Department of Justice, Criminal Division, 950 Pennsylvania Avenue NW, Washington, DC 20530; Federal Records Center, Suitland, MD 20409, 5151 Blazer Parkway, Suite A, Dublin, OH 43017; and 1985 Marcus Avenue, Suite 200, Lake Success, NY 11042.
Assistant Attorney General, Criminal Division, U.S. Department of Justice, 950 Pennsylvania Avenue NW, Washington, DC 20503-0001.
[Delete existing paragraph and replace with the following:]
Justice for United States Victims of State Sponsored Terrorism Act, enacted into law as Title IV, Division O, section 404 of the Consolidated Appropriations Act, 2016, Public Law 114-113, codified at 34 U.S.C. 20144.
[Add routine uses (l) through (n) as follows:]
(l) To professional organizations or associations with which individuals covered by this system of records may be affiliated, such as state bar disciplinary authorities, to meet their responsibilities in connection with the administration and maintenance of standards of conduct and discipline.
(m) To any agency, organization, or individual for the purpose of performing authorized audit or oversight operations of the Department and meeting related reporting requirements.
(n) To such recipients and under such circumstances and procedures as are mandated by Federal statute or treaty.
[Delete existing paragraph and replace with the following:]
81 FR 45539 (July 14, 2016): Last published in full.
82 FR 24151, 156 (May 25, 2017): Modified to revise existing and add new routine uses.
Civil Rights Division, United States Department of Justice.
Notice of a New System of Records.
Pursuant to the Privacy Act of 1974 and Office of Management and Budget (OMB) Circular No. A-108, notice is hereby given that the Civil Rights Division (CRT), a component within the United States Department of Justice (DOJ or Department), proposes to develop a new system of records notice titled DOJ Insight Program Records System, JUSTICE/CRT-011. CRT proposes to establish this system of records to facilitate the Department's Insight Program, a training activity for DOJ attorneys to, among other tasks, gauge reaction and thought processing of DOJ-volunteers presented with proposed trial arguments.
In accordance with 5 U.S.C. 552a(e)(4) and (11), this notice is effective upon publication, subject to a 30-day period in which to comment on the routine uses, described below. Please submit any comments by July 10, 2019.
The public, OMB, and Congress are invited to submit any comments by mail to the United States Department of Justice, Office of Privacy and Civil Liberties, ATTN: Privacy Analyst, National Place Building, 1331 Pennsylvania Avenue NW, Suite 1000, Washington, DC 20530; by facsimile at 202-307-0693; or by email at
Daniel Yi, Senior Counsel, Civil Rights Division, 950 Pennsylvania Avenue NW, Washington, DC 20530, phone: (202) 514-4609.
In order to assist in achieving its mission and performance goals by improving employee and organizational performance, DOJ is authorized to develop training activities for its employees using a full range of options to meet its mission-related organizational and employee development needs. As such, the Department recognizes that trial attorneys faced with important questions and decisions for their juries and judges lack available resources to gauge reaction and thought processing when those individuals are presented with the DOJ attorneys' proposed arguments. Through the Insight Program, the Department believes it can assist and train its trial attorneys by leveraging a community of DOJ volunteers to review and provide feedback to proposed strategies and arguments.
The InSight Program will invite willing DOJ volunteers to participate in a community of virtual focus group panelists who are ready and willing to provide insights about certain DOJ cases. InSight will attempt to assemble a panel of DOJ volunteers that is similar to a trial attorney's jury and/or judge. The volunteer panelists will be provided case-related information and watch recorded videos of the DOJ attorney's anticipated strategy, and afterwards, will anonymously provide feedback to the DOJ attorney. The Justice Management Division (JMD) will provide technical resources and support to facilitate the InSight Program, but CRT will retain manage and oversight of the InSight Program.
In accordance with 5 U.S.C. 552a(r), the Department has provided a report to OMB and Congress on this new system of records.
DOJ Insight Program Records System, JUSTICE/CRT-011.
Controlled Unclassified Information.
Access to these electronic records includes all Department locations that the JMD or CRT operates, or that support CRT or JMD operations, including but not limited to, Two Constitution Square, 145 N Street NE, Washington, DC 20530. Some or all system information may also be duplicated at other locations where the Department has granted direct access to support CRT and JMD operations, system backup, emergency preparedness, and/or continuity of operations. To determine the location of particular records within the DOJ Insight Program Records System, contact the system manager, whose contact information is listed in the “SYSTEM MANAGER(S)” paragraph, below.
Special Counsel for Innovation, Civil Rights Division, 950 Pennsylvania Avenue NW, Washington, DC 20530, phone: (202) 514-4609.
5 U.S.C. 4103, and 5 CFR part 410.
The purpose of this system of records is to facilitate the Department's Insight Program, a DOJ-developed training activity for DOJ attorneys to gauge reaction and thought processing of individuals presented with proposed trial arguments. This includes, but is not limited to: Providing Insight Program administrators with volunteer panelist information needed to assemble a panel similar to a DOJ trial attorney's jury and/or judge; allowing volunteer panelists to anonymously provide feedback to DOJ trial attorneys about proposed case strategies and presentations; allowing DOJ trial attorneys to use the feedback provided to refine strategies and arguments.
The Insight Program Records System collects and maintains information on DOJ employees who (1) administer the DOJ Insight Program; (2) volunteer as a DOJ Insight Program volunteer; or (3) otherwise request to participate in the DOJ Insight Program.
The Insight Program Records System contains information on DOJ employees administering, participating in, or volunteering for the Insight Program. Such information includes, but is not limited to:
A. Basic participating information (for example, name, division, contact information, assigned Insight Program number, and signed consent forms) on DOJ Insight Program administrators, DOJ Insight Program volunteers, and DOJ trial attorneys participating in the DOJ Insight Program;
B. Background and attitudinal information on DOJ Insight Program volunteers;
C. Information used to facilitate DOJ trial attorneys' focal group requests (for example, criteria used to select the appropriate DOJ Insight Program volunteers, and case-relevant documents and video recordings of DOJ trial attorneys);
D. Tailored information, questionnaires, and feedback related to a DOJ trial attorney's focal group request; and
E. Insight Program information system user activity and audit logs.
Records contained in this system of records are derived from information provided directly by the DOJ employee or from the information system accessing the Insight Program Records System.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b), all or a portion of the records or information contained in this system of records may be disclosed as a routine use pursuant to 5 U.S.C. 552a(b)(3) under the circumstances or for the purposes described below, to the extent such disclosures are compatible with the purposes for which the information was collected:
A. Where a record, either alone or in conjunction with other information, indicates a violation or potential violation of law—criminal, civil, or regulatory in nature—the relevant records may be referred to the appropriate federal, state, local, territorial, tribal, or foreign law enforcement authority or other appropriate entity charged with the responsibility for investigating or prosecuting such violation or charged with enforcing or implementing such law.
B. To complainants and/or victims to the extent necessary to provide such persons with information and explanations concerning the progress and/or results of the investigation or case arising from the matters of which they complained and/or of which they were a victim.
C. To any person or entity that the [component/office] has reason to believe possesses information regarding a matter within the jurisdiction of the [component/office], to the extent deemed to be necessary by the [component/office] in order to elicit such information or cooperation from the recipient for use in the performance of an authorized activity.
D. In an appropriate proceeding before a court, grand jury, or administrative or adjudicative body, when the Department of Justice determines that the records are arguably relevant to the proceeding; or in an appropriate proceeding before an administrative or adjudicative body when the adjudicator determines the records to be relevant to the proceeding.
E. To an actual or potential party to litigation or the party's authorized representative for the purpose of negotiation or discussion of such matters as settlement, plea bargaining, or informal discovery proceedings.
F. To the news media and the public, including disclosures pursuant to 28 CFR 50.2, unless it is determined that release of the specific information in the context of a particular case would constitute an unwarranted invasion of personal privacy.
G. To contractors, grantees, experts, consultants, students, and others performing or working on a contract, service, grant, cooperative agreement, or other assignment for the Federal Government, when necessary to accomplish an agency function related to this system of records.
H. To designated officers and employees of state, local, territorial, or tribal law enforcement or detention agencies in connection with the hiring or continued employment of an employee or contractor, where the employee or contractor would occupy or occupies a position of public trust as a law enforcement officer or detention officer having direct contact with the public or with prisoners or detainees, to the extent that the information is relevant and necessary to the recipient agency's decision.
I. To appropriate officials and employees of a Federal agency or entity
J. To a former employee of the Department for purposes of: Responding to an official inquiry by a federal, state, or local government entity or professional licensing authority, in accordance with applicable Department regulations; or facilitating communications with a former employee that may be necessary for personnel-related or other official purposes where the Department requires information and/or consultation assistance from the former employee regarding a matter within that person's former area of responsibility.
K. To a Member of Congress or staff acting upon the Member's behalf when the Member or staff requests the information on behalf of, and at the request of, the individual who is the subject of the record.
L. To the National Archives and Records Administration for purposes of records management inspections conducted under the authority of 44 U.S.C. 2904 and 2906.
M. To appropriate agencies, entities, and persons when (1) the Department suspects or has confirmed that there has been a breach of the system of records; (2) the Department has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the Department (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department's efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.
N. To another Federal agency or Federal entity, when the Department determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach, or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.
O. To any agency, organization, or individual for the purpose of performing authorized audit or oversight operations of the Department and meeting related reporting requirements.
P. To such recipients and under such circumstances and procedures as are mandated by Federal statute or treaty.
Records are stored in an electronic form in a framework of computer systems that allows distributed processing of data sets across clusters of computers. Records are stored securely in accordance with applicable executive orders, statutes, and agency implementing recommendations. Electronic records are stored in databases and/or on hard disks, removable storage devices, or other electronic media. Hard copies of records may also be maintained in paper format, which will be stored in filing cabinets in a secure room.
Records are retrieved by name or assigned Insight Program number.
Records in this system are retained and disposed of as Department-wide legal and litigation training records, in accordance with the schedule approved by the Archivist of the United States, Job Number DAA-0060-2017-0009-0002.
Both electronic and paper records are safeguarded in accordance with appropriate laws, rules, and policies, including Department and CRT policies. The records are protected by physical security methods and dissemination/access controls. Direct access is controlled and limited to approved personnel with an official need for access to perform their duties. Paper files are stored: (1) In a secure room with controlled access; (2) in locked file cabinets; and/or (3) in other appropriate GSA approved security containers. Information systems and electronic records are protected by physical, technical, and administrative safeguards. Records are located in a building with restricted access and are kept in a locked room with controlled access or are safeguarded with approved encryption technology. The use of multifactor authentication is required to access electronic systems. Information may be transmitted to routine users on a need to know basis in a secure manner and to others upon verification of their authorization to access the information and their need to know. Internet connections are protected by multiple firewalls. Security personnel conduct periodic vulnerability scans using DOJ-approved software to ensure security compliance and security logs are enabled for all computers to assist in troubleshooting and forensics analysis during incident investigations.
All requests for access to records must be in writing and should be addressed to the Civil Rights Division FOIA/Privacy Act Branch, Patrick Henry Building, Room 9154, 601 D St. NW, Washington, DC 20579,
More information regarding the Department's procedures for accessing records in accordance with the Privacy Act can be found at 28 CFR part 16 Subpart D, “Protection of Privacy and Access to Individual Records Under the Privacy Act of 1974.”
Individuals seeking to contest or amend records maintained in this system of records must direct their requests to the address indicated in the “RECORD ACCESS PROCEDURES” paragraph, above. All requests to contest or amend records must be in writing and the envelope and letter should be clearly marked “Privacy Act Amendment Request.” All requests must state clearly and concisely what record is being contested, the reasons for contesting it, and the proposed amendment to the record.
More information regarding the Department's procedures for amending or contesting records in accordance with the Privacy Act can be found at 28 CFR 16.46, “Requests for Amendment or Correction of Records.”
Individuals may be notified if a record in this system of records pertains to them when the individuals request information utilizing the same procedures as those identified in the “RECORD ACCESS PROCEDURES” paragraph, above.
None.
None.
Nuclear Regulatory Commission.
Notice of submission to the Office of Management and Budget; request for comment.
The U.S. Nuclear Regulatory Commission (NRC) has recently submitted a proposed collection of information to the Office of Management and Budget (OMB) for review. The information collection is entitled, “Pre-Application Communication and Scheduling for Accident Tolerant Fuel Submittals.”
Submit comments by July 10, 2019. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received on or before this date.
Submit comments directly to the OMB reviewer at: OMB Office of Information and Regulatory Affairs (3150-0090), Attn: Desk Officer for the Nuclear Regulatory Commission, 725 17th Street NW, Washington, DC 20503; email:
David Cullison, NRC Clearance Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-2084; email:
Please refer to Docket ID NRC-2019-0032 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:
•
•
•
•
The NRC cautions you not to include identifying or contact information in comment submissions that you do not want to be publicly disclosed in your comment submission. All comment submissions are posted at
If you are requesting or aggregating comments from other persons for submission to the OMB, 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 comment submissions are not routinely edited to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.
Under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the NRC recently submitted a proposed collection of information to OMB for review entitled, “Pre-Application Communication and Scheduling for Accident Tolerant Fuel Submittals.” The NRC hereby informs potential respondents that an agency may not conduct or sponsor, and that a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.
The NRC published a
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
For the Nuclear Regulatory Commission.
Nuclear Regulatory Commission.
Exemption; issuance.
The U.S. Nuclear Regulatory Commission (NRC) is issuing an exemption in response to a September 11, 2018, request from FirstEnergy Nuclear Operating Company (FENOC) and FirstEnergy Nuclear Generation, LLC. The exemption allows a certified fuel handler, besides a licensed senior operator, to approve the emergency suspension of security measures for Beaver Valley Power Station, Units 1 and 2; Davis-Besse Nuclear Power Station, Unit No. 1; and Perry Nuclear Power Plant, Unit No. 1 during certain emergency conditions or during severe weather. Although the exemption is effective upon receipt, the actions permitted by the exemption for the facilities may not be implemented until both the “Certification of Permanent Cessation of Operations” and the “Certification of Permanent Fuel Removal” have been submitted for that facility.
The exemption was issued on June 4, 2019.
Please refer to Docket ID NRC-2019-0094 when contacting the NRC about the availability of information regarding this document. You may obtain publicly-available information related to this document using any of the following methods:
•
•
•
Bhalchandra K. Vaidya, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-3308; e-mail:
The NRC is making the documents identified below available to interested persons through one or more of the following methods, as indicated. To access documents related to this action, see
The text of the exemption is attached.
For the Nuclear Regulatory Commission.
FirstEnergy Nuclear Operating Company (FENOC) and FirstEnergy Nuclear Generation, LLC (collectively, the licensee), are the holders of the following operating licenses: (1) Renewed Facility Operating License Nos. DPR-66 and NPF-73, at Beaver Valley Power Station, Unit Nos. 1 and 2 (Beaver Valley), issued on November 5, 2009; (2) Renewed Facility Operating License No. NPF-3 at Davis-Besse Nuclear Power Station (Davis-Besse), Unit No. 1, issued on December 8, 2015; and (3) Facility Operating License No. NPF-58 at Perry Nuclear Power Plant (Perry), Unit No. 1, issued on November 13, 1986. The licenses provide, among other things, that the facilities are subject to all rules, regulations, and orders of the U.S. Nuclear Regulatory Commission (NRC), now or hereafter in effect.
By letter dated April 25, 2018 (Agencywide Document Access and Management System (ADAMS) Accession No. ML18115A007), FENOC submitted formal notification to the NRC pursuant to paragraph 50.82(a)(1)(i) to Title 10 of the
Pursuant to 10 CFR 50.82(a)(2), upon docketing of the certifications for permanent cessation of operations and of permanent removal of fuel from the reactor vessel, the 10 CFR 50 license no longer authorize reactor operation or emplacement or retention of fuel in the reactor vessel. As a result, licensed senior operators (i.e., individual licensed under 10 CFR part 55 to manipulate the controls of a facility and to direct the licensed activities of licensed operators) will no longer be required to support plant operating activities. Instead, certified fuel handlers (CFHs) (i.e., non-licensed operators who have qualified in accordance with a fuel handler training program approved by the Commission) will perform activities associated with decommissioning, irradiated fuel handling, and management. Approval of a fuel handler training program is needed to facilitate these activities.
By letter dated August 15, 2018 (ADAMS Accession No. ML18227A019), FENOC submitted a request for NRC approval of the CFH Training and Retraining Program for these units. By letter dated April 11, 2019 (ADAMS Accession No. ML19028A030), the NRC approved the CFH Training and Retraining Program for the above mentioned FENOC facilities.
The Commission's regulation at 10 CFR 73.55(p)(1) addresses the suspension of security measures in an emergency (73.55(p)(1)(i)) and during severe weather (73.55(p)(1)(ii)) saying:
The licensee may suspend implementation of affected requirements of this section under the following conditions:
(i) In accordance with §§ 50.54(x) and 50.54(y) of this chapter, the licensee may suspend any security measures under this section in an emergency when this action is immediately needed to protect the public health and safety and no action consistent with license conditions and technical specifications that can provide adequate or equivalent protection is immediately apparent. This suspension of security measures must be approved as a minimum by a licensed senior operator before taking this action.
(ii) During severe weather when the suspension of affected security measures is immediately needed to protect the personal health and safety of security force personnel and no other immediately apparent action consistent with the license conditions and technical specifications can provide adequate or equivalent protection. This suspension of security measures must be approved, as a minimum, by a licensed senior operator, with input from the security supervisor or manager, before taking this action.
On September 11, 2018 (ADAMS Accession No. ML18254A290), FENOC requested an exemption from the portions of 10 CFR 73.55(p)(1)(i) and (ii) that require the suspension of security measures to be approved as a minimum by a licensed senior operator. The proposed exemption would allow the licensee to use a CFH to approve the suspension of security measures.
The NRC's security rules have long recognized the potential need to suspend security or safeguards measures under certain conditions. Accordingly, 10 CFR 50.54(x) and (y), first published in 1983, allow a licensee to take reasonable steps in an emergency that deviate from license conditions when those steps are “needed to protect the public health and safety” and there are no conforming comparable measures (48 FR 13970; April 1, 1983). As originally issued, the deviation from license conditions must be approved by, as a minimum, a licensed senior operator. In 1986, in its final rule, “Miscellaneous Amendments Concerning the Physical Protection of Nuclear Power Plants” (51 FR 27821; August 4, 1986), the Commission issued 10 CFR 73.55(a), stating in part:
In accordance with § 50.54 (x) and (y) of Part 50, the licensee may suspend any safeguards measures pursuant to § 73.55 in an emergency when this action is immediately needed to protect the public health and safety and no action consistent with license conditions and technical specification that can provide adequate or equivalent protection is immediately apparent. This suspension must be approved as a minimum by a licensed senior operator prior to taking the action.
In 1996, the NRC made a number of regulatory changes to address decommissioning. One of the changes was to amend 10 CFR 50.54(x) and (y) to authorize a non-licensed operator called a “certified fuel handler,” in addition to a licensed senior operator, to approve such protective steps. Specifically, in addressing the role of the CFH during emergencies, the Commission stated in the proposed rule, “Decommissioning of Nuclear Power Reactors” (60 FR 37379; July 20, 1995):
The Commission is proposing to amend 10 CFR 50.54(y) to permit a certified fuel handler at nuclear power reactors that have permanently ceased operations and permanently removed
In the final rule (61 FR 39298; July 29, 1996), the NRC added the following definition to 10 CFR 50.2, “[c]ertified fuel handler means, for a nuclear power reactor facility, a non-licensed operator who has qualified in accordance with a fuel handler training program approved by the Commission.” However, the decommissioning rule did not propose or make parallel changes to 10 CFR 73.55(a), and did not discuss the role of a non-licensed CFH.
In the final rule, “Power Reactor Security Requirements” (74 FR 13926; March 27, 2009), the NRC relocated the security suspension requirements from 10 CFR 73.55(a) to 10 CFR 73.55(p)(1)(i) and (ii). The role of a CFH was not discussed in the rulemaking, so the suspension of security measures in accordance with 10 CFR 73.55(p) continue to require approval, as a minimum, by a licensed senior operator, even for a site that otherwise no longer operates.
Under 10 CFR 73.5, the Commission may, upon application by any interested person or upon its own initiative, grant an exemption from the requirements of 10 CFR part 73, when the exemption is authorized by law, will not endanger life or property or the common defense and security, and is otherwise in the public interest. As explained below, the proposed exemption is lawful, will not endanger life or property or the common defense and security, and is otherwise in the public interest.
The exemption would permit a CFH to approve the suspension of security measures during emergencies or severe weather. Although the exemption is effective upon receipt, the actions permitted by the exemption may not be implemented at a facility until the 10 CFR part 50 license no longer authorizes operation of the reactor or emplacement or retention of fuel into the reactor vessel in accordance with 10 CFR 50.82(a)(2). The licensee intends to align these regulations with 10 CFR 50.54(y) by authorizing a CFH, in addition to a licensed senior operator, to approve the suspension of security measures during emergencies or severe weather.
Per 10 CFR 73.5, the NRC is authorized to grant specific exemptions from the requirements of 10 CFR part 73. Issuance of this exemption is consistent with the Atomic Energy Act of 1954, as amended, and not otherwise inconsistent with NRC regulations or other applicable laws. Therefore, the exemption is authorized by law.
The NRC staff determined that the requested exemption would not endanger life or property, or the common defense and security. The requested exemption would permit a CFH to approve suspension of security measures during emergencies or severe weather. The NRC staff finds that the exemption does not endanger life or property, or the common defense and security for the reasons discussed below.
First, 10 CFR 73.55(p)(2) continues to require that “[s]uspended security measures must be reinstated as soon as conditions permit.”
Second, the suspension of security measures for emergencies under 10 CFR 73.55(p)(1)(i) will continue to be invoked only “when this action is immediately needed to protect the public health and safety and no action consistent with license conditions and technical specifications that can provide adequate or equivalent protection is immediately apparent.” Thus, the exemption would not prevent the licensee from meeting the underlying purpose of 10 CFR 73.55(p)(1)(i), to protect public health and safety.
Third, the suspension of security measures for severe weather under 10 CFR 73.55(p)(1)(ii) will continue to be used only when “the suspension of affected security measures is immediately needed to protect the personal health and safety of security force personnel, and no other immediately apparent action consistent with the license conditions and technical specifications can provide adequate or equivalent protection.” The requirement in 10 CFR 73.55(p)(1)(ii) to receive input from the security supervisor or manager will remain. Therefore, the exemption would not prevent the licensee from meeting the underlying purpose of 10 CFR 73.55(p)(1)(ii) to protect the health and safety of the security force.
Additionally, by letter dated April 11, 2019, the NRC approved FENOC's CFH Training and Retraining Program for the aforementioned FENOC facilities. The NRC staff found that, among other things, the program addresses the safe conduct of decommissioning activities, safe handling and storage of spent fuel, and the appropriate response to plant emergencies. Because a CFH is sufficiently trained and qualified under an NRC-approved program, the NRC staff considers a CFH to have sufficient knowledge of operational and safety concerns, such that allowing a CFH to suspend security measures during emergencies or severe weather will not result in undue risk to public health and safety.
In addition, since the exemption request allows a CFH the same authority currently given to the licensed senior operator under 10 CFR 73.55(p)(1)(i) and (ii), no change is required to physical security. Since no change is required to physical security, the exemption would not reduce the overall effectiveness of the physical security plan and would not adversely impact the licensee's ability to physically secure the site or protect special nuclear material at Davis-Besse, Unit No. 1; Perry, Unit No. 1; and Beaver Valley, Unit Nos. 1 and 2, and thus, would not have an effect on the common defense and security. The NRC staff has concluded that the exemption does not reduce security measures currently in place to protect against radiological sabotage. Therefore, allowing a CFH, besides a licensed senior operator, to approve the suspension of security measures during an emergency or severe weather, will not endanger life, property, or the common defense and security.
FENOC's proposed exemption would allow a CFH, besides a licensed senior operator, to approve suspension of security measures during an emergency when “immediately needed to protect the public health and safety” or severe weather when “immediately needed to protect the personal health and safety of security force personnel.” If the exemption is not granted, Davis-Besse, Perry, and Beaver Valley, will be required to have a licensed senior operator available to approve suspension of security measures during severe weather and emergencies for a permanently shutdown plant, even though there would no longer be a requirement for a licensed senior operator after the certifications required
This exemption is in the public interest for two reasons. First, without the exemption, there is uncertainty regarding how the licensee will invoke temporary suspension of security measures that may be needed for protecting public health and safety or the safety of the security force personnel during emergencies and severe weather given the differences as explained in “Request/Action” above, between the requirements in 10 CFR 73.55(p)(1)(i) and (ii) and 10 CFR 50.54(y). The exemption would allow the licensee to make decisions pursuant to 10 CFR 73.55(p)(1)(i) and (ii) without having to maintain a staff of licensed senior operators. The exemption would also allow the licensee to have an established procedure in place to allow a trained CFH to suspend security measures in the event of an emergency or severe weather. Second, the consistent and efficient regulation of nuclear power plants serves the public interest. This exemption would assure consistency between the security regulations in 10 CFR part 73 and 10 CFR 50.54(y) and the requirements concerning licensed operators in 10 CFR part 55.
The NRC staff has determined that granting the licensee's proposed exemption would allow the licensee to designate a CFH with qualifications appropriate for a permanently shutdown and defueled reactor to approve the suspension of security measures during an emergency. This role of the CFH to protect the public health and safety, and during severe weather to protect the safety of the security force personnel, is consistent with the similar authority provided by 10 CFR 50.54(y). Therefore, the exemption is in the public interest.
The NRC's approval of the exemption to security requirements belongs to a category of actions that the Commission, by rule or regulation, has declared to be a categorical exclusion, after first finding that the category of actions does not individually or cumulatively have a significant effect on the human environment. Specifically, the exemption is categorically excluded from further analysis under 10 CFR 51.22(c)(25).
Under 10 CFR 51.22(c)(25), the granting of an exemption from the requirements of any regulation of chapter 10 is a categorical exclusion provided that (i) there is no significant hazards consideration; (ii) there is no significant change in the types or significant increase in the amounts of any effluents that may be released offsite; (iii) there is no significant increase in individual or cumulative public or occupational radiation exposure; (iv) there is no significant construction impact; (v) there is no significant increase in the potential for or consequences from radiological accidents; and (vi) the requirements from which an exemption is sought involve: recordkeeping requirements; reporting requirements; inspection or surveillance requirements; equipment servicing or maintenance scheduling requirements; education, training, experience, qualification, requalification or other employment suitability requirements; safeguard plans, and materials control and accounting inventory scheduling requirements; scheduling requirements; surety, insurance or indemnity requirements; or other requirements of an administrative, managerial, or organizational nature.
The Director, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation, has determined that the granting of the exemption request involves no significant hazards consideration because allowing a CFH, besides a licensed senior operator, to approve the security suspension at a defueled shutdown power plant does not (1) involve a significant increase in the probability or consequences of an accident previously evaluated; or (2) create the possibility of a new or different kind of accident from any accident previously evaluated; or (3) involve a significant reduction in a margin of safety. The exempted security regulation is unrelated to any operational restriction. Accordingly, there is no significant change in the types or significant increase in the amounts of any effluents that may be released offsite, and no significant increase in individual or cumulative public or occupational radiation exposure. The exempted regulation is not associated with construction, so there is no significant construction impact. The exempted regulation does not concern the source term (i.e., potential amount of radiation in an accident) nor mitigation. Thus, there is no significant increase in the potential for, or consequences of, a radiological accident. The requirement to have a licensed senior operator approve departure from security actions is viewed as involving safeguards, materials control, and managerial matters.
Therefore, pursuant to 10 CFR 51.22(b) and (c)(25), no environmental impact statement or environmental assessment need be prepared in connection with the approval of this exemption request.
The NRC has determined that, pursuant to 10 CFR 73.5, this exemption is authorized by law, will not endanger life or property or the common defense and security, and is otherwise in the public interest. Therefore, the Commission hereby grants the licensee's request for an exemption from the requirements of 10 CFR 73.55(p)(1)(i) and (ii) to authorize that the suspension of security measures must be approved, as a minimum, by either a licensed senior operator or a CFH at applicalbe FENOC facilities during emergency or severe weather, once the certifications required under 10 CFR 50.82(a)(1) have been submitted.
Dated at Rockville, Maryland, this 4
For the Nuclear Regulatory Commission.
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning negotiated service agreements. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's website (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
1.
This Notice will be published in the
10:00 a.m., June 19, 2019.
8th Floor Board Conference Room, 844 North Rush Street, Chicago, Illinois 60611.
Parts of this meeting will be open to the public. The rest of the meeting will be closed to the public.
(1) Status update from SCOTUS Wisconsin Central working group.
(1) Status update on internal personnel matter.
Stephanie Hillyard, Secretary to the Board, Phone No. 312-751-4920.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Equity 7, Section 118(a), as described further 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 adopt pricing for the recently adopted SCAR routing strategy,
The Exchange initially filed the proposed pricing changes on May 13, 2019 (SR-BX-2019-014). On May 22,
The Exchange now proposes to adopt the following pricing for SCAR orders in securities listed on Nasdaq (“Tape C”), NYSE (“Tape A”), and on exchanges other than Nasdaq and NYSE (“Tape B”) (collectively, “Tapes”), which execute on Nasdaq and PSX:
• SCAR orders executed on Nasdaq will be assessed a charge of $0.00295 per share in any Tape securities priced at $1 or more per share.
• SCAR orders executed on PSX will be assessed a charge of $0.0029 per share in any Tape securities priced at $1 or more per share.
• SCAR orders executed on Nasdaq or PSX in any Tape securities priced below $1 per share will be assessed a charge of 0.30% of the total transaction cost.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that the pricing structure proposed above for SCAR is reasonable, equitable, and not unfairly discriminatory because the fees are generally set at levels intended to incentivize members to use this new routing strategy while also allowing the Exchange to recoup the costs of providing routing services. For instance, the proposed $0.00295 per share charge for orders in any Tape securities priced at $1 or more per share that route to and execute on Nasdaq using the SCAR routing strategy is lower than the standard transaction charge of $0.0030 per share that would apply if the order executed directly on Nasdaq as the home exchange.
The Exchange also believes that the proposed SCAR credits and charges for all Tape securities priced at $1 or more per share are set at appropriate levels for the reasons that follow. The Exchange believes that the proposed $0.0029 charge for SCAR orders that route and execute on PSX is aligned with the $0.0029 charge currently assessed by Cboe BYX Exchange (“BYX”), Cboe BZX Exchange (“BZX”), and Cboe EDGA (“EDGA”) to their members using the ALLB, a routing strategy similar to SCAR in that ALLB routes between affiliated exchanges only,
The Exchange also believes that it is reasonable, equitable, and not unfairly discriminatory to assess the proposed charge for SCAR orders executed on Nasdaq or PSX in any Tape securities priced below $1 per share because it is consistent with what it currently charges for all orders in securities priced at less than $1 per share that route and execute at an away venue.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
In this instance, the proposed pricing for SCAR orders are intended to recoup the Exchange's costs associated with providing routing services while providing incentives to members to make use of the Exchange's optional routing functionality. As discussed above, the Exchange believes that its proposed pricing remains competitive with other equity exchanges.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of 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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule 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 relocate The Nasdaq Options Market LLC (“NOM”) Rules at Chapter IV (Securities Traded on NOM) under the Options 4 title in the Exchange's rulebook's (“Rulebook”) shell structure.
The proposal also amends the rules as relocated to conform primarily to the equivalent options rules in the Nasdaq ISE, LLC (“ISE”) rulebook, as well as in one instance to the equivalent options rule in the Nasdaq PHLX LLC (“Phlx”) rulebook.
The proposal also amends Section1 of Chapter I of the NOM Rules to add several definitions. Finally, as a clean-up item, the proposal deletes Nasdaq Rule 5712 Alpha Index-Linked Securities because it is obsolete and the Exchange has never listed a product under this rule.
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 proposes to relocate the rule text in Chapter IV (Securities Traded on NOM) to the Options 4 title in the Rulebook's shell structure. For ease of reference and the purposes of this filing, the relocated rules are herein described as the “Options Listing Rules.”
The relocation of the Options Listing Rules is part of the Exchange's continued effort to promote efficiency and the conformity of its processes with those of the Affiliated Exchanges,
This proposed change is of a non-substantive nature. Moreover, the relocation of the Options Listing Rules will facilitate the use of the Rulebook by Members
The overarching goal is to align the NOM rules with those of the ISE. The Exchange is proposing to amend the rules for NOM, most notably the rule text in the Options Listing Rules concerning securities traded on NOM, but also adding several definitions to Section 1 of Chapter I.
The vast majority of the changes are technical changes and made throughout the Options Listing Rules. These minor changes are designed to conform the NOM rules to the equivalent ISE rules, as well as to increase the clarity of the rules. This includes some reorganization and renumbering within the Options Listing Rules' subsections to ensure they remain consistent.
The proposed changes that do not fit within the description above are listed below, beginning with changes to Chapter I General Provisions and followed by global changes to the Options Listing Rules. The changes are then broken down by section within the Options Listing Rules.
The Exchange is proposing to add definitions to “Section 1 Definitions”. Specifically, the terms “class” “series” and “underlying security” will be added to Section 1(a) as (72), (73), and (74), respectively.
Section 1 of Chapter I also will be amended to change “NOM” to “the Exchange”.
As described above, the current Options Listing Rules will be amended throughout to change “NOM” to “the Exchange”. This proposed change will add consistency throughout the chapter. “Nasdaq Regulation” also will be changed to “the Exchange” throughout the Options Listing Rules to update the appropriate references. Additionally, there are a number of minor changes made throughout the chapter to increase the clarity of the language, as well as renumbering within the section to ensure it remains consistent.
This section will be amended to clarify that the options contracts that are designated by reference to the issuer of the underlying security can also be designated by reference to the name of the underlying foreign currency. Additionally, it can be referenced by not only the expiration month, but also by the expiration date.
This section will be amended to clarify that option contracts of any class of options dealt in on the Exchange are subject to the provisions of Options 4 and as set forth in the rules of the Clearing Corporation. This change clarifies the rights and obligations of holders and writers of option contracts.
Section 3(i) of the Options Listing Rules is being replaced and updated by incorporating the ISE version of the Exchange-Traded Fund (“ETF”) option listing rule.
Section 3(k)(ii) of the Options Listing Rules will be amended to delete the language stating that Nasdaq will “employ the same procedures to qualify underlying securities pursuant to this subsection (k) as it employs in qualifying underlying securities pursuant to other subsections of this Section 3.” This deleted language is unnecessary since it is redundant given that each of the other subsections in Section 3 have procedures to qualify underlying securities plus it is also not reflected in the ISE rule version being adopted for this section.
Section 3(m) will be deleted since the definition of “Partnership Unit” is a remnant from the legacy Nasdaq ETF listing rule and is unnecessary since it has never been used. It also is not reflected in the ISE rule version being adopted for this section.
Section 4(a) of the Options Listing Rules will be amended to add flexibility for the Exchange to choose whether to decline new additional series of options on the underlying security previously approved.
Section 4(h)(ii) of the Options Listing Rules will be amended to change for options covering Exchange-Traded Fund Shares approved pursuant to Section 3(i)(iv)(2) of Options 4, following the initial twelve-month period beginning upon the commencement of trading in the Exchange-Traded Fund Shares on a national securities exchange and are defined as NMS stock under Rule 600 of Regulation NMS, that there were fewer than 50 record and/or beneficial holders of such Exchange-Traded Fund Shares for 30 or more consecutive trading days rather than as it is currently stated for 30 consecutive days. It is only on trading days that the information regarding 50 record and/or beneficial
Section 6(a) of the Options Listing Rules will be amended to add to note that exercise-price setting parameters adopted as part of the Options Listing Procedures Plan will be included in Supplementary Material .02 Select Provisions of Options Listing Procedures Plan.
In order to mirror the equivalent ISE rules,
Supplementary Material .01(a) and (b) to Section 6 will detail the $1 Strike Price Interval Program and will replace .01 and .02 of the Supplementary Material to Section 6. Select Provisions of Options Listing Procedures Plan (“OLPP”) will be added as Supplementary Material .02 to Section 6.
Supplementary Material. 03 and .04 will detail the Short Term Option Series Program
.05 of the Supplementary Material to Section 6 will be amended to cover the intervals between strike prices for Mini-Nasdaq 100 Index options series and will be consistent with the equivalent ISE rule.
The first sentence of .06 Range Limitations for New Option Series of the Options Listing Rules has been deleted since it is covered in .02 of the Supplementary Material to Section 6, but the definition of OLPP has been moved to Section 6(a).
The introductory paragraph to .02 of the Supplementary Material to Section 6 of the Options Listing Rules details that the quote mitigation strategy and is codified in the OLPP. Subsection (a) states that the exercise price of each options series listed by the Exchange is fixed at a price per share that is reasonably close to the price of the underlying equity security, ETF or Trust Issued Receipt at or about the time the Exchange determines to list such series. Subsection (a)(ii) says that for new expiration months, the daily high and low of all prices reported by all national securities exchanges on the day the Exchange determines its preliminary notification of a new series. The amended language will say that the price of the underlying security is measured by, for new expiration months, the daily high and low of all prices reported by all national securities exchanges on the day the Exchange determines its preliminary notification of a new series rather than on the day the Exchange determines to list a new series. This change also mirrors the language in the ISE rules.
Subsection (c) will be added to the Supplementary Material to Section 6 of the Options Listing Rules to make clear that subsection (a) of the Supplementary Material to Section 6 of the Options Listing Rules will not permit the listing of series that are otherwise prohibited by the rules of the Exchange or the OLPP. Additionally, to the extent the rules of the Exchange permit the listing of new series that are otherwise prohibited by the provisions of the OLPP, the provisions of the OLPP will govern. These changes are consistent with the ISE rules.
Supplementary Material .16 U.S. Dollar-Settled Foreign Currency Options (formerly Supplementary Material .09) will be amended to reflect the language of the equivalent Phlx Rule since ISE does not have U.S. Dollar-Settled Foreign Currency Options.
The Exchange is also proposing to delete Nasdaq Rule 5712. Alpha Index-Linked Securities.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that the relocation of its Options Listing Rules is a non-substantive change and is consistent with similar filings by the Exchange for the relocation of its rules.
The majority of the changes are also consistent with the ISE rulebook and the overarching goal is to align the NOM rules with those of the ISE. These changes include the change to subsection (a)(ii) of the Supplementary Material to Section 6 to say that the price of the underlying security is measured by, for new expiration months, the daily high and low of all prices reported by all national securities exchanges on the day the Exchange determines its preliminary notification of a new series rather than on the day the Exchange determines to list a new series.
Another such change is amending the Options Listing Rules to change for options covering Exchange-Traded Fund Shares approved pursuant to Section 3(i)(iv)(2) of Options 4, following the initial twelve-month period beginning upon the commencement of trading in the Exchange-Traded Fund Shares on a national securities exchange and are defined as NMS stock under Rule 600 of Regulation NMS, that there were fewer than 50 record and/or beneficial holders of such Exchange-Traded Fund Shares for 30 or more consecutive trading days rather than as it is currently stated for 30 consecutive days. It is only on trading days that the information
The Exchange believes that amending Section 4(a) of the Options Listing Rules to add flexibility for the Exchange to choose whether to decline new additional series of options on the underlying security previously approved will serve to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general to protect investors and the public interest since it will allow the Exchange to now decline new additional series of options on the underlying security previously approved that may not be in the best interests of the public.
The Exchange believe that adding definitions for the terms “class”, “series”, and “underlying security” to the NOM rulebook from the OCC By-Laws will help remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general to protect investors and the public interest through providing uniform, clear and precise definitions for these terms and increase consistency, lessen potential confusion and add clarity for market participants.
The Exchange also believes that the elimination of Nasdaq Rule 5712 Alpha Index-Linked Securities is not a material change because it is obsolete and the Exchange has never listed a product under this rule.
As a result, the Exchange believes that the changes included in this filing serve to remove impediments to and perfect the mechanism of a free and open market and a national market system, and, in general to protect investors and the public interest since the changes are intended to organize the Rulebook in a way that it will ease the Members', market participants', and the general public's navigation and reading of the rules.
With respect to the proposed technical corrections to the rules, the Exchange believes that these changes are consistent with the Act because they will prevent investor confusion that may be caused by including in the Rules incorrect rule citations and defunct rule text.
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 proposed change does not impose a burden on competition because, as previously stated, it (i) is of a non-substantive nature, (ii) is intended to harmonize the structure of the Exchange's rules with those of its Affiliated Exchanges, and (iii) is intended to organize the Rulebook in a way that it will ease the Members', market participants', and the general public's navigation and reading of the rules.
Consequently, the Exchange does not believe that the proposed changes implicate competition at all.
No written comments were either solicited or received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, it has become effective pursuant to Section 19(b)(3)(A)(iii) of 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 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.
11:00 a.m. on Thursday, June 13, 2019.
The meeting will be held at the Commission's headquarters, 100 F Street NE, Washington, DC 20549.
This meeting will be closed to the public.
Commissioners, Counsel to the Commissioners, the Secretary to the Commission, and recording secretaries will attend the closed meeting. Certain staff members who have an interest in the matters also may be present.
In the event that the time, date, or location of this meeting changes, an announcement of the change, along with the new time, date, and/or place of the meeting will be posted on the Commission's website at
The General Counsel of the Commission, or his designee, has certified that, in his opinion, one or more of the exemptions set forth in 5 U.S.C. 552b(c)(3), (5), (6), (7), (8), 9(B) and (10) and 17 CFR 200.402(a)(3), (a)(5), (a)(6), (a)(7), (a)(8), (a)(9)(ii) and (a)(10), permit consideration of the scheduled matters at the closed meeting.
The subject matters of the closed meeting will consist of the following topics:
Institution and settlement of injunctive actions;
Institution and settlement of administrative proceedings;
Resolution of litigation claims; and
Other matters relating to enforcement proceedings.
At times, changes in Commission priorities require alterations in the scheduling of meeting agenda items that may consist of adjudicatory, examination, litigation, or regulatory matters.
For further information; please contact Vanessa A. Countryman from the Office of the Secretary at (202) 551-5400.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to amend Equity 7, Section 118(a), as described further 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 adopt pricing for the recently adopted SCAR routing strategy,
The Exchange initially filed the proposed pricing changes on May 13, 2019 (SR-NASDAQ-2019-038). On May 22, 2019, the Exchange withdrew that filing and submitted this filing.
The Exchange now proposes to adopt the following pricing for SCAR orders in securities listed on Nasdaq (“Tape C”), NYSE (“Tape A”), and on exchanges other than Nasdaq and NYSE (“Tape B”) (collectively, “Tapes”), which execute on BX and PSX:
• SCAR orders executed on BX will be provided a credit of $0.0015 per share in Tape A and Tape C securities priced at $1 or more per share.
• SCAR orders executed on BX will be provided a credit of $0.0026 per share in Tape B securities priced at $1 or more per share.
• SCAR orders executed on PSX will be assessed a charge of $0.0029 per
• SCAR orders executed on BX or PSX in all Tape securities priced below $1 per share will be assessed a charge of 0.30% of the total transaction cost.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that its proposal is reasonable, equitable and not unfairly discriminatory because the pricing proposed above for SCAR is generally set at levels intended to incentivize members to use this new routing strategy while also allowing the Exchange to recoup the costs of providing routing services. For instance, under this proposal, members will be provided credits of $0.0015 (for securities in Tapes A and C) or $0.0026 (for Tape B securities) for orders in securities priced at $1 or more per share that route to and execute on BX using the SCAR strategy. In contrast, orders that execute directly on BX as the home exchange (
The Exchange also believes that the proposed SCAR credits and charges for all Tape securities priced at $1 or more per share are set at appropriate levels for the reasons that follow. As noted above, the Exchange is proposing a higher credit for SCAR orders in Tape B securities than in securities in Tape A and Tape C to coordinate with BX pricing, which generally provides higher credits for BX members to remove liquidity from BX in Tape B securities priced at $1 or more per share than in Tape A and Tape C securities priced at $1 or more.
The Exchange further believes that it is reasonable, equitable and not unfairly discriminatory to assess the proposed charge for SCAR orders executed on BX or PSX in any Tape securities priced below $1 per share because it is consistent with what it currently charges for all orders in securities priced at less than $1 per share that route and execute at an away venue.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
In this instance, the proposed pricing for SCAR orders are intended to recoup the Exchange's costs associated with providing routing services while providing incentives to members to make use of the Exchange's optional routing functionality. As discussed
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of 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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule 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 amend Equity 7, Section 3, which governs pricing for Phlx members using the Nasdaq PSX System (“PSX”).
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 adopt pricing for the recently adopted SCAR routing strategy,
The Exchange initially filed the proposed pricing changes on May 13, 2019 (SR-Phlx-2019-21). On May 22, 2019, the Exchange withdrew that filing and submitted this filing.
The Exchange now proposes to adopt the following pricing for SCAR orders in securities listed on Nasdaq (“Tape C”), NYSE (“Tape A”), and on exchanges other than Nasdaq and NYSE (“Tape B”) (collectively, “Tapes”), which execute on Nasdaq and BX:
• SCAR orders executed on Nasdaq will be assessed a charge of $0.00295 per share in all Tape securities priced at $1 or more per share.
• SCAR orders executed on BX will be assessed a credit of $0.0015 per share in Tape A and Tape C securities priced at $1 or more per share.
• SCAR orders executed on BX will be assessed a credit of $0.0026 per share in Tape B securities priced at $1 or more per share.
• SCAR orders executed on Nasdaq or BX in all Tape securities priced below $1 per share will be assessed a charge of 0.30% of the total transaction cost.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act,
The Exchange believes that its proposal is reasonable, equitable, and not unfairly discriminatory because the pricing proposed above for SCAR is generally set at levels intended to incentivize members to use this new routing strategy while also allowing the Exchange to recoup the costs of providing routing services. For instance, under this proposal, members will be provided credits of $0.0015 (for securities in Tapes A and C) or $0.0026 (for Tape B securities) for orders in securities priced at $1 or more per share that route to and execute on BX using the SCAR strategy. In contrast, orders that execute directly on BX as the home exchange (
The Exchange also believes that the proposed SCAR credits and charges for all Tape securities priced at $1 or more per share are set at appropriate levels for the reasons that follow. As noted above, the Exchange is proposing a higher credit for SCAR orders in Tape B securities than in securities in Tape A and Tape C to coordinate with BX pricing, which generally provides higher credits for BX members to remove liquidity from BX in Tape B securities priced at $1 or more per share than in Tape A and Tape C securities priced at $1 or more.
The Exchange further believes that it is reasonable, equitable, and not unfairly discriminatory to assess the proposed charge for SCAR orders executed on BX or Nasdaq in any Tape securities priced below $1 per share because it is consistent with what it currently charges for all orders in securities priced at less than $1 per share that route and execute at an away venue.
The Exchange does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. The Exchange operates in a highly competitive market in which market participants can readily favor competing venues if they deem fee levels at a particular venue to be excessive, or rebate opportunities available at other venues to be more favorable. In such an environment, the Exchange must continually adjust its fees to remain competitive. Because competitors are free to modify their own fees in response, and because market participants may readily adjust their order routing practices, the Exchange believes that the degree to which fee changes in this market may impose any burden on competition is extremely limited.
In this instance, the proposed pricing for SCAR orders are intended to recoup the Exchange's costs associated with providing routing services while providing incentives to members to make use of the Exchange's optional routing functionality. As discussed above, the Exchange believes that its proposed pricing remains competitive with other equity exchanges.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of 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: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule 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 adopt rules governing the trading of Complex Qualified Contingent Cross Orders and make a modification to the execution requirements for Complex Customer Cross Orders. The text of the proposed rule change is available from the principal office of the Exchange, at the Commission's Public Reference Room and also on the Exchange's internet 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 these statements may be examined at the places specified in Item IV below. The self-regulatory organization has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
The Exchange is proposing rules that will make existing functionality available to additional order types on BOX. Specifically, the Exchange is proposing rules to codify Complex Qualified Contingent Cross (“QCC”) Orders on the Exchange.
First, the Exchange is proposing to modify requirements related to Complex Customer Cross Orders.
The Exchange uses the same crossing mechanism for the processing and execution of Complex Customer Cross Orders that is used for Customer Cross Orders in the regular market. Accordingly under Proposed Rule 7110(c)(7), Complex Customer Cross Orders are automatically executed upon entry provided that the execution (i) is at least $0.01 better than any Public Customer Complex Order on the Complex Order Book; (ii) is at least $0.01 better than the cBBO; (iii) is at or better than any non-Public Customer Complex Order on the Complex Order Book; (iv) is at or between the cNBBO as defined in Rule 7240(a)(3) and further provided that each leg is at least $0.01 better than any Public Customer Order on the BOX Book.
Next, the Exchange is proposing to add text related to Complex QCC Orders. Pursuant to proposed Rule 7240(b)(4)(iv), a Complex QCC Order is comprised of an originating Complex Order to buy or sell where each component is at least 1,000 contracts that is identified as being part of a qualified contingent trade as defined in IM-7110-2
The Exchange uses the same crossing mechanism for the processing and execution of Complex QCC Orders that is used for QCC Orders in the regular market.
The system does not consider the NBBO price for the stock component because the Exchange does not execute the stock component; the Exchange executes the option components at a net price and ensures that, among other things, the execution (i) is at least $0.01 better than any Public Customer Complex Order on the Complex Order Book; (ii) is at least $0.01 better than the cBBO; (iii) is at or better than any non-Public Customer Complex Order on the Complex Order Book; (iv) each option leg executes $0.01 better than any Public Customer Order on the BOX Book; and (v) each option leg executes at or between the NBBO.
The system will reject a Complex QCC Order if, at the time of receipt of the Complex QCC Order, the strategy is subject to an ongoing auction (including COPIP, Facilitation, and Solicitation auctions) or there is an exposed order on the strategy pursuant to Rule 7240(b)(3)(B). The purpose of this provision is to maintain an orderly market by avoiding the execution of Complex QCC Order with components that are involved in other system functions that could affect the execution price of the Complex QCC Order, and by avoiding concurrent processing on the Exchange involving the same strategy.
Proposed Rule 7110(c)(8)(A) states that Complex QCC Orders will be automatically cancelled if they cannot be executed. Proposed Rule 7110(c)(8)(B) provides that Complex QCC Orders may only be entered in the minimum trading increments applicable to Complex Orders under Rule 7240(b)(1).
The following example illustrates the execution of a Complex QCC Order:
The Complex Order Book contains a broker-dealer order to sell the strategy at 3.29.
The Exchange receives a Complex QCC Order for the simultaneous purchase and sale of the strategy at a net price of 3.29, 1,000 times. Since the order can be executed at or between the NBBO for each leg of the strategy, is not at a worse price than the non-Public Customer Order on the Complex Order Book, is at least $0.01 better than the cBBO, is not at the same price as a Public Customer Order on the BOX Book, and the order size is met, the Complex QCC Order is automatically executed upon entry.
The Exchange receives a Complex QCC Order for the simultaneous purchase and sale of the strategy at a net price of 3.30, 1,000 times. Since there is a Public Customer Order on the BOX Book for Leg B to sell at 3.30 and the incoming Complex QCC Order is not at least $0.01 better than the resting Public Customer Order on the BOX Book, the Complex QCC Order is rejected.
The proposed rules governing Complex QCC Orders are based on the rules of another exchange with certain differences.
Lastly, the Exchange proposes to expand certain Complex Order protections to Complex QCC Orders. Specifically, the Exchange proposes to amend Rule IM-7240-1(a)(5) and IM-7240-1(b)(5) to apply these price protection checks to Complex QCC Orders. The Exchange notes that another options exchange has similar price checks.
The Exchange believes that the proposal is consistent with the requirements of Section 6(b) of the Securities Exchange Act of 1934 (the “Act”),
The Exchange believes that the proposed change requiring each leg of a Complex Customer Cross order to execute at least $0.01 better than any Public Customer Order on the BOX Book promotes just and equitable principles of trade and protects investors and the public interest by further protecting resting Public Customer interest.
The proposal to amend Rules 7110 and 7240 to codify rules covering Complex QCC Orders is consistent with Section 6(b)(5) of the Act because this proposal promotes just and equitable principles of trade and protects investors and the public interest by providing increased opportunities for the execution of Complex Orders. The Exchange believes that requiring the execution to be at least $0.01 better than any Public Customer Complex Order on the Complex Order Book protects investors and the public interest as it will ensure that the Complex QCC Order does not trade in front of any resting Public Customer Complex Orders. The Exchange also believes that requiring the execution to be at least $0.01 better than the cBBO will further protect investors as it ensures that the implied market prices are respected. Further, the Exchange believes that requiring the individual legs of a Complex QCC Order to execute at least $0.01 better than any resting Public Customer interest further protects Public Customers on the Exchange. Lastly, the Exchange believes that requiring each option leg to execute at or between the NBBO protects investors and the public interest because it ensures that the execution price of each option leg is within the best price available in the market and is in line with the requirement that simple QCC Orders must execute at or within the NBBO.
The Exchange also believes that the proposed Complex QCC rules will benefit Participants and the marketplace as a whole by adopting rules that allow for the trading of these types of orders on the Exchange. The Exchange believes the proposed rules for Complex QCC Orders remove impediments to and perfect the mechanism of a free and open market and a national market system and will result in more efficient trading and enhance the likelihood of the Complex Orders executing at the best prices by providing additional order types resulting in potentially greater liquidity available for trading on the Exchange.
The proposed rule change will provide rules that make existing functionality available to an additional order type. Providing rules that make QCC available for Complex Orders removes impediments to and perfects the mechanisms of a free and open market and a national market system because Participants will be given additional ways in which they can execute Complex Orders.
The proposed rule change will protect investors and the public interest by assuring the existing priority and allocation rules applicable to the processing and execution of QCC Orders and Complex Orders remains consistent with the processing and execution of these order types, unless otherwise specifically set forth in the rules.
The system does not consider the NBBO price for the stock component because the Exchange does not execute the stock component; the Exchange executes the option components at a net price and ensures that the net execution (i) is at least $0.01 better than any Public Customer Complex Order on the Complex Order Book; (ii) is at least $0.01 better than the cBBO; (iii) is at or better than any non-Public Customer Complex Order on the Complex Order Book; (iv) each option leg executes $0.01 better than any Public Customer Order on the BOX Book; and (v) each option leg executes at or between the NBBO.
The Exchange believes that the proposal to reject a Complex QCC Order at the time of receipt of the order when the strategy is subject to an ongoing auction (including COPIP, Facilitation and Solicitation auctions), or there is an exposed order on the strategy, removes impediments to and perfects the mechanism of a free and open market by ensuring orderly markets involving multiple complex orders with common components.
The proposed rule change to implement a debit/credit check for Complex QCC Orders is consistent with the Act. With the use of debit/credit checks, the Exchange can further assist with the maintenance of a fair and orderly market by mitigating the potential risks associated with Complex Orders trading at prices that are inconsistent with their strategies (which may result in executions at prices that are extreme and potentially erroneous), which ultimately protects investors. This proposed implementation of the debit/credit check promotes just and equitable principles of trade, as it is based on the same general option and volatility pricing principles which the Exchange understands are used by market participants in their option pricing models.
Additionally, the Exchange also believes that calculating a maximum price for true butterfly spreads, vertical spreads, and box spreads will assist with the maintenance of fair and orderly markets by helping to mitigate the potential risks associated with Complex QCC Orders trading at extreme and potentially erroneous prices that are inconsistent with particular Complex Order strategies. Further, the Exchange notes that the maximum price is designed to mitigate the potential risks of executions at prices that are not within an acceptable price range, as a means to help mitigate the potential risks associated with Complex Orders trading at prices that are inconsistent with their strategies, in addition to the debit/credit check. As such, the proposed rule change is designed to protect investors and the public interest.
The Exchange does not believe that the proposed rule changes will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In this regard and as indicated above, the Exchange notes that the rule is being proposed as a competitive response to the rules of other exchanges.
The Exchange does not believe that the proposed Complex Order protections will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. In this regard and as indicated above, the Exchange notes that the rule change is being proposed as a competitive response to the rules of other exchanges.
For the reasons stated, the Exchange does not believe that the proposed rule changes will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act, and the Exchange believes the proposed change will, in fact, enhance competition.
The Exchange has neither solicited nor received comments on the proposed rule change.
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
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 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 is filing a proposal to amend Exchange Rule 519, MIAX Order Monitor, in order to harmonize its rule to the rules of the Exchange's affiliate, MIAX Emerald, LLC (“MIAX Emerald”).
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 proposes to amend Exchange Rule 519, MIAX Order Monitor, to align its behavior pertaining to the handling of limit orders to buy and limit orders to sell to that of MIAX Emerald.
In order to avoid the occurrence of potential obvious or catastrophic errors on the Exchange the MIAX Order Monitor will prevent certain orders from executing or being placed on the Book at prices outside pre-set standard limits. Beginning after the Opening Process-
Subsection (3) of paragraph (a), Limit Orders to Buy or Sell, of the Rule, states that the System
The Exchange proposes to amend current subsection (3) to create a separate subsection for limit orders to buy (proposed subsection (3)), and for limit orders to sell (proposed subsection (4)). The Exchange proposes to introduce a new threshold for limit orders to buy which will provide that for options with a National Best Offer (“NBO”) less than or equal to $0.50 the System will reject an incoming limit order that has a limit price that is equal to or greater than the NBO Price by $0.25. The Exchange believes that creating separate subsections dedicated to limit orders to buy and limit orders to sell will add clarity and additional detail to the Exchange's Rule. Additionally, the Exchange proposes to provide new examples demonstrating the operation of the MIAX Order Monitor functionality for both limit orders to buy and limit orders to sell.
Proposed subsection (3), Limit Orders to Buy, will provide that for options with a National Best Offer (“NBO”) greater than $0.50 the System will reject an incoming limit order that has a limit price equal to or greater than the NBO by the lesser of (i) $2.50, or (ii) 50% of the NBO price. The proposed rule will also provide that for options with an NBO less than or equal to $0.50 the System will reject an incoming limit order that has a limit price that is equal to or greater than the NBO price by $0.25.
The proposed examples provide that (A) if the NBO is $12.00 an incoming limit order to buy options for $14.50 or more will be rejected; and (B) if the NBO is $0.10 an incoming limit order to buy options for $0.15 will not be rejected; whereas if the NBO is $0.10 an incoming limit order to buy options for $0.35 will be rejected as the limit price of the order is $0.25 greater than the NBO. Proposed example A provides an example of an order being rejected when the order's limit price ($14.50) is greater than the NBO ($12.00) by the lesser of $2.50 or 50% of the NBO price ($6.00). Proposed example B demonstrates how the protection works when the NBO of the option is $0.50 or less. If the NBO is $0.10 an incoming limit order to buy options for $0.15 will not be rejected as the order's limit price is not $0.25 greater ($.35) than the NBO price.
Proposed subsection (4) Limit Orders to Sell, will provide that for options with a National Best Bid (“NBB”) equal to or greater than $0.25 the System will reject an incoming limit order that has a limit price equal to or less than the NBB by the lesser of (i) $2.50, or (ii) 50% of the NBB price. For options with an NBB of $0.25 or less the System will accept any incoming limit order.
Additionally, the proposed rule will include examples to demonstrate the operation of the rule in different circumstances. The proposed examples provide that (A) if the NBB is $12.00 an incoming limit order to sell options for $9.50 or less will be rejected; and (B) if the NBB is $0.30 an incoming limit order to sell options for $0.15 will be rejected; whereas if the NBB is $0.30 an incoming limit order to sell options for $0.20 will not be rejected as the limit price of the order is not less than 50% of the NBB price. Proposed example A provides an example of an order being rejected when the order's limit price ($9.50) is less than the NBB ($12.00) by the lesser of $2.50 or 50% of the NBB price ($6.00). Proposed example B demonstrates how the protection works when the NBB of the option is greater than $0.25.
The Exchange believes its proposed changes provide additional detail and clarity to the Exchange's rules concerning order protections for incoming limit orders to buy and incoming limit orders to sell.
The Exchange will announce the implementation date of the proposed rule change by Regulatory Circular to be published no later than 60 days following the operative date of the proposed rule. The implementation date will be no later than 60 days following the issuance of the Regulatory Circular.
MIAX Options believes that its proposed rule change is consistent with Section 6(b) of the Act
The Exchange believes its proposal promotes just and equitable principles of trade, removes impediments to and perfects the mechanisms of a free and open market and a national market system, and in general, protects investors and the public interest by establishing thresholds for the handling of incoming limit orders to buy and sell, and by providing examples describing the System's behavior in various circumstances. Currently the Exchange's
The Exchange believes that the proposed changes to its rulebook add additional detail and provide further clarification to Members,
The Exchange believes that the proposed changes promote just and equitable principles of trade and removes impediments to and perfects the mechanism of a free and open market and a national market system and, in general, protects investors and the public interest by providing additional detail and clarity in the Exchange's rules. Further, the Exchange's proposal provides transparency and clarity in the rules and is consistent with the Act because it removes impediments to and helps perfect the mechanism of a free and open market and a national market system, and, in general, protects investors and the public interest by accurately describing the behavior of the Exchange's System. In particular, the Exchange believes that the proposed rule changes will provide greater clarity to Members and the public regarding the Exchange's Rules, and it is in the public interest for rules to be accurate and concise so as to eliminate the potential for confusion.
Additionally, the Exchange believes that although MIAX Options rules may, in certain instances, intentionally differ from MIAX Emerald rules, the proposed changes will promote uniformity with MIAX Emerald with respect to rules that are intended to be identical. MIAX Options and MIAX Emerald may have a number of Members in common, and where feasible the Exchange intends to implement similar behavior to provide consistency between MIAX Options and MIAX Emerald so as to avoid confusion among Members.
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 add additional clarity and detail to the Exchange's rules.
The Exchange does not believe that the proposed rule change will impose any burden on inter-market competition as the Rules apply equally to all Exchange Members. The proposed rule change is not a competitive filing and is intended to enhance the protection of investors by ensuring that the rule clearly and accurately describes the scenarios when a limit order to buy or a limit order to sell will be rejected by the Exchange's System. Additionally, the proposed rule change provides examples of hypothetical scenarios to provide additional detail and clarity to the Exchange's rulebook.
Written comments were neither solicited nor received.
Because the foregoing proposed rule change does not: (i) Significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days after the date of the filing, or such shorter time as the Commission may designate, it has become effective pursuant to 19(b)(3)(A) of 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 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
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE, Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 4, 2019, Cboe BZX Exchange, Inc. (“Exchange” or “BZX”) filed with the Securities and Exchange Commission (“Commission”), pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The proposed rule change was published for comment in the
On June 3, 2019, BZX withdrew the proposed rule change
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for the State of Oklahoma (FEMA-4438-DR), dated 06/01/2019.
Issued on 06/01/2019.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 06/01/2019, applications for disaster loans may be filed at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 15973B and for economic injury is 159740.
Notice is here given that Serra Capital (SBIC) III, L.P., 2021 South First Street, Suite 206, Champaign, IL 61821, a Federal Licensee under the Small Business Investment Act of 1958, as amended (“the Act”), in connection with the financing of a small concern,
The financing is brought within the purview of § 107.730(a) of the Regulations because Serra Capital III, L.P. has previously invested $400,000 of convertible debt in SERIONX, INC. As this entity is considered an associate of Serra Capital (SBIC) III, L.P., this transaction Requires a prior SBA exemption.
Notice is hereby given that any interested person may submit written comments on the transaction, within fifteen days of the date of this publication, to the Associate Administrator for Investment, U.S. Small Business Administration, 409 Third Street SW, Washington, DC 20416.
U.S. Small Business Administration.
Notice.
This is a Notice of the Presidential declaration of a major disaster for Public Assistance Only for the State of Louisiana (FEMA-4439-DR), dated 06/03/2019.
Issued on 06/03/2019.
Submit completed loan applications to: U.S. Small Business Administration, Processing and Disbursement Center, 14925 Kingsport Road, Fort Worth, TX 76155.
A. Escobar, Office of Disaster Assistance, U.S. Small Business Administration, 409 3rd Street SW, Suite 6050, Washington, DC 20416, (202) 205-6734.
Notice is hereby given that as a result of the President's major disaster declaration on 06/03/2019, Private Non-Profit organizations that provide essential services of a governmental nature may file disaster loan applications at the address listed above or other locally announced locations.
The following areas have been determined to be adversely affected by the disaster:
The Interest Rates are:
The number assigned to this disaster for physical damage is 15975B and for economic injury is 159760.
Department of State.
In order to inform U.S. Government policy and international engagement, the U.S. Department of State (DOS) invites submission of comments from the public, academia, relevant industries, and other interested stakeholders on the implications of Access and Benefit-Sharing (ABS) regimes on global health and biomedical research. In particular, DOS invites comments related to the effects of Nagoya Protocol and other ABS implementation on public health systems. The Department will hold at least two public meetings to discuss these issues, on June 25 and September 20, 2019. Any future Meetings will be announced at
Written comments are welcome before each of the two planned public meetings referenced above and will be reviewed periodically beginning July 10, 2019.
One submission per meeting is welcome, with no more than 10 pages of single-spaced text including relevant examples with no more than one page per example. Submissions should be made via the internet at
Questions regarding the submission of comments should be directed to Dr. Jennifer Seedorff (202) 647-3017,
Representatives from the Department of State will review written submissions and share them, as appropriate, with staff from other Federal Agencies to inform U.S. Government policy and our international engagements on these issues. U.S. officials may contact individuals making submissions for further information or explanation. In particular, we seek comments on and specific examples of the impacts of other countries' implementation of the Nagoya Protocol or other ABS measures on such issues as: International research collaborations, international pathogen sample sharing, infectious disease research, including influenza, Zika and other diseases, pandemic and epidemic preparedness and response, medical countermeasure product development efforts, investor interest in vaccine development, and other aspects. We would also welcome views on what the World Health Organization (WHO), other UN bodies, and non-governmental organizations can do to effectively protect public health equities in the context of the Nagoya Protocol and
(1) Monetary or non-monetary benefits to the global public health system that are facilitated by international sharing of pathogens, biospecimens, pathogen genetic sequence data, and/or relevant metadata.
(2) Influenza-specific issues and/or examples related to the items described above or other items that could affect global influenza pandemic preparedness and response or efforts to combat seasonal influenza.
(3) Non-ABS challenges and barriers with sharing pathogens internationally or that otherwise have significant implications for global pandemic or epidemic preparedness and response efforts that might merit additional attention or analysis.
New York & Greenwood Lake Railway (NYGL) has filed with the Surface Transportation Board (Board) a petition under 49 U.S.C. 10502 for exemption from the prior approval requirements of 49 U.S.C. 10903 to abandon 1.1 miles of rail line extending between milepost 0.0 and milepost 1.1 in Bergen and Passaic Counties, N.J. (the Line).
According to NYGL, the Line was purchased in 2017 by Passaic Street Properties, LLC (PSP), through a tax foreclosure sale due to NYGL's failure to pay federal taxes. In 2018, PSP filed a notice of exemption in Docket No. FD 36187 to acquire the Line, which NYGL opposed. The Board rejected PSP's notice of exemption with respect to the Line.
NYGL states that the Line has not had a significant amount of traffic since 2009 when its last customer went out of business. According to NYGL, starting in 2017, it renewed efforts to market the Line as a transload facility, and those efforts led to handling about eight carloads of traffic, which NYGL states is insufficient to produce a profit and enable NYGL to rehabilitate the trackage. NYGL states that PSP and the local governments wish to reclaim the right-of-way for urban redevelopment, and local planners seek to redevelop the area for residential and commercial purposes.
In addition to an exemption from the provisions of 49 U.S.C. 10903, NYGL also seeks an exemption from the offer of financial assistance (OFA) procedures of 49 U.S.C. 10904. NYGL states that the submission of an OFA could defeat the very purpose for which this abandonment has been filed. NYGL's request for exemption from section 10904 will be addressed in the final decision.
According to NYGL, the Line does not contain federally granted rights-of-way, and any documentation in NYGL's possession will be made available promptly to those requesting it.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
By issuing this notice, the Board is instituting an exemption proceeding pursuant to 49 U.S.C. 10502(b). A final decision will be issued by September 6, 2019.
Any OFA under 49 CFR 1152.27(b)(2) will be due no later than 120 days after the filing of the petition for exemption, or 10 days after service of a decision granting the petition for exemption, whichever occurs sooner. Persons interested in submitting an OFA must first file a formal expression of intent to file an offer by June 20, 2019, indicating the type of financial assistance they wish to provide (
Following authorization for abandonment, the Line may be suitable for other public use, including interim trail use. Any request for a public use condition under 49 CFR 1152.28 or for trail use/rail banking under 49 CFR 1152.29 will be due no later than July 1, 2019.
All filings in response to this notice must refer to Docket No. AB 1273X and must be filed with the Surface Transportation Board either via e-filing or in writing addressed to 395 E Street SW, Washington, DC 20423-0001. In addition, a copy of each pleading must be served on NYGL's representative, Sloane S. Carlough, Clark Hill, PLC, 1001 Pennsylvania Ave. NW, Suite 1300 South, Washington, DC 20004. Replies to the petition are due on or before July 1, 2019.
Persons seeking further information concerning abandonment procedures may contact the Board's Office of Public Assistance, Governmental Affairs, and Compliance at (202) 245-0238 or refer to the full abandonment regulations at 49 CFR part 1152. Questions concerning environmental issues may be directed to the Board's Office of Environmental Analysis (OEA) at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Relay Service at (800) 877-8339.
An environmental assessment (EA) (or environmental impact statement (EIS), if necessary) prepared by OEA will be served upon all parties of record and upon any other agencies or persons who comment during its preparation. Other interested persons may contact OEA to obtain a copy of the EA (or EIS). EAs in abandonment proceedings normally will be made available within 60 days of the filing of the petition. The deadline for submission of comments on the EA generally will be within 30 days of its service.
Board decisions and notices are available at
By the Board, Allison C. Davis, Acting Director, Office of Proceedings.
Office of the United States Trade Representative.
Notice of additional implementing modification.
In a notice published on May 9, 2019 (May 9 Notice), the U.S. Trade Representative (Trade Representative) increased the rate of additional duty from 10 percent to 25 percent for the products of China covered by the September 2018 action that are (i) entered for consumption, or withdrawn from warehouse for consumption, on or after 12:01 a.m. eastern daylight time on May 10, 2019, and (ii) exported to the United States on or after May 10, 2019. An implementing notice published on May 15, 2019 (May 15 Notice), provided that products of China that are covered by the September 2018 action and that were exported to the United States prior to May 10, 2019, are not subject to the additional duty of 25 percent, as long as these products are entered into the United States prior to June 1, 2019. This notice extends the June 1, 2019 date to June 15, 2019.
HTSUS heading 9903.88.09, set out in the Annex to the May 15 Notice and as amended by the Annex to this notice, applies to products of China covered by the September 2018 action that were exported before May 10, 2019, and entered into the United States on or after May 10, 2019, and before June 15, 2019. The modification in the Annex to this notice applies as of June 1, 2019.
For questions about this notice, contact Associate General Counsel Arthur Tsao or Assistant General Counsel Juli Schwartz, or Director of Industrial Goods Justin Hoffmann at (202) 395-5725. For questions on customs classification or implementation of additional duties on products covered in the supplemental action, contact
In the May 9 Notice (84 FR 20459), the Trade Representative modified the action being taken in the Section 301 investigation by increasing the rate of additional duty from 10 percent to 25 percent for the products of China covered by the September 2018 action in this investigation. The `September 2018 action' refers to the additional duties on products of China with an annual trade value of approximately $200 billion, published at 83 FR 47974 (Sep. 21, 2018), as modified by the notice published at 83 FR 49153 (September 28, 2018). Pursuant to the May 9 Notice, the increase in the rate of additional duty was effective on May 10, 2019.
The May 15 Notice (84 FR 21892) implemented the increase in the rate of additional duty by creating a new subheading in Chapter 99 of the Harmonized Tariff Schedule of the United States (HTSUS) (9903.88.09) for products of China covered by the September 2018 action that were exported before May 10, 2019, and entered into the United States on or after May 10, 2019 and before June 1, 2019. HTSUS heading 9903.88.09 was limited to covered products of China entered into the United States during this period of time to account for customs enforcement factors and the average transit time between China and the United States by sea.
To account further for customs enforcement factors and the transit time for goods exported from China on or before May 10, 2019, and imported directly to the United States, the Trade Representative has determined to extend the June 1, 2019 date to June 15, 2019, as specified in the Annex to this notice. Thus, HTSUS 9903.88.09 applies to products of China covered by the September 2018 action that were exported from China before May 10, 2019, imported directly to the United States from China and entered for consumption, or withdrawn from warehouse for consumption, on or after May 10, 2019 and before June 15, 2019. The modification in the Annex to this notice applies as of June 1, 2019.
The products of China covered by the September 2018 action that are admitted into a foreign-trade zone (FTZ) in `Privileged Foreign' status shall retain that status consistent with 19 CFR 146.41(e) and will be subject, at the time of entry for consumption, to the
U.S. Customs and Border Protection will issue instructions on entry guidance and implementation.
Effective with respect to goods: (1) Exported to the United States before May 10, 2019; and (2) entered for consumption, or withdrawn from warehouse for consumption, on or after 12:01 a.m. eastern daylight time on May 10, 2019, and entered for consumption, or withdrawn from warehouse for consumption, before June 15, 2019, the Harmonized Tariff Schedule of the United States is modified:
1. By amending the second paragraph of note 20(l) to subchapter III of chapter 99 by deleting “June 1,” and inserting in lieu thereof “June 15,”; and
2. by amending the article description of heading 9903.88.09 by deleting “June 1,” and inserting in lieu thereof “June 15,”.
Federal Aviation Administration (FAA), DOT.
Notice of intent to designate S.T.C. Bee, Inc., supplemental type certificates as abandoned; request for comments.
This notice announces the FAA's intent to designate S.T.C. Bee, Inc., Supplemental Type Certificate (STC) Nos. SA374NW, SA391NW, SA393NW, SA395NW, SA575NW, SA576NW, SA613NW, and SA823NW, as abandoned and make the related engineering data available upon request. The FAA has received a request to provide engineering data concerning these STCs. The FAA has been unsuccessful in contacting S.T.C. Bee, Inc., and its heir concerning the STCs. This action is intended to enhance aviation safety.
The FAA must receive all comments by December 9, 2019.
Send all comments on this notice to the Federal Aviation Administration, Seattle ACO Branch, Attention: Karen Murphy, AIR-781, 2200 South 216th Street, Des Moines, WA 98198. You may also contact Karen Murphy by phone at (206) 231-3562 or email at
Interested parties are invited to provide comments, written data, views, or arguments relating to this notice. All comments received on or before the closing date will be considered. All comments received will be available in the docket for examination by interested persons. Comments may be inspected at the office of the FAA, Seattle ACO, 2200 South 216th Street, Des Moines, WA, between 9 a.m. and 4 p.m. Monday through Friday, except Federal holidays.
This notice is to inform the public that the FAA intends to designate S.T.C. Bee, Inc., STC Nos. SA374NW, SA391NW, SA393NW, SA395NW, SA575NW, SA576NW, SA613NW, and SA823NW, as abandoned and subsequently release the related engineering data.
The FAA has received a third party request for the release of data for the S.T.C. Bee, Inc., STCs under the provisions the Freedom of Information Act (FOIA), 5 U.S.C. 552. The third party requester is the owner of an aircraft modified by these STCs and would like the engineering data to maintain the aircraft. The FAA cannot release commercial or financial information, such as the requested data, under FOIA without the permission of the data owner. However, in accordance with title 49 of the United States Code § 44704(a)(5), the FAA can make available upon request engineering data in possession of the FAA relating to an STC if the FAA can determine that the STC has been inactive for 3 or more years, and using due diligence the FAA is unable to locate the owner of record or the owner of record's heir. There has been no activity on these STCs for more than 3 years.
On January 17, 2017, the FAA sent registered letters to S.T.C. Bee, Inc.'s last known addresses, 10900 Rainier Avenue South, Seattle, WA 98178, and P.O. Box 264, McKenna, WA 98558. The FAA informed the company that the FAA intends to classify STC Nos. SA374NW, SA391NW, SA393NW, SA395NW, SA575NW, SA576NW, SA613NW, and SA823NW as abandoned unless, within 60 days of receipt of the letter, the FAA receives a written statement from them stating they are the holder of SA374NW, SA391NW, SA393NW, SA395NW, SA575NW, SA576NW, SA613NW, and SA823NW. The FAA has also attempted to make contact with S.T.C. Bee, Inc., by sending a registered letter to the last known owner, Mr. Jack Daubenspeck, and Mr. Daubenspeck's son, Mike Alan Daubenspeck, at 5605 32nd Court SE, Lacey, WA 98503, informing them of the same as sent in the company registered letter. The FAA was unsuccessful in its attempts to contact the STCs' owner or heir. Additionally, the FAA attempted to make contact with S.T.C. Bee, Inc., by other means, including telephone communication and internet searches, but without success.
If you are the owner, or heir, or a transferee of STC Nos. SA374NW, SA391NW, SA393NW, SA395NW, SA575NW, SA576NW, SA613NW, and SA823NW, or have any knowledge regarding who may now hold STC Nos. SA374NW, SA391NW, SA393NW, SA395NW, SA575NW, SA576NW, SA613NW, and SA823NW, please contact Karen Murphy using a method described in this notice under
If the FAA does not receive any response by December 9, 2019, the FAA will consider STC Nos. SA374NW, SA391NW, SA393NW, SA395NW, SA575NW, SA576NW, SA613NW, and SA823NW abandoned, and the FAA will proceed with the release of the requested data. This action is for the purpose of maintaining the airworthiness of an aircraft and enhancing aviation safety.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Request for information.
FMCSA requests information on existing or potential sources of data to better understand driver detention times during the loading and unloading of commercial motor vehicles (CMVs) and the potential impact of such delays on roadway safety. A recent study by the U.S. Department of Transportation's (DOT) Office of Inspector General found that better data are needed to fully understand the issues associated with driver detention.
Comments on this notice must be received on or before September 9, 2019.
You may submit comments identified by Docket Number FMCSA-2019-0054 using any of the following methods:
•
•
•
•
For information concerning this notice, contact Ms. Nicole Michel, Research Division, Office of Analysis, Research and Technology, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, (202) 366-4354,
If you submit a comment, please include the docket number for this notice (FMCSA-2019-0054), indicate the specific question of this document to which each comment applies, and provide a source for your data. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.
To submit your comment online, go to
If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8
FMCSA will consider all comments and material received during the comment period.
Confidential Business Information (CBI) is commercial or financial information that is customarily not made available to the general public by the submitter. Under the Freedom of Information Act, CBI is eligible for protection from public disclosure. If you have CBI that is relevant or responsive to this notice, it is important that you clearly designate the submitted comments as CBI. Accordingly, please mark each page of your submission as “confidential” or “CBI.” Submissions designated as CBI and meeting the definition noted above will not be placed in the public docket of this notice. Submissions containing CBI should be sent to Mr. Brian Dahlin, Chief, Regulatory Evaluation Division, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. Any commentary that FMCSA receives which is not specifically designated as CBI will be placed in the public docket for this notice.
To view comments, as well as any documents mentioned in this preamble as being available in the docket, go to
A number of studies have examined the issue of CMV driver delays in the loading and unloading process, and what their potential impact may be on roadway safety and the economy. For example, in 2011 the Government Accountability Office (GAO), in its report
Although the above referenced studies estimated overall wait times, they were not able to separate normal loading and unloading times (
FMCSA is interested in data sources, methodologies, and potential technologies that could provide insight into loading and unloading delays experienced by CMV drivers.
Specifically, FMCSA requests information that addresses the following questions:
1. Are data currently available that can accurately record loading, unloading, and delay times?
2. Is there technology available that could record and delineate prompt loading and unloading times versus the extended delays sometimes experienced by drivers?
3. How can delay times be captured and recorded in a systematic, comparable manner?
4. Could systematic collection and publication of loading, unloading, and delay times be useful in driver or carrier business decisions and help to reduce loading, unloading, and delay times?
5. What should FMCSA use as an estimate of reasonable loading/unloading time? Please provide a basis for your response.
6. How do contract arrangements between carriers and shippers address acceptable wait times? Do these arrangements include penalties for delays attributable to a carrier or shipper?
7. What actions by FMCSA, within its current statutory authority, would help to reduce loading, unloading, and delay times?
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice and request for comments.
In accordance with the Paperwork Reduction Act of 1995 (PRA), FMCSA announces its plan to submit the Information Collection Request (ICR) described below to the Office of Management and Budget (OMB) for its review and approval and invites public comment. FMCSA requests approval to revise and renew an ICR titled “Driver Qualification Files,” OMB Control Number 2126-0004. The ICR estimates the burden commercial motor vehicle (CMV) drivers and motor carriers incur to comply with the reporting and recordkeeping tasks required for motor carriers to maintain driver qualification (DQ) files. The Agency's regulations pertaining to maintaining DQ files are unchanged and impose no increased information collection (IC) burden on individual drivers and motor carriers. However, the Agency increases its estimate of the total IC burden of these regulations primarily because both the number of CMV drivers and the frequency of their hiring have increased since the Agency's 2016 estimate of this burden.
FMCSA must receive your comments to this notice on or before August 9, 2019.
You may submit comments identified by Federal Docket Management System Number FMCSA-2019-0102 using any of the following methods:
•
•
•
•
•
•
•
•
Ms. Pearlie Robinson, Driver and Carrier Operations Division, DOT, FMCSA, West Building 6th Floor, 1200 New Jersey Avenue SE, Washington, DC 20590. Telephone: 202-366-4325. Email:
Motor carriers may not require or permit an unqualified driver to operate a CMV. The foremost proof of driver qualification is the information that part 391 requires be collected and maintained in the driver qualification file (DQ file) (49 CFR 391.51). Motor carriers must obtain this information from sources specified in the regulations, such as the driver, previous employers of the driver, and officials of the State of driver licensure. Motor carriers are not required to forward DQ information to FMCSA, but must maintain the information in a DQ file and make it available to State and Federal safety investigators on demand.
Through this ICR, FMCSA is asking OMB's approval to renew and revisee its estimate of the paperwork burden imposed by its DQ file regulations. The regulations have not been amended; the IC burden imposed on individual drivers and motor carriers by the regulations is unchanged. The current IC burden estimate approved by OMB is 10.21 million hours. The Agency has increased its estimate of the total IC burden from 10.21 million hours to 12.26 million hours. The increase in burden hours is primarily the result of a larger driver population and a higher driver turnover rate, both of which affect the volume of documents produced and filed in DQ files. This revised ICR removes the medical examiner's certificate recordkeeping requirement from the estimate of burden hours and cost to eliminate double counting. Although the currently approved ICR did not monetize driver and motor carrier burden hours, the revised ICR monetizes such burden. The draft supporting statement for this ICR is available in the docket.
Under part 211 of Title 49 Code of Federal Regulations (CFR), this document provides the public notice that on May 29, 2019, the Buffalo & Pittsburgh Railroad, Inc. (BPRR), petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 240,
The relief is requested as part of BPRR's proposed implementation of and participation in FRA's Confidential Close Call Reporting System (C
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested parties desire an opportunity for oral comment and a public hearing, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
•
•
•
•
Communications received by July 25, 2019 will be considered by FRA before final action is taken. Comments received after that date will be considered if practicable.
Anyone can search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.).
Issued in Washington, DC.
Internal Revenue Service (IRS), Treasury.
Notice and request for comments.
The Internal Revenue Service, 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 continuing information collections, as required by the Paperwork Reduction Act of 1995. The IRS is soliciting comments concerning reverse like-kind exchanges.
Written comments should be received on or before August 9, 2019 to be assured of consideration.
Direct all written comments to Laurie Brimmer, Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224.
Requests for additional information or copies of the form should be directed to Kerry Dennis, at (202) 317-5751 or Internal Revenue Service, Room 6529, 1111 Constitution Avenue NW, Washington, DC 20224, or through the internet, at
The following paragraph applies to all of the collections of information covered by this notice.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid OMB control number. Books or records relating to a collection of information must be retained as long as their contents may become material in the administration of any internal revenue law. Generally, tax returns and tax return information are confidential, as required by 26 U.S.C. 6103.
Departmental Offices, U.S. Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests 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. The public is invited to submit comments on these requests.
Comments should be received on or before July 10, 2019 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the 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 Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submissions may be obtained from Jennifer Quintana by emailing
44 U.S.C. 3501
Departmental Offices, Department of the Treasury.
Notice of reporting requirements.
By this Notice, the Department of the Treasury is informing the public that it is conducting a mandatory survey of foreign ownership of U.S. securities as of June 30, 2019. This mandatory survey is conducted under the authority of the International Investment and Trade in Services Survey Act. This Notice constitutes legal notification to all United States persons (defined below) who meet the reporting requirements set forth in this Notice that they must respond to, and comply with, this survey. Additional copies of the reporting forms SHL (2019) and instructions may be printed from the internet at:
(1) U.S. persons who manage the safekeeping of U.S. securities (as specified below) for foreign persons. These U.S. persons, who include the affiliates in the United States of foreign entities, and are henceforth referred to as U.S. custodians, must report on this survey if the total market value of the U.S. securities whose safekeeping they manage on behalf of foreign persons—aggregated over all accounts and for all U.S. branches and affiliates of their firm—is $100 million or more as of June 30, 2019.
(2) U.S. persons who issue securities, if the total market value of their securities owned directly by foreign persons—aggregated over all securities issued by all U.S. subsidiaries and affiliates of the firm, including investment companies, trusts, and other legal entities created by the firm—is $100 million or more as of June 30, 2019. U.S. issuers should report only foreign holdings of their securities which are directly held for foreign residents,
(3) U.S. persons who receive a letter from the Federal Reserve Bank of New York that requires the recipient of the letter to file Schedule 1, even if the recipient is under the exemption level of $100 million and need only report “exempt” on Schedule 1.
Veterans Health Administration, Department of Veterans Affairs.
Notice.
Veterans Health Administration, Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 9, 2019.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Brian McCarthy at (202) 615-9241.
Under the PRA of 1995, Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is being made pursuant to Section 3506(c)(2)(A) of the PRA.
With respect to the following collection of information, VHA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of VHA's functions, including whether the information will have practical utility; (2) the accuracy of VHA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
1. Academic Verification, VA Form 10-0491.
2. Addendum to Application, VA Form 10-0491a.
3. Annual VA Employment Deferment Verification, VA Form 10-0491c.
4. Education Program Completion Notice—Service Obligation Placement, VA Form 10-0491d.
5. Evaluation Recommendation Form, VA Form 10-0491e.
6. HPSP Agreement, VA Form 10-0491f.
7. HPSP/VIOMPSP Application, VA Form 10-0491g.
8. Notice of Approaching Graduation, VA Form 10-0491h.
9. Notice of Change and/or Annual Academic Status Report, VA Form 10-0491i.
10. Request for Deferment for Advanced Education, VA Form 10-0491j.
11. VA Scholarship Offer Response, VA Form 10-0491k.
12. VIOMPSP Agreement, VA Form 10-0491l.
13. Mobility Agreement, VA Form 10-0491m.
14. HPSP VHVMAESP Agreement, VA Form 10-0491n.
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 10, 2019.
Submit written comments on the collection of information through
Danny S. Green, (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.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; proposed incidental harassment authorization; request for comments on proposed authorization and possible renewal.
NMFS has received a request from the Lamont-Doherty Earth Observatory of Columbia University (L-DEO) for authorization to take marine mammals incidental to a marine geophysical survey in the northeast Pacific Ocean. 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 one-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 10, 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
Amy Fowler, 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
Accordingly, NMFS is preparing an Environmental Assessment (EA) to consider the environmental impacts associated with the issuance of the proposed IHA. NMFS' EA will be made available at
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 December 21, 2018, NMFS received a request from L-DEO for an IHA to take marine mammals incidental to a marine geophysical survey of the Axial Seamount in the Northeast Pacific Ocean. The application was deemed adequate and complete on May 3, 2019. L-DEO's request is for take of a small number of 26 species of marine mammals by Level B harassment and Level A harassment. Neither L-DEO nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.
Researchers from the University of Texas at Austin, University of Nevada Reno, University of California San Diego, with funding from the U.S. National Science Foundation (NSF), propose to conduct high-energy seismic surveys from Research Vessel (R/V)
The primary objectives of the surveys proposed by researchers from the University of Texas at Austin Institute for Geophysics (UTIG), the Nevada Seismological Laboratory at the University of Nevada Reno (UNR) and Scripps Institution of Oceanography (SIO) at the University of California San Diego, is to create a detailed 3-D image of the main and satellite magma reservoirs that set the Axial volcano's framework, image the 3-D fracture network and how they influence the magma bodies, and to connect the subsurface observations to the surface features. The main goal of the seismic program is to explore linkages between complex magma chamber structure, caldera dynamics, fluid pathways, and hydrothermal venting. Seismic data acquired during the proposed study could be used to evaluate earthquake, tsunami, and submarine landslide hazards.
The proposed surveys would be expected to last for 33 days, including approximately 19 days of seismic operations (approximately 16 days for the 3-D survey and three days for the 2-D survey), seven days of equipment deployment/retrieval, three days of operational contingency time (
The proposed surveys would occur within ~45.5-46.5° N, ~129.5-130.5° W. Representative survey tracklines are shown in Figure 1. Some deviation in actual track lines, including the order of survey operations, could be necessary for reasons such as science drivers, poor data quality, inclement weather, or mechanical issues with the research vessel and/or equipment. Thus, the tracklines could occur anywhere within the coordinates noted above. The proposed surveys would be conducted in International Waters outside the U.S. EEZ. The surveys would occur in water depths ranging from 1,400 to 2,800 meters (m). The proposed survey area is approximately 423 kilometers (km) (229 miles (mi)) from shore at its closest point.
The procedures to be used for the proposed surveys would be similar to those used during previous seismic surveys by L-DEO and would use conventional seismic methodology. The surveys would involve one source vessel, R/V
R/V
The receiving system would consist of hydrophone streamers and up to eight ocean bottom seismometers (OBSs). The OBSs are long-term broadband instruments that would be left out for ~1 year and recovered by another vessel. They have a height and diameter of ~1 m, with an 80 kg anchor. To retrieve OBSs, an acoustic release transponder (pinger) is used to interrogate the instrument at a frequency of 8-11 kHz, and a response is received at a frequency of 11.5-13 kHz. The burn-wire release assembly is then activated, and the instrument is released to float to the surface from the anchor which is not retrieved. Four 6-km long hydrophone streamers would be used during 3-D data acquisition and one 15-km long streamer would be employed for 2-D data acquisition. As the airguns are towed along the survey lines, the hydrophone streamer(s) would transfer the data to the on-board processing system, and the OBSs would receive and store the returning acoustic signals internally for later analysis.
A total of ~3,760 km of transect lines would be surveyed in the Northeast Pacific Ocean: ~3,196 km during the 3-D survey (including run ins and run outs) and 564 km during the 2-D survey. There could be additional seismic operations associated with turns, airgun testing, and repeat coverage of any areas where initial data quality is sub-standard. To account for unanticipated delays, 25 percent has been added in the form of operational days, which is equivalent to adding 25 percent to the proposed line km to be surveyed.
In addition to the operations of the airgun array, a multibeam echosounder (MBES), a sub-bottom profiler (SBP), and an Acoustic Doppler Current Profiler (ADCP) would be operated from R/V
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 1 lists all species with expected potential for occurrence in the survey 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 U.S. Pacific and Alaska SARs (Caretta
All species that could potentially occur in the proposed survey areas are included in Table 1. However, the temporal and/or spatial occurrence of gray whales, Southern Resident and Northern Resident killer whales, harbor porpoise, harbor seal, California sea lion, and Steller sea lion is such that take is not expected to occur, and they are not discussed further beyond the explanation provided here. These species are found in the eastern North Pacific, but are generally found in coastal waters and are not expected to occur offshore in the survey area.
The humpback whale is found throughout all of the oceans of the world (Clapham 2009). The worldwide population of humpbacks is divided into northern and southern ocean populations, but genetic analyses suggest some gene flow (either past or present) between the North and South Pacific (
Humpback whales migrate between summer feeding grounds in high latitudes and winter calving and breeding grounds in tropical waters (Clapham and Mead 1999). North Pacific humpback whales summer in feeding grounds along the Pacific Rim and in the Bering and Okhotsk seas (Pike and MacAskie 1969; Rice 1978; Winn and Reichley 1985; Calambokidis
The humpback whale is the most common species of large cetacean reported off the coasts of Oregon and Washington from May to November (Green
The minke whale has a cosmopolitan distribution that spans from tropical to polar regions in both hemispheres (Jefferson
The International Whaling Commission (IWC) recognizes three stocks of minke whales in the North Pacific: The Sea of Japan/East China Sea, the rest of the western Pacific west of 180° N, and the remainder of the Pacific (Donovan 1991). Minke whales are relatively common in the Bering and Chukchi seas and in the Gulf of Alaska, but are not considered abundant in any other part of the eastern Pacific (Brueggeman
The distribution of the sei whale is not well known, but it is found in all oceans and appears to prefer mid-latitude temperate waters (Jefferson
The fin whale is widely distributed in all the world's oceans (Gambell 1985b), but typically occurs in temperate and polar regions from 20-70° north and south of the Equator (Perry
Fin whales appear to have complex seasonal movements and are seasonal migrants; they mate and calve in temperate waters during the winter and migrate to feed at northern latitudes during the summer (Gambell 1985b). The North Pacific population summers from the Chukchi Sea to California and winters from California southwards (Gambell 1985b). Aggregations of fin whales are found year-round off southern and central California (Dohl
The blue whale has a cosmopolitan distribution and tends to be pelagic, only coming nearshore to feed and possibly to breed (Jefferson
The distribution of the species, at least during times of the year when feeding is a major activity, occurs in areas that provide large seasonal concentrations of euphausiids (Yochem and Leatherwood 1985). The eastern North Pacific stock feeds in California waters from June-November (Calambokidis
The sperm whale is the largest of the toothed whales, with an extensive worldwide distribution (Rice 1989). Sperm whale distribution is linked to social structure: Mixed groups of adult females and juvenile animals of both sexes generally occur in tropical and subtropical waters, whereas adult males are commonly found alone or in same-sex aggregations, often occurring in higher latitudes outside the breeding season (Best 1979; Watkins and Moore 1982; Arnbom and Whitehead 1989; Whitehead and Waters 1990). Males can migrate north in the summer to feed in the Gulf of Alaska, Bering Sea, and waters around the Aleutian Islands (Kasuya and Miyashita 1988). Mature male sperm whales migrate to warmer waters to breed when they are in their late twenties (Best 1979).
Sperm whales generally are distributed over large areas that have high secondary productivity and steep underwater topography, in waters at least 1000 m deep (Jaquet and Whitehead 1996; Whitehead 2009). They are often found far from shore, but can be found closer to oceanic islands that rise steeply from deep ocean waters (Whitehead 2009). Adult males can occur in water depths <100 m and as shallow as 40 m (Whitehead
Sperm whales are distributed widely across the North Pacific (Rice 1989). Off California, they occur year-round (Dohl
Oleson
The pygmy and dwarf sperm whales are distributed widely throughout tropical and temperate seas, but their precise distributions are unknown as most information on these species comes from strandings (McAlpine 2009). They are difficult to sight at sea, perhaps because of their avoidance reactions to ships and behavior changes in relation to survey aircraft (Würsig
Both
Cuvier's beaked whale is probably the most widespread of the beaked whales, although it is not found in polar waters (Heyning 1989). Cuvier's beaked whale appears to prefer steep continental slope waters (Jefferson
MacLeod
Blainville's beaked whale is found in tropical and warm temperate waters of all oceans (Pitman 2009). It has the widest distribution throughout the world of all mesoplodont species and appears to be relatively common (Pitman 2009). Like other beaked whales, Blainville's beaked whale is generally found in waters 200-1400 m deep (Gannier 2000; Jefferson
Stejneger's beaked whale occurs in subarctic and cool temperate waters of the North Pacific Ocean (Mead 1989). In the eastern North Pacific Ocean, it is distributed from Alaska to southern California (Mead
Hubbs' beaked whale occurs in temperate waters of the North Pacific (Mead 1989). Its distribution appears to be correlated with the deep subarctic current (Mead
There are no sightings of Hubbs' beaked whales near the proposed survey area in the OBIS database (OBIS 2018). There is one sighting of an unidentified species of
Baird's beaked whale has a fairly extensive range across the North Pacific, with concentrations occurring in the Sea of Okhotsk and Bering Sea (Rice 1998; Kasuya 2009). In the eastern Pacific, Baird's beaked whale is reported to occur as far south as San Clemente Island, California (Rice 1998; Kasuya 2009). Baird's beaked whales that occur off the U.S. west coast are of the gray form, unlike some
The bottlenose dolphin is distributed worldwide in coastal and shelf waters of tropical and temperate oceans (Jefferson
The short-beaked common dolphin is found in tropical and warm temperate oceans around the world (Perrin 2009). It ranges as far south as 40° S in the Pacific Ocean, is common in coastal waters 200-300 m deep and is also associated with prominent underwater topography, such as seamounts (Evans 1994). Short-beaked common dolphins have been sighted as far as 550 km from shore (Barlow
The distribution of short-beaked common dolphins along the U.S. West Coast is variable and likely related to oceanographic changes (Heyning and Perrin 1994; Forney and Barlow 1998). It is the most abundant cetacean off California; some sightings have been made off Oregon, in offshore waters (Carretta
The striped dolphin has a cosmopolitan distribution in tropical to warm temperate waters (Perrin
The Pacific white-sided dolphin is found in cool temperate waters of the North Pacific from the southern Gulf of California to Alaska. Across the North Pacific, it appears to have a relatively narrow distribution between 38° N and 47° N (Brownell
Results of aerial and shipboard surveys strongly suggest seasonal north-south movements of the species between California and Oregon/Washington; the movements apparently are related to oceanographic influences, particularly water temperature (Green
Based on year-round aerial surveys off Oregon/Washington, the Pacific white-sided dolphin was the most abundant cetacean species, with nearly all (97 percent) sightings occurring in May (Green
The northern right whale dolphin is found in cool temperate and sub-arctic waters of the North Pacific, from the Gulf of Alaska to near northern Baja California, ranging from 30° N to 50° N (Reeves
Aerial and shipboard surveys suggest seasonal inshore-offshore and north-south movements in the eastern North Pacific Ocean between California and Oregon/Washington; the movements are believed to be related to oceanographic influences, particularly water temperature and presumably prey distribution and availability (Green
Becker
Risso's dolphin is distributed worldwide in temperate and tropical oceans (Baird 2009), although it shows a preference for mid-temperate waters of the shelf and slope between 30° and 45° (Jefferson
The distribution and abundance of Risso's dolphins are highly variable from California to Washington, presumably in response to changing oceanographic conditions on both annual and seasonal time scales (Forney and Barlow 1998; Buchanan
The false killer whale is found in all tropical and warmer temperate oceans, especially in deep, offshore waters (Odell and McClune 1999). However, it is also known to occur in nearshore areas (
The killer whale is cosmopolitan and globally fairly abundant; it has been observed in all oceans of the world (Ford 2009). It is very common in temperate waters and also frequents tropical waters, at least seasonally (Heyning and Dahlheim 1988). Currently, there are eight killer whale stocks recognized in the U.S. Pacific: (1) Alaska Residents, occurring from southeast Alaska to the Aleutians and Bering Sea; (2) Northern Residents, from BC through parts of southeast Alaska; (3) Southern Residents, mainly in inland waters of Washington State and southern BC; (4) Gulf of Alaska, Aleutians, and Bering Sea Transients, from Prince William Sound (PWS) through to the Aleutians and Bering Sea; (5) AT1 Transients, from PWS through the Kenai Fjords; (6) West Coast Transients, from California through southeast Alaska; (7) Offshore, from California through Alaska; and (8) Hawaiian (Carretta
Green
The short-finned pilot whale is found in tropical, subtropical, and warm temperate waters (Olson 2009); it is seen as far south as ~40° S and as far north as ~50° N (Jefferson
Dall's porpoise is found in temperate to subantarctic waters of the North Pacific and adjacent seas (Jefferson
Off Oregon and Washington, Dall's porpoise is widely distributed over shelf and slope waters, with concentrations near shelf edges, but is also commonly sighted in pelagic offshore waters (Morejohn 1979; Green
Encounter rates reported by Green
The northern fur seal is endemic to the North Pacific Ocean and occurs from southern California to the Bering Sea, Sea of Okhotsk, and Sea of Japan (Jefferson
Most northern fur seals are highly migratory. During the breeding season, most of the world's population of northern fur seals occurs on the Pribilof and Bogoslof islands (NMFS 2007). The main breeding season is in July (Gentry 2009). Adult males usually occur onshore from May to August, though some may be present until November; females are usually found ashore from June to November (Muto
The northern fur seals spends ~90 percent of its time at sea, typically in areas of upwelling along the continental slopes and over seamounts (Gentry 1981). The remainder of its life is spent on or near rookery islands or haulouts. While at sea, northern fur seals usually occur singly or in pairs, although larger groups can form in waters rich with prey (Antonelis and Fiscus 1980; Gentry 1981). Northern fur seals dive to relatively shallow depths to feed: 100-200 m for females, and <400 m for males (Gentry 2009). Tagged adult female fur seals were shown to remain within 200 km of the shelf break (Pelland
Bonnell
Guadalupe fur seals were once plentiful on the California coast, ranging from the Gulf of the Farallones near San Francisco, to the Revillagigedo Islands, Mexico (Aurioles-Gamboa
The distribution of Guadalupe fur seals and occurrence in the survey area is dependent on life stage and season. During the breeding season, June through August, adult males are expected to be on shore on Guadalupe Island and at smaller rookeries in the San Benito archipelago (Carretta
From 2015 through 2017, 26 stranded and rehabilitated fur seals between the ages of 11 and 15 months were released with satellite tags in central California. These animals frequently migrated north of Point Cabrillo and several moved into waters as far north as British Columbia, Canada. However, it is unclear if the migratory patterns of rehabilitated and released fur seals are representative of the free-ranging population migrating north from Guadalupe Island. For example, the rehabilitated fur seals remained closer to shore than the free-ranging fur seals as they migrated north (Norris, 2017b).
The satellite telemetry data indicate that Guadalupe fur seals more than two years old are likely uncommon in the survey area, but a majority of fur seals under two years old may migrate into the survey area and may be present throughout the year (Norris, 2017b). Lambourn
The northern elephant seal breeds in California and Baja California, primarily on offshore islands, from Cedros off the west coast of Baja California, north to the Farallons in Central California (Stewart
Adult elephant seals engage in two long northward migrations per year, one following the breeding season, and another following the annual molt (Stewart and DeLong 1995). Between the two foraging periods, they return to land to molt, with females returning earlier than males (March-April vs. July-August). After the molt, adults then return to their northern feeding areas until the next winter breeding season. Breeding occurs from December to March (Stewart and Huber 1993). Females arrive in late December or January and give birth within ~1 week of their arrival. Pups are weaned after just 27 days and are abandoned by their mothers. Juvenile elephant seals typically leave the rookeries in April or May and head north, traveling an average of 900-1,000 km. Hindell (2009) noted that traveling likely takes place at depths >200 m. Most elephant seals return to their natal rookeries when they start breeding (Huber
When not at their breeding rookeries, adults feed at sea far from the rookeries. Males may feed as far north as the eastern Aleutian Islands and the Gulf of Alaska, whereas females feed south of 45° N (Le Boeuf
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. 26 marine mammal species (23 cetacean and three pinniped (two otariid and one phocid) species) have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 1. Of the cetacean species that may be present, five are classified as low-frequency cetaceans (
This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The
This section contains a brief technical background on sound, the characteristics of certain sound types, and on metrics used in this proposal inasmuch as the information is relevant to the specified activity and to a discussion of the potential effects of the specified activity on marine mammals found later in this document.
Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks or corresponding points of a sound wave (length of one cycle). Higher frequency sounds have shorter wavelengths than lower frequency sounds, and typically attenuate (decrease) more rapidly, except in certain cases in shallower water. Amplitude is the height of the sound pressure wave or the “loudness” of a sound and is typically described using the relative unit of the dB. A sound pressure level (SPL) in dB is described as the ratio between a measured pressure and a reference pressure (for underwater sound, this is 1 microPascal (μPa)) and is a logarithmic unit that accounts for large variations in amplitude; therefore, a relatively small change in dB corresponds to large changes in sound pressure. The source level (SL) represents the SPL referenced at a distance of 1 m from the source (referenced to 1 μPa) while the received level is the SPL at the listener's position (referenced to 1 μPa).
Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Root mean square is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1983). Root mean square accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.
Sound exposure level (SEL; represented as dB re 1 μPa2 - s) represents the total energy contained within a pulse and considers both intensity and duration of exposure. Peak sound pressure (also referred to as zero-to-peak sound pressure or 0-p) is the maximum instantaneous sound pressure measurable in the water at a specified distance from the source and is represented in the same units as the rms sound pressure. Another common metric is peak-to-peak sound pressure (pk-pk), which is the algebraic difference between the peak positive and peak negative sound pressures. Peak-to-peak pressure is typically approximately 6 dB higher than peak pressure (Southall
When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in a manner similar to ripples on the surface of a pond and may be either directed in a beam or beams or may radiate in all directions (omnidirectional sources), as is the case for pulses produced by the airgun arrays considered here. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.
Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson
•
•
•
•
The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and human activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson
Sounds are often considered to fall into one of two general types: Pulsed and non-pulsed (defined in the following). The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (
Pulsed sound sources (
Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous (ANSI, 1995; NIOSH, 1998). Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (
Airgun arrays produce pulsed signals with energy in a frequency range from about 10-2,000 Hz, with most energy radiated at frequencies below 200 Hz. The amplitude of the acoustic wave emitted from the source is equal in all directions (
Here, we discuss the effects of active acoustic sources on marine mammals.
Richardson
We describe the more severe effects of certain non-auditory physical or physiological effects only briefly as we do not expect that use of airgun arrays are reasonably likely to result in such effects (see below for further discussion). Potential effects from impulsive sound sources can range in severity from effects such as behavioral disturbance or tactile perception to physical discomfort, slight injury of the internal organs and the auditory system, or mortality (Yelverton
When PTS occurs, there is physical damage to the sound receptors in the ear (
Relationships between TTS and PTS thresholds have not been studied in marine mammals, and there is no PTS data for cetaceans but such relationships are assumed to be similar to those in humans and other terrestrial mammals. PTS typically occurs at exposure levels at least several dBs above (a 40-dB threshold shift approximates PTS onset;
For mid-frequency cetaceans in particular, potential protective mechanisms may help limit onset of TTS or prevent onset of PTS. Such mechanisms include dampening of hearing, auditory adaptation, or behavioral amelioration (
TTS is the mildest form of hearing impairment that can occur during exposure to sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises, and a sound must be at a higher level in order to be heard. In terrestrial and marine mammals, TTS can last from minutes or hours to days (in cases of strong TTS). In many cases, hearing sensitivity recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals.
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 (
Finneran
Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale, harbor porpoise, and Yangtze finless porpoise) exposed to a limited number of sound sources (
Critical questions remain regarding the rate of TTS growth and recovery after exposure to intermittent noise and the effects of single and multiple pulses. Data at present are also insufficient to construct generalized models for recovery and determine the time necessary to treat subsequent exposures as independent events. More information is needed on the relationship between auditory evoked potential and behavioral measures of TTS for various stimuli. For summaries of data on TTS in marine mammals or for further discussion of TTS onset thresholds, please see Southall
Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok
Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (
Changes in dive behavior can vary widely, and may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive (
Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (
Visual tracking, passive acoustic monitoring, and movement recording tags were used to quantify sperm whale behavior prior to, during, and following exposure to airgun arrays at received levels in the range 140-160 dB at distances of 7-13 km, following a phase-in of sound intensity and full array exposures at 1-13 km (Madsen
Variations in respiration naturally vary with different behaviors and alterations to breathing rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Various studies have shown that respiration rates may either be unaffected or could increase, depending on the species and signal characteristics, again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound exposure (
Marine mammals vocalize for different purposes and across multiple modes, such as whistling, echolocation click production, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result from a need to compete with an increase in background noise or may reflect increased vigilance or a startle response. For example, in the presence of potentially masking signals,
Cerchio
Castellote
Seismic pulses at average received levels of 131 dB re 1 μPa2-s caused blue whales to increase call production (Di Iorio and Clark, 2010). In contrast, McDonald
Avoidance is the displacement of an individual from an area or migration path as a result of the presence of a sound or other stressors, and is one of the most obvious manifestations of disturbance in marine mammals (Richardson
A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of the response (
Behavioral disturbance can also impact marine mammals in more subtle ways. Increased vigilance may result in costs related to diversion of focus and attention (
Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Disruption of such functions resulting from reactions to stressors such as sound exposure are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall
Stone (2015) reported data from at-sea observations during 1,196 seismic surveys from 1994 to 2010. When large arrays of airguns (considered to be 500 in 3 or more) were firing, lateral displacement, more localized
Neuroendocrine stress responses often involve the hypothalamus-pituitary-adrenal system. Virtually all neuroendocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction, altered metabolism, reduced immune competence, and behavioral disturbance (
The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and “distress” is the cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose serious fitness consequences. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other functions. This state of distress will last until the animal replenishes its energetic reserves sufficiently to restore normal function.
Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses are well-studied through controlled experiments and for both laboratory and free-ranging animals (
Under certain circumstances, marine mammals experiencing significant masking could also be impaired from maximizing their performance fitness in survival and reproduction. Therefore, when the coincident (masking) sound is man-made, it may be considered harassment when disrupting or altering critical behaviors. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.
The frequency range of the potentially masking sound is important in determining any potential behavioral impacts. For example, low-frequency signals may have less effect on high-frequency echolocation sounds produced by odontocetes but are more likely to affect detection of mysticete communication calls and other potentially important natural sounds such as those produced by surf and some prey species. The masking of communication signals by anthropogenic noise may be considered as a reduction in the communication space of animals (
Masking affects both senders and receivers of acoustic signals and can potentially have long-term chronic effects on marine mammals at the population level as well as at the individual level. Low-frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, with most of the increase from distant commercial shipping (Hildebrand 2009). All anthropogenic sound sources, but especially chronic and lower-frequency signals (
Masking effects of pulsed sounds (even from large arrays of airguns) on marine mammal calls and other natural sounds are expected to be limited, although there are few specific data on this. Because of the intermittent nature and low duty cycle of seismic pulses, animals can emit and receive sounds in the relatively quiet intervals between pulses. However, in exceptional situations, reverberation occurs for much or all of the interval between pulses (
Some baleen and toothed whales are known to continue calling in the presence of seismic pulses, and their calls usually can be heard between the pulses (
Vessel noise from the
Ship noise, through masking, can reduce the effective communication distance of a marine mammal if the frequency of the sound source is close to that used by the animal, and if the sound is present for a significant fraction of time (
Baleen whales are thought to be more sensitive to sound at these low frequencies than are toothed whales (
There are few data on the behavioral reactions of beaked whales to vessel noise, though they seem to avoid approaching vessels (
In summary, project vessel sounds would not be at levels expected to cause anything more than possible localized and temporary behavioral changes in marine mammals, and would not be expected to result in significant negative effects on individuals or at the population level. In addition, in all oceans of the world, large vessel traffic is currently so prevalent that it is commonly considered a usual source of ambient sound (NSF-USGS 2011).
Vessel collisions with marine mammals, or ship strikes, can result in death or serious injury of the animal. Wounds resulting from ship strike may include massive trauma, hemorrhaging, broken bones, or propeller lacerations (Knowlton and Kraus, 2001). An animal at the surface may be struck directly by a vessel, a surfacing animal may hit the bottom of a vessel, or an animal just below the surface may be cut by a vessel's propeller. Superficial strikes may not kill or result in the death of the animal. These interactions are typically associated with large whales (
Pace and Silber (2005) also found that the probability of death or serious injury increased rapidly with increasing vessel speed. Specifically, the predicted probability of serious injury or death increased from 45 to 75 percent as vessel speed increased from 10 to 14 kn, and exceeded 90 percent at 17 kn. Higher speeds during collisions result in greater force of impact, but higher speeds also appear to increase the chance of severe injuries or death through increased likelihood of collision by pulling whales toward the vessel (Clyne 1999; Knowlton
The
It is possible for ship strikes to occur while traveling at slow speeds. For example, a hydrographic survey vessel traveling at low speed (5.5 kn) while conducting mapping surveys off the central California coast struck and killed a blue whale in 2009. The State of California determined that the whale had suddenly and unexpectedly surfaced beneath the hull, with the result that the propeller severed the whale's vertebrae, and that this was an unavoidable event. This strike represents the only such incident in approximately 540,000 hours of similar coastal mapping activity (
Although the likelihood of the vessel striking a marine mammal is low, we require a robust ship strike avoidance protocol (see “Proposed Mitigation”), which we believe eliminates any foreseeable risk of ship strike. We anticipate that vessel collisions involving a seismic data acquisition vessel towing gear, while not impossible, represent unlikely, unpredictable events for which there are no preventive measures. Given the required mitigation measures, the relatively slow speed of the vessel towing gear, the presence of bridge crew watching for obstacles at all times (including marine mammals), and the presence of marine mammal observers, we believe that the possibility of ship strike is discountable and, further, that were a strike of a large whale to occur, it would be unlikely to result in serious injury or mortality. No incidental take resulting from ship strike is anticipated, and this potential effect of the specified activity will not be discussed further in the following analysis.
Marine mammals strand for a variety of reasons, such as infectious agents, biotoxicosis, starvation, fishery interaction, ship strike, unusual oceanographic or weather events, sound exposure, or combinations of these stressors sustained concurrently or in
Use of military tactical sonar has been implicated in a majority of investigated stranding events. Most known stranding events have involved beaked whales, though a small number have involved deep-diving delphinids or sperm whales (
Information on seismic airgun impacts to zooplankton, which represent an important prey type for mysticetes, is limited. However, McCauley
In general, impacts to marine mammal prey are expected to be limited due to the relatively small temporal and spatial overlap between the proposed survey and any areas used by marine mammal prey species. The proposed use of airguns as part of an active seismic array survey would occur over a relatively short time period (~19 days) at two locations and would occur over a very small area relative to the area available as marine mammal habitat in the northeast Pacific Ocean near the Axial Seamount. We believe any impacts to marine mammals due to adverse effects to their prey would be insignificant due to the limited spatial and temporal impact of the proposed survey. However, adverse impacts may occur to a few species of fish and to zooplankton.
Soundscapes are also defined by, and acoustic habitat influenced by, the total contribution of anthropogenic sound. This may include incidental emissions from sources such as vessel traffic, or may be intentionally introduced to the marine environment for data acquisition purposes (as in the use of airgun arrays). Anthropogenic noise varies widely in its frequency content, duration, and loudness and these characteristics greatly influence the potential habitat-mediated effects to marine mammals (please see also the previous discussion on masking under “Acoustic Effects”), which may range from local effects for brief periods of time to chronic effects over large areas and for long durations. Depending on the extent of effects to habitat, animals may alter their communications signals (thereby potentially expending additional energy) or miss acoustic cues (either conspecific or adventitious). For more detail on these concepts see,
Problems arising from a failure to detect cues are more likely to occur when noise stimuli are chronic and overlap with biologically relevant cues used for communication, orientation, and predator/prey detection (Francis and Barber 2013). Although the signals emitted by seismic airgun arrays are generally low frequency, they would also likely be of short duration and transient in any given area due to the nature of these surveys. As described previously, exploratory surveys such as these cover a large area but would be transient rather than focused in a given location over time and therefore would not be considered chronic in any given location.
In summary, activities associated with the proposed action are not likely to have a permanent, adverse effect on any fish habitat or populations of fish species or on the quality of acoustic habitat. Thus, any impacts to marine mammal habitat are not expected to cause significant or long-term consequences for individual marine mammals or their populations.
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
Authorized takes would primarily be by Level B harassment, as use of seismic airguns 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) for mysticetes and high frequency cetaceans (
Auditory injury is unlikely to occur for mid-frequency cetaceans, otariid pinnipeds, and phocid pinnipeds given very small modeled zones of injury for those species (up to 43.7 m). Moreover, the source level of the array is a theoretical definition assuming a point source and measurement in the far-field of the source (MacGillivray, 2006). As described by Caldwell and Dragoset (2000), an array is not a point source, but one that spans a small area. In the far-field, individual elements in arrays will effectively work as one source because individual pressure peaks will have coalesced into one relatively broad pulse. The array can then be considered a “point source.” For distances within the near-field,
In order to provide quantitative support for this theoretical argument, we calculated expected maximum distances at which the near-field would transition to the far-field (Table 5). For a specific array one can estimate the distance at which the near-field transitions to the far-field by:
To determine the closest distance to the arrays at which the source level predictions in Table 1 are valid (
If the largest distance to the peak sound pressure level threshold was equal to or less than the longest dimension of the array (
Therefore, we expect the potential for Level A harassment of mid-frequency cetaceans, otariid pinnipeds, and phocid pinnipeds to be de minimis, even before the likely moderating effects of aversion and/or other compensatory behaviors (
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
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 reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).
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 proposed 3D survey would acquire data with the 18-airgun array with a total discharge of 3,300 in
For deep and intermediate-water cases, the field measurements cannot be used readily to derive Level A and Level B isopleths, as at those sites the calibration hydrophone was located at a roughly constant depth of 350-500 m, which may not intersect all the sound pressure level (SPL) isopleths at their widest point from the sea surface down
In deep and intermediate-water depths, comparisons at short ranges between sound levels for direct arrivals recorded by the calibration hydrophone and model results for the same array tow depth are in good agreement (Fig. 12 and 14 in Appendix H of NSF-USGS, 2011). Consequently, isopleths falling within this domain can be predicted reliably by the L-DEO model, although they may be imperfectly sampled by measurements recorded at a single depth. At greater distances, the calibration data show that seafloor-reflected and sub-seafloor-refracted arrivals dominate, whereas the direct arrivals become weak and/or incoherent. Aside from local topography effects, the region around the critical distance is where the observed levels rise closest to the model curve. However, the observed sound levels are found to fall almost entirely below the model curve. Thus, analysis of the Gulf of Mexico calibration measurements demonstrates that although simple, the L-DEO model is a robust tool for conservatively estimating isopleths.
For deep water (>1,000 m), L-DEO used the deep-water radii obtained from model results down to a maximum water depth of 2000 m. The radii for intermediate water depths (100-1,000 m) were derived from the deep-water ones by applying a correction factor (multiplication) of 1.5, such that observed levels at very near offsets fall below the corrected mitigation curve (See Fig. 16 in Appendix H of NSF-USGS, 2011).
Measurements have not been reported for the single 40-in
L-DEO's modeling methodology is described in greater detail in the IHA application (LGL 2018). The estimated distances to the Level B harassment isopleth for the
Predicted distances to Level A harassment isopleths, which vary based on marine mammal hearing groups, were calculated based on modeling performed by L-DEO using the NUCLEUS software program and the NMFS User Spreadsheet, described below. The updated acoustic thresholds for impulsive sounds (
The values for SEL
For a more complete explanation of this modeling approach, please see “Appendix A: Determination of Mitigation Zones” in the IHA application.
In order to more realistically incorporate the Technical Guidance's weighting functions over the seismic array's full acoustic band, unweighted spectrum data for the Langseth's airgun array (modeled in 1 hertz (Hz) bands) was used to make adjustments (dB) to the unweighted spectrum levels, by frequency, according to the weighting functions for each relevant marine mammal hearing group. These adjusted/weighted spectrum levels were then converted to pressures (μPa) in order to integrate them over the entire broadband spectrum, resulting in broadband weighted source levels by hearing group that could be directly incorporated within the User Spreadsheet (
Inputs to the User Spreadsheets in the form of estimated SLs are shown in Table 5. User Spreadsheets used by L-DEO to estimate distances to Level A harassment isopleths for the 18-airgun array, 36-airgun array, and single 40 in
Note that because of some of the assumptions included in the methods used, isopleths produced may be overestimates to some degree, which will ultimately result in some degree of overestimate of Level A harassment. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 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 mobile sources, such as the proposed seismic survey, the User Spreadsheet predicts the closest distance at which a stationary animal would not incur PTS if the sound source traveled by the animal in a straight line at a constant speed.
In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.
In developing their IHA application, L-DEO utilized estimates of cetacean densities in the survey area synthesized by Barlow (2016). Observations from NMFS Southwest Fisheries Science Center (SWFSC) ship surveys off of Oregon and Washington (up to 556 km from shore) between 1991 and 2014 were pooled. Systematic, offshore, at-sea survey data for pinnipeds are more limited. To calculate pinniped densities in the survey area, L-DEO utilized methods described in U.S. Navy (2010) which calculated density estimates for pinnipeds off Washington at different times of the year using information on breeding and migration, population estimates from shore counts, and areas used by different species while at sea. The densities calculated by the Navy were updated by L-DEO using stock abundances presented in the latest SARs (
While the IHA application was in review by NMFS, the U.S. Navy published the Marine Species Density Database Phase III for the Northwest Training and Testing (NWTT) Study
For several cetacean species, the Navy updated densities estimated by line-transect surveys or mark-recapture studies (
The methods used to estimate pinniped at-sea densities are typically different than those used for cetaceans, because pinnipeds are not limited to the water and spend a significant amount of time on land (
Because the Navy's density calculations for many species included spatial habitat modeling and demographic information, we utilized the Navy Marine Species Density Database (NMSDD) to estimate densities and resulting take of marine mammals from the proposed geophysical survey. Where available, the appropriate seasonal density estimate from the NMSDD was used in the estimation here (
NMFS SWFSC developed a CCE habitat-based density model for humpback whales which provides spatially explicit density estimates off the U.S. West Coast for summer and fall based on survey data collected between 1991 and 2014 (Becker
Six humpback whale sightings (8 animals) were made off Washington/Oregon during the June-July 2012 L-DEO Juan de Fuca plate seismic survey; all were well inshore of the proposed survey area (RPS 2012b). There were 98 humpback whale sightings (213 animals) made during the July 2012 L-DEO seismic survey off southern Washington, northeast of the proposed survey area (RPS 2012a), and 11 sightings (23 animals) during the July 2012 L-DEO seismic survey off Oregon, southeast of the proposed survey area (RPS 2012c). No sightings were made near the proposed survey area in the 2014 NMFS Southwest Fisheries Science Center (SWFSC) California Current Ecosystem (CCE) vessel survey (Barlow 2016).
Density values for minke whales are available for the SWFSC Oregon/Washington and Northern California offshore strata for summer/fall (Barlow 2016). Density data are not available for the NWTT Offshore area northwest of the SWFSC strata, so data from the SWFSC Oregon/Washington stratum were used as representative estimates.
Sightings have been made off Oregon and Washington in shelf and deeper waters (Green
Density values for sei whales are available for the SWFSC Oregon/Washington and Northern California offshore strata for summer/fall (Barlow 2016). Density data are not available for the NWTT Offshore area northwest of the SWFSC strata, so data from the SWFSC Oregon/Washington stratum were used as representative estimates.
Sei whales are rare in the waters off California, Oregon, and Washington (Brueggeman
NMFS SWFSC developed a CCE habitat-based density model for fin whales which provides spatially explicit density estimates off the U.S. West Coast for summer and fall based on survey data collected between 1991 and 2014 (Becker
Fin whales are routinely sighted during surveys off Oregon and Washington (Barlow and Forney 2007; Barlow 2010; Adams
NMFS SWFSC developed a CCE habitat-based density model for blue whales which provides spatially explicit density estimates off the U.S. West Coast for summer and fall based on survey data collected between 1991 and 2014 (Becker
The nearest sighting of blue whales is ~55 km to the southwest (OBIS 2018), and there are several other sightings in adjacent waters (Carretta
NMFS SWFSC developed a CCE habitat-based density model for sperm whales which provides spatially explicit density estimates off the U.S. West Coast for summer and fall based on survey data collected between 1991 and 2014 (Becker
There is one sighting of a sperm whale in the vicinity of the survey area in the OBIS database that was made in July 1996 during the SWFSC ORCAWALE Marine Mammal Survey (OBIS 2018), and several other sightings in adjacent waters (Carretta
Pygmy and dwarf sperm whales are rarely sighted off Oregon and Washington, with only one sighting of an unidentified
NMFS SWFSC developed a CCE habitat-based density model for Baird's beaked whale which provides spatially explicit density estimates off the U.S. West Coast for summer and fall based on survey data collected between 1991 and 2014 (Becker
Green
NMFS has developed habitat-based density models for a small beaked whale guild in the CCE (Becker
Four beaked whale sightings were reported in water depths >2,000 m off Oregon/Washington during surveys in 2008 (Barlow 2010). None were seen in 1996 or 2001 (Barlow 2003), and several were recorded from 1991 to 1995 (Barlow 1997). One Cuvier's beaked whale sighting was made east of the proposed survey area during 2014 (Barlow 2016). Acoustic monitoring in Washington offshore waters detected Cuvier's beaked whale pulses between January and November 2011 (ŝirović
There are no sightings of Blainville's beaked whales near the proposed survey area in the OBIS database (OBIS 2018). There is one sighting of an unidentified species of Mesoplodont whale near the survey area in the OBIS database that was made in July 1996 during the SWFSC ORCAWALE Marine Mammal Survey (OBIS 2018). There was one acoustic encounter with Blainville's beaked whales recorded in Quinault Canyon off Washington in waters 1,400 m deep during 2011 (Baumann-Pickering
Stejneger's beaked whale calls were detected during acoustic monitoring offshore Washington between January and June 2011, with an absence of calls from mid-July to November 2011 (ŝirović
Baird's beaked whale is sometimes seen close to shore where deep water approaches the coast, but its primary habitat is over or near the continental slope and oceanic seamounts (Jefferson
During surveys off the U.S. West Coast, offshore bottlenose dolphins were generally found at distances greater than 1.86 miles (3 km) from the coast and were most abundant off southern California (Barlow 2010, 2016). Based on sighting data collected by SWFSC during systematic surveys in the Northeast Pacific between 1986 and 2005, there were few sightings of offshore bottlenose dolphins north of about 40° N (Hamilton
Bottlenose dolphins occur frequently off the coast of California, and sightings have been made as far north as 41° N, but few records exist for Oregon/Washington (Carretta
Striped dolphin encounters increase in deep, relatively warmer waters off the U.S. West Coast, and their abundance decreases north of about 42° N (Barlow
Striped dolphins regularly occur off California (Becker
Short-beaked common dolphins are found off the U.S. West Coast throughout the year, distributed between the coast and at least 345 miles (556 km) from shore (Barlow 2010; Becker
There are no sightings of short-beaked dolphins near the proposed survey area in the OBIS database (OBIS 2018).
Pacific white-sided dolphins occur year-round in the offshore region of the NWTT Study Area, with increased abundance in the summer/fall (Barlow 2010; Forney & Barlow 1998; Oleson
Fifteen Pacific white-sided dolphin sightings (231 animals) were made off Washington/Oregon during the June-July 2012 L-DEO Juan de Fuca plate seismic survey; none were near the proposed survey area (RPS 2012b). There were fifteen Pacific white-sided dolphin sightings (462 animals) made during the July 2012 L-DEO seismic surveys off southern Washington, northeast of the proposed survey area (RPS 2012a). This species was not sighted during the July 2012 L-DEO seismic survey off Oregon, southeast of the proposed survey area (RPS 2012c). One group of 10 Pacific white-sided dolphins was sighted during the 2009 ETOMO survey north of the proposed survey area (Holst 2017).
Survey data suggest that, at least in the eastern North Pacific, seasonal inshore-offshore and north-south movements are related to prey availability, with peak abundance in the Southern California Bight during winter and distribution shifting northward into Oregon and Washington as water temperatures increase during late spring and summer (Barlow 1995; Becker
Seven northern right whale dolphin sightings (231 animals) were made off Washington/Oregon during the June-July 2012 L-DEO Juan de Fuca plate seismic survey; none were seen near the proposed survey area (RPS 2012b). There were eight northern right whale dolphin sightings (278 animals) made during the July 2012 L-DEO seismic surveys off southern Washington, northeast of the proposed survey area (RPS 2012a). This species was not sighted during the July 2012 L-DEO seismic survey off Oregon, southeast of the proposed survey area (RPS 2012c).
NMFS SWFSC developed a CCE habitat-based density model for Risso's dolphins which provides spatially explicit density estimates off the U.S. West Coast for summer and fall based on survey data collected between 1991 and 2014 (Becker
Two sightings of 38 individuals were recorded off Washington from August 2004 to September 2008 (Oleson
False killer whales were not included in the NMSDD, as they are very rarely encountered in the northeast Pacific. Density estimates for false killer whales were also not presented in Barlow (2016), as no sightings occurred during surveys conducted between 1986 and 2008 (Ferguson and Barlow 2001, 2003; Forney 2007; Barlow 2003, 2010). One sighting was made off of southern California during 2014 (Barlow 2016). There are no sightings of false killer whales near the survey area in the OBIS database (OBIS 2018).
Due to the difficulties associated with reliably distinguishing the different stocks of killer whales from at-sea sightings, density estimates for the Offshore region of the NWTT Study Area are presented for the species as a whole (
Eleven sightings of ~536 individuals were reported off Oregon/Washington during the 2008 SWFSC vessel survey (Barlow 2010). Killer whales were sighted offshore Washington during surveys from August 2004 to September 2008 (Oleson
Along the U.S. West Coast, short-finned pilot whales were once common south of Point Conception, California (Carretta
Few sightings were made off California/Oregon/Washington in 1984-1992 (Green
NMFS SWFSC developed a CCE habitat-based density model for Dall's porpoise which provides spatially explicit density estimates off the U.S. West Coast for summer and fall based on survey data collected between 1991 and 2014 (Becker
Oleson
The Navy estimated the abundance of northern fur seals from the Eastern Pacific stock and the California breeding stock that could occur in the NWTT Offshore Study Area by determining the percentage of time tagged animals spent within the Study Area and applying that percentage to the population to calculate an abundance for adult females, juveniles, and pups independently on a monthly basis. Adult males are not expected to occur within the Offshore Study Area and the proposed survey area during the proposed geophysical survey as they spend the summer ashore at breeding areas in the Bering Sea and San Miguel Island (Caretta
Thirty-one northern fur seal sightings (63 animals) were made off Washington/Oregon during the June-July 2012 L-DEO Juan de Fuca plate seismic survey north of the proposed survey area (RPS 2012b). There were six sightings (6 animals) made during the July 2012 L-DEO seismic surveys off southern Washington, northeast of the proposed survey area (RPS 2012a). This species was not sighted during the July 2012 L-DEO seismic survey off Oregon, southeast of the proposed survey area (RPS 2012c).
As with northern fur seals, adult male Guadalupe fur seals are expected to be ashore at breeding areas over the summer, and are not expected to be present during the proposed geophysical survey (Caretta
The distribution of Guadalupe fur seals in the Offshore Study Area was stratified by distance from shore (or water depth) to reflect their preferred pelagic habitat (Norris 2017a). Ten percent of fur seals in the Study Area are expected to use waters over the continental shelf (approximated as waters with depths between 10 and 200 m). A depth of 10 m is used as the shoreward extent of the shelf (rather than extending to shore), because Guadalupe fur seals in the Offshore
Guadalupe fur seals have not previously been observed in the proposed survey area, nor on previous L-DEO surveys off Washington and Oregon.
The most recent surveys supporting the abundance estimate for northern elephant seals were conducted in 2010 (Caretta
Off Washington, most elephant seal sightings at sea were made during June, July, and September; off Oregon, sightings were recorded from November through May (Bonnell
Here we describe how the information provided above is brought together to produce a quantitative take estimate. In order to estimate the number of marine mammals predicted to be exposed to sound levels that would result in Level A or Level B harassment, radial distances from the airgun array to predicted isopleths corresponding to the Level A harassment and Level B harassment thresholds are calculated, as described above. Those radial distances are then used to calculate the area(s) around the airgun array predicted to be ensonified to sound levels that exceed the Level A and Level B harassment thresholds. The area estimated to be ensonified in a single day of the survey is then calculated (Table 8), based on the areas predicted to be ensonified around the array and representative trackline distances traveled per day. This number is then multiplied by the number of survey days. The product is then multiplied by 1.25 to account for the additional 25 percent contingency. This results in an estimate of the total areas (km
The marine mammals predicted to occur within these respective areas, based on estimated densities, are assumed to be incidentally taken. For species where take by Level A harassment has been requested, the calculated Level A takes have been subtracted from the total exposures within the Level B harassment zone. Estimated exposures for the proposed survey are shown in Table 9.
It should be noted that the proposed take numbers shown in Table 9 are expected to be conservative for several reasons. First, in the calculations of estimated take, 25 percent has been added in the form of operational survey days to account for the possibility of additional seismic operations associated with airgun testing and repeat coverage of any areas where initial data quality is sub-standard, and in recognition of the uncertainties in the density estimates used to estimate take as described above. Additionally, marine mammals would be expected to move away from a loud sound source that represents an aversive stimulus, such as an airgun array, potentially reducing the number of takes by Level A harassment. However, the extent to which marine mammals would move away from the sound source is difficult to quantify and is, therefore, not accounted for in the take estimates.
Note that due to the different density estimates used, and in consideration of the near-field soundscape of the airgun array, we propose to authorize a different number of incidental takes than the number of incidental takes requested by L-DEO (see Table 6 in the IHA application).
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 applicable, we carefully consider two primary factors:
(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.
L-DEO has reviewed mitigation measures employed during seismic research surveys authorized by NMFS under previous incidental harassment authorizations, as well as recommended best practices in Richardson
To reduce the potential for disturbance from acoustic stimuli associated with the activities, L-DEO has proposed to implement mitigation measures for marine mammals. Mitigation measures that would be adopted during the proposed surveys include (1) Vessel-based visual mitigation monitoring; (2) Vessel-based passive acoustic monitoring; (3) Establishment of an exclusion zone; (4) Power down procedures; (5) Shutdown procedures; (6) Ramp-up procedures; and (7) Vessel strike avoidance measures.
Visual monitoring requires the use of trained observers (herein referred to as visual PSOs) to scan the ocean surface visually for the presence of marine mammals. The area to be scanned visually includes primarily the exclusion zone, but also the buffer zone. The buffer zone means an area beyond the exclusion zone to be monitored for the presence of marine mammals that may enter the exclusion zone. During pre-clearance monitoring (
L-DEO must use at least five dedicated, trained, NMFS-approved Protected Species Observers (PSOs). The PSOs must have no tasks other than to conduct observational effort, record observational data, and communicate with and instruct relevant vessel crew with regard to the presence of marine mammals and mitigation requirements. PSO resumes shall be provided to NMFS for approval.
At least one of the visual and two of the acoustic PSOs aboard the vessel must have a minimum of 90 days at-sea experience working in those roles, respectively, during a deep penetration (
During survey operations (
PSOs shall establish and monitor the exclusion and buffer zones. These zones shall be based upon the radial distance from the edges of the acoustic source (rather than being based on the center of the array or around the vessel itself). During use of the acoustic source (
During use of the airgun (
Acoustic monitoring means the use of trained personnel (sometimes referred to as passive acoustic monitoring (PAM) operators, herein referred to as acoustic PSOs) to operate PAM equipment to acoustically detect the presence of marine mammals. Acoustic monitoring involves acoustically detecting marine mammals regardless of distance from the source, as localization of animals may not always be possible. Acoustic monitoring is intended to further support visual monitoring (during daylight hours) in maintaining an exclusion zone around the sound source that is clear of marine mammals. In cases where visual monitoring is not effective (
Passive acoustic monitoring (PAM) would take place in addition to the visual monitoring program. Visual monitoring typically is not effective during periods of poor visibility or at night, and even with good visibility, is unable to detect marine mammals when they are below the surface or beyond visual range. Acoustical monitoring can be used in addition to visual observations to improve detection, identification, and localization of cetaceans. The acoustic monitoring would serve to alert visual PSOs (if on duty) when vocalizing cetaceans are detected. It is only useful when marine mammals call, but it can be effective either by day or by night, and does not depend on good visibility. It would be monitored in real time so that the visual observers can be advised when cetaceans are detected.
The
Survey activity may continue for 30 minutes when the PAM system malfunctions or is damaged, while the PAM operator diagnoses the issue. If the diagnosis indicates that the PAM system must be repaired to solve the problem, operations may continue for an additional two hours without acoustic monitoring during daylight hours only under the following conditions:
• Sea state is less than or equal to BSS 4;
• No marine mammals (excluding delphinids) detected solely by PAM in the applicable exclusion zone in the previous two hours;
• NMFS is notified via email as soon as practicable with the time and location in which operations began occurring without an active PAM system; and
• Operations with an active acoustic source, but without an operating PAM system, do not exceed a cumulative total of four hours in any 24-hour period.
An exclusion zone (EZ) is a defined area within which occurrence of a marine mammal triggers mitigation action intended to reduce the potential for certain outcomes,
The 500 m EZ is intended to be precautionary in the sense that it would be expected to contain sound exceeding the injury criteria for all cetacean hearing groups, (based on the dual criteria of SEL
Ramp-up (sometimes referred to as “soft start”) means the gradual and systematic increase of emitted sound levels from an airgun array. Ramp-up begins by first activating a single airgun of the smallest volume, followed by doubling the number of active elements in stages until the full complement of an array's airguns are active. Each stage should be approximately the same duration, and the total duration should not be less than approximately 20 minutes. The intent of pre-clearance observation (30 minutes) is to ensure no protected species are observed within the buffer zone prior to the beginning of ramp-up. During pre-clearance is the only time observations of protected species in the buffer zone would prevent operations (
• The operator must notify a designated PSO of the planned start of ramp-up as agreed upon with the lead PSO; the notification time should not be less than 60 minutes prior to the planned ramp-up in order to allow the PSOs time to monitor the exclusion and buffer zones for 30 minutes prior to the initiation of ramp-up (pre-clearance);
• Ramp-ups shall be scheduled so as to minimize the time spent with the source activated prior to reaching the designated run-in;
• One of the PSOs conducting pre-clearance observations must be notified again immediately prior to initiating ramp-up procedures and the operator must receive confirmation from the PSO to proceed;
• Ramp-up may not be initiated if any marine mammal is within the applicable exclusion or buffer zone. If a marine mammal is observed within the applicable exclusion zone or the buffer zone during the 30 minute pre-clearance period, ramp-up may not begin until the animal(s) has been observed exiting the zones or until an additional time period has elapsed with no further sightings (15 minutes for small odontocetes and 30 minutes for all other species);
• Ramp-up shall begin by activating a single airgun of the smallest volume in the array and shall continue in stages by doubling the number of active elements at the commencement of each stage, with each stage of approximately the same duration. Duration shall not be less than 20 minutes. The operator must provide information to the PSO documenting that appropriate procedures were followed;
• PSOs must monitor the exclusion and buffer zones during ramp-up, and ramp-up must cease and the source must be shut down upon observation of a marine mammal within the applicable exclusion zone. Once ramp-up has begun, observations of marine mammals within the buffer zone do not require shutdown or powerdown, but such observation shall be communicated to the operator to prepare for the potential shutdown or powerdown;
• Ramp-up may occur at times of poor visibility, including nighttime, if appropriate acoustic monitoring has occurred with no detections in the 30 minutes prior to beginning ramp-up. Acoustic source activation may only occur at times of poor visibility where operational planning cannot reasonably avoid such circumstances;
• If the acoustic source is shut down for brief periods (
• Testing of the acoustic source involving all elements requires ramp-up. Testing limited to individual source elements or strings does not require ramp-up but does require pre-clearance of 30 min.
The shutdown of an airgun array requires the immediate de-activation of all individual airgun elements of the array while a powerdown requires immediate de-activation of all individual airgun elements of the array except the single 40-in
Following a shutdown, airgun activity would not resume until the marine mammal has cleared the 500 m EZ. The animal would be considered to have cleared the 500 m EZ if it is visually observed to have departed the 500 m
The shutdown requirement can be waived for small dolphins in which case the acoustic source shall be powered down to the single 40-in
Powerdown conditions shall be maintained until delphinids for which shutdown is waived are no longer observed within the 500 m exclusion zone, following which full-power operations may be resumed without ramp-up. Visual PSOs may elect to waive the powerdown requirement if delphinids for which shutdown is waived to be voluntarily approaching the vessel for the purpose of interacting with the vessel or towed gear, and may use best professional judgment in making this decision.
We include this small delphinoid exception because power-down/shutdown requirements for small delphinoids under all circumstances represent practicability concerns without likely commensurate benefits for the animals in question. Small delphinoids are generally the most commonly observed marine mammals in the specific geographic region and would typically be the only marine mammals likely to intentionally approach the vessel. As described above, auditory injury is extremely unlikely to occur for mid-frequency cetaceans (
A large body of anecdotal evidence indicates that small delphinoids commonly approach vessels and/or towed arrays during active sound production for purposes of bow riding, with no apparent effect observed in those delphinoids (
Powerdown conditions shall be maintained until the marine mammal(s) of the above listed genera are no longer observed within the exclusion zone, following which full-power operations may be resumed without ramp-up. Additionally, visual PSOs may elect to waive the powerdown requirement if the small dolphin(s) appear to be voluntarily approaching the vessel for the purpose of interacting with the vessel or towed gear, and may use best professional judgment in making this decision. Visual PSOs shall use best professional judgment in making the decision to call for a shutdown if there is uncertainty regarding identification (
Upon implementation of shutdown, the source may be reactivated after the marine mammal(s) has been observed exiting the applicable exclusion zone (
These measures apply to all vessels associated with the planned survey activity; however, we note that these requirements do not apply in any case where compliance would create an imminent and serious threat to a person or vessel or to the extent that a vessel is restricted in its ability to maneuver and, because of the restriction, cannot comply. These measures include the following:
1. Vessel operators and crews must maintain a vigilant watch for all marine mammals and slow down, stop their vessel, or alter course, as appropriate and regardless of vessel size, to avoid striking any marine mammal. A single marine mammal at the surface may indicate the presence of submerged animals in the vicinity of the vessel; therefore, precautionary measures should be exercised when an animal is observed. A visual observer aboard the vessel must monitor a vessel strike avoidance zone around the vessel (specific distances detailed below), to ensure the potential for strike is minimized. Visual observers monitoring the vessel strike avoidance zone can be either third-party observers or crew members, but crew members responsible for these duties must be provided sufficient training to distinguish marine mammals from other phenomena and broadly to identify a marine mammal to broad taxonomic group (
2. Vessel speeds must be reduced to 10 kn or less when mother/calf pairs, pods, or large assemblages of any marine mammal are observed near a vessel;
3. All vessels must maintain a minimum separation distance of 100 m from large whales (
4. All vessels must attempt to maintain a minimum separation distance of 50 m from all other marine mammals, with an exception made for those animals that approach the vessel; and
5. When marine mammals are sighted while a vessel is underway, the vessel should take action as necessary to avoid violating the relevant separation distance (
We have carefully evaluated the suite of mitigation measures described here and considered a range of other measures in the context of ensuring that we prescribe the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. Based on our evaluation of the proposed measures, NMFS has preliminarily determined that the 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.
As described above, PSO observations would take place during daytime airgun operations and nighttime start ups (if applicable) of the airguns. During seismic operations, at least five visual PSOs would be based aboard the
• The operator shall provide PSOs with bigeye binoculars (
• The operator will work with the selected third-party observer provider to ensure PSOs have all equipment (including backup equipment) needed to adequately perform necessary tasks, including accurate determination of distance and bearing to observed marine mammals. PSOs must have the following requirements and qualifications:
• PSOs shall be independent, dedicated, trained visual and acoustic PSOs and must be employed by a third-party observer provider;
• PSOs shall have no tasks other than to conduct observational effort (visual or acoustic), collect data, and communicate with and instruct relevant vessel crew with regard to the presence of protected species and mitigation requirements (including brief alerts regarding maritime hazards);
• PSOs shall have successfully completed an approved PSO training course appropriate for their designated task (visual or acoustic). Acoustic PSOs are required to complete specialized training for operating PAM systems and are encouraged to have familiarity with the vessel with which they will be working;
• PSOs can act as acoustic or visual observers (but not at the same time) as long as they demonstrate that their training and experience are sufficient to perform the task at hand;
• NMFS must review and approve PSO resumes accompanied by a relevant training course information packet that includes the name and qualifications (
• NMFS shall have one week to approve PSOs from the time that the necessary information is submitted, after which PSOs meeting the minimum requirements shall automatically be considered approved;
• PSOs must successfully complete relevant training, including completion of all required coursework and passing (80 percent or greater) a written and/or oral examination developed for the training program;
• PSOs must have successfully attained a bachelor's degree from an accredited college or university with a major in one of the natural sciences, a minimum of 30 semester hours or equivalent in the biological sciences, and at least one undergraduate course in math or statistics; and
• The educational requirements may be waived if the PSO has acquired the relevant skills through alternate experience. Requests for such a waiver shall be submitted to NMFS and must include written justification. Requests shall be granted or denied (with justification) by NMFS within one week of receipt of submitted information. Alternate experience that may be considered includes, but is not limited to (1) secondary education and/or experience comparable to PSO duties; (2) previous work experience conducting academic, commercial, or government-sponsored protected species surveys; or (3) previous work experience as a PSO; the PSO should demonstrate good standing and consistently good performance of PSO duties.
For data collection purposes, PSOs shall use standardized data collection forms, whether hard copy or electronic. PSOs shall record detailed information about any implementation of mitigation requirements, including the distance of animals to the acoustic source and description of specific actions that ensued, the behavior of the animal(s), any observed changes in behavior before and after implementation of mitigation, and if shutdown was implemented, the length of time before any subsequent ramp-up of the acoustic source. If required mitigation was not implemented, PSOs should record a description of the circumstances. At a minimum, the following information must be recorded:
• Vessel names (source vessel and other vessels associated with survey) and call signs;
• PSO names and affiliations;
• Dates of departures and returns to port with port name;
• Date and participants of PSO briefings;
• Dates and times (Greenwich Mean Time) of survey effort and times corresponding with PSO effort;
• Vessel location (latitude/longitude) when survey effort began and ended and vessel location at beginning and end of visual PSO duty shifts;
• Vessel heading and speed at beginning and end of visual PSO duty shifts and upon any line change;
• Environmental conditions while on visual survey (at beginning and end of PSO shift and whenever conditions changed significantly), including BSS and any other relevant weather conditions including cloud cover, fog, sun glare, and overall visibility to the horizon;
• Factors that may have contributed to impaired observations during each PSO shift change or as needed as environmental conditions changed (
• Survey activity information, such as acoustic source power output while in operation, number and volume of airguns operating in the array, tow depth of the array, and any other notes of significance (
The following information should be recorded upon visual observation of any protected species:
• Watch status (sighting made by PSO on/off effort, opportunistic, crew, alternate vessel/platform);
• PSO who sighted the animal;
• Time of sighting;
• Vessel location at time of sighting;
• Water depth;
• Direction of vessel's travel (compass direction);
• Direction of animal's travel relative to the vessel;
• Pace of the animal;
• Estimated distance to the animal and its heading relative to vessel at initial sighting;
• Identification of the animal (
• Estimated number of animals (high/low/best);
• Estimated number of animals by cohort (adults, yearlings, juveniles, calves, group composition, etc.);
• Description (as many distinguishing features as possible of each individual seen, including length, shape, color, pattern, scars or markings, shape and size of dorsal fin, shape of head, and blow characteristics);
• Detailed behavior observations (
• Animal's closest point of approach (CPA) and/or closest distance from any element of the acoustic source;
• Platform activity at time of sighting (
• Description of any actions implemented in response to the sighting (
If a marine mammal is detected while using the PAM system, the following information should be recorded:
• An acoustic encounter identification number, and whether the detection was linked with a visual sighting;
• Date and time when first and last heard;
• Types and nature of sounds heard (
• Any additional information recorded such as water depth of the hydrophone array, bearing of the animal to the vessel (if determinable), species or taxonomic group (if determinable), spectrogram screenshot, and any other notable information.
A report would be submitted to NMFS within 90 days after the end of the cruise. The report would describe the operations that were conducted and sightings of marine mammals near the operations. The report would provide full documentation of methods, results, and interpretation pertaining to all monitoring. The 90-day report would summarize the dates and locations of seismic operations, and all marine mammal sightings (dates, times, locations, activities, associated seismic survey activities). The report would also include estimates of the number and nature of exposures that occurred above the harassment threshold based on PSO observations and including an estimate of those that were not detected, in consideration of both the characteristics and behaviors of the species of marine mammals that affect detectability, as well as the environmental factors that affect detectability.
L-DEO will be required to submit a draft comprehensive report to NMFS on all activities and monitoring results within 90 days of the completion of the survey or expiration of the IHA, whichever comes sooner. The report must describe all activities conducted and sightings of protected species near the activities, must provide full documentation of methods, results, and interpretation pertaining to all monitoring, and must summarize the dates and locations of survey operations and all protected species sightings (dates, times, locations, activities, associated survey activities). The draft report shall also include geo-referenced time-stamped vessel tracklines for all time periods during which airguns were operating. Tracklines should include points recording any change in airgun status (
In the event that personnel involved in survey activities covered by the authorization discover an injured or dead marine mammal, the L-DEO shall report the incident to the Office of Protected Resources (OPR), NMFS and to the NMFS West Coast Regional Stranding Coordinator as soon as feasible. The report must include the following information:
• Time, date, and location (latitude/longitude) of the first discovery (and updated location information if known and applicable);
• Species identification (if known) or description of the animal(s) involved;
• Condition of the animal(s) (including carcass condition if the animal is dead);
• Observed behaviors of the animal(s), if alive;
• If available, photographs or video footage of the animal(s); and
• General circumstances under which the animal was discovered.
• Status of all sound source use in the 48 hours preceding the estimated time of stranding and within 50 km of the discovery/notification of the stranding by NMFS; and
• If available, description of the behavior of any marine mammal(s) observed preceding (
Examples of circumstances that could trigger the additional information request include, but are not limited to, the following:
• Atypical nearshore milling events of live cetaceans;
• Mass strandings of cetaceans (two or more individuals, not including cow/calf pairs);
• Beaked whale strandings;
• Necropsies with findings of pathologies that are unusual for the species or area; or
• Stranded animals with findings consistent with blast trauma.
In the event that the investigation is still inconclusive, the investigation of the association of the survey activities is still warranted, and the investigation is still being pursued, NMFS may provide additional information requests, in writing, regarding the nature and location of survey operations prior to the time period above.
• Time, date, and location (latitude/longitude) of the incident;
• Species identification (if known) or description of the animal(s) involved;
• Vessel's speed during and leading up to the incident;
• Vessel's course/heading and what operations were being conducted (if applicable);
• Status of all sound sources in use;
• Description of avoidance measures/requirements that were in place at the time of the strike and what additional measures were taken, if any, to avoid strike;
• Environmental conditions (
• Estimated size and length of animal that was struck;
• Description of the behavior of the marine mammal immediately preceding and following the strike;
• If available, description of the presence and behavior of any other marine mammals immediately preceding the strike;
• Estimated fate of the animal (
• To the extent practicable, photographs or video footage of the animal(s).
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, our analysis applies to all species listed in Tables 7 and 9, given that NMFS expects the anticipated effects of the proposed geophysical survey to be similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, NMFS has identified species-specific factors to inform the analysis.
NMFS does not anticipate that serious injury or mortality would occur as a result of L-DEO's proposed survey, even in the absence of proposed mitigation. Thus the proposed authorization does not authorize any mortality. As discussed in the
We propose to authorize a limited number of instances of Level A harassment of seven species and Level B harassment of 26 marine mammal species. However, we believe that any PTS incurred in marine mammals as a result of the proposed activity would be in the form of only a small degree of PTS, not total deafness, and would be unlikely to affect the fitness of any individuals, because of the constant movement of both the
Potential impacts to marine mammal habitat were discussed previously in this document (see
The activity is expected to impact a small percentage of all marine mammal stocks that would be affected by L-DEO's proposed survey (less than seven percent of all species). Additionally, the acoustic “footprint” of the proposed survey would be small relative to the ranges of the marine mammals that would potentially be affected. Sound levels would increase in the marine environment in a relatively small area surrounding the vessel compared to the range of the marine mammals within the proposed survey area.
The proposed mitigation measures are expected to reduce the number and/or severity of takes by allowing for detection of marine mammals in the vicinity of the vessel by visual and acoustic observers, and by minimizing the severity of any potential exposures via power downs and/or shutdowns of the airgun array. Based on previous monitoring reports for substantially similar activities that have been previously authorized by NMFS, we expect that the proposed mitigation will be effective in preventing at least some extent of potential PTS in marine mammals that may otherwise occur in the absence of the proposed mitigation.
The ESA-listed marine mammal species under our jurisdiction that are likely to be taken by the proposed surveys include the endangered sei, fin, blue, sperm, and Central America DPS humpback whales, and the threatened Mexico DPS humpback whale and Guadalupe fur seal. We propose to authorize very small numbers of takes for these species relative to their population sizes. Given the low probability of fitness impacts to any individual, combined with the small portion of any of these stocks impacted, we do not expect population-level impacts to any of these species. The other marine mammal species that may be taken by harassment during the proposed survey are not listed as threatened or endangered under the ESA. With the exception of the northern fur seal, none of the non-listed marine mammals for which we propose to authorize take are considered “depleted” or “strategic” by NMFS under the MMPA.
NMFS concludes that exposures to marine mammal species and stocks due to L-DEO's proposed survey would result in only short-term (temporary and short in duration) effects to individuals exposed. Animals may temporarily avoid the immediate area, but are not expected to permanently abandon the area. Major shifts in habitat use, distribution, or foraging success are not expected. NMFS does not anticipate the proposed take estimates to impact annual rates of recruitment or survival.
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:
No mortality is anticipated or authorized;
• The proposed activity is temporary and of relatively short duration (19 days);
• The anticipated impacts of the proposed activity on marine mammals would primarily be temporary behavioral changes due to avoidance of the area around the survey vessel;
• The number of instances of PTS that may occur are expected to be very small in number. Instances of PTS that are incurred in marine mammals would be of a low level, due to constant movement of the vessel and of the marine mammals in the area, and the nature of the survey design (not concentrated in areas of high marine mammal concentration);
• The availability of alternate areas of similar habitat value for marine mammals to temporarily vacate the survey area during the proposed survey to avoid exposure to sounds from the activity;
• The potential adverse effects on fish or invertebrate species that serve as prey species for marine mammals from the proposed survey would be temporary and spatially limited; and
• The proposed mitigation measures, including visual and acoustic monitoring, power-downs, and shutdowns, are expected to minimize potential impacts to marine mammals.
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the 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.
Table 9 provides the numbers of take by Level A and Level B harassment proposed for authorization, which are used herefor purposes of the small numbers analysis. The numbers of marine mammals that we propose for authorized take would be considered small relative to the relevant populations (less than seven percent for all species and stocks) for the species for which abundance estimates are available.
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.
There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has preliminarily determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531
NMFS is proposing to authorize take of sei whales, fin whales, blue whales, sperm whales, Central America DPS humpback whales, Mexico DPS humpback whales and Guadalupe fur seals which are listed under the ESA. The Permit and Conservation Division has requested initiation of Section 7 consultation with the Interagency Cooperation Division for the issuance of this IHA. NMFS will conclude the ESA consultation prior to reaching a determination regarding the proposed issuance of the authorization.
As a result of these preliminary determinations, NMFS proposes to issue an IHA to L-DEO for conducting a marine geophysical survey in the northeast Pacific Ocean in summer of 2019, 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 L-DEO's proposed survey. 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 one-year IHA renewal with an expedited public comment period (15 days) 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 under the proposed Renewal are identical to the activities analyzed under the initial IHA, are a subset of the 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.
• 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 will remain the same and appropriate, and the findings in the initial IHA remain valid.
Environmental Protection Agency (EPA).
Final rule.
The Environmental Protection Agency (EPA) is adopting a new statutory interpretation and making corresponding regulatory changes to allow gasoline blended with up to 15 percent ethanol to take advantage of the 1-pound per square inch (psi) Reid Vapor Pressure (RVP) waiver afforded under the Clean Air Act (CAA). In doing so, EPA is finalizing an interpretive rulemaking which defines gasoline blended with up to 15 percent ethanol as “substantially similar” to the fuel used to certify Tier 3 motor vehicles. Finally, EPA is making regulatory changes to modify certain elements of the Renewable Fuel Standard (RFS) compliance system, in order to improve functioning of the renewable identification number (RIN) market and prevent market manipulation.
Amendatory instructions 4-10 are effective July 10, 2019. Amendatory instructions 1-3 and 11-12 are effective June 5, 2019.
EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2018-0775. All documents in the docket are listed on the
Julia MacAllister, Office of Transportation and Air Quality, Assessment and Standards Division, Environmental Protection Agency, 2000 Traverwood Drive, Ann Arbor, MI 48105; telephone number: 734-214-4131; email address:
This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be affected by this action. This table lists the types of entities that EPA is now aware could potentially be affected by
On October 11, 2018, the President directed
The objectives of this action are twofold. First, this rulemaking will take steps intended to create parity in the way the RVP of both E10 and E15 fuels is treated under EPA regulations. Second, this action finalizes reforms to RIN regulations intended to increase transparency and deter potential manipulative and anti-competitive behaviors in the RIN market.
Further, in promulgating this rule, EPA is seeking to take justified actions to remove barriers which unnecessarily limit the potential growth in biofuel consumption, much as it did in 1987 for the original 1-psi waiver as markets were evolving. As is also clear from the text of the Energy Independence and Security Act of 2007, and the associated 36 billion gallon mandate by 2022, that Congress intended to promote and accommodate expanded biofuel use and outlined greenhouse gas savings. While this rule alone is not expected to increase the availability of E15, it removes one barrier to such an outcome.
We are modifying the volatility requirements for E15 during the summer season or the period of May 1 through September 15.
EPA is finalizing three steps to accomplish this change. First, we are adopting a new interpretation of CAA sec. 211(h)(4). Second, we are finalizing two approaches to address CAA sec. 211(f). In the first of these approaches, we find that E15 is “substantially similar” (sub sim) to Tier 3 E10 certification fuel for use in MY2001 and newer light-duty vehicles.
As a result of this action, parties will be able to make, distribute, and sell E15 made with the same conventional blendstock for oxygenate blending (CBOB)
EPA takes claims of RIN market manipulation seriously. Though, as stated in the proposal and reaffirmed in this action, we have yet to see data-based evidence of such behavior, the potential for manipulation is a concern. Accordingly, we are finalizing two reforms to increase our market monitoring capabilities, bring more transparency to the RIN market, and discourage RIN holdings in excess of normal business practices. Specifically, we are finalizing the following RIN market reforms:
• Requiring public disclosure when RIN holdings held by an individual actor exceed specified limits.
• Requiring the reporting of additional price and affiliate data to EPA.
First, we are finalizing two RIN holding thresholds that will work in tandem to discourage potential accumulation of market power. These thresholds will apply to holdings of separated D6 RINs only.
Second, we are finalizing additional reporting requirements that will enhance EPA's oversight capabilities of RIN market behavior. We are finalizing requirements for parties to follow certain conventions when reporting RIN prices to EPA and to report whether the RIN transaction was on the spot market or as a result of a term contract.
Third, we are confirming our intention to take non-regulatory steps after promulgation of this action to update business rules in EMTS to require that both parties in a RIN transaction enter the same RIN price and to employ a third-party market monitor to conduct analysis of the RIN market, including screening for potential anti-competitive behavior. We intend to incorporate new information reported to EPA as a result of this rulemaking into such RIN market analysis.
Finally, we are not taking final action on three of the reforms that were proposed. These reforms are related to RIN retirement frequency, limitations on the parties that can purchase a D6 RIN, and the duration parties can hold D6 RINs. We have decided to defer the decision on whether or not to finalize these three proposed reforms as we conduct more thorough analyses of the RIN market and of the manipulation concerns presented by some stakeholders, with help from a third party. If, after reviewing that data and
The actions we are taking with regard to Section II are made pursuant to our authority under CAA secs. 211(c), 211(f), and 211(h). The actions we are taking with regard to Section III are made pursuant to our authority under Clean Air Act sec. 211(o). We consider Section II and the regulatory provisions we are finalizing under 40 CFR part 80, subparts B and N, to be severable from Section III and the regulatory provisions we are finalizing under 40 CFR part 80, subpart M, as these are two separate actions, each of which operates independently from the other.
In this action, we are finalizing changes to the volatility provisions for E15 during the summer season based on revised interpretations of CAA sec. 211(h)(4) and CAA sec. 211(f). The changed volatility provisions for E15 will apply the 1-psi waiver to E15 pursuant to CAA sec. 211(h)(4). This provision allows certain gasoline-ethanol blends to have a higher RVP than would otherwise be allowed under CAA sec. 211(h)(1) and the corresponding volatility regulations that prohibit the RVP of gasoline from exceeding 9.0 psi during the summer. Prior to this rulemaking, EPA's interpretation of the statute and the corresponding regulations only applied the 1-psi waiver to gasoline-ethanol blends containing at least 9 percent and no more than 10 volume percent ethanol. The interpretation in this action represents a change in EPA's prior interpretation and, as explained in more detail below, is appropriate in light of the increased presence of E15 in the gasoline marketplace. This interpretation is further supported by the fact that the conditions that led us to provide the original 1-psi waiver for E10 in 1990 are equally applicable to E15 today.
The volatility of E15 is also limited by CAA sec. 211(f). CAA sec. 211(f) prohibits the introduction into commerce of fuels and fuel additives unless they either: (1) Are substantially similar to fuels or fuel additives utilized in the certification of motor vehicles, or (2) receive a waiver from the sub sim requirement in accordance with CAA sec. 211(f)(4). EPA granted E15 CAA sec. 211(f)(4) waivers in 2010 and 2011, subject to certain conditions. Under the waiver conditions, the RVP limit for E15 is 9.0 psi from May 1 through September 15. In order to effectuate the 1-psi waiver under CAA sec. 211(h)(4) and permit the introduction of E15 at the higher RVP level into commerce, we are addressing the statutory provisions under both CAA sec. 211(f) and (h).
As discussed in Section I, we are taking this action in response to the Presidential Directive to provide E15 the 1-psi waiver. All actions we are taking under both CAA sec. 211(h) and CAA sec. 211(f)(1) are in furtherance of that goal. EPA is taking several steps to provide E15 the 1-psi waiver. First, we are finalizing our proposed interpretation of CAA sec. 211(h)(4). Under this new interpretation, gasoline-ethanol blends containing at least 10 percent ethanol that are either substantially similar under CAA sec. 211(f)(1) or that have been granted a waiver under CAA sec. 211(f)(4) would receive the 1-psi waiver, including E15.
Second, we are finalizing an interpretative rulemaking that defines E15 with an RVP of 9.0 psi RVP in the summer as sub sim to the fuel utilized to certify Tier 3 vehicles when used in model year (MY) 2001 and newer light-duty motor vehicles, subject to certain criteria. After application of the CAA sec. 211(h)(4) 1-psi waiver, this new definition of sub sim will allow E15 to be introduced into commerce with an RVP of 10.0 psi during the summer. Additionally, we maintain our interpretation of CAA sec. 211(f), making it clear that the conditions on the CAA sec. 211(f)(4) waivers granted to E15 in 2010 and 2011 do not restrict the application of the 1-psi waiver to downstream oxygenate blenders in most circumstances.
Third, to effectuate our new interpretations under CAA sec. 211(h) and 211(f)(1), we are finalizing the following changes to EPA's fuels regulations: (1) Removing limitations on the volatility of E15 in our regulations, that were put in place to implement the prior interpretation of CAA sec. 211(h)(4); and (2) modifying the associated Product Transfer Document (“PTD”) requirements.
The actions we are taking, including those pursuant to our authorities under CAA secs. 211(f) 211(h), are all taken to establish a single, unified program that allows the introduction into commerce of E15 at 10.0 psi RVP during the summer driving season. For example, the actions we are taking under CAA sec. 211(f) are directly related to our new interpretation of CAA sec. 211(h)(4), and in the absence of this new CAA sec. 211(h)(4) interpretation, we would not be taking these actions. Additionally, the restrictions adopted as part of the E15 sub sim determination under CAA sec. 211(f)(1) are necessary to prevent the use of E15 in vehicles, engines, and equipment other than MY2001 and newer light-duty vehicles, and absent those restrictions and the limited nature of the sub sim determination, we would not consider E15 to be sub sim to Tier 3 certification fuel. Finally, our amendments to 40 CFR part 80 subparts B and N are pursuant to our actions under CAA secs. 211(f) and (h)(4). In sum, all actions we are taking today constitute a single, cohesive effort, and as such we do not intend for any of these individual actions to be severable. In the event it is determined we lack authority to adopt any element of this program, EPA believes the other elements of the program cannot be justified in isolation.
The following subsections provide further details on these changes, as well as discussions on the potential effects of this action on emissions and the economy. First, we provide background on both the relevant statutory provisions and the history of gasoline-ethanol blends in the fuel marketplace. We then discuss our new interpretation of CAA sec. 211(h), under which the 1-psi waiver applies to blends up to E15. Third, we provide a discussion of our new definition of “substantially similar” under CAA sec. 211(f)(1) and its application to E15. Finally, we provide discussion of the potential economic and environmental impacts of this action.
The discussion below provides general background explaining the CAA provisions that are relevant to this action, as well as a description of prior EPA actions taken under those
The Air Quality Act of 1967 and the CAA of 1970 established the basic framework for EPA's fuels regulations. CAA sec. 211(a) allows EPA to designate fuels and fuel additives for registration. CAA sec. 211(b) sets forth registration requirements for fuels and fuel additives and authorizes EPA to require health and environmental effects testing for the registration of fuels and fuel additives. CAA sec. 211(c) authorizes EPA to regulate or prohibit fuels or additives for use in motor (or nonroad) vehicles or engines if: (A) “any fuel or fuel additive or any emission product of such fuel or fuel additive causes, or contributes, to air pollution . . . that may reasonably be anticipated to endanger the public health or welfare,” or (B) “if emission products of such fuel or fuel additive will impair to a significant degree the performance of any emission control device or system.” CAA sec. 211(c) also provides that in order to place a control or prohibition on a fuel or fuel additive under clause (A), EPA must consider “all relevant medical and scientific evidence available . . . including consideration of other technologically or economically feasible means of achieving emission standards.” In order to place a control or prohibition on a fuel or fuel additive under clause (B), EPA must consider “available scientific and economic data, including a cost benefit analysis comparing emission control devices or systems which are or will be in general use and require the proposed control” and those that do not require the proposed control.
In the CAA Amendments of 1977, Congress established CAA sec. 211(f)(1), which prohibits manufacturers from first introducing into commerce any fuel or fuel additive for general use in light-duty vehicles that is not “substantially similar to any fuel or fuel additive utilized in the certification of any model year 1975, or subsequent model year, vehicle.” In a report accompanying the enactment of this provision in addition to 211(c), Congress explained that “the intention of this [section] is to prevent the use of any new or recently introduced additive in those unleaded grades of gasoline . . . which may impair emission performance of vehicles.”
If a fuel or fuel additive is not sub sim, a fuel or fuel additive manufacturer may obtain a waiver under CAA sec. 211(f)(4)
In the CAA Amendments of 1990, Congress added CAA sec. 211(f)(1)(B), which extends the prohibition from first introduction into commerce to “any fuel or fuel additive for use by any person in motor vehicles manufactured after model year 1974 which is not substantially similar to any fuel or fuel additive utilized in the certification of any model year 1975, or subsequent model year vehicle, or engine.”
Also, in the CAA Amendments of 1990, Congress added CAA sec. 211(h) to address the volatility of gasoline, which largely codified EPA's then-new RVP regulations.
Relevant to our discussion of CAA sec. 211(f)(1) are CAA sec. 206 and 213. These provisions provide EPA with authority to establish vehicle and engine certification procedures; CAA sec. 213 also provides EPA with authority to establish emissions standards. CAA sec. 206, “Motor vehicle and motor vehicle engine compliance testing and certification,” authorizes EPA to established methods and procedures for testing whether a motor vehicle or motor vehicle engine conforms with our motor vehicle emissions standards promulgated under CAA sec. 202. CAA sec. 213, enacted in the CAA Amendments of 1990, authorizes EPA to promulgate regulations containing emissions standards for nonroad engines and nonroad vehicles.
In the Energy Policy Act of 2005 (“EPAct”) Congress added sec. 211(o) to the CAA creating the Renewable Fuel Standard (RFS), and then in the Energy Independence and Security Act of 2007 (“EISA”) modified and greatly expanded the program. The RFS program places obligations on refiners and importers to expand the use of renewable fuels such as ethanol in the nation's fuel supply.
Prompted by concerns about reliance on foreign sources of oil and a desire to support domestic agriculture, several corn-based ethanol plants were constructed in the 1970s. In 1978, after a CAA sec. 211(f)(4) waiver application was submitted for E10, E10 was granted a CAA sec. 211(f)(4) waiver by operation of law.
In the 1980s, to make E10, or “gasohol” as it was known at the time, ethanol was “splash blended” into previously certified gasoline. “Splash blending” occurred when tanker trucks were filled up to 90 volume percent with gasoline at a gasoline terminal and then driven to an ethanol tank (at the gasoline terminal or at another location) to be filled with 10 volume percent ethanol. Mixing was assumed to take place as the truck drove to the retail station.
In 1989, the first phase of the federal volatility standards went into effect.
In 1992, the winter oxygenated fuels (“oxyfuels”) program for carbon monoxide (CO) nonattainment areas began as mandated by the CAA Amendments of 1990.
The reformulated gasoline (RFG) program, also enacted under the CAA Amendments of 1990, began in 1995 and applied to severe and extreme ozone nonattainment areas.
Beginning in the early 2000s, concerns about leaking underground storage tanks and groundwater contamination led several states to ban the use of MTBE as a gasoline additive. The use of MTBE as a gasoline additive began falling in 2002, with its volume being replaced essentially 1:1 with ethanol in RFG areas. EPAct in 2005 removed the oxygenate mandate for RFG and replaced it with the Renewable Fuel Standard (RFS). By this time, refiners had already removed essentially all MTBE from RFG and replaced it with ethanol. This initially involved shifting much of the existing discretionary blending of ethanol in CG areas to RFG, until ethanol production and distribution capacity could increase to supply both the CG and RFG markets. By 2007, MTBE was rarely used, and coupled with the ongoing excise tax credit for ethanol, and the certainty of the Renewable Fuel Standard (RFS) mandate, ethanol's use rose significantly to 6.9 billion gallons by 2007, with E10 representing nearly half of all gasoline (assuming that all of the ethanol was blended to make E10).
In the following years, a combination of factors continued to create ongoing incentives for the rapid growth of E10, including rising crude oil prices, the expansion of the RFS program with the passage of EISA, and California's Low Carbon Fuel Standard (LCFS). With E10 comprising the majority of gasoline produced and distributed nationwide, refiners began producing not only low RVP/low octane RBOB for blending with ethanol in RFG areas at downstream terminals, but also a low octane conventional blendstock for oxygenate blending (CBOB) for blending CG with ethanol. By 2013, the pipeline distribution systems had switched over to transporting only CBOB for the production of conventional gasoline, forcing all refiners to harmonize around their production, and necessitating that 10 percent ethanol be added at downstream terminals in order for conventional gasoline to meet its octane and other specifications at retail. Essentially all gasoline, both reformulated and conventional, was E10 by this time, and total ethanol consumption was 13.2 billion gallons.
Similar to E10 in the 1970's, E15 has begun to slowly enter the marketplace. In October 2010, EPA partially approved a waiver request from Growth Energy allowing the introduction of E15 into commerce for use in model year 2007 and newer light-duty motor vehicles, subject to several conditions.
While there are no reliable statistics on the volume of E15 produced and distributed from these stations, it has remained small, with little overall impact on ethanol use. In coming years, if gasoline demand falls as projected by the U.S. Energy Information Administration (EIA),
For reasons expanded upon in Section II.E (
To properly understand this action, it is important to review the history of EPA's volatility controls both leading up to and after the enactment of CAA sec. 211(h). As mentioned above, Congress enacted CAA sec. 211(h) as part of the CAA Amendments of 1990 to address the volatility of gasoline. Congress did so in the context of EPA's prior regulatory actions, under CAA sec. 211(c), which aimed to control the RVP of gasoline. EPA has historically viewed Congress's enactment of 211(h), therefore, as a codification of EPA's regulatory actions regarding RVP up to that point.
In 1987, prior to the CAA Amendments of 1990, EPA for the first time proposed limitations on the volatility of gasoline under CAA sec. 211(c), which provides EPA with general authority to regulate fuels and fuel additives. These limitations on gasoline volatility were proposed to address evaporative emissions from gasoline-fueled vehicles due to their contribution to ozone formation. The volatility of gasoline had begun rising significantly above the 9.0 psi RVP vehicle certification fuel level in the years preceding EPA's action, due to a strong economic incentive to add butane
At the time of the 1987 proposal, parties were primarily making E10 through “splash blending,” as described above. Adding 10 percent ethanol to gasoline, however, causes roughly a 1.0 psi RVP increase in the blend's volatility.
To address this potential hurdle to continued ethanol blending, in the 1987 proposal, EPA included interim regulations for gasohol that allowed it to be 1.0 psi RVP higher than otherwise required for gasoline.
In 1989, EPA finalized regulations that imposed limits on the volatility of gasoline and ethanol blends as “Phase I” of a two-phase regulation under CAA sec. 211(c). EPA's regulation established a maximum RVP standard of 10.5 psi for gasoline during the high ozone season.
EPA's final regulations in “Phase I” provided that in order to receive the 1-psi RVP allowance, “gasoline must contain at least 9% ethanol (by volume),” and that “the ethanol content of gasoline shall be determined by use of one of the testing methodologies specified in Appendix F to this part.” The regulations also provided that “the maximum ethanol content of gasoline shall not exceed any applicable waiver conditions under section 211(f)(4) of the Clean Air Act.”
In “Phase I,” EPA did not place limits on the upper bound of the ethanol content, other than by providing, as quoted above, that the ethanol content shall not exceed any applicable waiver conditions under CAA sec. 211(f)(4) (and thereby implicitly incorporating any upper-bound limit imposed as a condition on any future applicable waiver). At the time, the highest permissible ethanol content under a CAA sec. 211(f)(4) waiver was 10 percent ethanol, and thus, this provision could only apply to blends containing 9-10 percent ethanol. In other words, EPA designed the 1-psi RVP allowance to allow for the continued lawful introduction into commerce of E10 and the Phase I RVP regulatory language would have automatically accommodated future increases in allowable ethanol concentration in gasoline under a CAA sec. 211(f)(4) waiver.
In June 1990, in “Phase II” of the volatility regulations, EPA established a maximum RVP standard of 9.0 psi for gasoline during the high ozone season. The regulations also established an RVP standard of 7.8 psi for gasoline during the high ozone season in both ozone attainment and nonattainment areas in the southern states of the country. EPA further maintained the 1-psi RVP allowance for blends of 10 percent ethanol and gasoline and did not modify the regulations at 40 CFR 80.27(d).
In November 1990, Congress enacted the CAA Amendments of 1990, including CAA sec. 211(h), the first statutory provision specifically addressing the volatility of gasoline. CAA sec. 211(h)(1) required EPA “to promulgate regulations making it unlawful . . . during the high ozone season to sell . . . or introduce into commerce gasoline with a Reid Vapor Pressure in excess of 9.0 pounds per square inch.” Further in CAA sec. 211(h)(4), Congress, following EPA's lead in the 1989 and 1990 volatility regulations, also allowed fuel blends containing gasoline and 10 percent ethanol to have 1 psi higher RVP than the RVP standard otherwise established in CAA sec. 211(h)(1). This statutory provision is referred to as the 1-psi RVP waiver.
According to legislative history, “[t]his provision was included in recognition that gasoline and ethanol are mixed after the refining process has been completed. It was recognized that to require ethanol to meet a nine pound RVP would require the creation of a production and distribution network for sub-nine pound RVP gasoline. The cost of producing and distributing this type of fuel would be prohibitive to the petroleum industry and would likely result in the termination of the availability of ethanol in the marketplace.”
Further, Congress enacted a conditional defense against liability for violations of the RVP level allowed
Subsequent to Congress's enactment of CAA sec. 211(h)(4), EPA modified our volatility regulations to more explicitly align with the new statutory provisions, but “did not propos[e] any change to the current requirement that the blend contain between 9 and 10 percent ethanol (by volume) to obtain the one psi allowance.”
In issuing implementing regulations at 40 CFR 80.28(g)(8) related to the “deemed to comply” provision in CAA sec. 211(h)(4), EPA allowed parties to demonstrate a defense against liability by making the showings provided in CAA sec. 211(h)(4), stating that “EPA believes this defense is limited to ethanol blends which meet the minimum 9 percent requirement in the regulations and the maximum 10 percent requirement in the waivers under section 211(f)(4).”
CAA sec. 211(f)(1) makes it unlawful for “any manufacturer of any fuel or fuel additive” to first introduce into commerce, or to increase the concentration in use of, any fuel or fuel additive for use by any person in motor vehicles manufactured after MY1974, which is not substantially similar (commonly referred to as “sub sim”) to any fuel or fuel additive used in the certification of any MY1975, or subsequent model year, vehicle or engine under CAA sec. 206. Fuels or fuel additives that are not sub sim to a fuel or fuel additive used in certification cannot be introduced into commerce unless EPA has granted a waiver under CAA sec. 211(f)(4). CAA sec. 211(f)(4) provides that upon application of any fuel or fuel additive manufacturer, the Administrator may waive the prohibitions of CAA sec. 211(f)(1) if the Administrator determines that the applicant has established that such fuel or fuel additive, or a specified concentration thereof, will not cause or contribute to a failure of any emission control device or system (over the useful life of the motor vehicle, motor vehicle engine, nonroad engine, or nonroad vehicle in which such device or system is used) to achieve compliance by the vehicle or engine with the emission standards to which it has been certified pursuant to CAA sec. 206 and 213(a).
In 1978, a waiver application was submitted for gasoline containing ethanol at 10 percent by volume. EPA did not act to grant or deny the application for a waiver for E10, and consequently, under the statutory scheme as it existed at that time, the waiver was deemed granted by operation of law.
For E15, EPA granted partial waivers under CAA sec. 211(f)(4) in 2010 and 2011.
In the October 2010 waiver, for MY2007 and newer motor vehicles, EPA also concluded that the data and information show that E15 will not lead to violations of evaporative emissions standards, so long as the fuel does not exceed an RVP of 9.0 psi in the summer.
Taken together, these partial waivers allow E15 to be used in MY2001 and newer light-duty motor vehicles subject to particular waiver conditions, including fuel quality conditions and conditions on the sale and use of E15. These waiver conditions include the prohibition on the use of E15 in pre-MY2001 motor vehicles, in addition to all model year heavy-duty gasoline engines or vehicles, or motorcycles, as well as any nonroad engines or nonroad vehicles. The waiver conditions also place limitations on the ethanol that can be added (both the concentration and quality),
In this action, we are finalizing our proposed change in interpretation of CAA sec. 211(h)(4). We find that the statutory language at CAA sec. 211(h)(4) is ambiguous. We last interpreted this section in 2011, and in this action we are changing our interpretation. Our new interpretation is consistent with the text of the provision, its context within CAA sec. 211(h), and Congressional intent. It is also reasonable in light of the changed circumstances since we last interpreted this provision in 2011, and in light of EPA's determination that it is appropriate to provide E15 the 1-psi waiver.
As discussed in Section II.A.2, gasoline-ethanol blends in the marketplace have increased such that the in-use gasoline supply is now almost entirely E10. E15 is now present in the marketplace, but the current limitation of the applicability of the 1-psi waiver to only E10 in most CG areas is one of several hurdles to the continued entry of E15 into the marketplace (discussed in more detail in Section II.E).
In the MMR, we interpreted CAA sec. 211(h)(4) (which affords a 1-psi waiver to “fuel blends containing gasoline and 10 percent denatured anhydrous ethanol”) as providing a 1-psi waiver for fuel blends of gasoline and at least 9 volume percent ethanol and not more than 10 volume percent ethanol despite having given E15 a partial CAA sec. 211(f)(4) waiver from sub sim. As previously explained, this interpretation was premised on a reading of regulations and statutory provisions that reflected the existence of a CAA sec. 211(f)(4) waiver for E10, which was the highest available ethanol content in the gasoline marketplace at the time of the 1990 Amendments to the CAA, and we did not alter this interpretation based on the existence of the E15 CAA sec. 211(f)(4) partial waivers. In that action, we read CAA secs. 211(h)(4), including the “deemed to comply” provision, and 211(h)(5) together to only apply the 1-psi waiver for E10. In this action, we are adopting a new interpretation of CAA sec. 211(h)(4), under which the provision specifies the minimum ethanol content that fuel blends containing ethanol and gasoline must contain in order to qualify for the 1-psi waiver. We are finalizing a new interpretation of this statutory provision that would allow the 1-psi waiver for gasoline containing at least 10 percent ethanol. This reading, which harmonizes all relevant provisions, removes the current, anomalous result whereby a sole ethanol blend (E10) receives the 1-psi waiver, when market conditions have changed over time such that E15 is an increased presence in the marketplace. Specifically, it would mean that the 1-psi waiver is equally applicable to gasoline-ethanol blends the agency finds are sub sim under CAA sec. 211(f)(1) and those gasoline-ethanol blends that receive or have received a CAA sec. 211(f)(4) waiver. At present, these are blends up to 15 percent ethanol, based on: (1) EPA's prior issuance of partial waivers in 2010 and 2011 under CAA sec. 211(f)(4) for E15; and (2) the finding in this rulemaking that E15 is sub sim to Tier 3 E10 certification fuel.
Moreover, it is well settled that EPA has inherent authority to reconsider, revise, or repeal past decisions to the extent permitted by law so long as we provide a reasoned explanation. Many commenters pointed to EPA's previous interpretation of CAA sec. 211(h)(4) in the volatility regulations promulgated after the CAA Amendments of 1990, and the MMR as reasons why EPA's new interpretation is flawed. We do not find these arguments persuasive because of EPA's inherent authority to reconsider, revise, or repeal past decisions to the extent permitted by law. This authority exists in part because EPA's interpretations of the statutes we administer “are not carved in stone.”
The Clean Air Act does not define the term “containing” in the phrase “containing gasoline and 10 percent denatured anhydrous ethanol,” and at proposal, therefore, EPA relied on the dictionary meaning that is reasonable, sensible and provides meaning to the reading of CAA sec. 211(h)(4). As explained in more detail below and in the response to comments (RTC) document accompanying this action, we are interpreting this term to establish a lower limit on the minimum ethanol content required for the 1-psi waiver in CAA sec. 211(h)(4). This interpretation applies to 211(h)(4) in its entirety, and 211(h)(5). Most of the commenters that argued for limiting the 1-psi waiver only selected their preferred meaning of “containing” without addressing whether that definition fit within the statutory scheme of CAA sec. 211(h)(4) or makes sense in this context and we have addressed these comments in Section 1.2.2.1 of the RTC document. Even when other potential meanings of the term are considered, EPA's interpretation and definition are eminently reasonable, make the most sense and provide meaning to the reading of CAA sec. 211(h)(4) in light of the current circumstances with respect to E15.
As explained at proposal, Congress enacted CAA sec. 211(h)(4) when 10 percent ethanol was the highest permissible ethanol content in gasoline under the 1978 CAA sec. 211(f)(4) waiver that allowed for its introduction into commerce. At that time, there were no other CAA sec. 211(f)(4) waivers for gasoline-ethanol blends. As also explained at proposal, Congress promulgated the “deemed to comply” provision as an enforcement mechanism for the 1-psi waiver. Of relevance is the criterion that “the ethanol portion of the blend does not exceed its waiver condition under subsection (f)(4).”
At proposal, we also explained that lack of modifiers in the phrase “fuel blends containing gasoline and ten percent ethanol,” supports our reading that Congress established a lower limit on the minimum ethanol content for the 1-psi waiver rather than an upper limit on the ethanol content. We then explained that Congress could legislate and would have likely employed terms connoting a maximum ethanol content limit in CAA sec. 211(h)(4) similar to, for example, CAA secs. 211(k) and (m) had Congress intended for the ethanol content to be an upper bound. CAA secs. 211(k) and (m) are mandatory gasoline content provisions that also employ specific units of measurement as an indication of measurement precision. CAA sec. 211(m)(2) provides that “gasoline is to be blended to contain not less than 2.7 percent oxygen by weight.” Section 211(k)(3)(A)(1)
Additionally, Congress employed modifiers where fuel content or properties were of a nature subject to precise determination, but as also shown elsewhere in this preamble, Congress promulgated the deemed to comply provision in response to measurement imprecision resulting from splash blending ethanol into gasoline. These provisions thus reflect a deliberate and intentional scheme and confirm our view that Congress legislates and the omission of modifiers in CAA sec. 211(h)(4) was also deliberate and intentional.
Given that this provision lacks modifiers for the term “containing,” in contrast to the other statutory provisions referenced above, there is support for our reading that this term as employed in the phrase “fuel blends containing gasoline and ten percent ethanol” is ambiguous and provides room for EPA to make interpretive and policy choices.
It is therefore permissible, and supported by the text of the statute, where Congress has used only the ambiguous term “containing” in CAA sec. 211(h)(4), for EPA to interpret “containing” to mean “containing at least.” Given this ambiguity, EPA's construct only needs to be a reasonable one and neither the best nor only reading of “containing.” (“Even if the statute does not compel EPA's reading, and indeed even if EPA's reading is not the better reading, the statute at a minimum is sufficiently ambiguous on this point to permit EPA's reading.”)
We are interpreting this language as establishing a lower limit, or floor, on the minimum ethanol content for a 1-psi waiver from the volatility requirements expressed in CAA sec. 211(h)(1), rather than an upper limit on the ethanol content. As explained at proposal, we can look to the use of the term “containing” in its ordinary sense, given the purpose and context of CAA sec. 211(h)(4) described above. “Containing” is defined as “to have within: hold.”
When EPA issued implementing regulations under both CAA sec. 211(c) prior to the enactment of CAA sec. 211(h), and under CAA sec. 211(h), once that provision was enacted, those regulations reflected the highest permissible ethanol content at the time they were issued, which was 10 percent ethanol under a CAA sec. 211(f)(4) waiver. In describing the volatility regulations promulgated under CAA sec. 211(c), we stated that the 1-psi waiver is “for blends of gasoline with about 10 percent ethanol, or gasohol.”
The phrase “fuel blends containing gasoline and ten percent ethanol” is ambiguous, but as previously discussed, EPA as the agency tasked with implementing CAA sec. 211(h)(4) is interpreting this provision in a reasonable manner, which is consistent with the reading articulated in the House bill,
Our interpretation is also supported by the purpose of the 1-psi waiver provision. The Senate Report published along with the enactment of the 1990 CAA Amendments and CAA sec. 211(h)(4) also describes both the purpose of including CAA sec. 211(h)(4), and general language about ethanol use in the fuel supply. The report states that the 1-psi waiver was:
Finally, the Senate report states that the 1-psi waiver would “allow ethanol blending to continue to be a viable alternative fuel, with its beneficial environmental, economic, agricultural, energy security and foreign policy implications.”
Our primary consideration has been to balance the goals of limiting gasoline volatility and ensure that the addition of ethanol does not cause the exceedance of the maximum RVP standard, while also promoting the use of ethanol consistent with the purpose of CAA sec. 211(h)(4). As previously explained, blending gasoline with at least 10 percent ethanol results in an approximate 1.0 psi RVP increase. It does not result in “different volatility levels than already recognized by EPA as adding less than 1.0 psi RVP to gasoline.”
In sum, the primary consideration underlying the 1-psi waiver is to limit gasoline volatility while promoting the use of ethanol due to its importance to energy security and the agricultural sector. The interpretation in this action will continue to further these policy concerns given that agency action will now afford similar treatment to all gasoline-ethanol blends.
In this action, we are finalizing an interpretative rule which determines that E15 with an RVP of 9.0 psi is substantially similar to fuel used to certify Tier 3 light-duty vehicles (
Additionally, we are not making this determination for E15 for use in MY2000 and older motor vehicles, heavy-duty gasoline engines and vehicles, on and off-highway motorcycles, and nonroad engines, vehicles, and equipment as we have determined that E15 is not “substantially similar” to Tier 3 E10 certification fuel when used in these vehicles, engines, and equipment.
This determination would make it lawful for any fuel or fuel additive manufacturer to make and introduce into commerce E15 at 10.0 psi RVP during the summer without the use of the E15 waivers under CAA sec. 211(f)(4). In conjunction with our interpretation of CAA sec. 211(h)(4) described in Section II.B, this would allow all parties the ability to lawfully introduce into commerce E15 at 10.0 psi RVP from May 1 through September 15 for use in MY2001 and newer light-duty vehicles, and is needed to effectuate the 1-psi waiver provided for E15 under our revised interpretation of CAA sec. 211(h)(4).
Prohibitions on the use of E15 in all other on-road and non-road products that currently apply through regulations established under CAA sec. 211(c) remain in place, and parties that make and distribute E15, and ethanol for use in producing E15, would still need to satisfy the MMR requirements under 40 CFR part 80, subpart N. However, we are also including parameters within our definition of sub sim that fuel and fuel additive manufacturers take reasonable precautions to ensure that E15 is only used in vehicles, engines, and equipment for which E15 is sub sim to Tier 3 E10 certification fuel. This includes submission to EPA for approval of a misfueling mitigation plan as previously required under the partial waivers and discussed further in Section II.C.9.
Historically, two fuels are utilized in EPA's emissions standards certification of gasoline-powered vehicles and engines: (1) Standardized gasoline with controlled parameters to ensure consistency across vehicle and engine certification used in emissions testing, and (2) commercially available mileage accumulation fuels used to ensure in-use durability of exhaust and evaporative emissions controls.
In the 2014 Tier 3 rulemaking, we updated the certification test fuel for Tier 3 certified motor vehicles and changed the certification test fuel from E0 to E10 to reflect the widespread use of E10 in the marketplace.
Service accumulation fuel for durability must be representative of commercially-available gasoline
EPA has issued four interpretative rules that defined “substantially similar” for gasoline used in all gasoline-fueled vehicles. These interpretative rules describe the types of unleaded gasoline that are considered substantially similar to the unleaded gasoline utilized in our vehicle and engine certification programs, and place limits on a gasoline's chemical composition and physical properties, including the types and amount of alcohols and ethers (oxygenates) that may be added to gasoline. Fuels that are found to be substantially similar to certification fuels may be introduced into commerce. Each of our past interpretative rules provided an allowance for oxygenates within the gasoline. We last issued an interpretative rule on the phrase “substantially similar” for gasoline in 2008.
In defining what fuels are sub sim to certification fuels, we have listed general physical and chemical characteristics, such as oxygen content, after determining that fuels and fuel additives meeting these general “sub sim” characteristics will not adversely affect emissions. In our past interpretations defining what physical and chemical characteristics are necessary to make a fuel or fuel additive “sub sim” to certification test fuel, we have taken three primary factors into account: (1) Emissions, (2) materials compatibility, and (3) driveability.
We initially specified that fuel with oxygen content up to 2.0 weight percent is sub sim to certification test fuel.
With respect to fuel volatility, our sub sim interpretations have specified that in order to qualify as sub sim to certification test fuel, which has
In this action, we are putting forth a new interpretation of CAA sec. 211(f)(1). Recognizing the changed gasoline marketplace, and the multiple certification fuels used today, as compared to 1981, 1991, and even 2008, when the previous definitions of “substantially similar” were articulated, we are interpreting CAA sec. 211(f)(1) to find that E15 is substantially similar to Tier 3 E10 certification fuel for use in MY2001 and newer motor vehicles. This finding is consistent with the statutory text and purpose of CAA sec. 211(f)(1) and appropriate given the changed circumstances since our previous interpretations of what is “substantially similar.”
Significant changes have occurred in the time period since CAA sec. 211(f)(1) was enacted and since we have had cause to interpret 211(f)(1) and to determine what fuels qualify as sub sim to our certification fuels. First, we partially granted a CAA sec. 211(f)(4) waiver that created a subset of gasoline fuel, E15 that can only be used in MY2001 and newer light-duty motor vehicles. We have information that the use of E15 in certain light-duty motor vehicles, as well as heavy-duty vehicles and nonroad vehicles, engines, and equipment, could cause or contribute to emission system failures.
These two actions have resulted in a gasoline pool that is no longer interchangeable in all vehicles and engines. Unleaded gasoline, a fuel which we have interpreted CAA sec. 211(f)(1)(B) to apply, can be used in light-duty vehicles, as well as heavy-duty vehicles, and nonroad engines and equipment, including motorcycles and marine engines. However, as a result of the 211(f)(4) waivers for E15, we know that fueling a subset of those vehicles and engines with unleaded gasoline that is E15 will result in emissions exceedances. Since E15 has increased in availability in the gasoline marketplace as discussed in Section II.A.2 and may increase in the future, as discussed in Section II.E, it is important that E15 be introduced into commerce only for those vehicles for which it can be used without concerns over emissions, materials compatibility, or driveability.
We find that it would be inappropriate to allow the introduction into commerce of E15 for use in all gasoline-powered vehicles and engines in light of the demonstrated adverse impacts on emission systems due to the use of E15 MY2000 and older motor vehicles, heavy-duty gasoline engines and vehicles, on and off-highway motorcycles, and nonroad engines, vehicles, and equipment. However, we do find that E15 is substantially similar to E10 when used in MY2001 and newer motor vehicles. Therefore, in this action, we are finalizing an interpretation of CAA sec. 211(f)(1) that accounts for the changed circumstances in both the fuel pool, the certification fuels, and vehicle fleet since we last interpreted this section.
As discussed in Section II.B, EPA has the ability to modify its interpretation of statutory provisions. We are doing so for our interpretation of CAA sec. 211(f)(1). Our past “substantially similar” interpretative rules have not attempted to limit the scope of the vehicles and engines for which fuels would be considered sub sim to our certification fuels. Rather, they put forth an interpretation regarding how EPA would determine whether a new fuel or fuel additive is “substantially similar” for general use in all gasoline powered engines, vehicles and equipment. When EPA took those previous actions, we had no information before us that indicated that use of those new fuels or fuel additives in certain subsets of vehicles or engines may be inappropriate. Therefore, there was no need for EPA to consider limitations or other criteria to modify the sub sim interpretation to a particular subset of vehicles or engines.
In previous determinations of CAA sec. 211(f), we looked broadly at the use of the new fuel or fuel additive in all gasoline-powered engines, vehicles, and equipment. This was appropriate at that time because all gasoline-powered engines, vehicles and equipment were certified using essentially the same fuel and were compatible with any gasoline. Now, in light of the CAA sec. 211(f)(4) waivers, and the changed certification fuel, E15 can be used in MY2001 and newer motor vehicles but its use in other gasoline powered products has demonstrated adverse effects on emissions and materials compatibility. The legislative history of the 1977 CAA Amendments makes clear that the purpose of CAA sec. 211(f) is to ensure that the introduction of new fuels and fuel additives into commerce does not adversely impact vehicle emissions.
We retain certain aspects of previous interpretations. The first E15 sec. 211(f)(4) waiver decision, in 2010, was the last occasion on which we articulated our interpretation of CAA sec. 211(f), including the relationship between the CAA sec. 211(f)(1) provision and the CAA sec. 211(f)(4) waiver provision.
In assessing whether a fuel is substantially similar to a certification fuel, we must look only to its use in the engines and vehicles within which it can be used, and not its use in vehicles and engines which are fueled by other types of fuel. Consistent with our past interpretation, we again find that the use of the term “any” in the prohibition (“any . . . vehicle or engine”) does not mean all motor vehicles or 100 percent of the motor vehicle fleet.
As discussed further in Section 1.3.2.2 of the RTC, the use of the phrase “any fuel utilized in the certification of any model year 1975, or subsequent model year, vehicle or engine” clearly encompasses fuels utilized in subsequent model years, such as Tier 3 E10 certification fuel. In particular the reference to a certification fuel for a “subsequent model year” permits our comparison of E15 to Tier 3 E10 certification fuel, a fuel utilized in the certification of MY2020 and later light-duty motor vehicles.
For this CAA sec. 211(f)(1) sub sim interpretation we are faced for the first time, however, with a situation where there are different gasolines used in the certification of different gasoline vehicles and equipment, and a different in-use gasoline (E15) that can only be used in a subset of in-use vehicles and engines. Because of this, the appropriate scope of review is all of the various vehicles and engines within which gasoline can be used, and our assessment under sub sim evaluates the appropriateness of fueling those vehicles and engines with various gasoline-ethanol blends. In this unique circumstance, we have the benefit of the CAA sec. 211(f)(4) waiver analyses that supported partial grants of CAA sec. 211(f)(4) waivers for E15 in 2010 and 2011. These data provide technical information useful to informing our sub sim analysis for E15. The use of data collected or analyzed in the context of a CAA sec. 211(f)(4) to inform a sub sim determination under CAA sec. 211(f)(1) is consistent with our prior practice. For example, in making the sub sim determination in our 1991 sub sim interpretive rule, we considered evidence that supported the CAA sec. 211(f)(4) waivers granted to methanol.
In this action, we are also extending our assessment beyond those vehicles and engines certified under CAA sec. 206. We are again in a unique circumstance where due to our analysis under the CAA sec. 211(f)(4) waiver (which covers all motor vehicles, motor vehicle engines, nonroad engines, and nonroad vehicles), we have knowledge of the use of E15 in particular vehicles and engines causing or contributing to emission systems failures.
In the proposal, we suggested that the comparison was relatively narrow—comparing the use of E15 to the use of Tier 3 E10 certification fuel in Tier 3 vehicles alone;
Many commenters suggested that CAA sec. 211(f)(1) should be protective of all vehicles and engines in the fleet. We agree, and this action protects vehicles and engines by finding that the use of E15 in any MY2000 or older light-duty gasoline motor vehicle, any heavy-duty gasoline motor vehicle or engine, any highway or off-highway motorcycle, or any gasoline-powered nonroad engines, vehicles or equipment is not sub sim to Tier 3 E10 certification fuel. We also maintain the prohibition on use in these vehicles, engines and equipment implemented in the MMR.
In past sub sim interpretative rules, we have provided physical and chemical characteristics of fuels and fuel additives that would be considered sub sim to certification fuel. These interpretative rules broadly applied to a variety of fuel and fuel additives. Then, at registration, fuel and fuel additive manufacturers must demonstrate whether their fuel or fuel additive is sub sim or has a CAA sec. 211(f)(4) waiver from being sub sim.
In this interpretative rule we are taking both steps for E15 as compared to tier 3 E10 certification fuel—interpreting what is “substantially similar” to tier 3 E10 certification fuel, and providing a narrow definition for gasoline-ethanol blends containing greater than ten and less than 15 percent ethanol, and fuel additives utilized in that fuel that is sub sim to tier 3 E10 certification fuel and determining that E15, as a fuel, is sub sim. We are putting forth our determination that E15 meeting certain criteria is sub sim when used in MY2001 and newer light-duty vehicles.
In this action, we are considering whether E15 is sub sim to Tier 3 E10 certification fuel when used in all motor vehicles and motor vehicle engines certified under CAA sec. 206 and nonroad products certified under CAA sec. 213(a).
As discussed in Section II.A.4, CAA sec. 211(f)(1) prohibits fuel and fuel additive manufacturers from introducing into commerce fuel or fuel additives that are not substantially similar to fuel or fuel additives utilized in the certification of motor vehicles. CAA sec. 211(f)(4) provides a waiver from this prohibition for fuels and fuel additives that can be established that such fuel or fuel additive, or a specified
To make this assessment, we have generally considered the effects of a fuel or fuel additive on emissions (exhaust and evaporative), materials compatibility, and driveability for motor vehicles and motor vehicle engines certified under CAA sec. 206.
The criteria we consider when determining whether a fuel or fuel additive is sub sim to certification fuel under CAA sec. 211(f)(1) are similar to those criteria we consider when determining whether a new fuel or fuel additive should receive a waiver to CAA sec. 211(f)(1) under CAA sec. 211(f)(4). When determining whether a fuel or fuel additive is sub sim to certification fuel under CAA sec 211(f)(1), we have interpreted the criteria of emissions, materials compatibility, and driveability as necessary to ensure that any fuel or fuel additive determined to be sub sim will not impair the emission controls of vehicles, engines, and equipment, as intended by Congress. While the areas for consideration under CAA sec. 211(f)(1) and sec. 211(f)(4) are similar, the requirements in each provision differ. CAA sec. 211(f)(1) only requires that fuels be sub sim to certification fuel, while CAA sec. 211(f)(4) requires that the new fuel or fuel additive will not cause or contribute to any vehicles or engines exceeding their emissions standards over the fuel useful life of the vehicles or engines.
In practice, EPA has implemented CAA secs. 211(f)(1) and 211(f)(4) by evaluating similar criteria when defining which fuels are sub sim and when evaluating 211(f)(4) waiver requests (
Furthermore, we believe that any new fuel or fuel additive that would cause or contribute to vehicles and engines exceeding emissions standards is, by definition, not substantially similar to certification fuel under sub sim. Given the intent of CAA sec. 211(f)(1) to protect emission controls, it would be inappropriate to define sub sim in a manner that included fuels or fuel additives that caused or contributed to vehicles exceeding their emissions standards. As a result, we have in the past interpreted sub sim conservatively to help ensure that this situation did not arise. We continue to believe that this is appropriate to ensure that CAA sec. 211(f)(1) protects the emission controls of vehicles and engines certified under CAA secs. 206 and 213. We also believe the converse is true for newer light-duty motor vehicles (
In order to determine whether E15 is sub sim to Tier 3 E10 certification fuel, we must consider the effects that E15 would have on all vehicles, engines, and equipment relative to Tier 3 E10 certification fuel. For each class of vehicles, engines, and equipment, we need to evaluate E15's relative effect on emissions, materials compatibility, and driveability. For the most part, we have already considered the effects of E15 on all vehicles, engines, and equipment certified under CAA secs. 206 and 213 in the E15 partial waivers and the MMR. In those actions, we evaluated the effect of E15 use on emissions (exhaust and evaporative), materials compatibility, and driveability over the full useful lives of MY2000 and older motor vehicles, MY2001 and newer light-duty motor vehicles, nonroad products (including motorcycles and marine engines), and heavy-duty gasoline-fueled vehicles. While the focus of the analysis for the E15 waiver decisions was on E15 relative to indolene (
Since Tier 3 certified vehicles did not exist at the time of the E15 waivers and the MMR, we consider those vehicles separately from the MY2001-2019 light-duty vehicles. As described in Section II.C.9, it is appropriate for us to restrict the applicability of this new definition of sub sim to only those vehicles, engines, and equipment for which we are determining that E15 is sub sim to Tier 3 certification fuel.
In determining whether a fuel is substantially similar, our analysis compares a fuel (in this case, E15) to a fuel utilized in the certification of motor vehicles (in this case, Tier 3 E10 certification fuel). Our certification fuel
EPA proposed two alternative analyses for a sub sim interpretation for E15. The first analysis compared E15 at 10.0 psi—
In the proposal, we suggested that it may be appropriate to utilize our previous approach to volatility in a sub sim determination. In previous sub sim interpretative rules and corresponding definitions, we have required gasoline to only meet the volatility requirement of a single volatility class defined in ASTM Standard D4814-88, which range from 7.0 psi to 15.0 psi over the course of the year. We viewed this as appropriate when considering fuels and fuel additives that themselves are not impacting the volatility of gasoline during the summer months. When volatility impacts do not impair evaporative emissions controls that are important to air quality, we only need to consider the volatility impacts of the fuel or fuel additive to ensure that the fuel still falls within the bounds of what is considered to be gasoline. Therefore, we do not find it would be appropriate to compare E15 at 10.0 psi to E10 at 9.0 psi.
In this action, we are providing a new interpretation of CAA sec. 211(h)(4) that applies the 1-psi waiver to ethanol blends greater than 10 but no more than 15 volume percent ethanol. There, Congress provided a 1-psi waiver for the blending of gasoline-ethanol blends in order to promote ethanol blending in gasoline and ensure that those gasoline-ethanol blends could remain in use. CAA sec. 211(h)(4) does not provide any additional analysis or consideration for EPA prior to the application of the 1-psi waiver, nor does it provide guidance to EPA on the operability of the statutory provisions. E15 will be treated similarly to E10 under CAA secs. 211(f)(1) and 211(h)(4); blendstocks produced by fuel and fuel additive manufacturers typically meet a lower-RVP standard, and then, upon addition of ethanol by downstream parties, the blended fuel is given an RVP allowance, allowing up to 1.0 psi higher RVP. The approach we are taking gives meaning to both 211(f)(1) and its consideration of volatility in determining whether a fuel is sub sim, and 211(h)(4) which provides the 1-psi waiver. Therefore, the 1-psi waiver operates after other limitations on the introduction of E15 into commerce.
Therefore, the analysis under CAA sec. 211(f) is limited in scope in this particular situation. We need not address the 1-psi waiver that is expressly provided in another provision of CAA sec. 211 by analyzing emission impacts at the volatility level provided through the waiver in order to determine whether a fuel is substantially similar to a certification fuel. In this case, we need not look at the emissions impacts of E15 at 10.0 psi RVP because CAA sec. 211(h)(4), as interpreted in this action, will itself allow for the 1-psi waiver for E15. It is not the case that volatility is wholly irrelevant to our evaluation of what is sub sim, given that the level of RVP for gasoline certification fuel used to certify motor vehicles is 9.0 psi, but rather in this case, we find it would be inappropriate to limit under sub sim the volatility of a fuel that Congress allowed a 1-psi waiver from the volatility standard, under CAA sec. 211(h)(4). Our determination under sec. 211(f)(1) only allows E15 to be introduced into commerce without a CAA sec. 211(f)(4) waiver.
It follows that our point of comparison is E15 at 9.0 psi to Tier 3 E10 certification fuel (
As discussed above, we have considered whether a fuel has similar effects on emissions, materials compatibility, and driveability when defining what fuels are substantially similar to certification fuel. Based on existing data and our engineering judgement, we have concluded that E15 at 9.0 psi RVP, with its additional oxygen content, would have effects on emissions, materials compatibility, and drivability substantially similar to Tier 3 E10 certification fuel (also at 9.0 psi RVP) in Tier 3 vehicles. While test data is still limited on Tier 3 vehicles, we have been able to draw upon test data and information on prior year motor vehicles (primarily NLEV and Tier 2 certified vehicles representative of MY2001 and newer light-duty motor vehicles) to support this conclusion as the impacts on Tier 3 motor vehicles are expected to be of a similar or lesser concern than on prior year motor vehicles.
In the 2010 and 2011 CAA sec. 211(f)(4) partial waivers for E15, we concluded from available data that neither the immediate combustion effects nor the long-term durability impacts of operating on E15 would prevent MY2001 and newer light-duty motor vehicles from complying with their full useful life emission
Since the time of the 2010 and 2011 waiver decisions, additional data have been published on the effects of gasoline-ethanol blends on Tier 2 vehicles.
Another observation from this study was that the sensitivity of emissions to ethanol blending varied significantly across the test vehicles. Because the EPAct test fleet was designed to include a range of high-sales vehicles, it is reasonable to expect the average effect across the test vehicles to be representative of the in-use fleet of Tier 2 vehicles with port-fuel-injection.
Two studies (projects E-94-2 and E-94-3) published by CRC in 2017 and 2018, respectively, examined the effects of ethanol and PM Index on PM and other emissions from MY2012 to2015 Tier 2 vehicles, all with gasoline direct injection (GDI) engines and several with turbocharging.
Another study published in 2018 by the University of California, Riverside Center for Environmental Research and Technology (CE-CERT) looked at the effects of ethanol and aromatics on emissions from five vehicles, model years 2016 or 2017, all with GDI engines and certified to Tier 3 and/or LEV III standards.
While there are limited data on Tier 3 vehicles, the results of the Tier 2 and Tier 3 vehicle studies cited above are nevertheless largely consistent with each other given that ethanol blending affects many other fuel properties, given that ethanol is blended into gasoline in various ways that affect the collateral property changes differently, and given the varying impacts from vehicle to vehicle. This makes it difficult to interpret trends across the body of literature without detailed information on multiple fuel properties. However, since the early 1990s, a number of programs have studied the effects of ethanol on emissions from earlier vintage vehicles, and based on these studies, emissions models have been published, including the Complex Model,
Earlier studies did not evaluate PM emission impacts from ethanol blending, so we are limited to consideration of only the more recent studies. The CRC E-94-3 and CE-CERT studies both tested ethanol splash blends in recent model year GDI vehicles, and one found an increase in PM with incremental ethanol (E0 to E10) while the other showed no significant impact (E10 to E15). Neither study controlled T50 between ethanol levels, but a notable difference between them was the range of T50 levels in the test fuels. The E10 test fuel in the CE-CERT study had lower T50 levels and additional ethanol blending depressed T50 significantly, more consistent with what we would expect in a median market fuel moving to E15, versus the higher T50s in the CRC study where E10 was the upper blend limit.
While some criteria pollutants would have relative increases (NO
While CAA sec. 211(f)(1) does not define the magnitude of acceptable emission impacts or other specific criteria for how to determine whether a fuel or fuel additive is substantially similar to certification fuel, we believe that the small changes in exhaust emissions compared to the certification levels for E15 relative to Tier 3 E10 certification fuel used in Tier 3 vehicles can be considered to be within the scope of what we have determined to be sub sim in our prior sub sim interpretive rulemakings. For example, if a Tier 3 vehicle were certified on E10 fuel with PM emissions of 2.0 mg/mi (33% compliance margin), a 10% PM increase due to fueling the vehicle with E15 would increase its PM emissions to 2.2 mg/mi. This is still significantly below its 3 mg/mi compliance limit (26% compliance margin).
Therefore, we believe that E15 is sub sim to Tier 3 E10 certification fuel from the perspective of exhaust emissions for Tier 3 light-duty motor vehicles.
EPA has set evaporative emission standards for motor vehicles since 1971. During the ensuing years, these evaporative standards have continued to evolve, resulting in additional evaporative emissions reductions. Consideration of whether E15 is substantially similar to Tier 3 E10 certification fuel for evaporative emissions requires consideration of the applicable evaporative emissions standards to which the particular motor vehicles were certified, in this case Tier 3 motor vehicles. There are now six main components to motor vehicle evaporative emissions that are important for our standards: (1) Diurnal (evaporative emissions that come off the fuel system as a motor vehicle heats up during the course of the day); (2) refueling emissions (evaporative emissions that come off the fuel system as the vehicle is refueled); (3) hot soak (evaporative emissions that come off a hot motor vehicle as it cools down after the engine is shut off); (4) running loss (evaporative emissions that come off the fuel system during motor vehicle operation); (5) permeation (evaporative emissions that come through the walls of elastomers in the fuel system and are measured as part of the diurnal test); and (6) unintended leaks due to deterioration/damage that is now largely monitored through onboard diagnostic systems.
For hot soak, permeation, and unintended leak evaporative emissions, we expect that E15 would have a similar effect as Tier 3 E10 certification fuel. In the E15 partial waivers, we stated that we did not expect that E15 would have an effect on hot soak, permeation, and unintended leak evaporative emissions based on a review of the data and on the fact that auto manufacturers have been required to age vehicles on E10 for evaporative emissions durability testing since MY2004. We are not aware of any information suggesting that Tier 3 vehicles would behave differently since they are aged for evaporative emissions durability on E15 and certified on Tier 3 E10 certification fuel. Furthermore, in our review of the testing of permeation on pre-Tier 3 vehicles (
Refueling, diurnal, and running loss evaporative emissions are mostly a function of volatility of the fuel. As discussed in Section II.C.4, to determine whether a fuel is sub sim to Tier 3 E10 certification fuel, it is necessary to evaluate the volatility of the fuel relative to Tier 3 E10 certification fuel. This is because the volatility plays a significant role in these evaporative emission sources independent of the level of ethanol concentration in the fuel. For this sub sim determination, we are evaluating whether E15 at 9.0 psi is sub sim to Tier 3 E10 certification fuel at 9.0 psi. In general, if two fuels have the same RVP, the expected refueling, diurnal, and running loss evaporative emissions from the two fuels would be similar regardless of the ethanol content. In this situation, since there is no difference in RVP, E15 at 9.0 psi RVP would be expected to have essentially identical evaporative emissions to E10 at 9.0 psi RVP from refueling, diurnal, and running loss emissions sources. We find that E15 at 9.0 psi RVP is sub sim to Tier 3 E10 certification fuel at 9.0 psi RVP for Tier 3 light-duty motor vehicles.
Materials compatibility is a key factor in considering what fuels or fuel additives are sub sim to certification fuel, insofar as poor materials compatibility can lead to serious exhaust and evaporative emission compliance problems not only immediately upon use, but especially over the full useful life of vehicles and engines. In the E15 partial waivers, we determined that the use of E15 in MY2001 and newer light-duty motor vehicles “will not [result in] materials compatibility issues that lead to exhaust or evaporative emissions exceedances.”
Since granting the E15 partial waivers, E15 is now used as an aging fuel for service accumulation for evaporative durability testing.
Therefore, we would not expect any materials compatibility issues from E15 in Tier 3 vehicles and we find that E15 would have substantially similar materials compatibility effects as Tier 3 E10 certification fuel.
A change in the driveability of a motor vehicle that results in significant deviation from normal operation (
We concluded in the E15 partial waivers that we did not believe that E15 would cause driveability concerns for
After granting the partial E15 waivers, we believe that late model Tier 2 and Tier 3 vehicles also have better capability of operating on E15, since as mentioned above, auto manufacturers have been required to use E15 as an aging fuel for evaporative durability aging since at least MY2014.
We also believe that the producers and distributors of gasoline adhere to ASTM specifications for gasoline (
For these reasons, we find that E15 would have similar driveability characteristics to Tier 3 E10 certification fuel for Tier 3 light-duty motor vehicles.
For reasons described above, we find that E15 is substantially similar to Tier 3 E10 certification fuel when E15 is used in Tier 3 vehicles (
We find that E15 is sub sim to Tier 3 E10 certification fuel in MY2001-2019 light-duty motor vehicles. As discussed in Section II.C.4, it is necessary to consider how E15 would perform relative to Tier 3 E10 certification fuel in each class of vehicles, engines, and equipment. In the E15 partial waivers, we considered the relative effects of E15 to E10 when used in these vehicles as a basis to determine that MY2001-2019 light-duty motor vehicles will not experience issues with materials compatibility and driveability.
In the E15 partial waivers, we argued that auto manufacturers developed vehicles around MY2001 to accommodate in-use exposure to E10, and that this accommodation would result in similar performance of emissions, materials compatibility, and driveability on E15.
As we stated in the first E15 partial waiver, “the largest improvements to emission controls and hardware durability came after 2000 with the introduction of several new emission standards and durability requirements forcing manufacturers to better account for the implications of in use fuels on the evaporative and exhaust emission control systems.”
Furthermore, we highlighted that another important regulatory change for improving the exhaust emissions control durability of MY2001-2006 light-duty motor vehicles was the Compliance Assurance Program (“CAP2000”), which took effect by MY2000 for light-duty motor vehicles. CAP2000 placed more emphasis on in-use performance of vehicle emission controls, including the potential impacts of operation from different available in-use fuels. In particular, the In-use Verification Program (IUVP) introduced under CAP2000 requires manufacturers to perform exhaust and evaporative emissions tests on customer vehicles in the in-use fleet to confirm the durability projections that manufacturers make at certification. These motor vehicles would now be exposed to gasoline-ethanol blends in use.
Another consideration in our engineering analysis in the second E15 waiver decision was the extent to which MY2001-2006 light-duty motor vehicles emit at levels below the applicable standards and therefore have a compliance margin. Compliance margins are generally designed into motor vehicles by manufacturers to account for possible variations in production vehicles and changes to vehicle emissions control systems from actual field usage, such as how the vehicle is typically operated and the type of fuel used. The larger the compliance margin, the more likely it is that vehicles would accommodate any emissions increases from fueling with E15 and continue to meet emission standards in-use. In the second E15 waiver decision, we surveyed the certification data for MY2001-2006 motor vehicles and the results showed that the average full useful life compliance margin (which accounts for in-use deterioration) for the entire MY2001- 2006 light-duty motor vehicle fleet was approximately 66 percent.
We relied on the available literature, primarily the data collected from the DOE catalyst study, to confirm our engineering analysis of the emissions behavior of NLEV and Tier 2 vehicles. These data showed that E15 would not cause NLEV or Tier 2 vehicles to exceed their emissions standards both in the short- and long-term. Furthermore, most of the data discussed in Sections II.C.6.a and II.F were based on tests conducted on MY2001-2019 motor vehicles and we believe that the estimated emissions changes from using E15 relative to Tier 3 E10 certification fuel or E10 market fuel in MY2001-2019 are representative of vehicle technologies classes in this time period (
Because of the extensive analysis in the E15 waiver decisions and the large compliance margins in the MY2001-2019 light-duty motor vehicle fleet, we find that E15 is sub sim to Tier 3 E10 certification fuel when used in those vehicles.
As mentioned in Section II.C.6.b, we evaluate evaporative emissions in terms of six sources of evaporative emissions: (1) Diurnal emissions, (2) refueling emissions, (3) hot soak, (4) running loss, (5) permeation, and (6) emissions from unintended leaks. In the E15 waiver decisions,
As mentioned in Section II.C.6.b, we evaluated the effects E15 would have relative to E10 for hot soak, permeation, and unintended leak evaporative emissions in MY2001-2019 motor vehicles in the E15 waivers. We found that motor vehicles designed and aged on E10 for evaporative emissions durability would have similar hot soak, permeation, and unintended leak evaporative emissions if operated on E15. As explained in the first E15 partial waiver, since these elements are largely a function of the materials used to design the evaporative emission controls, if an auto manufacturer designed a system to encounter a gasoline-ethanol blended fuel in-use, it is likely that the vehicle's evaporative emissions control would handle E10 and E15 similarly. Therefore, we find that E15 is sub sim to Tier 3 E10 certification fuel for hot soak, permeation, and unintended leak evaporative emissions for MY2001-2019 motor vehicles.
Also, as mentioned in Section II.C.6.b, diurnal, refueling, and running loss emissions are mostly a function of the volatility of the gasoline used. If two fuels had the same volatility, we would expect the same or similar diurnal, refueling, and running loss emissions. As we are only considering whether E15 at 9.0 psi RVP is sub sim to Tier 3 E10 certification fuel with 9.0 psi RVP we can conclude that E15 at 9.0 psi RVP is sub sim to Tier 3 E10 certification fuel in MY2001-2019 light-duty motor vehicles. We base this finding on the fact that E15 at 9.0 psi would have the same volatility as Tier 3 E10 certification fuel.
We find that E15 at 9 psi RVP is substantially similar to Tier 3 E10 certification fuel when used in MY2001-2019 light-duty motor vehicles as it relates to materials compatibility. Materials compatibility is a factor in considering whether a fuel is sub sim since poor materials compatibility can lead to serious exhaust and evaporative emissions compliance problems not only immediately upon using the new fuel or fuel additive, but especially over time.
Similar to Tier 3 vehicles, pre-Tier 2 and Tier 2 vehicles (MY2004-2019) were aged with E10 for evaporative durability beginning with MY2004. Due to this long-term exposure of E10, we explained in the first E15 waiver decision that these motor vehicles would not have materials compatibility issues. For NLEV vehicles, in the second E15 waiver decision, we argued that “the CAP2000 in-use testing and durability demonstration requirements as well as the introduction of OBD leak detection monitors and enhanced evaporative emission test procedures have led manufacturers to design vehicles using materials that will continue to function properly with respect to evaporative emissions when
Based on our engineering judgment discussed in the E15 waiver decisions, we expect that there will not be materials compatibility issues with E15 in MY2001-2019 light-duty motor vehicles. Therefore, we conclude that E15 at 9.0 RVP is sub sim to Tier 3 E10 certification fuel in MY2001-2019 light-duty motor vehicles.
We find that E15 at 9.0 psi RVP is substantially similar to Tier 3 E10 certification fuel when used in MY2001-2019 light-duty motor vehicles as it relates to driveability. As mentioned in Section II.C.7.a and described in the E15 partial waivers, auto manufacturers developed light-duty motor vehicles to use gasoline-ethanol blends that were becoming more prevalent in the marketplace by MY2001. This was tied to the implementation of new vehicles emission standards that focused on in-use performance in fuels; namely, the CAP 2000 program and NLEV for exhaust emissions, and the enhanced evaporative emission standards.
We evaluated driveability of MY2001-2019 vehicles extensively in the E15 partial waivers. In the first E15 partial waiver, we found that “[t]here is no evidence from any of the test programs cited by Growth Energy or in the data from the DOE Catalyst Study of driveability issues for Tier 2 motor vehicles fueled with E15 that would indicate that use of E15 would lead to increased emissions or that might cause motor vehicle owners to want to tamper with the emission control system of their motor vehicle.”
Based on both our engineering rationale that MY2001 and newer light-duty motor vehicles were designed by auto manufacturers to operate on gasoline-ethanol blends and our thorough review of the available literature in the E15 partial waivers, which showed no driveability, operability or OBD issues across over 30 reviewed studies on E15 covering MY2001 and newer vehicles, we find that E15 at 9.0 psi RVP is substantially similar to Tier 3 E10 certification fuel when used in MY2001-2019 light-duty motor vehicles as it relates to driveability.
We find that E15 at 9.0 psi RVP is sub sim to Tier 3 E10 certification fuel when used in MY2001-2019 vehicles. In conjunction with our finding that E15 at 9.0 psi RVP is sub sim to Tier 3 E10 certification fuel when used in MY2020 and newer light-duty motor vehicles (
We conducted an analysis of whether E15 is substantially similar to E10 certification fuel for MY2000 and older light-duty motor vehicles, heavy-duty gasoline-fueled motor vehicles, and nonroad vehicles, engines, and equipment. For the reasons explained below, we conclude that E15 is not sub sim to E10 certification fuel for these types of vehicles and engines.
We conclude that E15 would not be substantially similar to Tier 3 E10 certification fuel used in MY2000 and older light-duty motor vehicles. As we argued in the first E15 partial waiver decision and in the MMR, MY2000 and older light-duty motor vehicles were generally not designed to operate on gasoline-ethanol blended fuels.
MY2000 and older light-duty motor vehicles have much less sophisticated emissions control systems compared to more modern vehicles and, may experience conditions that lead to immediate emission increases and may exceed their emission standards if operated on E15. Vehicles produced prior to the mid-1980s were equipped primarily with carbureted engines. The air/fuel (A/F)ratio of the carburetor is preset at the factory based on the expected operating conditions of the engine such as ambient temperature, atmospheric pressure, speed, and load. As a result, carburetors have “open loop” fuel control, which means that the air and fuel are provided at a specified, predetermined ratio that is not automatically adjusted during vehicle operation. As fuel composition can vary, an engine with a carburetor and open loop fuel control would never detect whether the desired A/F ratio was achieved. Since the vehicles produced prior to the mid-1980s operated “open loop” all of the time with no ability to react to changes in the A/F ratio, the addition of ethanol to the fuel tended to make the A/F ratio leaner, typically resulting in an immediate emission impact of reducing HC and CO emissions, but increasing NO
Concerning materials compatibility, in the first E15 partial waiver we found that “a number of pre-Tier 2 motor vehicles, including Tier 0 motor vehicles (from the 1980s to 1995) and Tier 1 motor vehicles (from 1996 to 2001), may have been designed for only limited exposure to E10 and consequently may have the potential for increased material degradation with the use of E15 even though they are beyond their useful life requirements.”
Due to the potential increases in vehicles emissions and issues with materials combability, we prohibited MY2000 and older light-duty motor vehicles from using E15.
As discussed in the first E15 waiver decision and the MMR, we have concerns for E15 use in heavy-duty gasoline-fueled motor vehicles that are similar to our concerns regarding E15 use MY2000 and older vehicles.
Due to the potential effects on emissions and materials compatibility, we cannot determine that E15 is sub sim to Tier 3 E10 certification fuel when used in nonroad products, motorcycles, or marine engines. The sub sim definition in this action for E15 restricts the applicability of the sub sim definition from applying to nonroad vehicles, engines, and equipment (“nonroad products”), highway and off-highway motorcycles (collectively called “motorcycles”), and marine engines. As discussed in Section II.C.9, we believe it appropriate to limit the applicability of a sub sim definition to those vehicles, engines, and equipment for which EPA is able to determine that the fuel or fuel additive is suitable for use.
In the first E15 partial waiver, we denied the E15 waiver request for all nonroad vehicles, engines, and equipment (“nonroad products”). As described in detail in the first E15 partial waiver, nonroad products typically have less complex engine designs, fuel systems, and controls than light-duty motor vehicles.
We have similar concerns with E15 use in motorcycles and marine engines as these vehicles and engines have similar emission controls to other classes of nonroad products. These concerns were the basis for the denial of the E15 waiver request for all motorcycles and marine engines and extending the prohibition on E15 use in motorcycles and marine engines.
Since the E15 waivers and the MMR, little has changed with respect to ability of nonroad products to utilize E15. They continue to be certified on E0 and designed to run on gasoline-ethanol blends only up to E10. As highlighted in their public comments, the manufacturers of such engines continue to press for the need for greater outreach, education, and misfueling mitigation efforts beyond those already in place to protect their customers from E15, and the marine manufacturers have been actively testing isobutanol in concert with butanol coalition members to gain approval for its use in lieu of ethanol entirely due to their ongoing concerns with the use of ethanol at all in the marine environment. For these reasons, the sub sim determination in this action excludes from its scope these vehicles, engines, and equipment. This exclusion in conjunction with the prohibition on E15 use in these products promulgated under CAA sec. 211(c) in the MMR will continue to preclude the use of E15 in these products.
CAA sec. 211(f)(1)(B) prohibits fuel or fuel additive manufacturers from first introducing into commerce, or increasing the concentration in use of, any fuel or fuel additive for use by any person in motor vehicles which is not substantially similar to any fuel or fuel additive utilized in the certification of motor vehicles or engines under CAA sec. 206. As explained above, we have interpreted the “substantially similar” provision several times to allow the introduction into commerce of certain fuel blends. The language of CAA sec. 211(f)(1) does not address whether and how EPA can restrict its determination that a particular fuel is “substantially similar” to a certification fuel. Given the fact that there have now been multiple certification fuels since 1977, when CAA sec. 211(f)(1) was first enacted, we believe it is reasonable to interpret this provision as allowing EPA to make a sub sim determination with respect to the use of the new fuel within certain parameters, where the parameters are intended to avoid the kinds of problems that prompted Congress to enact the general prohibition against introduction into commerce of fuels that are neither substantially similar nor have a CAA sec. 211(f)(4) waiver. Additionally, as discussed in Sections II.C.6-8, despite being sub sim for certain light-duty vehicles, E15 is inappropriate for use in vehicles, engines, and equipment other than MY2001 and newer light-duty vehicles. Therefore, without the sub sim determination being limited to the parameters described in this section, there would be no basis for a conclusion that E15 is “substantially similar” to Tier 3 certification fuel.
Congress did not speak directly to the question of whether CAA sec. 211(f)(1) provides EPA with authority to make a sub sim determination that is subject to appropriate parameters, and we believe that a sub sim determination within reasonable parameters intended to
Given this context and the legislative history leading to the enactment of CAA sec. 211(f)(1), the parameters within which we make our sub sim determination today represent a reasonable exercise of our CAA sec. 211(f)(1) authority.
As discussed below, in this action we are establishing criteria on our E15 sub sim finding consistent with the rationale underpinning the enactment of CAA sec. 211(f)(1), and our prior interpretation of our authority to make a sub sim finding within certain parameters under CAA sec. 211(f)(1) or to place certain conditions on a CAA sec. 211(f)(4) waiver from sub sim. Given the direct impact on emissions and the indirect impact on emission through impacts on materials compatibility, and driveability, the parameters within which we are making our E15 sub sim finding address these three areas.
One implication of a sub sim interpretation that includes E15 under CAA sec. 211(f)(1) would be that a waiver under CAA sec. 211(f)(4) will no longer be necessary for E15 to be introduced into commerce. This would in effect remove the conditions of the E15 partial waivers imposed on fuel and fuel additive manufacturers, in the absence of any limitations on the sub sim interpretation. This would mean that the conditions in the E15 partial waivers designed to limit the introduction into commerce of E15 to only MY2001 and newer light-duty motor vehicles would not apply. We have already promulgated parallel restrictions in our regulations in the E15 MMR rulemaking at 40 CFR part 80, subpart N.
While MMPs generally commit fuel and fuel additive manufacturers to adhere to regulatory requirements of the MMR, MMPs also commit these manufacturers to participate in public outreach on the appropriate use of E15 and allow for specific, additional misfueling mitigation measures that may apply in a manufacturer's specific situation. We believe that the continued existence of MMPs is important when finding that E15 is sub sim. The MMPs help prevent the use of E15 in MY2000 and older motor vehicles, nonroad vehicles, engines, and equipment (including motorcycles, and heavy-duty motor vehicles). Without the MMPs, there is an increased risk of misfueling which would directly impact the effects of the E15 on emissions, materials compatibility and drivability in MY2000 and older motor vehicles and nonroad, heavy-duty, and motorcycle vehicles and engines. We denied the E15 waiver request for MY2000 and older motor vehicles, nonroad vehicles, engines, and equipment (including motorcycles, and heavy-duty motor vehicles) due to our engineering assessment that these vehicles, engines, and equipment may experience emissions failures over these vehicles, engines, and equipments' full useful lives.
Also, as discussed above, in the MMR we concluded that under CAA sec. 211(c)(1)(A), the likely result would be increased VOC, CO, and NO
We also sought comment on whether this proposed sub sim interpretation for E15 should be limited to the subset of the national vehicle and engine fleet to which the current E15 waivers apply (MY2001 and newer light-duty motor vehicles) or on which our assessment in Section II.C.5 of the NPRM is based (
We received public comments suggesting that we update the reference to the ASTM standards for sub sim to the latest version of ASTM International standard D4814. One commenter noted that since E15 has a large effect on middle distillation (T50 in particular), EPA should reference the latest ASTM D4814 standard for gasoline as this standard helps ensure that gasoline-ethanol blends continue to meet the driveability index. The driveability index is a measure in the ASTM D4814 standard based primarily on the distillation characteristics of a fuel that helps ensures that spark-ignition engines operate correctly on gasoline. As discussed in Section II.C.6.d, fuels that cause issues with driveability can either directly increase emissions or result in consumers tampering with certified emissions configurations, which can result in increases in emissions. We agree with commenters that we should reference the latest version of ASTM D4814 as it relates to ensuring that the driveability index is met for gasoline-ethanol blends containing up to 15 volume percent. Therefore, we are specifying that only gasoline-ethanol blends that meet the applicable vapor pressure and distillation class requirements as specified in ASTM International Standard D4814-19 are considered physically and chemically substantially similar to Tier 3 E10 certification fuel.
Additionally, we believe it is appropriate that DFE used to produce E15 also needs to meet the latest ASTM International specifications for DFE, ASTM D4806-19. In the E15 partial waiver decisions, we imposed the condition that DFE used to make E15 under the waivers needed to meet a prior version of the ASTM ethanol specification. This condition was imposed in the E15 waivers under CAA sec. 211(f)(4) to help ensure that certain impurities in ethanol were limited to avoid issues with materials compatibility and help ensure quality of the gasoline-ethanol blended fuel when used in a vehicle or engine.
Finally, we are updating the criteria for additional fuel additives added to E15 that are introduced into commerce under the sub sim interpretation in this action to be consistent with fuel additive requirements for gasoline promulgated in the Tier 3 rule. In prior sub sim interpretations,
The new interpretation of “substantially similar” that E15 is sub sim to Tier 3 E10 certification fuel discussed in this section would make it lawful for refiners and importers to make and introduce into commerce E15 without the use of the CAA sec. 211(f)(4) E15 partial waivers.
We intend for this definition to coexist with the existing definition of “substantially similar” (hereinafter “the 2008 definition”). This is appropriate because the 2008 definition is in comparison to indolene, and the new interpretation is in comparison to Tier 3 E10 certification fuel. However, because there are now two certification fuels to which we can draw comparisons, and two definitions of sub sim relating to each fuel, we think it is important to describe how fuel and fuel additive manufacturers will continue to introduce into commerce their fuels and fuel additives and maintain their registrations under 40 CFR part 79. We intend for the existing CAA sec. 211(f)(4) waivers promulgated relative to “indolene” to remain available as an option for introduction into commerce for fuels that are nonetheless sub sim to Tier 3 E10 certification fuel. We have taken this approach recognizing that removing existing waivers has the potential to create confusion about the validity of historical introduction into commerce under these waivers and the continued validity of existing registrations for fuels and fuel additives under 40 CFR part 79. For the E15, after the sub sim definition in this action goes into effect, we will presume that fuel and fuel additive manufacturers that have already registered E15 or ethanol for use in the production of E15 under 40 CFR part 79 will introduce E15 into commerce under our new definition of sub sim (as opposed to the
Because the CAA sec. 211(f)(4) waiver is a waiver from being “substantially similar,” once E15 is found to be sub sim the waiver is no longer needed in order to introduce E15 into commerce. However, as discussed previously, we intend for the CAA sec. 211(f)(4) waiver to remain available for the introduction of E15 into commerce. Therefore, as previously explained in Section II.A.3, the deemed to comply provision in CAA sec. 211(h)(4)(B), which was promulgated at the inception of the RVP program when industry had just begun blending ethanol in gasoline and requires that the ethanol portion of the blend not exceed the highest permissible ethanol content under the CAA sec. 211(f)(4) waiver, would remain effective with respect to E15. The CAA sec. 211(f)(4) waiver for E15 remains available for the introduction into commerce of E15, and therefore the statutory “deemed to comply” criterion that “the ethanol portion of the blend does not exceed its waiver condition under subsection (f)(4) of this section” can still be satisfied both by parties that introduce E15 into commerce under the CAA sec. 211(f)(4) waiver or the CAA sec. 211(f)(1) sub sim finding because the ethanol content under either is identical. Our regulations at 40 CFR 80.28, as modified in this action, condition the “deemed to comply” provision on specific ethanol content between 9 and 15 percent by volume. For reasons discussed in Section II.D.1, we are not modifying this provision, other than by increasing the maximum allowable ethanol percent from 10 to 15 to reflect our revised interpretation of the CAA sec. 211(h)(4), and thus this regulatory provision would still allow downstream parties to be deemed in compliance and ease the demonstration burdens for gasoline-ethanol blends that can be introduced into commerce under a CAA sec. 211(f)(4) waiver or a substantially similar determination. We are updating our existing regulations at 40 CFR 80.28 to allow for ethanol content up to 15 volume percent to utilize the “deemed to comply” provision. We find this treatment appropriate because CAA sec. 211(h)(4) in its entirety should be read to apply to gasoline-ethanol blends containing at least 10 percent ethanol.
The 1-psi waiver would be available to all fuel manufacturers (
This action finalizes technical amendments that would effectuate our interpretation to allow the 1-psi waiver for E15 during the summer under CAA sec. 211(h)(4) and our interpretation that E15 is sub sim under CAA sec. 211(f) for MY2001 and newer light-duty vehicles. We are therefore taking these actions under both CAA sec. 211(f) and 211(h).
First, we are modifying and removing volatility controls associated with our prior interpretation of CAA sec. 211(h)(4). These controls, found in 40 CFR 80.27, place limitations on the RVP of gasoline-ethanol blends at specific concentrations. Given that the primary effect of our proposed interpretation of CAA sec. 211(h)(4) would expand the “special treatment for gasoline-ethanol blends” to fuel blends containing 9-15 percent ethanol, we are modifying both: (1) Regulations extending the 1-psi waiver from gasoline containing 9-10 percent ethanol to gasoline containing 9-15 percent ethanol at 40 CFR 80.27; and (2) related defense provisions in 40 CFR 80.28.
In public comments, some commenters suggested that EPA remove the upper bound for ethanol content in 40 CFR 80.27 to be consistent with our new interpretation of CAA sec. 211(h)(4). In particular, they suggested that the regulation should provide the 1-psi waiver for any gasoline-ethanol blend containing at least 10 percent ethanol, or for any gasoline-ethanol blend containing at least 10 percent ethanol that has a waiver under 211(f)(4) or is “substantially similar.” In promulgating these regulations, we have determined that CAA sec. 211(h)(4) provides the lower bound for ethanol content, and CAA sec. 211(f) provides the upper bound. We do not find that it would be appropriate to codify in our regulations no upper bound, as the limitations on introduction into commerce under CAA sec. 211(f) are an important mechanism to protect the emissions controls of motor vehicles and nonroad products. Additionally, it would be inappropriate to allow any gasoline-ethanol blend that contains ten volume percent ethanol the 1-psi waiver without consideration in a rulemaking process.
Second, we are removing and modifying provisions in the MMR that were imposed to effectuate the prior 1-psi waiver interpretation under CAA sec. 211(h)(4). Subsequent to the grant of the CAA sec. 211(f)(4) partial waivers for E15, we adopted regulations under CAA sec. 211(c) to ensure that E15 would not be used in certain vehicles and engines for which the waivers did not apply and to effectuate our interpretation of 211(h)(4) at that time. To do so, in addition to the conditions on the waivers that applied to fuel manufacturers, we promulgated regulations to ensure that those same conditions were enforceable on downstream parties. No changes were made to the RVP regulations at 40 CFR 80.27 as a direct result of our interpretation under CAA sec. 211(h)(4) that the 1-psi waiver did not extend to gasoline-ethanol blends with an ethanol concentration greater than 10 percent. Additional regulations on parties that distribute E15 were put in place at 40 CFR 80.1504(f) and (g) (placing prohibitions on the commingling of E10
Finally, we are removing the PTD requirements related to the 1-psi waiver at 40 CFR 80.1503. In 40 CFR part 80, subpart N, we included PTD language designed to help ensure that E15 that did not receive the 1-psi waiver would be segregated from E10 that did receive the 1-psi waiver. Since we are allowing the 1-psi waiver for E15, we no longer need these PTD requirements. However, parties that produce and distribute gasoline-ethanol blended fuels would still be required to identify ethanol concentrations on PTDs as specified in 40 CFR 80.27 and 40 CFR 80.1503.
All other E15 misfueling mitigation provisions in 40 CFR part 80, subpart N, remain unchanged. In the MMR, we promulgated regulations under CAA sec. 211(c)(1), which prohibit the use of E15 in MY2000 and older motor vehicles, nonroad vehicles, engines, and equipment (including motorcycles, and heavy-duty motor vehicles). CAA sec. 211(c)(1) gives EPA authority to “control or prohibit the manufacture, introduction into commerce, offering for sale, or sale” of any fuel or fuel additive (A) whose emission products, in the judgment of the Administrator, cause or contribute to air pollution “which may be reasonably anticipated to endanger public health or welfare” or (B) whose emission products “will impair to a significant degree the performance of any emission control device or system which is in general use, or which the Administrator finds has been developed to a point where in a reasonable time it would be in general use” were the fuel control or prohibition adopted. We promulgated the MMR based on our assessment that E15 would significantly impair the emission control systems used in MY2000 and older light-duty motor vehicles, heavy-duty gasoline engines and vehicles, highway and off-highway motorcycles, and all nonroad products supporting our action under CAA sec. 211(c)(1)(B). This led to our conclusion that under CAA sec. 211(c)(1)(A), E15 use in these particular vehicles, engines, and non-road products would likely result in increased VOC, CO, and NO
As discussed in the proposal, we interpret CAA sec. 211(f) as applying the waiver conditions to fuel and fuel additive manufacturers as defined in 40 CFR 79.2. Therefore, the regulatory amendments promulgated in this rulemaking apply to downstream parties, such as oxygenate blenders, who are not fuel or fuel additive manufacturers.
We received comment on this mechanism for providing E15 the 1-psi waiver, and respond to those comments in the RTC document, available in the docket for this action. This interpretation of the applicability of the CAA sec. 211(f)(4) waiver conditions, in conjunction with our new interpretation of CAA sec. 211(h)(4), is an independent basis from the CAA sec. 211(f)(1) sub sim interpretation for the regulatory amendments finalized in this rulemaking.
We also find that, should fuel and fuel and additive manufacturers choose to introduce E15 into commerce under the CAA sec. 211(f)(4) waiver, these parties would continue to be subject to the 9.0 psi RVP limit in the waiver conditions for E15. Downstream parties that only add oxygenate in an allowable amount (
We do not believe that providing E15 with the 1-psi waiver will substantially change the current trend in E15 use. E15 can currently be sold legally for use in MY2001 and newer light-duty motor vehicles in the United States under the 211(f)(4) waivers. It has been 9 years since EPA first granted the E15 211(f)(4) partial waivers; retailers currently offer E15 at roughly just 1 percent of retail stations as discussed in Section II.A.2. We expect that this slow adoption of E15 would continue even if we did not provide E15 the 1-psi waiver. However, we also do not expect this action to change the rate of growth appreciably. We believe that providing E15 with the 1-psi waiver will not result in a significant expansion of E15 offered at retail stations. This is due to the fact there are several hurdles, independent of EPA's fuels regulations, that inhibit the expansion of E15 into retail markets.
The chief hurdle to the introduction of E15 at additional retail stations is the requirement under 40 CFR 280.32 that retailers must demonstrate that underground storage tank (UST) systems are compatible with fuels stored at retail stations. Several commenters from the gasoline marketing and retail industry highlighted concerns over demonstrating compatibility of E15 with UST systems that have slowed the adoption of E15. Demonstrating compatibility can be especially difficult for some retailers as the full useful life of some UST system components can be up to 30 years and documentation of all of the various components often no longer exists, particularly when retail stations often change ownership several times during this time period.
Commenters also noted that a majority of retailers are small businesses that would need to make substantial investments to ensure the compatibility of UST systems and fuel dispensers with E15, which can cost up to hundreds of thousands of dollars per station depending on station configuration and what part of the UST system needs upgrading.
Furthermore, not all retail stations that turn over their UST systems are going to offer E15. Much of the introduction of E15 to date has been in the Midwestern states, where blending incentives and investments in retail infrastructure have been present.
Another hurdle to E15 market penetration highlighted by some commenters is a lack of consumer demand or consumer acceptance. These commenters noted that retailers will not limit their customer base and therefore will continue to make E10 available for vehicles, engines, and equipment that are not allowed to use E15.
E15 also faces an economic challenge to market growth, even with the 1-psi RVP waiver. Since the fuel distribution system will for the foreseeable future only be capable of distributing BOBs designed for E10, refiners will be unable to take advantage of the increased octane value offered by 5 percent more ethanol in the gasoline they produce. It is this octane value of ethanol that in recent years has been a key factor in enabling ethanol to compete favorably with gasoline. Rarely has ethanol been cheaper than gasoline on an energy equivalent basis.
A final factor that presents a hurdle to E15 expansion is that E15 made at blender pumps often is done so inconsistently with EPA's regulatory requirements. As discussed in the proposal, E15 made at blender pumps is often made with certified E10 (or CBOB) and E85 (made with denatured fuel ethanol and uncertified hydrocarbon blendstocks,
As another example of these hurdles, E15 has not expanded significantly into RFG areas, where the RVP of E15 has not been limited by the 1-psi waiver. RFG represents over 30 percent of the gasoline in the United States and refiners of RFG must comply with the summertime RFG VOC performance standards, which effectively require refiners to account for the increase in RVP that results from adding ethanol into RFG. The result of this is that oxygenate blenders have been able to produce E15 using the same RBOB as E10 in the summer since EPA granted the first E15 waiver 9 years ago. However, according to the E15 compliance and RFG surveys, only five RFG areas (Chicago, Milwaukee, St. Louis, Washington DC, and Dallas) out of 26 RFG areas have had any E15 marketed in those areas and even in those areas, E15 has only been offered in a limited number of stations.
Because this action does not change the rate of UST system and fuel dispenser turnover, increase consumer demand or acceptance for E15, ensure greater economic value for E15, or resolve the regulatory issues associated with producing E15 at blender pumps; we do not believe providing E15 the 1-psi waiver will result in a substantial expansion of E15 being offered at new retail locations.
Several commenters suggested that this action would result in significant impacts on air quality or have a significant economic impact. These commenters typically assume that every vehicle, engine, and piece of equipment in country will begin using E15 and that if the entire national fleet moved from E10 to E15 use substantial increases in regulated pollutants, widespread degradation of air quality, or necessitate billions of dollars of investments on the part of small businesses to offer E15 as a result. As previously mentioned, we do not expect that allowing E15 to receive the 1-psi waiver would result in widespread E15 use. This action does not require that any party make, distribute, sell, or use E15. As such, this action also does not address the hurdles to entry of E15. Based on the experience of E15 in areas that can already use E15 year-round (
As discussed above, we expect the emissions of E15 at 9 psi RVP to be substantially similar to those of E10 Tier 3 certification fuel when used in Tier 3 light-duty vehicles. This section describes the expected change in in-use emissions resulting from this action, assessing the evaporative and exhaust emissions of E15 with the 1-psi RVP waiver relative to the E10 with the 1-psi RVP waiver already available in the marketplace nationwide. While we attempt to estimate the emissions effects of E15 relative to E10 on a per-vehicle basis, we do not attempt to quantify what these changes mean for air quality in any specific area or the nation as a whole. We do not believe that as a result of this rulemaking a significant number of additional retail stations will offer E15, due to several hurdles described in Section II.E. As such, it would be difficult to quantify any effects (positive or negative) with confidence associated with providing E15 the 1-psi waiver. Such effects, if quantified, are unlikely to affect ambient air quality beyond the margin of error in air quality modeling. In Section II.C.6 we present estimated changes in emissions on a per-vehicle basis for illustrative purposes.
Evaporative emissions from vehicles comprise approximately 60 percent of the VOC emissions during summertime conditions from the current vehicle fleet based on results produced by MOVES2014b, and such VOC emissions contribute to ambient levels of ozone, PM, and air toxics, all of which adversely affect public health and welfare. Today's vehicles are equipped with charcoal cannisters to capture vapors generated during refueling as well as daily diurnal temperature fluctuations. This stored vapor is then drawn into the engine and combusted during vehicle operation.
Currently and historically, vehicle manufacturers have been required to certify their vehicles on test gasoline with a volatility of 9.0 psi RVP under severe operating conditions similar to what might be expected on days with high ozone concentration. The evaporative emission standards have been made more stringent over time, such that the Tier 3 standards require essentially zero vapor loss during normal operation on 9.0-psi fuel. Increasing fuel RVP from 9.0 psi to 10.0 psi increases fuel vapor generation significantly under summertime conditions, which can overwhelm a vehicle's evaporative control system and push it out of compliance. Consequently, controlling the volatility of gasoline during the summer is important in order to control the evaporative VOC emissions from vehicles and engines in-use.
This action extends the 1-psi RVP waiver to E15, allowing its in-use volatility to go from 9.0 psi to 10.0 psi RVP. Viewing this change in isolation, one might expect a significant increase in in-use evaporative emissions, and some public comments raised this concern. To accurately assess emission impacts in this case, however, we need to examine current real-world circumstances. Namely, we expect any additional E15 introduced into the market to displace E10 that is being sold and that already carries the 1-psi waiver in CG areas (E10 has nearly 100 percent market share for gasoline sold in the U.S.). Thus, any increase in in-use emissions that might have resulted from the 1-psi waiver applying to E15 is already occurring with E10. Rather, displacement of E10 with E15 is expected to lower the RVP of in-use gasoline by as much as 0.1 psi when made from the same RBOB or CBOB.
Use of E15 will also have other criteria pollutant emission impacts beyond those related to volatility as described above. Assuming E15 is made from the same RBOB or CBOB as E10, we expect the additional 5 volume percent ethanol to further dilute hydrocarbon fuel components such as aromatics, producing changes in several exhaust emissions such as NO
If E15 use becomes widespread in the longer term, refiners may adjust the base blendstock to accommodate the additional ethanol. During the rapid expansion of E10 blending between 2007-2012, aromatics levels were observed to decline by a few volume percent while pump octane levels stayed constant, and octane match-blending is understood to have been a contributing factor.
Several commenters highlighted the alleged benefits or disbenefits of E15 use on regulated emissions and air quality. These commenters often assumed that entire areas or the entire national fleet of vehicles and engines would switch from using E10 to E15 as a result of this action. While it is possible that measurable emissions and air quality effects could occur due to the small estimated per vehicle changes in exhaust and evaporative emission if the entire vehicle and engine fleet of an area or the nation went from using E10 to E15, such an analysis is inappropriate for this rulemaking. As discussed in Section II.E, we do not believe that E15 use will expand more quickly than it currently is expanding as a result of this rulemaking. E15 has been a legal fuel for use in the marketplace since 2010, and as discussed in Section II.A.2, it is still sold in limited quantities at only about one percent of retail stations nationwide. This rulemaking does not address the other hurdles to E15 entering the marketplace and does not provide additional incentives to parties that wish to make, distribute, or sell E15 to accelerate E15 use. As discussed in Section II.A.2, this situation is analogous to the situation when E10 was granted the 1-psi waiver in 1990, and the market saw little response in ethanol use until the mid-2000s when MTBE was banned, the price of crude oil rose making ethanol cost competitive with gasoline, and the RFS was created by the Energy Policy Act of 2005. As such, we believe that it would be inappropriate to attribute any meaningful environmental impacts (positive or negative) to increased E15 use as a result of this rulemaking.
Due to the barriers to market entry discussed in Section II.E, we anticipate that the economic impacts of providing E15 with the 1-psi waiver will be small. This section briefly describes the potential benefits and costs of providing E15 with the 1-psi waiver. To the extent there would be small impacts from this rulemaking on the volume of ethanol use, the appropriate place to reflect those impacts would be in rulemaking actions associated with implementation of the renewable fuels program, where EPA considers the impacts of changes in biofuel volumes.
We anticipate that providing the flexibility to use E15 at 10.0 psi RVP in the summer could help incentivize some retailers to introduce E15 into the marketplace, but that such incentives may be outweighed by the other hurdles to widespread E15 use. In situations where denatured fuel ethanol might be cheaper than gasoline, such as in the Midwest where distribution costs are low, parties may elect to make E15 more widely available, which may result in a modest decrease in fuel prices at the pump. However, even then this may not be sufficient to overcome the significant investment needed to upgrade an existing retail station to be compatible with E15 if consumer demand for E15 remains low. Any additional ethanol that is blended as a result of this action could help to offset a portion of the projected decline in U.S. ethanol use due to projected declining gasoline consumption. This in turn could provide energy security benefits.
Finalizing the 1-psi waiver for E15 in the summer may help open new market opportunities for E15. However, fuel manufacturers and distributors of E15 would not be compelled to make or offer
Overall, we anticipate very little change in costs regarding the proposed regulatory provisions to allow E15 to receive the 1-psi waiver in the summer. This action places no new regulatory burdens on any party in the gasoline or denatured fuel ethanol distribution system and modifies, but does not remove, PTD requirements for E15. Hence, we expect that these proposed provisions would not substantially alter the cost of compliance for parties that produce and distribute E15.
Under CAA sec. 211(o), EPA is required to set renewable fuel percentage standards every year.
RIN prices are a function of multiple factors, including but not limited to changes in petroleum prices, agricultural feedstock (
Obligated parties that purchased RINs on the market for compliance in 2013 saw their D6 RIN prices substantially increase from the year prior.
We take these claims of market manipulation seriously and took formal action prior to the notice of proposed rulemaking (NPRM) to investigate claims of manipulation. In March 2016, EPA entered into a Memorandum of Understanding (MOU) with the Commodity Futures Trading Commission (CFTC).
In the 2018 and 2019 RVO NPRMs, we broadly sought input on potential regulatory changes related to RIN trading as well as on ways to increase program transparency.
On October 11, 2018, the President issued a White House statement directing EPA to initiate a rulemaking to address RIN price manipulation claims and increase transparency in the RIN market. Specifically, the memorandum directed EPA to consider potential reforms to the RIN regulations, including but not limited to the following proposals:
• Prohibiting entities other than obligated parties from purchasing separated RINs.
• Requiring public disclosure when RIN holdings held by an individual actor exceed specified limits.
• Limiting the length of time a non-obligated party can hold RINs.
• Requiring the retirement of RINs for the purpose of compliance be made in real time.
Pursuant to this directive, we proposed regulatory changes reflecting all four reforms identified in the President's Directive and requested comments on both the positive and negative consequences of each reform. For each reform proposal, we evaluated
When we originally contemplated the reforms, we understood that restrictions could affect the flexibility and liquidity that the RIN system and regulations were designed to maximize. For example, numerous comments received on the 2019 RVO NPRM stated that changes to the RIN market structure could reduce liquidity, increase volatility, and make the RIN market function less efficiently, increasing costs to obligated parties and consumers. Interested stakeholders also suggested that some reforms could affect the ability of small, less recognized, or new renewable fuel producers and blenders to enter the market. Finally, we understood that some reforms could inadvertently affect otherwise legitimate market behavior. For example, parties that purchase RINs on the expectation that RIN prices will increase may provide an important price signal and increase market liquidity with their actions. Therefore, when we proposed the reforms, we took into consideration the potential for the reforms to harm the RIN market and communicated our intent to finalize the reforms that we concluded most likely to be beneficial for the RFS program, the RIN market, and the RFS stakeholders, and that do not impose unnecessary burden or cause unintended consequences.
After evaluating the comments received on the proposal, we have decided to finalize two of the proposed five reforms: Public disclosure requirements when a party's separated D6 RIN holdings exceed specified thresholds (Reform 1) and reporting and recordkeeping requirements to enhance EPA's market monitoring capabilities (Reform 5). We have decided to continue to collect and evaluate data and not to take final action at this time with regard to the other three of the five reforms that we proposed related to: RIN retirement compliance frequency (Reform 2), which parties can purchase RINs (Reform 3), and how long non-obligated parties can hold D6 RINs (Reform 4). In Section III.B, we discuss our overall rationale for finalizing only a subset of proposed reforms and our general response to market manipulation concerns. In Section III.C, we discuss the elements we are finalizing related to Reform 1. In Section III.D, we discuss the elements we are finalized related to Reform 5. In Section III.E, we discuss the rationale behind not taking final action at this time with respect to proposed Reforms 2, 3, and 4, and the steps we intend to pursue related to these reforms in the future.
Price manipulation through anti-competitive behavior, similar to what is referred to as cornering or squeezing the market, and false or misleading representations in transactions, is antithetical to effective market operation.
First, prior to the NPRM, we took formal action to investigate claims of manipulation by entering into an MOU with CFTC and providing them with certain RIN data for analysis in order to facilitate an EPA investigation.
Second, during the development of the NPRM, we conducted a screening analysis using individual-level RIN holding data to evaluate historical market shares. We found that the maximum level of D6 RINs that any one party held at a time was between 10 and 14 percent of all D6 RINs.
Third, since publishing the NPRM, we conducted additional analysis on the distribution of D6 RIN holdings across the marketplace. On three dates in the 2017 compliance year, chosen because they are representative of seasonal RIN market activity, we evaluated each company's separated D6 RIN holdings beyond what was needed for compliance with the next RVO in the case of obligated parties.
From this analysis, we conclude that “excess” RIN holdings are spread across a large number of parties and that no single party controls an excessive share of the market. In addition, many commenters stated that they have never encountered manipulative behavior in the RIN market and disagree with the concerns that manipulation is occurring or has occurred. For example, a group of associations whose members represent approximately 90 percent of retail sales of motor fuel in the U.S. indicated that none of its constituent associations' members have seen any transactional problems with the current RIN trading structure. Several commenters stated that the reforms EPA proposed are, effectively, a “solution in search of a problem.”
We understand that some parties remain concerned about potential market manipulation. Among the comments received on this action, some describe scenarios that appear to the commenter to have been driven by manipulative behavior. Upon examination, however, at least some of these scenarios could be caused by legitimate, non-manipulative market behavior. For example, one commenter describes entering into a forward purchase contract with a counterparty at a price indexed to the future RIN price. The commenter observes the counterparty purchase RINs on the spot market at what they believe are artificially high prices to “drive up” the future index price. We note, however, that a party would need to control an excessive share of the RIN market in order to exercise such undue influence on the spot price, and we have found through our analysis that no party has such market share. We find that the RIN spot price in this case could be rising naturally, consistent with market fundamentals. Furthermore, these comments do not contain details of any dates, prices, transaction volumes, or parties involved, so we cannot evaluate them further.
Another commenter compares RIN market data with data from the ethanol, oil, and natural gas markets and presents analytic findings about market inefficiency, such as price volatility, and claim that the results correlate to market manipulation. As explained further in the Response to Comments (RTC) document,
Given all of these factors, we have decided that the most appropriate action at this time is to collect more data and conduct additional, enhanced market monitoring and analysis. We do not find that the concerns and analytic findings raised to EPA to date warrant restructuring the RIN market at this time. We do not agree with comments that we should at this time restrict elements of the RIN market, such as who can participate in the market and how long parties can hold RINs, since we have seen no data-based evidence that anti-competitive behavior has occurred. We conclude that such restrictions could adversely impact liquidity and other market functions and would only be warranted if additional monitoring identified anti-competitive behavior that could be managed with such market-wide restrictions. As such, we agree with comments that the RIN market should be allowed to continue operating at this time without additional restrictions while concerns related to anti-competitive behavior should be studied more closely.
Therefore, in this action, we are only finalizing the two reforms (
We proposed a requirement for public disclosure when a party's RIN holdings
In this action, we are largely finalizing what we proposed for Reform 1, of which public comment was broadly supportive. We are finalizing two thresholds that work in tandem to identify parties that have amassed RINs in excess of normal business practices, which could indicate an intent to assert an inappropriate influence on the market. Under the threshold reform finalized in this action, a RIN-holding party must aggregate its end-of-day separated D6 RIN holdings with those of its corporate affiliates. If the group of affiliates holds aggregated separated D6 RINs on any day in excess of the primary threshold and contains no obligated party, then the group triggers the primary threshold, and each party in the affiliate group must notify EPA of a threshold exceedance at the end of the quarter. If the group of affiliates holds separated D6 RINs in excess of the primary threshold on any day and contains at least one obligated party, then the aggregated RIN holdings are compared to the secondary threshold. If they exceed both the primary and the secondary thresholds, each member in the affiliate group must notify EPA of a threshold exceedance at the end of the quarter. For an affiliated group containing an obligated party that triggers the primary but not the secondary threshold, no notification to EPA is required by the group members.
In this action, we are finalizing a requirement for public disclosure when parties exceed the EPA-set RIN-holding threshold. We are finalizing our proposal in the NPRM that no confidentiality claims may be asserted by any person with respect to the name of a party that reported exceeding an EPA-set RIN holding threshold. Some commenters indicated that releasing a party's name could alert other market participants that the party has a large supply of excess RINs, which could weaken their ability to negotiate RIN price for a transaction. After reviewing these comments and reconsidering the conditions leading up to potential public disclosure, we find that a party concerned about triggering the reporting threshold can keep its RIN holdings at a level such that the public disclosure requirement is not triggered. We believe that the thresholds signify an amount of RINs in excess of normal business practices and will not interfere with RIN holdings that are necessary to reasonably manage compliance with the RFS program. Given the amount of notice we are giving parties, we find any party that chooses after January 1, 2020, to acquire RINs in excess of the thresholds is itself causing an alert to market participants about their RIN holdings and is directly responsible itself for any competitive harm, such as depressed RIN prices, that results. Therefore, no claim of business confidentiality may be asserted by any person with respect to the name of a party that exceeds a RIN holding threshold.
We also received comment in support of a prohibitive limit with a potential enforcement consequence if the threshold were exceeded rather than simply relying on public disclosure as a deterrent to inappropriate market behavior. These commenters worried that public disclosure would have no effect on RIN holdings and that a prohibition would be necessary to affect behavior. We disagree with these comments. Furthermore, we decided that a prohibitive limit could have detrimental effects, especially if not designed properly. Excess market power is very difficult to quantify in any given market, even if regulators have perfect knowledge of all market conditions. A real risk exists of setting a RIN holding threshold in this rulemaking incorrectly. If a threshold is set too low, it could unnecessarily compromise market efficiency and liquidity and interfere with obligated parties' ability to comply with regulations by disincentivizing them from holding the necessary quantity of RINs to meet their RVO. We therefore believe that a threshold with a consequence of public disclosure is appropriate rather than a holding limit with an enforcement consequence. A threshold serves as a deterrent and warning bell without the risk of causing unnecessary harm. We also believe that, in the face of insufficient evidence of any identified parties currently exhibiting what might be considered excessive market power, public disclosure is an appropriate first action.
Under this reform, we are applying the thresholds to D6 RIN holdings only. After considering comments, we conclude that we can limit the scope of this reform to D6 RINs without compromising its intended effect. First, D6 RINs raise the most stakeholder concern because the price of D6 RINs is expected to vary greatly with very low prices for D6 RINs when the implied RFS requirement for conventional biofuel is below the blendwall to the high prices seen in previous years when the implied RFS requirement for conventional biofuel is above the blendwall. Under this unique set of conditions, the D6 RIN market would present a better opportunity than other D-codes were a party to attempt to drive up RIN prices by withholding large amounts of RINs. Conversely, were a party to withhold a large volume of D4 RINs, additional supplies of D4 RINs could enter the market to meet demand at a marginal increase in price. Second, the nested nature of the RVOs and the unique characteristics of other RIN markets (
We are finalizing a primary threshold of three percent of the total implied conventional biofuel volume requirement set for that year by EPA in the RVO rule, which is the total renewable fuel volume requirement minus the advanced fuel volume requirement (
We are finalizing a secondary threshold for obligated parties of 130 percent of the individual implied conventional RVOs of all obligated parties in the affiliate group. As stated in comments, we recognize that larger obligated parties with large RVOs have valid reasons to accumulate and hold a volume of RINs that might exceed the primary threshold, not only to meet their next annual compliance obligation but also to bank additional RINs for compliance with the following year's obligation. Therefore, we recognize that the secondary threshold has to account for and allow RINs held to meet compliance obligations. We chose 130 percent because it allows for holdings of 100 percent of their implied conventional biofuel RVO, 20 percent for banking, and 10 percent for additional flexibility and uncertainty. After considering comments, we believe that this 10 percent flexibility is important because it could, for example, cover potentially invalid D6 RINs that may not be sold or retired according to the existing RFS regulations or small changes to gasoline and diesel production and import volumes from one year to another that affect the RIN holding calculations.
We are finalizing an approach to calculating the primary and secondary thresholds that adjusts depending on how many RVOs are in effect.
Under this reform, two parties are corporate affiliates if one party has more than 20-percent ownership in the other or if both parties are owned more than 20 percent by the same parent company. We chose this “more than 20” percent ownership level because it is consistent with the value that the California Cap-and-Trade Program
We are finalizing the requirement that each RIN-holding party compare the daily aggregated RIN holdings of its affiliate group with the primary threshold and, if applicable, the secondary threshold. If the relevant threshold is exceeded on any day in the quarter, the affiliate group parties must report the exceedance in their next RIN Activity Report. To be clear, the parties may conduct the required comparison of daily RIN holdings to the thresholds as infrequently as quarterly to comply with the requirements. For example, a party may proceed by noting its separated D6 RIN holdings at the beginning of the quarter then keeping track throughout the quarter of the volume and date of every RIN purchase and sale, as already required under the RFS recordkeeping provisions at 40 CFR 80.1454(i). At the end of the quarter, the party would then compute what the RIN holdings were on each day of the quarter and aggregate those daily numbers with those of its affiliates. On the other hand, parties may choose to conduct the comparison more frequently, such as monthly, weekly, or daily. For example, a party with large RIN holdings that conducts transactions often throughout the month may wish to aggregate its daily RIN holdings with those of its affiliate group members frequently to know when aggregated levels are approaching the relevant threshold and when action might be needed to avoid exceeding the threshold on an upcoming day. After considering comments, we believe that quarterly reporting is an adequate frequency for EPA and public notification of potentially-concerning market power while also appropriately minimizing the calculation burden on parties that feel they are at very low risk of exceeding the relevant threshold.
We are adding a yes/no reporting requirement on exceeding the thresholds to the RIN Activity Report that all RIN-holding parties are already required to submit to EPA quarterly. A party will select “no” if the threshold is not exceeded during the given quarter or “yes” if it is exceeded at least once in the quarter. We will publish on a quarterly basis only the names of the parties that reported “yes”. We are also adding a reporting requirement to the RIN Activity Report that RIN-holding parties submit to EPA on RIN-holding corporate affiliates and all contractual
We are requiring that the reported contractual affiliates include those that do not own RINs and that are not registered with EPA to own RINs. For example, a party with a contract in place to purchase or hold RINs for a company not registered in EMTS would report that company's name to EPA. Based on comments received, we continue to believe we need a wider picture of contractual affiliations than those in EMTS so that we can maintain some insight into any additional market share over which parties might have control. For example, we will monitor for a non-registered party that has established contracts with multiple parties to purchase and hold a large number of aggregated RINs on its behalf. We will treat these lists as potential CBI and will treat them according to 40 CFR part 2, subpart B, until determined otherwise.
A designated company official will be required to certify the completeness and accuracy of the threshold and affiliate answers upon report submission. In addition, the independent auditor must review threshold calculations during the attest engagement process and include in their attest engagement report to EPA any findings. This includes confirmation that the D6 RIN holdings and RVOs, if applicable, of all corporate affiliates were fully and properly accounted for in the calculations. Therefore, we are requiring that parties registered to hold RINs keep as records all threshold calculations, including corporate affiliate values, and provide those records to the auditor for review.
The calculation finalized in this action uses gasoline and diesel production and import volumes from the prior compliance year as a proxy for volumes in the current year. After considering comments, we recognize that the calculations can be an inaccurate representation of current year volumes in some cases, such as mergers or big changes in import volumes from year to year. Therefore, in response to comments, we are adding alternative provisions to the regulation that obligated parties can use, if specific criteria are met, to account for such discrepancies in their volume calculations. Any party that uses the alternative provisions is required to report the volume it calculated in its RIN Activity Report alongside the other required threshold information.
In this action, we are taking additional steps to enhance our market monitoring capabilities in order to better detect potential market manipulation. Monitoring the RIN market requires a substantial amount of market data. Prior to this action, we have required parties to report RIN trade prices, RIN trade volumes, and the parties involved in the RIN transaction. With this action, we are adding new reporting requirements.
As described in Section III.C, we are requiring parties to report the names of RIN-holding corporate affiliates and all contractual affiliates in their RIN Activity Reports. Since it will be collected in that form, we are not requiring that auditors include affiliate lists in their annual attest engagements submitted to EPA. We are only requiring attest auditors to review the RIN Activity Reports and confirm that the information reported about the threshold analysis and the affiliates was reported correctly. The auditor's findings will be reported to EPA as usual in the findings report.
We are requiring that a per-gallon RIN price be reported for a separated RIN transaction and that a price of $0.00 only be allowed for certain types of transactions. Prior to this action, we have allowed intracompany and tolling agreement transactions to report a RIN price of $0.00. In the proposal, we requested comment on any other legitimate reasons for reporting a $0.00 RIN price. Given the comments received, we are adding consignment transactions and RIN pass-back transactions to the list of transactions allowed to report a RIN price of $0.00.
We are requiring that transactions at a price other than $0.00 be reported as either a spot type or a term type.
We also confirm our intention to take non-regulatory steps after promulgation of this action to update business rules in EMTS such that both parties in a RIN transaction must enter the same RIN price in EMTS for the transaction to clear. Prior to this action, EMTS already had a business rule that required both parties in a RIN transaction to enter the same RIN volume, and this business rule has been very helpful in maintaining high quality volume data that we can reliably publish and use for compliance oversight. These and other business rules prevent data entry errors and prompt parties that have not properly followed the instructions in the regulations to correct their numbers. By adding a similar business rule to EMTS on RIN prices, we believe we can prevent reporting errors and improve the quality and reliability of our price data.
Finally, we are affirming our intent to employ a third-party outside of the regulatory process to monitor of the RIN market. We are aware of other environmental commodity markets that employ third-party market monitoring services to conduct analysis of the market, including screening for potential anti-competitive behavior or
In the NPRM, we proposed regulations related to three other reforms that were included in the President's Directive. Under Reform 2, we proposed that obligated parties would be required to retire 80 percent of their renewable fuel RVO after the first three quarters of the reporting year. Under Reform 3, we proposed that only certain non-obligated parties would be allowed to purchase separated D6 RINs, including exporters and those with a contract in place to supply obligated parties with RINs. Under Reform 4, we proposed that the number of D6 RINs a non-obligated party separated or purchased in a quarter would need to equal the number of D6 RINs it sold or retired in that same quarter. We sought comment on the potential benefits as well as potential downsides of these three reforms.
After reviewing the comments received, we have decided not to take final action with respect to the proposed regulatory amendments. In the NPRM, we explained that we have not seen any data-based evidence that market manipulation is occurring and that we were proposing the reforms to prevent market manipulation from possibly taking root in the future. We also emphasized that we were proceeding carefully because of the potential for these reforms to cause harm to the RIN market. Nothing in the comments received provides any additional data-based evidence or compelling information that alters the assessment of market manipulation we presented in the NPRM. Therefore, we are finalizing Reforms 1 and 5, which will provide additional data for EPA to analyze and discourage excessive RIN holdings. If, after reviewing that data and conducting additional market analysis, we determine that it would be prudent to finalize Reform 2, 3, or 4 in the future, we will share the analysis that has led us to believe it could be appropriate and will allow time for parties to respond, through a separate notice to the public and an additional period provided for public comment, before we proceed with a final rule codifying one or more of these proposed reforms. To that end, we have not further summarized or responded to comments on these three reforms in this action.
As EPA is finalizing just Reforms 1 and 5 in this action, the impacts of this action are expected to be increased transparency and minor costs associated with recordkeeping and reporting requirements. If EPA were to proceed further and finalize Reforms 2, 3, or 4, the agency would evaluate those impacts in the associated regulatory action(s).
The goals of the reforms finalized in this action are to increase our capability to monitor the market for anti-competitive behavior as well as to discourage RIN holding levels in excess of normal business practices. Therefore, we believe the net benefit of this action will be to support increased confidence in the RIN market and reduce perceived market risk. These reforms also provide the added benefit of increasing transparency into the RIN market. In general, commodities markets function optimally when all participants have access to as much information as possible, and this information is disseminated or shared with all parties at the same time. This helps create a level playing field and minimize any potential advantage one party may have over another. The net benefit of greater transparency helps market participants, such as obligated parties, plan short- and long-term strategies to manage their compliance costs.
As detailed in Sections III.C and D, we are requiring additional reporting and recordkeeping for obligated parties under the RFS program and non-obligated parties that participate in the RIN market. As detailed in Section III.E, because we are not finalizing Reforms 2, 3, and 4 at this time, including the reporting and recordkeeping requirements proposed in association with those reforms, we expect modest costs to regulated entities associated with this final rule.
This action is a significant regulatory action that was submitted to the Office of Management and Budget (OMB) for review. Any changes made in response to OMB recommendations have been documented in the docket.
This action is considered an Executive Order 13771 regulatory action. Details on the estimated costs of this final rule can be found in Sections II.G.2 and III.F.2.
With respect to the E15 1-psi waiver portion of this action, no new information collection burden is imposed under the PRA. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0675. The changes to the regulations will remove a small segment of language on PTDs required to be generated and kept as records by parties that make and distribute gasoline under the regulations at 40 CFR part 80, subpart N. These changes will not require any additional information from regulated parties nor do we believe that these changes will substantively alter practices used by regulated parties to satisfy the PTD regulatory requirements.
The information collection activities related to the RIN market reform portion of this rule have been submitted for
This ICR includes all additional RFS related information collection activities resulting from the Modifications to Fuel Regulations to Provide Flexibility for E15; Modifications to RFS RIN Market Regulations final rulemaking. These information collection activities include new recordkeeping and reporting requirements finalized under 40 CFR part 80, subpart M.
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for EPA's regulations in 40 CFR are listed in 40 CFR part 9.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. Small entities that will be subject to the final rulemaking include domestic refiners that produce gasoline and/or diesel. In addition to domestic refiners, EPA believes the final rulemaking will also apply to other small entities. These entities include: Non-obligated parties under the RFS program that transact RINs; blenders that separate RINs from assigned volumes of renewable fuel; and brokers that facilitate transactions of RINs between parties. With respect to the E15 1-psi waiver portion of this action, the regulatory changes do not substantively alter the regulatory requirements on parties that make and distribute gasoline. Additionally, the interpretation to allow E15 to receive the 1-psi waiver will allow parties that make and distribute E15, including small entities, more flexibility in the summer to satisfy market demands. With respect to the RIN market reform provisions of this action, we have conducted a screening analysis to assess whether we should make a finding that this action will not have a significant economic impact on a substantial number of small entities.
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. This action implements mandates specifically and explicitly set forth in CAA sec. 211 and we believe that this action represents the least costly, most cost-effective approach to achieve the statutory requirements.
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. Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes, EPA consulted with tribal officials during the development of this action. On February 28, 2019, EPA met with the National Tribal Air Association to highlight the upcoming proposed rulemaking. EPA did not receive any feedback at this consultation meeting or in subsequent comments.
EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk.
This action is not a “significant energy action” because it is not likely to have a significant adverse effect on the supply, distribution or use of energy. The flexibility provided to E15 by this action will enable additional supply of energy but are not expected to have an immediate significant effect on supply, distribution, or use of energy. The modifications to the RFS compliance system are not expected to have a significant effect on supply, distribution, or use of energy.
This rulemaking does not involve technical standards.
EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). As discussed in Section II.F, we do not believe that this action will have any meaningful environmental impacts (positive or negative).
This action is subject to the CRA, and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Statutory authority for this action comes from section 211 of the Clean Air Act, 42 U.S.C. 7545. Additional support for the procedural and compliance related aspects of this rule comes from sections 114, 208, and 301(a) of the Clean Air Act, 42 U.S.C. 7414, 7542, and 7601(a).
Environmental protection, Fuel additives, Gasoline, Labeling, Motor vehicle pollution, Penalties, Reporting and recordkeeping requirements.
The following Appendix will not appear in the Code of Federal Regulations.
EPA will treat any gasoline-ethanol blend containing more than 10 but no more than 15 volume percent ethanol (“E15”), and denatured fuel ethanol used to make such a gasoline-ethanol blended fuel for use by any person in light-duty vehicles manufactured after model year 2001
(1)
(a) Hydrocarbons;
(b) Denatured fuel ethanol that meets the specifications of ASTM International Standard D4806-19;
(c) Additional fuel additive(s)
(d) The gasoline-ethanol blended fuel, denatured fuel ethanol, and any additives blended into the fuel must contain only carbon, hydrogen, and any one or all of the following elements: Oxygen, nitrogen, and/or sulfur.
(2)
(a) The physical and chemical characteristics of an unleaded automotive spark-ignition engine fuel (
(b) The applicable distillation temperature limitations listed in the Vapor Pressure and Distillation Class Requirements as specified in ASTM International Standard D4814-19; and
(c) The gasoline-ethanol blended fuel does not exceed 9.0 pounds per square inch (psi) RVP during the time period from May 1 to September 15.
(3)
(4) Failure to fully fulfill any criteria of this definition means the fuel or fuel additive introduced into commerce is not covered by this definition.
For the reasons set forth in the preamble, EPA amends 40 CFR part 80 as follows:
42 U.S.C. 7414, 7521, 7542, 7545, and 7601(a).
(d) * * *
(2) In order to qualify for the special regulatory treatment specified in paragraph (d)(1) of this section, gasoline must contain denatured, anhydrous ethanol. The concentration of the ethanol, excluding the required denaturing agent, must be at least 9% and no more than 15% (by volume) of the gasoline. The ethanol content of the gasoline shall be determined by the use of one of the testing methodologies specified in § 80.47. The maximum ethanol content shall not exceed any applicable waiver conditions under section 211(f) of the Clean Air Act.
(g) * * *
(6) * * *
(iii) That the gasoline determined to be in violation contained no more than 15% ethanol (by volume) when it was delivered to the next party in the distribution system.
(8) In addition to the defenses provided in paragraphs (g)(1) through (6) of this section, in any case in which an ethanol blender, distributor, reseller, carrier, retailer, or wholesale purchaser-consumer would be in violation under paragraph (b), (c), (d), (e), or (f) of this section, as a result of gasoline which contains between 9 and 15 percent ethanol (by volume) but exceeds the applicable standard by more than one pound per square inch (1.0 psi), the ethanol blender, distributor, reseller, carrier, retailer or wholesale purchaser-consumer shall not be deemed in violation if such person can demonstrate, by showing receipt of a certification from the facility from which the gasoline was received or other evidence acceptable to the Administrator, that:
(ii) The ethanol portion of the blend does not exceed 15 percent (by volume); and
(1) Two parties are contractual affiliates if they have an explicit or implicit agreement in place for one to
(2) Two parties are contractual affiliates if one RIN-owning party purchases or holds RINs on behalf of the other. This other party may or may not be registered under the RFS program.
(1) Two RIN-holding parties are corporate affiliates if one owns or controls ownership of more than 20 percent of the other.
(2) Two RIN-holding parties are corporate affiliates if one parent company owns or controls ownership of more than 20 percent of both.
(a) Beginning January 1, 2020, no claim of business confidentiality may be asserted by any person with respect to information submitted to EPA under § 80.1451(c)(2)(ii)(E), whether submitted electronically or in paper format. EPA may make information submitted under § 80.1451(c)(2)(ii)(E) available to the public.
(b) [Reserved]
Beginning January 1, 2020, any party that holds RINs must comply with the requirements of this section.
(a)
(2) Each party must calculate, as applicable, the holdings-to-market percentage under paragraph (b)(1) of this section and the holdings-to-obligation percentage under paragraph (b)(2) of this section quarterly in accordance with the schedule specified in Table 1 to § 80.1451.
(3) For a corporate affiliate group containing at least one obligated party that has a holdings-to-market percentage greater than 3.00 percent for any calendar day in a compliance period, as determined under paragraph (b)(1) of this section, each party must calculate the corporate affiliate group's holdings-to-obligation percentage as specified in paragraph (b)(2) of this section.
(4) Each party must individually keep copies of all calculations and supporting information for separated D6 RIN holding threshold calculations required under this section as specified in § 80.1454(u).
(b)
(i) For each day beginning January 1 through March 31, calculate the holdings-to-market percentage for a corporate affiliate group as follows:
(ii) For each day beginning April 1 through December 31, calculate the holdings-to-market percentage for a corporate affiliate group as follows:
(2)
(i) For each day beginning January 1 through March 31, calculate the holdings-to-obligation percentage as follows:
(ii) For each day beginning April 1 through December 31, calculate the
(iii) As needed to calculate the holdings-to-obligation percentage in paragraphs (b)(2)(i) and (b)(2)(ii) of this section, calculate the conventional RVO for an individual corporate affiliate as follows:
(c)
(2)
(d)
(1) The party must have a reasonable basis for using the alternative production numbers (
(2) When substituting the alternative production volume for the conventional RVO volume, the party must use actual production numbers for any completed quarter in the compliance period and extrapolated production numbers for any future quarters.
(3) The party must meet the applicable recordkeeping requirements of § 80.1454.
(4) The party must retain documentation of the reasonable basis and the calculations used and must provide these to the auditor conducting the attest engagement under § 80.1464.
(e)
(i) There is an absence of common trading-level control and information sharing with the affiliate.
(ii) The sharing of information regarding aggregation with the affiliate could lead either party to violate state or Federal law, or the law of a foreign jurisdiction.
(iii) The affiliate is exempt from the regulations regarding commodities and securities exchanges under 17 CFR 150.4(b)(7).
(2) A party must retain detailed, explanatory documentation supporting its exemption and must provide this documentation to the attest auditor under § 80.1464, and to EPA upon request. Such records include, but are not limited to, the following:
(i) Documents that reflect that the parties do not have knowledge of the trading decisions of the other.
(ii) Documents that demonstrate that there are developed and independent trading systems in place.
(iii) Documents that demonstrate that the parties have and enforce written procedures to preclude each from having knowledge of, gaining access to, or receiving data about, trades of the other.
(iv) Documents reflective of the risk management and other systems in place.
(v) Documents that support an exemption under 17 CFR 150.4(b)(7).
(vi) Any other documents that support the applicability of the exemption.
The revision and additions read as follows:
(c) * * *
(2) RIN activity reports must be submitted to EPA according to the schedule specified in paragraph (f)(2) of this section. Each report must summarize RIN activities for the reporting period, separately for RINs
(i) For compliance periods ending on or before December 31, 2019, each report must include all of the following information:
(ii) For compliance periods starting on or after January 1, 2020, each report must include all of the following information:
(A) The submitting party's name.
(B) The submitting party's EPA-issued company identification number.
(C) Primary registration designation or compliance level for compliance year (
(D) All of the following information:
(
(
(
(
(
(
(
(
(
(
(
(
(
(
(E)(
(
(F) A list of all corporate and contractual affiliates during the reporting period. For each affiliate, include the identification information (including the EPA company ID number, if registered) and the affiliate type.
(G) The RVO used to calculate D6 RIN threshold, if alternative gasoline and diesel production volumes were used under § 80.1435(d).
(H) A list of contractual affiliates that had a contract with the party that did not result in transfer of RINs to the party during the reporting period.
(I) Any additional information that the Administrator may require.
The revision and addition read as follows:
(c) * * *
(12)(i) For transactions through December 31, 2019, the per gallon RIN price or the per-gallon price of renewable fuel with RINs included.
(ii) For transactions on or after January 1, 2020:
(A) For RIN buy or sell transaction types including assigned RINs, the per-gallon RIN price or the per-gallon price of renewable fuel with RINs included.
(B) For RIN buy or sell transaction types including separated RINs, the per-gallon RIN price.
(15) For buy or sell transactions of separated RINs on or after January 1, 2020, the mechanism used to purchase the RINs (
(i) * * *
(1) For buy or sell transactions of separated RINs, parties must retain records substantiating the price reported to EPA under § 80.1452.
(2) For buy or sell transactions of separated RINs on or after January 1, 2020, parties must retain records demonstrating the transaction mechanism (
(u)
(2) Parties must retain records related to their reports to EPA regarding threshold compliance under §§ 80.1435 and 80.1451 for a period of at least five years.
(v)
(2) Parties must retain records including, but not limited to, the name, address, business location, contact information, and contract or other agreement for each contractual affiliate for a period of at least five years.
(3) If a party claims an exemption from aggregation under § 80.1435(e), the party must retain all records in support of the exemption for a period of at least five years and must provide these records to the attest auditor under § 80.1464, and to EPA upon request.
(a) * * *
(4)
(ii) Select sample calculations in accordance with the guidelines in § 80.127; compute and report as a finding the results of these calculations and verify that the results agree with the values reported to EPA.
(iii) Identify any date(s) where the aggregated calculation exceeded the RIN holding threshold(s) specified in
(5)
(6)
(b) * * *
(5)
(ii) Select sample calculations in accordance with the guidelines in § 80.127; compute and report as a finding the results of these calculations and verify that the results agree with the values reported to EPA.
(iii) Identify any date(s) where the aggregated calculation exceeded the RIN holding threshold(s) specified in § 80.1435. Compute and state as a finding whether this information agrees with the party's reports (notification of threshold exceedance) to EPA.
(6)
(7)
(c) * * *
(3)
(ii) Select sample calculations in accordance with the guidelines in § 80.127; compute and report as a finding the results of these calculations and verify that the results agree with the values reported to EPA.
(iii) Identify any date(s) where the aggregated calculation exceeded the RIN holding threshold(s) specified in § 80.1435. Compute and state as a finding whether this information agrees with the party's reports (notification of threshold exceedance) to EPA.
(4)
(5)
The revisions read as follows:
(a) * * *
(1) * * *
(vi) * * *
(B) The conspicuous statement that the gasoline being shipped contains ethanol and the percentage concentration of ethanol as described in § 80.27(d)(3).
(b) * * *
(1) * * *
(vi) * * *
(B)(
(