Vol. 79 Friday, No. 2 January 3, 2014

Pages 325–528

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 79, No. 2

Friday, January 3, 2014

Agriculture Department Employment and Training Administration See Food and Nutrition Service NOTICES See Forest Service Agency Information Collection Activities; Proposals, Submissions, and Approvals: Bureau of Consumer Financial Protection Application for Alien Employment Certification, 407–408 NOTICES Determinations on Remand: Requests for Information: Boeing Co., et al., Wichita, KS, 408–410 Mortgage Closing Process, 386–387 Energy Department Centers for Disease Control and Prevention RULES NOTICES Energy Conservation Program: Agency Information Collection Activities; Proposals, Test Procedures for Residential Furnace Fans, 500–524 Submissions, and Approvals, 395–397 NOTICES Meetings: Centers for Medicare & Medicaid Services Environmental Management Site-Specific Advisory NOTICES Board; Northern New Mexico, 391–392 Statements of Organization, Functions, and Delegations of Environmental Management Site-Specific Advisory Authority, 397–398 Board; Savannah River Site, 392

Commerce Department See National Oceanic and Atmospheric Administration Environmental Protection Agency RULES Air Quality State Implementation Plans; Revisions: Commodity Futures Trading Commission California; Antelope Valley Air Quality Management NOTICES District, Mojave Desert Air Quality Management Meetings; Sunshine Act, 386 District, etc., 364–367 Hazardous Waste Management System: Consumer Product Safety Commission Conditional Exclusion for Carbon Dioxide Streams in NOTICES Geologic Sequestration Activities, 350–364 Meetings; Sunshine Act, 387 National Emissions Standards for Hazardous Air Pollutants from Secondary Lead Smelting, 367–372 Copyright Royalty Board Ocean Dumping: NOTICES Atchafalaya–West Ocean Dredged Material Disposal Site Royalty Rates: Designation; Calcasieu, Sabine Neches, and Digital Performance in Sound Recordings and Ephemeral Atchafalaya–East Site Corrections, 372–374 Recordings (Web IV), 412–414 PROPOSED RULES New Subscription Services for Digital Performance Right Air Quality State Implementation Plans; Revisions: in Sound Recordings and Ephemeral Recordings, California; Antelope Valley Air Quality Management 410–412 District, Mojave Desert Air Quality Management District, etc., 378–379 Corporation for National and Community Service National Emissions Standards for Hazardous Air Pollutants NOTICES from Secondary Lead Smelting, 379–381 Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 387–389 Environmental Impact Statements; Weekly Receipts, 392– 393 Defense Department Petition to Add the Oil and Gas Extraction Industry to the See Navy Department List of Facilities Required To Report under the Toxics NOTICES Release Inventory, 393 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 389 Executive Office of the President Meetings: See Presidential Documents Defense Acquisition University Board of Visitors, 389– See Trade Representative, Office of United States 390

Education Department Federal Aviation Administration NOTICES RULES Agency Information Collection Activities; Proposals, Airworthiness Directives: Submissions, and Approvals: Rolls-Royce Corporation Turbofan Engines, 344–346 Student Aid Internet Gateway Enrollment Document, Establishment of Class E Airspace: 390–391 Leesburg, VA, 346–347

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Federal Emergency Management Agency Labor Department PROPOSED RULES See Employment and Training Administration Flood Hazard Determinations: Bullitt County, KY, and Incorporated Areas; Withdrawal, Land Management Bureau 381 NOTICES Environmental Assessments; Availability, etc.: Federal Reserve System Taos Field Office and Rio Grande del Norte National RULES Monument, NM; Resource Management Plan, 405– Dodd–Frank Act: 406 Prohibition Against Federal Assistance to Swaps Entities; Meetings: Regulation KK, 340–343 Resource Advisory Councils, Nevada, 406 Twin Falls District Resource Advisory Council, Idaho, Fiscal Service 407 NOTICES Prompt Payment Interest Rate; Contract Disputes Act, 424 Library of Congress See Copyright Royalty Board Food and Drug Administration NOTICES Maritime Administration Meetings: NOTICES Risk Communications Advisory Committee, 398 Administrative Waivers of Coastwise Trade Laws: Vessel NORTHWIND, 422–423 Food and Nutrition Service RULES National Institutes of Health Meal Requirements for the National School Lunch Program: NOTICES Certification of Compliance, 325–340 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Forest Service Questionnaire Cognitive Interviewing and Pretesting, NOTICES 402–403 Environmental Impact Statements; Availability, etc.: Meetings: Nez Perce–Clearwater National Forest; Idaho; Middle Center for Scientific Review, 404 Fork Vegetation Management, 385–386 Eunice Kennedy Shriver National Institute of Child Health and Human Development, 403–404 Health and Human Services Department See Centers for Disease Control and Prevention National Oceanic and Atmospheric Administration See Centers for Medicare & Medicaid Services See Food and Drug Administration PROPOSED RULES See Health Resources and Services Administration Fisheries of the Exclusive Economic Zone Off Alaska: See National Institutes of Health Modifications to Identification Markings on Fishing Gear NOTICES Marker Buoys, 381–384 Meetings: NOTICES Appellant Forum, Administrative Law Judge Hearing Takes of Marine Mammals Incidental to Specified Program for Medicare Claim Appeals, 393–395 Activities: Low-Energy Marine Geophysical Survey in the Dumont Health Resources and Services Administration d’Urville Sea off the coast of East Antarctica, January NOTICES to March 2013, 464–497 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 398–402 Navy Department National Vaccine Injury Compensation Program: NOTICES Health Insurance Policy; Revision, 402 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 390 Homeland Security Department See Federal Emergency Management Agency Office of United States Trade Representative See U.S. Customs and Border Protection See Trade Representative, Office of United States

Housing and Urban Development Department Pension Benefit Guaranty Corporation NOTICES RULES Federal Property Suitable as Facilities to Assist the Payment of Premiums: Homeless, 405 Large-Plan Flat-Rate Premium, 347–350

Interior Department Postal Regulatory Commission See Land Management Bureau NOTICES New Postal Products, 414–415 International Trade Commission NOTICES Postal Service Complaints: PROPOSED RULES Certain Soft-Edged Trampolines and Components Revised Postage and Fee Refund Criteria, 375–376 Thereof; Correction, 407 Service Standards for Destination Sectional Center Facility Meetings; Sunshine Act, 407 Rate Standard Mail, 376–378

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Presidential Documents Veterans Affairs Department ADMINISTRATIVE ORDERS PROPOSED RULES Aviation Insurance Coverage for Commercial Air Carrier Fiduciary Activities, 430–462 Service; Provision (Memorandum of December 27, NOTICES 2013), 525–527 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Public Debt Bureau See Fiscal Service Certification of School Attendance – REPS, 426–427 Request for Information to Make Direct Payment to Child Railroad Retirement Board Reaching Majority, 425–426 NOTICES Statement of Marital Relationship, 427 Agency Information Collection Activities; Proposals, Veteran’s Application for Compensation and/or Pension, Submissions, and Approvals, 415–417 424–425 Veteran’s Application for Increased Compensation Based Securities and Exchange Commission on Unemployability, 426 NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Financial Industry Regulatory Authority, Inc., 417–420 Small Business Administration Separate Parts In This Issue NOTICES Disaster Declarations: Part II Texas, 420 Veterans Affairs Department, 430–462 Surface Transportation Board NOTICES Part III Abandonment Exemptions: Commerce Department, National Oceanic and Atmospheric Norfolk Southern Railway Co., Botetourt County, VA, Administration, 464–497 423–424 Wisconsin Central Ltd., Barron County, WI, 423 Part IV Trade Representative, Office of United States Energy Department, 500–524 NOTICES Special Review of Countries that Do Not Provide Adequate Protection of Intellectual Property Rights, 420–422 Part V Presidential Documents, 525–527 Transportation Department See Federal Aviation Administration See Maritime Administration See Surface Transportation Board Reader Aids Treasury Department Consult the Reader Aids section at the end of this page for See Fiscal Service phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. U.S. Customs and Border Protection To subscribe to the Federal Register Table of Contents NOTICES LISTSERV electronic mailing list, go to http:// Agency Information Collection Activities; Proposals, listserv.access.gpo.gov and select Online mailing list Submissions, and Approvals: archives, FEDREGTOC-L, Join or leave the list (or change Foreign Trade Zone Annual Reconciliation Certification settings); then follow the instructions. and Record Keeping Requirement, 404–405

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CFR PARTS AFFECTED IN THIS ISSUE

A cumulative list of the parts affected this month can be found in the Reader Aids section at the end of this issue.

3 CFR Administrative Orders: Memorandums: Memorandum of December 27, 2013 ...... 527 7 CFR 210...... 325 10 CFR 429...... 500 430...... 500 12 CFR 237...... 340 14 CFR 39...... 344 71...... 346 29 CFR 4007...... 347 38 CFR Proposed Rules: 3...... 430 13...... 430 39 CFR Proposed Rules: 111...... 375 121...... 376 40 CFR 9...... 350 52...... 364 63...... 367 228...... 372 260...... 350 261...... 350 Proposed Rules: 52...... 378 63...... 379 44 CFR Proposed Rules: 67...... 381 50 CFR Proposed Rules: 679...... 381

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Rules and Regulations Federal Register Vol. 79, No. 2

Friday, January 3, 2014

This section of the FEDERAL REGISTER include making permanent the beginning April 27, 2012 and ending contains regulatory documents having general flexibility that State agencies should July 26, 2012. During the comment applicability and legal effect, most of which consider any SFA compliant with the period, FNS received 173 comments on are keyed to and codified in the Code of daily and weekly ranges for grain and the interim final rule: 117 comments Federal Regulations, which is published under meat/meat alternates if documentation from SFAs, 45 comments from advocacy 50 titles pursuant to 44 U.S.C. 1510. is compliant with the daily and weekly organizations, 6 from individuals and 5 The Code of Federal Regulations is sold by minimums. from State agencies. the Superintendent of Documents. Prices of DATES: This final rule is effective March II. Discussion of Public Comments and new books are listed in the first FEDERAL 4, 2014. FNS Response REGISTER issue of each week. FOR FURTHER INFORMATION CONTACT: Julie Following an analysis of comments, Brewer, Chief, Policy and Program this rule adopts, as final, the provisions Development Branch, Child Nutrition DEPARTMENT OF AGRICULTURE of the interim final rule, with revisions Division, FNS, 3101 Park Center Drive, as described below. The finalized Food and Nutrition Service Alexandria, Virginia 22302, or by provisions include the procedures for telephone at (703) 305–2590. performance-based certifications, 7 CFR Part 210 SUPPLEMENTARY INFORMATION: required documentation and timeframes, validation reviews, [FNS–2011–0025] I. Background compliance and administrative reviews, The Healthy, Hunger-Free Kids Act of RIN 0584–AE15 reporting and recordkeeping, and 2010 (Pub. L. 111–296) (the HHFKA), technical assistance. Certification of Compliance With Meal enacted December 13, 2010, made Requirements for the National School significant changes to the meal pattern Reporting and Recordkeeping Lunch Program Under the Healthy, and reimbursement requirements for The interim final rule established at 7 Hunger-Free Kids Act of 2010 school breakfasts and lunches served in CFR 210.5, requirements for State accordance with the Richard B. Russell agencies to submit a quarterly report, as AGENCY: Food and Nutrition Service, National School Lunch Act (NSLA) (42 specified by FNS, detailing the USDA U.S.C. 1751 et seq.). disbursement of performance-based ACTION: Final rule. Section 201 of the HHFKA amended reimbursements, including the total section 4(b) of the NSLA, 42 U.S.C. number of SFAs in the State, the names SUMMARY: This final rule adopts, with 1753(b), by requiring the Secretary to and locations of certified SFAs, and the some revisions, changes to the National update the meal patterns and nutrition total number of lunches earning the School Lunch Program (NSLP) standards for the NSLP and School performance-based reimbursement for regulations, as set forth in the interim Breakfast Program (SBP) and to issue each month. final rule published in the Federal regulations requiring all SFAs to comply FNS received feedback from State Register on April 27, 2012. The changes with the updated meal patterns and agencies that some of this information conform to requirements contained in nutrition standards. On January 26, would be particularly difficult and/or the Healthy, Hunger-Free Kids Act of 2012, the Department issued a final rule, burdensome to report by SFAs. In an 2010 regarding performance-based cash titled Nutrition Standards in the effort to reduce burden, FNS notified assistance for school food authorities National School Lunch and School State agencies on January 22, 2013 in (SFAs) certified compliant with meal Breakfast Programs (77 FR 4088). With memorandum SP 31–2012 (http:// pattern and nutrition standards. The some exceptions, the implementation www.fns.usda.gov/cnd/governance/ changes finalized in this rule include date of that final rule was July 1, 2012. Policy-Memos/2012/SP31- requiring State agencies to certify Section 201 of the HHFKA also 2012osr3.pdf), and later revisions, that participating SFAs that are in amended the NSLA to provide for FNS would collect on a quarterly basis, compliance with meal pattern and additional payments in the form of the total number of SFAs in the State nutrition standard requirements as performance-based reimbursement of 6 and the names of certified SFAs. eligible to receive performance-based cents per lunch served beginning on Therefore, this rule finalizes this cash assistance for each reimbursable October 1, 2012, in SFAs certified by the reporting change at 7 CFR 210.5(d)(2)(ii) lunch. This rule also finalizes the State agency to be in compliance with to require that State agencies only requirement in the interim final rule the updated meal patterns and nutrition include in this quarterly report the total that State agencies disburse standards. number of SFAs in the State and the performance-based cash assistance to In response to statutorily imposed names of certified SFAs. certified SFAs, and withhold the effective dates established by section Additionally, FNS created the performance-based cash assistance from 201 of the HHFKA, the Department quarterly report as way to track the SFAs determined to be out of published an interim final rule on April number of SFAs being certified compliance with meal pattern or 27, 2012 (77 FR 25024), which amended throughout the country. FNS realizes nutrition standards during a subsequent 7 CFR part 210 to include criteria for the that once all SFAs have been certified, administrative review. Additionally, certification and validation processes the information reported on the this final rule is adopting minor changes and require State agencies to begin quarterly report will become repetitive based on comments on the interim final certifying SFAs beginning October 1, and will no longer be useful. Therefore, rule that will help to streamline the 2012. The interim final rule invited FNS will no longer require State certification process. These changes public comment for a 90-day period, agencies to submit the quarterly report

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once all SFAs in the State have been FNS plans to continue to update the with flexibility in meeting the weekly certified. memorandum as more questions from maximums for grains and meat/meat States and SFAs are received. alternates for compliance purposes in Certification Process Based on program data and other School Year (SY) 2012–2013. The The interim final rule established at 7 information from State agencies, 86 memorandum stated that State agencies CFR 210.7, criteria for State agencies percent of SFAs nationwide have should consider any SFA compliant and SFAs to follow during the submitted certification materials as of with the weekly ranges for these two certification process. These criteria the end of October 2013. By the end of components if the FNS-developed or include requiring SFAs to submit to September 2013, 80 percent of SFAs had FNS-approved Certification Tool and their State agency documentation been certified. required supporting documentation demonstrating that they are in FNS is encouraged by these numbers indicate the menu is compliant with the compliance with the new meal pattern and feels it demonstrates that a majority daily and weekly minimums. SFAs are and nutrition requirements. State of SFAs have an understanding of the still expected to fall within the weekly agencies are then required to determine certification process. FNS continues to minimum and maximum ranges for if SFAs are in compliance with meal encourage State agencies to provide calories. These flexibilities were pattern and nutrition standard technical assistance and guidance to extended to School Year 2013–14 in SP requirements, and if so, certify the SFA those SFAs not engaged in the 26–2013, which was issued on February as eligible to receive the 6 cents certification process. Therefore, FNS 25, 2013 (http://www.fns.usda.gov/cnd/ performance-based cash assistance for will not be making changes to the governance/Policy-Memos/2013/SP11- each reimbursable lunch served (an requirements for the certification 2013os.pdf). additional 6 cents per lunch became process in this final rule. Feedback on the memoranda available beginning October 1, 2012 and Maximums for Grains and Meats and concerning flexibility for weekly is adjusted annually thereafter). The Frozen Fruit With Added Sugar maximum grains and meat/meat interim final rule also required that alternates has been overwhelmingly State agencies disburse performance- As stated above, FNS established positive, and there have been numerous based cash assistance to certified SFAs, procedures for the certification process requests to further extend this change. and withhold the performance-based at 7 CFR 210.7. As part of the This new flexibility for measuring cash assistance from SFAs determined certification determination process, compliance has had a meaningful to be out of compliance with meal State agencies must evaluate whether impact on the certification process by pattern or nutrition standards during documentation provided by SFAs making it less complicated for SFAs to subsequent administrative reviews. (including menus, a menu worksheet be certified as compliant with the new Several commenters felt that the work measuring components and a nutrient meal pattern. Allowing for more grain required in the certification process was analysis or assessment) is compliant and meat/meat alternates has also too burdensome for school food service with the updated meal pattern and increased student acceptability of the directors. One common complaint was nutrition requirements. This evaluation new meals they are being served. that SFAs that offer a wide variety of includes determining whether the SFA’s Therefore, FNS is making this menu choices may be forced to limit menu meets the daily and weekly flexibility permanent by including it in their menus due to the difficulty with requirements for grains and meat/meat this final rule at 7 CFR 210.7(d)(1). the certification process. alternates. Because ongoing compliance with the The certification process established Since implementation of the interim meal patterns is assessed during in the interim final rule was intended to final rule, FNS has received feedback administrative reviews, FNS is further both meet the intent of the provision from both State agencies and SFAs extending this flexibility by including in (that SFAs demonstrate compliance about the certification process and the the final rule at 7 CFR 210.18(g)(2)(vi). with the new meal pattern new meal pattern requirements in When conducting administrative requirements) and impose a reasonable general. A frequent concern expressed reviews, State agencies should consider administrative burden on SFAs. FNS by State and SFA partners was any SFA compliant with the weekly provided several training opportunities significant operational challenges in not ranges for grains and meats if the across the Nation to ensure that our exceeding the weekly maximum weekly minimums are met. SFAs State agency partners were well requirements for the grains and meats/ continue to be required to meet the equipped to train local operators on the meat alternate components, particularly weekly minimum and maximum range new certification process. for SFAs with schools with multiple requirements for calories and the other Representatives from every State agency menu offerings and multiple serving dietary specifications. participated in at least one of these in- lines during meal service. In addition to concerns about the person trainings. In addition to in- SFAs reported that for both grains and maximums for grains and meats, FNS person trainings, FNS conducted several meat/meat alternates, some popular received feedback from State and SFA webinars for both State agencies and products are not yet readily available partners concerning the requirement SFAs on the certification process and on from suppliers in the wide ranges of that frozen fruit served in the NSLP how to complete certification materials. serving sizes needed to meet the grain contain no added sugar. Finally, FNS issued memoranda and meat/meat alternate weekly Since 2009, USDA has reduced the including a series of questions and maximum requirements. Additionally, amount of added sugars in frozen fruits answers related to the 6 cents SFAs have reported that they are offered to States; however most frozen certification process. Most recently, FNS experiencing challenges with student strawberries, peaches and apricots issued SP 31–2012 (3rd Revision) on acceptability of new items and smaller offered by USDA currently contain January 22, 2013, which included servings of items on their menus. added sugar. USDA has reached out to revised questions and answers on the In response to concerns, FNS issued industry concerning reformulating these certification process. The memorandum SP 11–2013 on December 20, 2012 frozen fruits products to eliminate sugar can be found at: http:// (http://www.fns.usda.gov/cnd/ completely, and industry has been www.fns.usda.gov/cnd/governance/ governance/Policy-Memos/2013/SP11- working on this issue since publication Policy-Memos/2012/SP31-2012osr3.pdf. 2013os.pdf), providing local operators of the meal pattern rule. Reformulating

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some products has been challenging with the meal pattern requirements even comments indicated that 6 cents per because sugar acts as an important if the SFA serves frozen fruit containing lunch is insufficient to cover the costs ingredient in maintaining fruit flavor, added sugar. This flexibility is also associated with the new meal pattern appearance, texture and storability of applicable to fruit offered in the School requirements. The 6 cents per meal certain frozen fruits. In addition, Breakfast Program. performance-based reimbursement was research on substitute sweeteners has specifically established in the HHFKA; Training not been successful in maintaining the and therefore, FNS does not have color, flavor or texture of the fruit being Several comments from SFAs discretion to increase the tested. requested that FNS and State agencies reimbursement rate. However, In response to these concerns, FNS provide training on the certification commenters should be aware that the issued SP 20–2012 on February 24, 2012 process, how to complete certification HHFKA provided for annual adjustment and a revised version on September 11, documentation, and allowable uses of to reflect changes in the cost of 2012 (http://www.fns.usda.gov/cnd/ administrative funds provided pursuant operating the meal programs, as governance/Policy-Memos/2012/SP20- to amendments made by Section 201 of indicted by the change in the series for 2012osr.pdf), providing SFAs the the HHFKA. food away from home of the Consumer flexibility to continue to use frozen fruit In recognition of the significance of Price Index for all Urban Consumers, products containing added sugar changes necessitated by the new published by the Bureau of Labor through SY 2013–14. This was later regulatory requirements, section 201 of Statistics of the Department of Labor. expanded in SP 49–2013 issued on June the HHFKA amended section 4(b)(3)(F) Several commenters felt that breakfast 25, 2013, to include both lunch and of the NSLA authorizes the Secretary to should not be included as part of 6 cents breakfast through SY 2014–15 (http:// provide up to $47 million to States for certification. However, as indicated in www.fns.usda.gov/sites/default/files/ each of two years to assist in the the preamble of the interim final rule, SP49-2013os.pdf). In an effort to ease implementation of the updated meal the statutory authority for the burden on program operators, this patterns, including training, technical performance-based reimbursement flexibility was applicable to all frozen assistance, and conducting requires that breakfast must be fruit products. performance-based certifications. States evaluated as part of the certification Feedback on the memoranda has been are using these funds to provide process. Further discussion of this issue positive with numerous requests to trainings and technical assistance to is found in the Federal Register at 77 FR extend the flexibility for frozen fruit SFAs. 25025. with added sugar. Thus far, research To address comments about the performed by several different effective use of section 201 IV. Procedural Matters processors for development of an administrative funds, FNS issued two Executive Order 12866 and Executive acceptable no-sugar frozen fruit has guidance memoranda to provide Order 13563 resulted in an unacceptable product. additional information on allowable Processors do not believe a short term uses of these administrative funds. Most Executive Orders 12866 and 13563 solution is feasible as their research recently, on December 6, 2012, FNS direct agencies to assess all costs and requires long term studies because many issued SP 13–2013 (http:// benefits of available regulatory of the problems with frozen fruit do not www.fns.usda.gov/cnd/governance/ alternatives and, if regulation is develop until the products have been in Policy-Memos/2013/SP13-2013os.pdf) necessary, to select regulatory storage for a reasonable time. which provided several best practices approaches that maximize net benefits In addition to the challenges State agencies may consider in using (including potential economic, associated with processing frozen fruit these administrative funds to help SFAs environmental, public health and safety without sugar, allowing SFAs to use implement the new meal pattern. effects, distributive impacts, and frozen fruit with added sugar will make To support State agency efforts to equity). Executive Order 13563 it less complicated for SFAs to meet provide technical assistance and emphasizes the importance of meal pattern requirements, and also training, FNS offered States the option quantifying both costs and benefits, of expand the types of frozen fruit of postponing administrative reviews for reducing costs, of harmonizing rules, allowable in school meals. It is also School Year 2012–13. By providing this and of promoting flexibility. consistent with canned fruits since flexibility, FNS expected State agencies This final rule has been designated an some added sugar is allowed in canned to use this time to certify SFAs and train ‘‘economically significant regulatory products. Additionally, the calorie SFAs that need assistance in becoming action,’’ under section 3(f) of Executive limits for meals help preserve the certified. Order 12866. Accordingly, the rule has integrity of the updated nutrition In addition, since the publication of been reviewed by the Office of standards, as schools have to plan the interim final rule, FNS has Management and Budget. menus and select products carefully, conducted several in-person trainings Regulatory Flexibility Act including frozen fruit with added sugar, across the Nation. The webinars will in order to be in compliance with the help ensure both State agencies and This final rule has been reviewed standards. SFAs understand the certification with regard to the requirements of the For those reasons, FNS is making this process and how to complete and Regulatory Flexibility Act of 1980 (5 flexibility permanent by including it in evaluate certification materials. U.S.C. 601–612). Pursuant to that this final rule at 7 CFR FNS will continue to provide review, it has been determined that this 210.7(d)(1)(iii)(B). Because ongoing technical assistance and guidance, as rule will not have a significant impact compliance with the meal patterns is needed, but no changes will be made in on a substantial number of small assessed during administrative reviews, this final rule in regards to training. entities. FNS is further extending this flexibility While there may be some SFA burden by including it in the final rule at 7 CFR Non-Discretionary Items associated with initial certification for 210.18(g)(2)(vi). When conducting Several comments related to parts of the performance-based reimbursement administrative reviews, State agencies the regulation over which FNS does not in this rule, the burden will not be should consider any SFA compliant have discretion. Specifically, many significant and will be outweighed by

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the benefits of increased Federal inclusion in the preamble to the with meal pattern implementation, reimbursement for school lunches. regulations describing the agency’s training, technical assistance, and considerations in terms of the three performance-based certification Unfunded Mandates Reform Act categories called for under section activities. These funds are available for Title II of the Unfunded Mandates (6)(b)(2)(B) of Executive Order 13132. obligation by State agencies through Reform Act of 1995 (UMRA), Public Prior Consultation with State September 2015. Law 104–4, establishes requirements for Officials: Federal agencies to assess the effects of Prior to drafting this final rule, FNS Executive Order 12988 their regulatory actions on State, local, staff received informal input from This rule has been reviewed under and tribal governments and the private various stakeholders while participating Executive Order 12988, Civil Justice sector. Under section 202 of the UMRA, in various State, regional, national, and Reform. This rule is intended to have the Department generally must prepare professional conferences. The School preemptive effect with respect to any a written statement, including a cost/ Nutrition Association, the Center for State or local laws, regulations or benefit analysis, for proposed and final Science in the Public Interest, and the policies which conflict with its rules with Federal mandates that may American Dietetic Association shared provisions or which would otherwise result in expenditures to State, local, or their views about performance-based impede its full implementation. This tribal governments, in the aggregate, or reimbursement. Numerous stakeholders, rule is not intended to have retroactive to the private sector, of $100 million or including State agencies and local effect unless specified in the DATES more in any one year. When such a program operators, also provided input section of the final rule. Prior to any statement is needed for a rule, section at public meetings held by the School judicial challenge to the provisions of 205 of the UMRA generally requires the Nutrition Association. this rule or the application of its Department to identify and consider a Nature of Concerns and the Need to provisions, all applicable administrative reasonable number of regulatory Issue this Rule: procedures must be exhausted. alternatives and adopt the least costly, State agencies and SFAs want to Civil Rights Impact Analysis more cost-effective or least burdensome provide the best possible school meals alternative that achieves the objectives through the NSLP and SBP but are FNS has reviewed this rule in of the rule. This rule does not contain concerned about the costs and accordance with Departmental Federal mandates (under the regulatory administrative burden associated with Regulations 4300–4, ‘‘Civil Rights provisions of Title II of the UMRA) that increased program oversight. While FNS Impact Analysis’’, and 1512–1, impose costs on State, local, or tribal is aware of these concerns, Section ‘‘Regulatory Decision Making governments or to the private sector of 4(b)(3)(D) of the Richard B. Russell Requirements.’’ After a careful review of $100 million or more in any one year. National School Lunch Act, 42 U.S.C. the rule’s intent and provisions, FNS This rule is, therefore, not subject to the 1753(b)(3)(D), requires that State has determined that this rule is not requirements of sections 202 and 205 of agencies certify whether SFAs are in intended to limit or reduce in any way the UMRA. compliance with meal pattern and the ability of protected classes of nutrition standards, and disburse individuals to receive benefits on the Executive Order 12372 performance-based reimbursement to basis of their race, color, national origin, The National School Lunch Program eligible SFAs. sex, age or disability nor is it intended and School Breakfast Program are listed Extent to Which We Meet Those to have a differential impact on minority in the Catalog of Federal Domestic Concerns: owned or operated business Assistance under No. 10.555 and FNS has considered the impact of this establishments, and woman-owned or 10.553. For the reasons set forth in the final rule on State and local program operated business establishments that final rule in 7 CFR part 3015, Subpart operators and has attempted to develop participate in the Child Nutrition V and related notice (48 FR 29115, June a rule that would implement the Programs. 24, 1983), this program is included in performance-based reimbursement in Paperwork Reduction Act the scope of Executive Order 12372, the most effective and least burdensome which requires intergovernmental manner. FNS recognizes that FNS reduced the data required for the consultation with State and local implementing the new performance- quarterly report associated with this officials. In developing this rule, FNS based reimbursement certification final rule. In the interim rule, FNS gathered input from State and local process will require a significant effort required State agencies to submit a program operators, and other on the part of State and local program quarterly report detailing the stakeholders, via listening sessions held operators. This final rule simplifies the disbursement of performance-based at the School Nutrition Association certification process by allowing State reimbursement, including the total Legislative Action Conference in March agencies to consider any SFA compliant number of SFAs in the State, the names 2012, and at the School Nutrition with the component requirements for and locations of certified SFAs, and the Association Annual National grains and meat/meat alternates if the total number of lunches earning the Conference in July 2012. Additionally, menu is compliant with the daily and performance-based reimbursement for FNS held a State agency meeting to weekly minimums for these each month. The burden estimate for discuss issues pertaining to the new components. Additionally, FNS has this quarterly report was one hour. FNS meal pattern and certification in provided several trainings and guidance received comments from State agencies December 2012. to ensure State agencies understand that some of this information would be performance-based funding particularly difficult and/or burdensome Executive Order 13132 requirements and provide SFAs with to report by SFAs. Executive Order 13132 requires the training and technical assistance In an effort to reduce burden, this rule Federal agencies to consider the impact needed to implement the improved finalizes a reporting change at 7 CFR of their regulatory actions on State and school meal patterns. Finally, per the 210.5(d)(2)(ii) to require that State local governments. Where such actions requirements of the HHFKA, FNS agencies only include in this quarterly have federalism implications, agencies provided $47 million to State agencies report the total number of SFAs in the are directed to provide a statement for in fiscal years 2012 and 2013 to assist State and the names of certified SFAs.

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This reduces the estimated burden for developed for this final rule. The The new meal patterns are intended not State agencies from one hour per following is a summary of the RIA. The only to improve the quality of meals quarterly report to 15 minutes per full RIA is included as an Appendix to consumed at school, but to encourage quarterly report. this rule. healthy eating habits generally. Those In accordance with the Paperwork goals of the meal patterns rule are Need for Action Reduction Act of 1995, (44 U.S.C. furthered to the extent that this rule Chapter 35), the information collection Section 201 of the Healthy Hunger- contributes to full compliance with the requirements have been previously Free Kids Act of 2010 provides for a 6 meal patters by all SFAs. approved by the Office of Management cent per lunch performance-based Further, the changes adopted in the and Budget (OMB) and assigned OMB reimbursement to SFAs that comply final rule are intended to facilitate SFA No. 0584–0567, Certification of with the National School Lunch compliance with the meal pattern Compliance with Meal Requirements for program (NSLP) and School breakfast requirements and reduce State agency the National School Lunch Program Program (SBP) meal standards that took reporting and recordkeeping burden. By Under the Healthy, Hunger-Free Kids effect on July 1, 2012. This rule finalizes making permanent the flexibility on Act of 2010. the interim rule’s regulatory framework weekly maximum servings of grains and for establishing initial school food meat/meat alternates, and by allowing E-Government Act Compliance authority (SFA) compliance with the frozen fruit with added sugar to credit The Food and Nutrition Service is new meal standards and for monitoring toward the meal pattern requirement for committed to complying with the E- ongoing compliance. In addition, the fruit, the final rule will make it easier Government Act, 2002 to promote the final rule makes minor changes to the for some SFAs to plan menus that use of the Internet and other interim rule that are intended to comply with the meal pattern information technologies to provide facilitate the certification of SFA requirements. The effect of these increased opportunities for citizen compliance with the meal patterns. provisions is to reduce the costs of access to Government information and compliance for the small minority of Benefits services, and for other purposes. SFAs that would otherwise not have The impact analysis for the interim Executive Order 13175—Consultation been certified eligible to receive the rule estimated that full compliance with performance-based 6 cent and Coordination With Indian Tribal the new meal patterns would increase Governments reimbursement by the end of SY 2013– SFA revenues by more than $300 2014, though we do not estimate those Executive Order 13175 requires million per year in the aggregate. The potential cost savings in this analysis.3 Federal agencies to consult and changes contained in the final rule are The savings generated by reducing State coordinate with tribes on a government- expected to facilitate compliance with agency reporting and recordkeeping to-government basis on policies that the meal patterns, allowing SFAs to take burden is minimal.4 have tribal implications, including full advantage of the additional revenue. regulations, legislative comments or Granting some flexibility on meat, Costs proposed legislation, and other policy grains, and frozen fruit is an effort by These provisions will likely result in statements or actions that have USDA to work with schools that are a small increase in cost to the Federal substantial direct effects on one or more making serious efforts to comply with Government (as a result of a small Indian tribes, on the relationship the rule’s standards but are having some number of schools receiving the between the Federal Government and difficulty finding products that have performance-based reimbursement that Indian tribes, or distribution of power been resized or reformulated might have otherwise not received it), and responsibilities between the Federal specifically to meet the requirements of though we expect this potential increase government and Indian tribes. the rule. To the extent that a little to fall within the cost range estimated FNS provides regularly scheduled flexibility at the margins encourages for the interim final rule.5 quarterly consultation sessions as a schools to plan menus that meet the List of Subjects in 7 CFR Part 210 venue for collaborative conversations new standards, students benefit from with Tribal officials or their designees. receiving meals that comply with the Grant programs-education; Grant The most recent Quarterly Consultation new standards rather than receiving programs-health; Infants and children; Conference Calls were coordinated by meals that do not comply with the new Nutrition; Penalties; Reporting and FNS and held on the following dates: standards. recordkeeping requirements; School November 2, 2011; February 29, 2012; Even with the added flexibility, breakfast and lunch programs; Surplus May 2, 2012; August 29, 2012; February schools have to meet all of the meal agricultural commodities. 13, 2013. patterns’ minimum food group Accordingly, the interim final rule There were no comments about this requirements and stay within its calorie published at 77 FR 25024 on April 27, regulation received during any of the maximums. The benefits to children 2012, is adopted as final with the aforementioned Tribal Consultation who consume school meals that follow following changes: sessions. Reports from these DGA recommendations are detailed in consultations are part of the USDA the impact analysis prepared for the Americans, 2010, p. B1–2. (http:// annual reporting on Tribal consultation final meal patterns rule.1 As discussed www.cnpp.usda.gov/DGAs2010-DGACReport.htm). 3 and collaboration. FNS will respond in in that document, the 2010 Dietary Since these provisions are options (not a timely and meaningful manner to requirements) and because we have no data on how Guidelines Advisory Committee many schools might avail themselves of these Tribal government requests for emphasizes the importance of a diet options, we do not estimate those cost savings in consultation concerning this rule. consistent with DGA recommendations this analysis. as a contributing factor to overall health 4 Although the relative burden decrease of 75% Regulatory Impact Analysis Summary seems substantial, the absolute burden decrease (as and a reduced risk of chronic disease.2 As required for all rules that have measured in the dollar value of State agency staff time) is only about $4,000 per year across the entire been designated significant by the Office 1 Federal Register, Vol. 77, No. 17 pp. 4088–4167. United States. of Management and Budget, a 2 Report of the Dietary Guidelines Advisory 5 Federal Register, Vol. 77, No. 82 pp. 25024– Regulatory Impact Analysis (RIA) was Committee on the Dietary Guidelines for 25036.

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PART 210—NATIONAL SCHOOL authority has exceeded the maximums school food authority (SFA) compliance with LUNCH PROGRAM for the same components. the new meal standards and for monitoring (B) If when evaluating the service of ongoing compliance. In addition, the final ■ 1. The authority citation for part 210 frozen fruit, the school food authority rule makes minor changes to the interim rule continues to read as follows: serves products that contain added that are intended to facilitate the certification of SFA compliance with the meal patterns. Authority: 42 U.S.C. 1751–1760, 1779. sugar. Affected Parties: The programs affected by * * * * * ■ this rule are the NSLP and the SBP. The 2. Amend § 210.5 by revising ■ 4. Amend § 210.18 by adding parties affected by this regulation are local paragraph (d)(2)(ii) to read as follows: paragraph (g)(2)(vi) to read as follows: school food authorities, State education agencies and the USDA. § 210.5 Payment process to States. § 210.18 Administrative reviews. Contents * * * * * * * * * * (d) * * * (g)* * * I. Background (2) * * * (2)* * * II. Need for Action (ii) Each State agency shall also (vi) For purposes of paragraphs III. Key Provisions of the Interim Rule IV. Key Provisions of the Final Rule submit a quarterly report, as specified (g)(2)(i) through (v) of this section, State by FNS, detailing the disbursement of V. Addressing Comments on the Interim Rule agencies should consider any school and RIA performance-based cash assistance food authority compliant: A. Concerns About State Administrative described in § 210.4(b)(1). Such report (A) If when evaluating daily and Costs shall be submitted no later than 30 days weekly range requirements for grains B. Concerns About Certification Costs after the end of each fiscal year quarter. and meat/meat alternates, the VI. Cost/Benefit Assessment State agencies will no longer be required documentation shows compliance with A. Final Rule to submit the quarterly report once all the daily and weekly minimums for 1. Benefits SFAs in the State have been certified. these two components, regardless of 2. Costs and Transfers The report shall include the total whether the school food authority have B. Updated Analysis of Interim Rule Effects number of school food authorities in the 1. Methodology exceeded the maximums for the same 2. Administrative Costs State and the names of certified school components. 3. Uncertainties food authorities. (B) If when evaluating the service of 4. Benefits * * * * * frozen fruit, the school food authority VII. Alternatives ■ 3. Amend § 210.7 by redesignating serves products that contain added VIII. Accounting Statement paragraphs (d)(1)(iii) through (vii) as sugar. I. Background * * * * * paragraphs (d)(1)(iv) through (viii) and The National School Lunch Program adding a new paragraph (d)(1)(iii) to Dated: December 24, 2013. (NSLP) is available to over 50 million read as follows: Kevin Concannon, children each school day; an average of 31.6 million children per day ate a reimbursable § 210.7 Reimbursement for school food Under Secretary, Food, Nutrition and Consumer Services. lunch in fiscal year (FY) 2012. Schools that authorities. participate in NSLP receive Federal * * * * * Note: The following appendix will not reimbursement and USDA Foods (donated (d) * * * appear in the Code of Federal Regulations commodities) for meals that meet program (1) * * * requirements. (iii) State agencies must review Appendix A Sections 4 and 11 of the Richard B. Russell certification documentation submitted National School Lunch Act (NSLA) govern Regulatory Impact Analysis the Federal reimbursement of school lunches. by the school food authority to ensure Agency: Food and Nutrition Service. Reimbursement for school breakfasts is compliance with meal pattern Title: Certification of Compliance with governed by Section 4(b) of the Child requirements set forth in § 210.10, Meal Requirements for the National School Nutrition Act. Reimbursement rates for both § 220.8, or § 220.23, as applicable. For Lunch Program under the Healthy, Hunger- NSLP and SBP meals are adjusted annually certification purposes, State agencies Free Kids Act of 2010. for inflation under terms specified in Section should consider any school food Nature of Action: Final Rule. 11 of the NSLA. authority compliant: Need for Action: Section 201 of the Healthy Federal reimbursement for program meals (A) If when evaluating daily and Hunger-Free Kids Act of 2010 provides for a and the value of USDA Foods totaled $14.9 weekly range requirements for grains 6 cent per lunch performance-based billion in FY 2012. Table 1 summarizes FNS reimbursement to SFAs that comply with the projections of reimbursable meals served and and meat/meat alternates, the National School Lunch program (NSLP) and the value of Federal reimbursements and certification documentation shows School Breakfast Program (SBP) meal USDA Foods through FY 2017. compliance with the daily and weekly standards that took effect on July 1, 2012. The baseline for this analysis is the cost minimums for these two components, This rule finalizes the interim rule’s estimate published with the interim final regardless of whether the school food regulatory framework for establishing initial rule.6

TABLE 1—PROJECTED NUMBER OF MEALS SERVED AND TOTAL FEDERAL PROGRAM COSTS 7 [in billions]

Fiscal year 2013 2014 2015 2016 2017

NSLP Lunches Served ...... 5.3 5.4 5.4 5.4 5.5

6 Federal Register, Vol. 77, No. 82 pp. 25024– 25036.

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TABLE 1—PROJECTED NUMBER OF MEALS SERVED AND TOTAL FEDERAL PROGRAM COSTS 7—Continued [in billions]

Fiscal year 2013 2014 2015 2016 2017

Program Cost...... $12.3 $12.6 $12.7 $12.9 $13.0 SBP Breakfasts Served ...... 2.3 2.4 2.4 2.5 2.5 Program Cost ...... $3.6 $3.8 $4.0 $4.1 $4.2 7 USDA projections of reimbursable lunches and breakfasts served, and total NSLP and SBP program costs, prepared for the FY 2014 Presi- dent’s Budget. NSLP program cost includes entitlement commodity assistance, but is not adjusted for the projected additional amount necessary to bring total commodity assistance up to 12 percent of the combined value of the Section 4 and 11 reimbursements as required by NSLA sec- tion 6(e) (42 U.S.C. 1755(e)). Note that the estimate for the cost of NSLP as given in on p. 175 of the 2014 President’s budget appendix does not include estimated entitlement commodity assistance, unlike Table 1. In addition, although the USDA projections in the FY 2014 President’s Budget included the cost of the extra 6 cents per meal (and assumed that all meals served would be eligible for the extra 6 cents per meal), the projections presented here do not include the value of the 6 cents—instead, program costs are presented as if no meals receive the 6 cents re- imbursement, to provide a basis for comparison for the rest of the estimates in this RIA. The projected number of meals has changed from the estimated projections in the interim rule on account of updated projections provided in the 2014 President’s Budget.

Table 2 provides additional detail on the lunches and breakfasts that meet program the 6 cents for meals that comply with the components of the school year (SY) 2012– requirements. The figures in Table 2 exclude new meal patterns. 2013 Federal reimbursement rates for

TABLE 2—FEDERAL PER-MEAL REIMBURSEMENT AND MINIMUM VALUE OF USDA FOODS, SY 2012–2013

Breakfast reimbursement Lunch reimbursement Minimum value of do- Section 4(b) of Child Combined Reimbursement, nated foods Nutrition Act Section 4 NSLA NSLA Sections 4 & 11 SFAs that SFAs that SFAs that SFAs that Additional serve fewer serve at Section 11 serve fewer serve at Federal Schools in Schools not than 60% of least 60% of NSLA than 60% of least 60% of assistance ‘‘Severe in ‘‘Severe lunches free lunches free lunches free lunches free for each Need’’ Need’’ or at or at or at or at NSLP lunch reduced reduced reduced reduced served price price price price

Contiguous States

Free ...... $1.85 $1.55 $0.27 $0.29 $2.59 $2.86 $2.88 $0.2275 Reduced Price...... 1.55 1.25 0.27 0.29 2.19 2.46 2.48 0.2275 Paid ...... 0.27 0.27 0.27 0.29 n.a. 0.27 0.29 0.2275

Alaska

Free ...... $2.97 $2.48 $0.44 $0.46 $4.19 $4.63 $4.65 $0.2275 Reduced Price...... 2.67 2.18 0.44 0.46 3.79 4.23 4.25 0.2275 Paid ...... 0.41 0.41 0.44 0.46 n.a. 0.44 0.46 0.2275

Hawaii

Free ...... $2.16 $1.81 $0.32 $0.34 $3.03 $3.35 $3.37 $0.2275 Reduced Price...... 1.86 1.51 0.32 0.34 2.63 2.95 2.97 0.2275 Paid ...... 0.31 0.31 0.32 0.34 n.a. 0.32 0.34 0.2275

II. Need for Action HHFKA Section 201 also provides for a 6 ongoing monitoring of compliance by State Section 201 of the Healthy, Hunger-Free cent increase to the USDA reimbursement for agencies, consequences for non-compliance, lunches served on or after October 1, 2012 Kids Act of 2010 (HHFKA) directs the USDA and administrative responsibilities of SFAs that meet the new meal standards. The to issue regulations to update the NSLP and and State agencies. SFAs began receiving an interim rule provided the regulatory structure additional 6 cents for each reimbursable SBP meal patterns to align them with the necessary to establish initial school food lunch served on or after October 1, 2012 that Dietary Guidelines for Americans (DGA). The authority (SFA) compliance with the new was determined to comply with the new Department published a proposed rule in meal standards and to monitor ongoing meal standards. Key provisions of the interim January 2011.8 A final rule was published on compliance. This final rule responds to rule included: January 26, 2012.9 The new standards took concerns raised by comments given in • response to the interim rule. Defining compliance: SFAs must be effect on July 1, 2012, the start of SY 2012– compliant with breakfast and lunch meal 2013. III. Key Provisions of the Interim Rule pattern requirements to receive the The interim rule included provisions that performance-based 6 cent lunch 8 Federal Register, Vol. 76, No. 9, pp. 2494–2570. govern initial certification of SFA reimbursement. All meal components must 9 Federal Register, Vol. 77, No. 17, pp. 4088– compliance with the breakfast and lunch be present in appropriate quantities. The 4167. meal patterns that took effect on July 1, 2012, meals offered to students must also comply

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with sodium, calorie, saturated fat, and trans IV. Key Provisions of the Final Rule necessary to develop compliant menus or to fat standards. complete the certification process. Some • This rule finalizes the provisions of the Initial certification of SFA eligibility for interim rule, including the procedures for comments questioned whether the additional performance-based lunch reimbursement: performance-based certifications, required administrative costs are worth the additional SFAs may be certified eligible for the documentation and timeframes, validation 6 cent reimbursement, and they raised performance-based lunch reimbursement in reviews, compliance and administrative concerns about SFAs’ abilities to meet one of several ways. Procedures for reviews, reporting and recordkeeping, and certification requirements in a timely submitting certification documentation will technical assistance, with a few revisions: manner. be developed by State agencies. Final • This final rule amends the reporting As noted in the preamble, FNS is certification decisions will also be made by requirement at 7 CFR 210.5(d)(2)(ii) to encouraged by the number of SFAs that have State agencies. However, standards for require that State agencies only include in already completed the certification process certification and the materials used in the their quarterly SFA performance-based successfully. In October 2013, State agencies certification process will be developed by certification report the total number of SFAs reported that, as of the end of June 2013, FNS and specified in guidance. The interim in the State and the names of certified SFAs. approximately 80 percent of all SFAs rule provided for the following certification This represents a simplification of the participating in the NSLP had submitted methods: reporting requirement from the interim rule. certification documentation to their i. Nutrient analysis: SFAs may submit to The change formalizes the simplification respective State agency for review and their State agency one week of each menu previously adopted by USDA and certification, with more expected by the end used by the SFA, along with the results of a communicated to State agencies through of the school year. In addition, 90 percent of nutrient analysis on each menu, and a menu Policy Memo SP 31–2012. all lunches served in May 2013 received the worksheet. • This final rule at 7 CFR 210.7(d)(1) extra 6 cent reimbursement. ii. Practices and indicators documentation: makes permanent a flexibility in With regard to the training provided to SFAs may submit to their State agency requirements for weekly maximum grains State agencies by FNS, we note that FNS led responses to a series of questions on program and meat/meat alternates as originally in-person training sessions with every State operations, a week of each menu used by the outlined in Policy Memo SP 26–2013 and the agency to assist them with the task of helping SFA, and a menu worksheet. flexibility for serving frozen fruit with added SFAs navigate the certification process. FNS iii. State agency reviews: SFAs may be sugar as originally outlined in Policy Memo also developed webinars, spreadsheet tools, certified in the process of a normal State SP 20–2012. These changes make it easier for documentation, and other training resources agency administrative review. An SFA SFAs to meet the requirements of the school to assist State agencies and SFAs. All of these determined by the State agency to be meals rule, which is a prerequisite for resources remain available on the FNS Web compliant with all meal pattern and nutrient certification for the performance-based site.10 The spreadsheet tools, in particular, standards during an administrative review reimbursement. are intended to assist SFAs that may not have will be certified eligible for the performance- the time or resources to develop or purchase based lunch reimbursement. V. Addressing Comments on the Interim their own software.11 FNS recognizes, iv. HealthierUS School Challenge: Rule and RIA however, that some SFAs may continue to Individual schools that receive HealthierUS The interim rule generated about 200 have difficulty with the process despite these School Challenge awards after July 1, 2012 comments. As noted in the preamble to the resources. FNS is committed to assisting will be certified eligible for the performance- final rule, most of the comments pertained to those SFAs, and the State agency staff who based lunch reimbursement without further either the school meals rule (e.g., commented are working with them, by answering action by the school or SFA. on the new meal patterns) or to statutory additional questions on the certification • Ongoing compliance: SFAs must be held requirements as set forth in HHFKA (e.g., process as we receive them. FNS also compliant with meal pattern and nutrient commented on whether 6 additional cents encourages the States to provide additional standards at subsequent State administrative are sufficient to cover the costs of the new assistance to SFAs that have not yet reviews to remain eligible for the meal patterns). As this RIA does not address submitted requests for certification. performance-based lunch reimbursement. the school meals rule and as FNS has no The final rule does not, however, change • Consequences of non-compliance: SFAs discretion to change the statutory the requirements in the certification process. that are determined non-compliant with meal requirements of the rule, this RIA will not Consequently, we also make no fundamental pattern or nutrient standards, either through address those comments. change in the RIA concerning the costs of State review of the SFAs’ initial certification certification, although we do provide materials, or in an initial or future State A. Concerns About State Administrative updated estimates of the cost of the interim administrative review, will not be eligible (or Costs rule based on the most recent data available. will lose eligibility) for the performance- A few comments raised concerns about the Nevertheless, we note that the other major based lunch reimbursement. State agencies cost of the States’ quarterly reporting change between the interim and final rule that find SFAs to be non-compliant with requirement on SFA certification. These (i.e., making permanent the flexibility for meal pattern or nutrient standards must comments viewed the reporting requirements weekly maximum grains and meat/meat provide technical assistance and encourage as overly burdensome. alternates as original outlined in Policy SFA corrective action and re-application for In response to these concerns, FNS Memo SP 26–2013 and the flexibility for certification. decreased the amount of information serving frozen fruit with added sugar as • State agency validation reviews: State required from States in the quarterly report, originally outlined in Policy Memo SP 20– agencies must perform on-site validation as noted above. This change decreases the 2012) should make it easier for SFAs to reviews of a 25 percent random sample of estimated time it takes one State to prepare comply with the school meals rule (a certified SFAs during SY 2012–2013. Each and submit a quarterly certification report prerequisite to becoming certified), though validation review can substitute for an from one hour under the interim rule to 15 this does not change the certification process administrative review that the State agency minutes under this final rule. These reports would otherwise have to perform during SY will no longer be required once all SFAs have 10 See http://www.fns.usda.gov/outreach/ 2012–2013. been certified to receive the performance- webinars/child_nutrition.htm and http:// • Federal assistance to State agencies: based reimbursement. www.fns.usda.gov/cnd/Governance/Legislation/ HHFKA Section 201 provided $50 million in certificationofcompliance.htm. each of the fiscal years 2012 and 2013 to B. Concerns About Certification Costs 11 Some comments indicated that the FNS- assist States with training, technical A few comments raised concerns about developed spreadsheet tools were difficult to work assistance, certification, and oversight. As State or SFA administrative costs to comply with. While FNS will not be changing the tool at provided by HHFKA, the preamble to the with the certification process and with a lack this time, FNS has conducted several in-person trainings and webinars to assist State agencies and interim rule specified that $3 million would of adequate guidance and training of State SFA having difficulties using the tools. be retained for Federal administration and agency officials by FNS. Other comments Additionally, the FNS Web site lists other $47 million would be distributed to the indicated that small SFAs do not have the commercially available tools that SFAs may find States in each of these 2 years. staff resources, computers, or computer skills more appropriate or helpful.

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itself. As discussed in the preamble and overweight or obese,16 with current factors and 43.5 times as likely to have 3 risk below in Section VI.A.1., we do not find that childhood obesity rates four times higher in factors’’ (p. 1179) and concluded that making permanent these flexibilities children ages 6 to 11 than they were in the ‘‘[b]ecause overweight is associated with negatively impacts the nutritional profile of early 1960s (19 vs. 4 percent), and three various risk factors even among young NSLP meals. times higher (17 vs. 5 percent) for children, it is possible that the successful adolescents ages 12 to 19.17 These increases prevention and treatment of obesity in VI. Cost/Benefit Assessment are shared across all socio-economic classes, childhood could reduce the adult incidence A. Final Rule regions of the country, and have affected all of cardiovascular disease’’ (p. 1175).23 It is major racial and ethnic groups.18 known that overweight children have a 70 1. Benefits Excess body weight has long been percent chance of being obese or overweight The impact analysis for the interim rule 12 demonstrated to have health, social, as adults. However, the actual causes of (and updated below) estimated that full psychological, and economic consequences obesity have proven elusive.24 While the compliance with the new meal patterns for affected adults.19 Recent research has also relationship between obesity and poor would increase SFA revenues by more than demonstrated that excess body weight has dietary choices cannot be explained by any $300 million per year in the aggregate. The negative impacts for obese and overweight one cause, there is general agreement that changes contained in the final rule are children. Research focused specifically on reducing total calorie intake is helpful in expected to facilitate compliance with the the effects of obesity in children indicates preventing or delaying the onset of excess meal patterns, allowing SFAs to take full that obese children feel they are less capable, weight gain. advantage of the additional revenue. Granting both socially and athletically, less attractive, There is some recent evidence that food some flexibility on meat, grains, and frozen and less worthwhile than their non-obese standards can improve children’s dietary 20 fruit is an effort by USDA to work with counterparts. quality: schools that are making serious efforts to Further, there are direct economic costs • Taber, Chriqui, and Chaloupka comply with the rule’s standards but are due to childhood obesity; $237.6 million (in compared calorie and nutrient intakes for 21 having some difficulty finding products that 2005 dollars) in inpatient costs 70 and California high school students—with food annual prescription drug, emergency room, standards in place—to calorie and nutrient have been resized or reformulated 22 specifically to meet the requirements of the and outpatient costs of $14.1 billion. intakes for high school students in 14 States Childhood obesity has also been linked to 25 rule. To the extent that a little flexibility at with no food standards. They concluded cardiovascular disease in children as well as the margins encourages schools to plan that California high school students in adults. Freeman, Dietz, Srinivasan, and menus that meet the new standards, students consumed fewer calories, less fat, and less Berenson found that ‘‘compared with other benefit from receiving meals that comply sugar at school than students in other States. children, overweight children were 9.7 times Their analysis ‘‘suggested that California with the new standards rather than receiving as likely to have 2 [cardiovascular] risk meals that do not comply with the new students did not compensate for consuming standards. less within school by consuming more 16 The benefits to children who consume M.A. Beydoun and Y. Wang (2011), ‘‘Socio- elsewhere’’ (p. 455). The consumption of demographic disparities in distribution shifts over school meals that follow DGA fewer calories in school suggests that time in various adiposity measures among competitive standards ‘‘. . . may be a recommendations are detailed in the impact American children and adolescents: What changes analysis prepared for the final meal patterns in prevalence rates could not reveal,’’ International method of reducing adolescent weight gain’’ rule.13 As discussed in that document, the Journal of Pediatric Obesity, 6:21–35, as cited in (p. 456). • 2010 Dietary Guidelines Advisory Committee Food Labeling: Calorie Labeling of Articles of Food A study of competitive food policies in emphasizes the importance of a diet in Vending Machines, NPRM (2011). Preliminary Connecticut concluded that ‘‘removing low consistent with DGA recommendations as a Regulatory Impact Analysis, Docket No. FDA–2011– nutrition items from schools decreased F–0171. contributing factor to overall health and a students’ consumption with no 17 Institute of Medicine (2007), Progress in reduced risk of chronic disease.14 compensatory increase at home.’’ 26 Preventing Childhood Obesity: How do we Measure • Similarly, researchers for Healthy Eating The link between poor diets and health Up? Committee on Progress in Preventing problems such as childhood obesity are a Childhood Obesity, edited by J.P. Koplan, C.T. Research and Bridging the Gap found that matter of particular policy concern given Liverman, V.I. Kraak, and S.L. Wisham, ‘‘[t]he best evidence available indicates that their significant social and economic costs. Washington, DC: The National Academies Press, policies on snack foods and beverages sold in Obesity has become a major public health p. 24. school impact children’s diets and their risk concern in the U.S., second only to physical 18 S.J. Olshansky, D.J. Passaro, R.C. Hershow, J. for obesity. Strong policies that prohibit or activity among the top 10 leading health Layden, B.A. Carnes, J. Brody, L. Hayflick, R.N. restrict the sale of unhealthy competitive indicators in the United States Healthy Butler, D.B. Allison, and D.S. Ludwig (2005). ‘‘A foods and drinks in schools are associated Potential Decline in Life Expectancy in the United People 2020 goals. According to data from with lower proportions of overweight or States in the 21st Century,’’ The New England obese students, or lower rates of increase in the National Health and Nutrition Journal of Medicine, 352:1138–1145. student BMI.’’ 27 Examination Survey 2007–2008, 34 percent 19 J. Guthrie, C. Newman, and K. Ralston (2009), of the U.S. adult population is obese and an ‘‘USDA School Meal Programs Face New additional 34 percent are overweight.15 Challenges,’’ Choices: The Magazine of Food, Farm, 23 D.S. Freeman, W.H. Dietz, S.R. Srinivasan, and The trend towards obesity is also evident and Resource Issues, 24 (available online at http:// G.S. Berenson (1999), ‘‘The Relation of Overweight among children; 33 percent of U.S. children www.choicesmagazine.org/magazine/ to Cardiovascular Risk Factors Among Children and and adolescents are now considered print.php?article=83); and Y. Wang, M.A. Beydoun, Adolescents: The Bogalusa Heart Study,’’ L. Liang, B. Cabellero and S.K. Kumanyika (2008), Pediatrics, 103:1175–1182. ‘‘Will all Americans Become Overweight or Obese? 24 ASPE, Health & Human Services (No Date), 12 Federal Register, Vol. 77, No. 82 pp. 25024– Estimating the Progression and Cost of the US ‘‘Childhood Obesity,’’ Assistant Secretary for 25036. Obesity Epidemic,’’ Obesity, 16: 2323–2330. Planning and valuation, U.S. Department of Health 13 Federal Register, Vol. 77, No.17 pp. 4088– 20 A. Riazi, S. Shakoor, I. Dundas, C. Eiser, and & Human Services. Available online at http:// 4167. S.A. McKenzie (2010), ‘‘Health-related quality of aspe.hhs.gov/health/reports/child_obesity. 14 Report of the Dietary Guidelines Advisory life in a clinical sample of obese children and 25 D.R. Taber, J.F. Chriqui, and F.J. Chaloupka Committee on the Dietary Guidelines for adolescents,’’ Health and Quality of Life Outcomes, (2012), ‘‘Differences in Nutrient Intake Associated Americans, 2010, p. B1–2. (http:// 8:134–139. With State Laws Regarding Fat, Sugar, and Caloric www.cnpp.usda.gov/DGAs2010-DGACReport.htm). 21 L. Trasande, Y. Liu, G. Fryer, and M. Weitzman Content of Competitive Foods,’’ Archives of 15 C.L. Ogden and M.D. Carroll (2010), (2009), ‘‘Trends: Effects of Childhood Obesity on Pediatric & Adolescent Medicine, 166:452–458. ‘‘Prevalence of Overweight, Obesity, and Extreme Hospital Care and Costs, 1999–2005,’’ Health 26 M.B. Schwartz, S.A. Novak, and S.S. Fiore Obesity among Adults: United States, Trends 1976– Affairs, 28:w751–w760. (2009), ‘‘The Impact of Removing Snacks of Low 1980 through 2007–2008,’’ National Center for 22 J. Cawley (2010), ‘‘The Economics of Childhood Nutritional Value from Middle Schools,’’ Health Health Statistics, June 2010, as cited in Food Obesity,’’ Health Affairs, 29:364–371, as cited in Education & Behavior, 36:999–1011, p. 999. Labeling: Calorie Labeling of Articles of Food in Food Labeling: Calorie Labeling of Articles of Food 27 Healthy Eating Research and Bridging the Gap Vending Machines, NPRM (2011). Preliminary in Vending Machines, NPRM (2011). Preliminary (2012), ‘‘Influence of Competitive Food and Regulatory Impact Analysis, Docket No. FDA–2011– Regulatory Impact Analysis, Docket No. FDA–2011– Beverage Policies on Children’s Diets and F–0171. F–0171. Continued

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Pew Health Group and Robert Wood overconsumption of those same foods outside same maximum calorie standards contained Johnson Foundation researchers noted that the school setting (although as noted earlier, in the final school meals rule. Those the prevalence of children who are Taber, Chriqui, and Chaloupka concluded standards are not meal-based. Instead, SFA overweight or obese has more than tripled in overcompensation was not evident among compliance with the food group standards is the past three decades,28 which is of the California high school students in their assessed by comparing the weighted average particular concern because of the health sample). amounts served across all meals served per problems associated with obesity. In The new meal patterns are intended not day or in an entire week. Children in SFAs particular, researchers found an increasing only to improve the quality of meals that are certified compliant under the number of children are being diagnosed with consumed at school, but to encourage healthy modified standards of this rule will be served type 2 diabetes, high cholesterol, and high eating habits generally. Those goals of the meals that satisfy the same minimum blood pressure. These researchers further meal patterns rule are furthered to the extent requirements as meals served in SFAs that observed that children with low that this rule contributes to full compliance were certified compliant under the original socioeconomic status and black and Hispanic with the meal patterns by all SFAs. terms of the final school meals rule. Even in children are at a higher risk of experiencing The changes adopted in the final rule the absence of the flexibility added by this one or more of these illnesses (pp. 39–40, 56). (summarized in Section IV) are intended to rule, the amount of meat and grains served Their analysis also noted that: [T]here is a facilitate SFA compliance with the meal in individual meals will vary significantly strong data link between diet and the risk for pattern requirements and reduce State agency from the weighted average minimum and these chronic diseases. Given the reporting and recordkeeping burden. By maximum amounts required over the course relationship between childhood obesity, making permanent the flexibility on weekly of a day or week. The changes in this rule calorie consumption, and the development of maximum servings of grains and meat/meat recognize that additional flexibility on the chronic disease risk factors at a young age, alternates, and by allowing frozen fruit with upper end of the required range for meat and grains allows SFAs to use products that were this report proposes that a national policy added sugar to credit toward the meal pattern formulated prior to the final school meal rule could alter childhood and future chronic requirement for fruit, the final rule will make standards and to satisfy student demand. disease risk factors by reducing access to it easier for some SFAs to plan menus that This rule does not offer SFAs a way to reduce certain energy-dense foods in schools. To the comply with the meal pattern the minimum amounts served from any of extent that the national policy results in requirements.29 the food groups emphasized by the final increases in students’ total dietary intake of The added flexibility on weekly maximum healthy foods and reductions in the intake of school meal rule. And because this rule does servings of grains and meat/meat alternates not modify the final school meal rule’s low-nutrient, energy-dense foods, it is likely will benefit SFAs who may continue to rely to have a beneficial effect on the risk of these maximum calorie requirements, the new on prepared foods or recipes that ensure flexibility is limited and does not weaken the diseases. However, the magnitude of this compliance with daily and weekly minimum effect would be proportional to the degree of school meal standards’ focus on childhood quantities but may exceed weekly maximums 31 change in students’ total dietary intake, and obesity. in some weeks. However, because the meal The final school meal rule establishes a this factor is uncertain (p. 68). patterns’ weekly calorie requirements remain In summary, the most current, primarily food-based set of requirements; in place, the added flexibility on grains and these are designed to comply with the comprehensive, and systematic review of meat/meat alternates is unlikely to have a existing scientific research concluded that recommendations of the DGAs regarding the significant effect on the overall quantity of consumption of a variety of foods from key foods standards can have a positive impact food served, the cost of acquiring that food, on reducing the risk for obesity-related food groups. The school meal rule sets just or the nutritional profiles of the meals a handful of macronutrient standards (for chronic diseases. Because the factors that served. contribute both to overall food consumption calories, saturated fat, sodium, and trans fat). Allowing frozen fruit with added sugar to The changes contained in this rule require and to obesity are so complex, it is not credit toward the meal patterns’ fruit possible to define a level of disease or cost SFAs to serve meals that satisfy the same requirement also provides SFAs greater minimum requirements from each of the food reduction that is attributable to the changes flexibility in purchasing foods for use in the groups identified in the final school meal in foods resulting from implementation of school meal programs. Permitting schools to rule without relaxing any of that rule’s this rule. USDA is unaware of any make use of a wider range of currently macronutrient standards. In short, this rule’s comprehensive data allowing accurate available frozen fruit products may reduce additional flexibility, designed to make it predictions of the effect of increasing the the administrative costs of finding and marginally easier to meet compliance with flexibility in meeting certain dietary acquiring compliant foods for use in the meal the new meal standards. requirements by SFA’s to certify compliance programs. But, like the grains and meat/meat Schools that adopt healthier food standards for the National program and subsequent alternate provision, because the calorie limits for their school lunch programs will improve changes in consumer choice and, especially are still in place, allowing added sugar in the dietary intake for children at school and among children. But to illustrate the frozen fruit products will not undermine the make it more likely that those students will magnitude of the potential benefits of a updated nutrition standards.30 have improved health outcomes. However, reduction in childhood obesity, based on It is important to emphasize that menus by allowing greater flexibility in meeting the $237.6 million in inpatient costs and $14.1 developed by SFAs that are certified eligible school lunch dietary standards, it may be that billion in outpatient costs, a one percent for the additional 6 cent reimbursement must some compliant SFAs relax their reduction in childhood obesity implies a meet all of the minimum food group implementation of those guidelines $143 million reduction in health care costs. requirements contained in the final school somewhat. Some researchers have suggested possible meals rule, whether or not those SFAs take USDA has not quantified what changes negative consequences of regulating nutrition advantage of the added flexibilities of this may result to the overall nutritional content content in school foods. They argue that not rule. In addition, all SFAs are held to the of SFAs availing themselves of those allowing access to low nutrient, high calorie snack foods in schools may result in 29 As explained in this section and in the 31 The final rule’s flexibility on sugar contained preamble to the rule, making permanent this in frozen fruit is also constrained by the retention Childhood Obesity,’’ p. 3. Available online at http:// flexibility does not compromise the nutritional of the interim rule’s calorie restrictions. Because the www.healthyeatingresearch.org/images/stories/her_ profile of school meals. IOM’s recommendations interim rule already allowed for added sugar in research_briefs/Competitive_Foods_Issue_Brief_ were to serve food in minimum amounts subject to canned fruit, the final rule’s modification of the HER_BTG_7-2012.pdf. maximum calorie limits; the additional flexibility frozen fruit standard is primarily a means to widen 28 Pew Health Group and Robert Wood Johnson allowed by these provisions is still subject to the the selection of processed fruit available to SFAs Foundation (2012), Heath Impact Assessment: maximum calorie limits for school meals. under nutrient standards that are comparable to the National Nutrition Standards for Snack and a la 30 We note that, in SY 2009–2010, frozen fruit standards already allowed under the interim rule Carte Foods and Beverages Sold in Schools. accounted for only 17% of the fruit used by US for other processed fruit. In the absence of the final Available online at http://www.pewhealth.org/ schools. See p. 83 of USDA/FNS, School Food rule provision on frozen fruit with added sugar, uploadedFiles/PHG/Content_Level_Pages/Reports/ Purchase Study III (2012). Available online at SFAs remained free to serve canned fruit in light KS%20HIA_FULL%20Report%20062212_ http://www.fns.usda.gov/Ora/menu/Published/ syrup rather fresh or processed fruit without added WEB%20FINAL-v2.pdf. CNP/FILES/SFSPIII_Final.pdf. sugar.

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flexibility provisions. There are relatively of their school lunch program one way or the B. Updated Analysis of Interim Rule Effects few SFAs (relative to the total number of other. The analysis provided below updates a SFAs complying with school lunch dietary The added flexibility on weekly maximum similar analysis prepared for the interim rule guidelines) that would significantly change servings of grains and meat/meat alternates impact analysis.35 We update the figures here the dietary composition of their school lunch could benefit SFAs who may continue to rely using data on actual SFA certifications that program one way or the other. Those two on prepared foods or recipes that ensure were not available when the interim rule was effects (described above) are offsetting and so compliance with daily and weekly minimum published in April 2012, as well as new the net effects of these changes on the quantities but may exceed weekly maximums financial and participation projections benefits to school children are likely to be in some weeks. That provision may reduce provided in the 2014 President’s Budget. The marginal relative to the overall benefits the administrative costs of meal planning for data collected since April 2012 allows for a afforded by the dietary standards. some SFAs, and may reduce the costs more precise estimate of SFA certifications Because of the macronutrient requirement associated with modifying recipes or finding and receipt of performance-based is not adjusted, any resulting changes to the new prepared foods in the market with reimbursements in FY 2013 and projections nutritional quality of the NSLP and SBP slightly different formulations than products for fiscal years 2014 through 2017. This meals served by SFAs are expected to currently purchased. analysis is presented for the information of marginal, and so there would likely be few Because the flexibility on grains, meat/ those interested in the effects of the rule on meat alternates, and frozen fruit had changes to the benefits to children relative to SFAs, State agencies and USDA. It provides previously been extended by FNS through SY the final school meal rule or to the interim estimates of the economic impact of the rule 2013–2014, the effect of these provisions on rule on certification for the 6 cent overall, not just the incremental effects of the the initial certification of SFAs for the reimbursement. final rule. performance-based reimbursement is Two estimates are provided in recognition 2. Costs and Transfers expected to be very small. Administrative of the uncertainty of how quickly SFAs will The baseline for our estimate of the cost of data on certifications approved or pending be determined compliant with the new meal the final rule is the estimate for the interim through May 2013 indicate that only a small standards and, therefore, how soon they will final rule, which we update below using the minority of SFAs are likely to remain be eligible for the performance-based rate latest President’s Budget projections and uncertified by the end of SY 2013–2014. For increase. Data available as of October 2013 preliminary data on certifications for the those SFAs, these provisions may help shows that 73% of meals served in FY2013 performance-based reimbursement. reduce the costs of certification after that 32 have been certified for the performance-based The provisions in the final rule will likely time. For all other SFAs, these provisions reimbursement as of July 2013, with 90% of result in a small increase in cost to the will make it marginally easier to maintain meals served in May 2013 certified as of July Federal Government (as a result of a transfer compliance with daily and weekly meal 2013. Given the rate of retroactive pattern requirements, a necessary condition of Federal funds in the form of additional certification of SFAs and meals, our upper for continued receipt of the performance- performance-based reimbursements to a bound (primary) estimate assumes that all based reimbursement. We expect these small number of schools receiving the SFAs will be certified by the end of FY 2013 provisions to generate a small but uncertain performance-based reimbursement that might and that 80% of the lunches served in FY cost savings for SFAs through a small 2013 will eventually be certified to receive have otherwise not received it), though we reduction in SFA compliance costs. the additional 6 cent reimbursement. expect this potential increase to fall within The rule also finalizes the change in State As of October 2013, administrative data the cost range estimated for the interim final agency quarterly reporting requirement on that indicate that 80 percent of SFAs had rule, as updated below. SFA certification. That change, previously The effect of the provisions in the final rule adopted through Policy Memo SP–31–2012, been certified or had submitted certification (i.e. increased flexibility on grains, meats, reduces quarterly State agency reporting documentation to their respective State and frozen fruits with added sugar) is to burden to an estimated 15 minutes per agency for review and certification by the reduce the costs of compliance for the small quarter per State agency.33 The last change, end of June 2013. It assumes that the minority of SFAs that would otherwise not contained in the preamble to the final rule, remaining 20 percent of SFAs will be have been certified compliant with the new will eliminate the requirement that State certified (or certified retroactively) in the meal standards by the end of SY 2013–2014. agencies submit quarterly reports on SFA remaining months of the fiscal year. The policy memos issued by FNS in certification for the performance-based rate Administrative data also indicate that 90 September 2012 and February 2013 had increase once all SFAs have been certified. percent of meals served in May 2013 already extended these provisions through The administrative savings from this qualified for the extra 6 cent reimbursement, the end of SY 2013–2014. provision is minimal.34 and that many SFAs are being certified These provisions are essentially retroactively as the processing of applications and approval of certification requests catch administrative efficiency measures that will 32 As we note above, approximately 80 percent of reduce meal pattern compliance costs at the SFAs had submitted documentation to their up with SFAs’ documented compliance with 36 margin for some SFAs; the provisions are not respective State agencies for review and the new meal patterns. expected to have a significant effect on food certification as of June 2013. Administrative data Our alternate scenario relies on costs. Since these provisions are options (not also show that many SFAs are being certified administrative data on certifications through requirements) and because we have no data retroactively as the processing of applications and the first several months of SY 2012–2013 to approval of certification requests catch up with on how many schools might avail themselves estimate the revenues and costs of a phased SFAs’ documented compliance with the new meal implementation that assumes full compliance of either of these options, we do not estimate patterns. With or without the changes contained in those cost savings in this analysis. the final rule, State agency technical assistance will during FY 2014. For both estimates, we Given these assumptions about a phased likely concentrate on this subset of uncertified assume that 80% of the meals served in FY certification process for some SFAs, the SFAs during SY 2013–2014. Those efforts are likely 2013 will qualify for the additional 6 cent estimated cost of Federal performance-based to substantially reduce the number of non-certified reimbursement; in the alternate estimate, we SFAs by the end of SY 2013–2014. It is that assume 95% of meals will qualify in FY reimbursements (and the value of additional remaining subset of SFAs that may benefit most SFA revenue) is $1.54 billion through FY 2014, and 100% will qualify in FY 2015 and from the permanent extension of the grains, meat/ beyond. In addition, in this second scenario 2017 (1 percent less than the $1.55 billion meat alternate, and frozen fruit policy changes estimated with full implementation). contained in the final rule. To the extent that the additional 33 Estimate developed for Paperwork Reduction measured in the dollar value of State agency staff flexibilities afforded SFAs, this rule could Act reporting and contained in the preamble to the time) is only about $4,000 per year across the entire rule. Because this change was already adopted by United States. result in marginally lower costs to SFAs 35 relative to the interim final rule baseline. USDA through a policy memo, the reduction in Federal Register, Vol. 77, No. 82 pp. 25024– burden for State agencies is part of our baseline, 25036. USDA has not quantified those changes as and the formalization of that policy by the final rule 36 I.e., the number of meals certified for the there are relatively few SFAs (relative to the does not further reduce State agency reporting performance-based reimbursement in the early total number of SFAs complying with school costs. months of the school year increases with each lunch dietary guidelines) that would 34 Although the relative burden decrease of 75% additional month of administrative data reported by significantly change the dietary composition seems substantial, the absolute burden decrease (as the States.

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we assume that roughly 90 percent of SFAs sometime during FY 2014, and that 95% of receive the performance-based will be found compliant by the end of FY FY 2014 lunch reimbursements will include reimbursement in FY 2015 and beyond. 2013, or certified compliant retroactively to the performance-based 6 cents. We assume the start of FY 2014. We further assume that that 100 percent of SFAs (and, consequently, the remaining 10% of SFAs will be certified 100 percent of meals) will be certified to

TABLE 3—SUMMARY OF REVENUE AND COST IMPACT, UPDATED ESTIMATE FOR INTERIM RULE, FY 2013–2017 37 [millions]

Fiscal year Total (FY 2013 2014 2015 2016 2017 2013–2017)

Upper bound (primary) estimate

SFAs and State agencies

SFA revenue (NSLP reimbursements) .... $255.3 $321.3 $323.3 $325.4 $327.6 $1,553.0 Federal transfer to States for technical assistance ...... 47.0 0.0 0.0 0.0 0.0 47.0 State agency and SFA reporting and rec- ordkeeping ...... ¥2.9 ** ** ** ** ¥2.9

Federal

Technical assistance to States ...... ¥50.0 $0.0 $0.0 $0.0 $0.0 ¥50.0 NSLP reimbursements ...... ¥255.3 ¥321.3 ¥323.3 ¥325.4 ¥327.6 ¥1,553.0

Alternate estimate

SFAs and State agencies

SFA revenue (NSLP reimbursements) .... 255.3 305.2 323.3 325.4 327.6 1,536.9 Federal transfer to States for technical assistance ...... 47.0 0.0 0.0 0.0 0.0 47.0 State agency and SFA reporting and rec- ordkeeping ...... ¥2.5 ¥0.4 ** ** ** ¥2.9

Federal

Technical assistance to States ...... ¥50.0 0.0 0.0 0.0 0.0 ¥50.0 NSLP reimbursements ...... ¥255.3 ¥305.2 ¥323.3 ¥325.4 ¥327.6 ¥1,536.9 ** Estimated at less than $50,000. NOTE: Positive values indicate increase in revenues; negative values indicate increase in costs.

1. Methodology estimate that the 6 cents will remain reimbursable lunches served. Because 39 The estimated increase in the Federal cost unchanged through FY 2017. students eligible for free or reduced-price of NSLP reimbursements is a straightforward Full Implementation by October 1, 2013 meals participate in the school meals programs at higher rates than other students, calculation of the number of meals that are If all SFAs are certified eligible for the certified in compliance with the new meal performance-based 6 cent lunch rate increase revenue per enrolled student will tend to be standards times 6 cents (adjusted for as of October 1, 2013 (as assumed in the higher in SFAs with the greatest percentage inflation). This approach applies the primary estimate), then the Federal cost and of free and reduced-price certified students. additional 6 cents to USDA’s baseline SFA revenue increase from FY 2013 through However, eligibility for free or reduced price projection of lunches. The 6 cents is subject FY 2017 would total about $1.55 billion. This meals is not the only factor that impacts to the same inflation adjustment applied to upper bound estimate (our primary estimate) student participation in the NSLP. Other the Section 4 and Section 11 components of assumes full compliance with the new factors that vary by SFA include the breakfast and lunch meal patterns’ food the lunch reimbursement, rounded down to distribution of students by grade level, prices group and nutrient requirements by the start the nearest cent.38 The interim rule inflates charged for paid lunches, availability of offer of (or retroactive to the start of) SY 2013– the 6 cents separately from the Section 4 or vs. serve (in elementary and middle schools), 2014. the variety of entrees offered, and school Section 11 rates. Given our projected increase The added revenue will be distributed geography.40 in the CPI Food Away from Home, we across SFAs in proportion to the number of

37 We note that the estimates in this table are number of lunches that will be served in FY2013, Our projected values for this index are those largely consistent with the estimates published with but we use the 2014 President’s Budget as our basis prepared by OMB for use in the 2014 President’s the interim rule; the main differences are caused by of analysis for consistency’s sake, both for internal Budget. consistency and consistency with past estimates. (1) the exclusion of FY 2012 and the inclusion of 40 School Nutrition Dietary Assessment Study-III, FY 2017 in the above table, and (2) a small 38 The fractional cents are not lost; they are added Vol. 2, Table IV.2. Mathematica Policy Research, downward revision in the estimated number of back to the base rate before applying the next year’s lunches served in future Fiscal Years, resulting in inflation adjustment. Inc. for U.S. Department of Agriculture, Food and an decrease in estimated Federal transfers to SFAs 39 The CPI Food Away From Home Index is the Nutrition Service, 2007. Available online at http:// for reimbursable lunches. We also note that the factor specified by NSLA Section 11 to adjust the www.fns.usda.gov/ora/MENU/Published/CNP/ 2014 President’s Budget likely overstates the final reimbursement rates for school lunch and breakfast. cnp.htm.

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The data available do not allow us to revenue across SFAs under the assumption distributions across SFAs by SFA size, account for each of those variables here. that revenue is proportional to enrollment. geography, and incomes of enrolled Instead we estimate the distribution of Table 4 provides estimated revenue students.41

TABLE 4—ESTIMATED DISTRIBUTION OF ADDITIONAL REVENUE FROM PERFORMANCE-BASED RATE INCREASE 42

Share of new revenue: primary estimate, Percent of students FY 2013–17 (if proportional to enrollment)

LEA enrollment

1–500 ...... 3 $42.8 501–1,000 ...... 4 62.3 1,001–2,500 ...... 11 172.4 2,501–5,000 ...... 14 223.4 5,001–10,000 ...... 15 229.8 10,001–25,000 ...... 19 290.0 25,001–50,000 ...... 15 226.2 50,001 + ...... 20 306.3 All ...... 100 1,553.0

Census region

Northeast ...... 16 251.8 Midwest ...... 21 332.7 South ...... 37 581.7 West ...... 24 370.6 Territories ...... 1 16.2 All ...... 100 1,553.0

Urbanicity

City ...... 31 479.5 Suburb ...... 38 584.8 Town ...... 12 183.3 Rural ...... 20 305.4 All ...... 100 1,553.0

Percent of enrollment certified for free or reduced price school meals

0.0–19.9% ...... 14 218.2 20.0–39.9% ...... 23 361.1 40.0–59.9% ...... 33 507.6 60.0–79.9% ...... 23 350.5 80.0–100.0% ...... 7 115.5 All ...... 100 1,553.0

Phased Implementation Within 2 Years comfortable assuming for this alternate Given these assumptions about a phased As we note above, State agencies reported analysis that roughly 90 percent of SFAs will certification process for some SFAs, the in October 2013 that more than 80 percent of be found compliant by the end of FY 2013, estimated cost of Federal performance-based all SFAs participating in the NSLP had or certified compliant retroactively to the reimbursements (and the value of additional submitted certification documentation to start of FY 2014. SFA revenue) is $1.54 billion through FY their respective State agency for review and We further assume that the remaining 10% 2017 (1 percent less than the $1.55 billion certification by the end of June 2013, and that of SFAs will be certified sometime during FY estimated with full implementation). 90 percent of meals qualified for the higher 2014, and that 95% of FY 2014 lunch 2. Administrative Costs reimbursement in May. Administrative data reimbursements will include the also show that many SFAs are being certified performance-based 6 cents. We assume that Our updated estimate of administrative retroactively as the processing of applications 100 percent of SFAs (and, consequently, 100 costs differs only slightly from the estimate and approval of certification requests catch percent of meals) will be certified to receive published with the interim final rule.43 The up with SFAs’ documented compliance with the performance-based reimbursement in FY only change is a slight shifting in when the new meal patterns. Consequently, we feel 2015 and beyond.

41 Table 4 is based on SY 2009–2010 data for Puerto Rico, the U.S. Virgin Islands, and the urbanized area. ‘‘Rural’’ is a Census-defined rural public local educational agencies (LEAs) from the Commonwealth of the Northern Mariana Islands. territory outside both an urbanized area and an Common Core of Data, U.S. Department of The urbanicity categories are U.S. Department of urban cluster. These definitions are contained in Education, National Center for Education Statistics. Education, National Center for Education Statistics documentation for the SY 2009–2010 Common Core http://nces.ed.gov/ccd/. LEA and SFA boundaries ‘‘urban-centric local codes.’’ ‘‘City’’ is any territory, of Data, http://nces.ed.gov/ccd/. are generally the same, but do vary in some regardless of size, that is inside an urbanized area Percent of enrollment certified for free or instances. and inside a principal city. ‘‘Suburb’’ is any reduced-price meals is also an NCES Common Core 42 The distribution of States by Census region was territory, regardless of size, inside an urbanized area of Data variable. taken from http://www.census.gov/geo/www/ but outside a principal city. ‘‘Town’’ is a territory 43 Federal Register Vol. 77, No. 82 pp. 25024– us_regdiv.pdf. The territories included here are of any size inside an urban cluster but outside an 25036.

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certification expenses were incurred (or are SFAs did not submit applications to their Because the economic effects are estimated to be incurred), based on State agencies in FY 2013.44 For this essentially proportionate to the level of SFA administrative data on certifications received estimate, we assume that these SFAs will compliance, the effects of more or less after publication of the interim rule, as well take the steps necessary to reach compliance optimistic scenarios can be estimated by as accounting for additional wage inflation. in FY 2014, and will submit documentation scaling the effects of our alternate scenario As most SFAs submitted documentary to their State agencies in that fiscal year, so upward or downward by the assumed rates materials in FY 2012 or FY 2013, most of the those certification costs for both the States of initial and future year compliance. cost of this administrative burden was and remaining SFAs are realized in FY 2014. Another important unknown is the student realized in those years, and we note that FY Administrative costs will be similar, but response to the introduction of new meal 2012 is not subject to this formal cost will be spread over two years under our patterns. Although the introduction of analysis. States reported 23.4 percent of SFAs alternate scenario of less than 100 percent healthier meals may attract new participants were certified to receive the performance- SFA compliance with the new standards by to the school meals program, the replacement based reimbursement for October 2012 and the start of SY 2013–2014. The cost of or reformulation of some favorite foods on therefore incurred certification costs in current school menus may depress FY2012. For purposes of our primary preparing and processing initial certification participation, at least initially. As we did in analysis, we assume that the remaining 76.6 claims in FY 2012 and FY 2013 by 90 percent the impact analysis for the school meal percent did so by the end of FY 2013 (as of SFAs will equal $3.4 million, of which patterns rule, we provide alternate estimates described above, we currently only have data $2.5 million was realized in FY 2013. The through June 2013). cost of submitting and processing the given a 2 percent increase and a 2 percent Based on this updated information on remaining claims will equal $0.4 million in decrease in student participation. The when certifications occurred, we estimate in FY 2014. estimates shown here are simply 2 percent our primary estimate that State agency and Due to inflation, SFAs and State agencies higher (or lower) than our estimates in Table SFA administrative costs associated with the that submit or process documentation in FY 3. That is, we estimate the effect of changes rule totaled $3.7 million across FY 2012 and 2014 will face slightly higher labor costs than in student participation on the value of the FY 2013 if all SFAs were determined those that submitted documentation in prior performance-based rate increase alone. compliant with the new meal standards fiscal years, though this cost increase is too Changes in participation would also affect based on an initial submission of SFA small to appear in our tables at the level of the current Section 4 and Section 11 documentation. $2.9 million of these costs detail presented. reimbursements and student payments for paid and reduced price lunches. Because were realized in FY 2013 and are therefore 3. Uncertainties included in the tables above. The ongoing those effects are not a consequence of the 6 burden created by reporting and The most significant unknown in this cent rate increase, but rather a consequence recordkeeping requirements are not expected analysis is the length of time it will take all to the change in the content of the meals to be appreciably higher than they were SFAs to reach full compliance. Our primary served, we exclude them from Table 5. before the implementation of the interim revenue and cost estimate developed in the Table 5 does not show the effects on rule. previous section assumes full compliance by administrative costs (reporting and Under our alternate scenario, we assume October 2013.45 Our alternate estimate recordkeeping by State agencies and SFAs, that an additional 66.6 percent of SFAs assumes that 10 percent of SFAs are certified and the technical assistance funds transferred submitted documentation by the end of FY compliant with the rule sometime in FY by the Federal government to the States). 2013 and that the remaining 10 percent of 2014. Those are unchanged from Table 3.

TABLE 5—ALTERNATE REVENUE AND COST IMPACTS [in millions]

Fiscal year Total (FY 2013 2014 2015 2016 2017 2013–2017)

2 Percent Increase in Student Participation

Full Implementation

SFA revenue (NSLP reimbursements) .... $260.5 $327.7 $329.8 $332.0 $334.1 $1,584.0

Phased Implementation

SFA revenue (NSLP reimbursements) .... 260.6 311.3 329.8 332.0 334.1 1,567.6

2 Percent Decrease in Student Participation

Full Implementation

SFA revenue (NSLP reimbursements) .... 250.2 314.8 316.9 318.9 321.0 1,521.9

Phased Implementation

SFA revenue (NSLP reimbursements) .... 250.2 299.1 316.9 318.9 321.0 1,506.2

44 Our alternate estimate of Federal fewer than 90 percent of SFAs will submit certification are submitted before the end of FY reimbursements in Section V.B. assumes that 90 applications for certification before the end of FY 2013. percent of SFAs will be certified compliant by the 2013. For the sake of simplicity, we assume in the 45 Note that, even though this RIA was most start of FY 2014, or retroactively back to the start alternative administrative cost section of this recently revised in October 2013, data were only of FY 2014. That allows for the possibility that analysis that 90 percent of applications for available through June 2013.

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4. Benefits contributing factor to overall health and a within the cost estimate range published 49 The interim rule will result in a transfer reduced risk of chronic disease. The new with the interim rule 51 and updated above. meal patterns are intended not only to from the Federal government to SFAs of as VIII. Accounting Statement much as $1.55 billion through FY 2017 to improve the quality of meals consumed at implement the new breakfast and lunch meal school, but to encourage healthy eating habits As required by OMB Circular A–4 patterns that took effect on July 1, 2012. The generally. Those goals of the meal patterns (available at http://www.whitehouse.gov/ Federal cost is fully offset by an identical rule are furthered by the funding made sites/default/files/omb/assets/regulatory_ benefit to SFAs and State agencies. available by this final rule. matters_pdf/a-4.pdf), we have prepared an The interim rule generates significant VII. Alternatives accounting statement showing the additional revenue for SFAs that partially annualized estimates of benefits, costs and offset the additional food and labor costs to The substantive differences between the transfers associated with the provisions of implement the improved meal standards interim and final rules are: this final rule. more fully aligned with the Dietary 1. Decreasing the amount of information The figures in the accounting statement are required in the States’ quarterly certification Guidelines for Americans. For example, the estimated discounted, annualized costs reports and clarifying that the reports need USDA previously estimated that the and transfers of the rule. The figures are not be submitted once all SFAs are certified improved meal standards would cost an computed from the nominal 5-year estimates for the performance-based reimbursement; additional $1,220.2 million in FY 2015 (the developed above and summarized in Table 3. and first year in which the new standards are The accounting statement contains figures 46 2. making permanent the increased fully implemented). The rule will generate computed with 7 percent and 3 percent $323.3 million in additional SFA revenue in flexibility for SFAs regarding weekly maximum grains and meat/meat alternates discount rates for both our upper bound the same fiscal year, helping school districts (primary) estimate and our alternate estimate. cover about 26% of this additional cost. and the serving of frozen fruit with added Note that we only provide an accounting USDA has also estimated that the paid lunch sugar. statement for the final rule, not for the pricing and non-program food revenue These changes all decrease the interim rule (as the interim rule was the provisions of HHFKA sections 205 and 206 administrative and/or compliance burden on will generate $7.5 billion in revenue for SFAs States and SFAs and/or increase the baseline for our cost analysis for the final through FY 2015.47 In the aggregate, flexibility for SFAs in serving lunches and rule). As noted in the above analysis, any therefore, these provisions provide a net gain breakfasts that comply with the school meal possible changes in costs or transfers in SFA revenue that exceeds the estimated patterns, thereby decreasing costs to States attributed to the final rule are small and are cost of serving school meals that follow the and SFAs. The primary alternative likely within the cost estimate range Dietary Guidelines. considered in the course of developing the published with the interim rule and updated The benefits to children who consume final rule was not to make these changes. above. school meals that follow DGA We do not provide a separate cost estimate Illustration of computation: recommendations is detailed in the impact for this ‘‘doing nothing’’ alternative because The annualized value of this discounted analysis prepared for the final meal patterns the decrease in burden associated with the cost stream over FY 2013–2017 is computed rule.48 As discussed in that document, the shorter quarterly reports for States is small 50 with the following formula, where PV is the 2010 Dietary Guidelines Advisory Committee (less than $50,000 per year) and because the discounted present value of the cost stream, emphasizes the importance of a diet additional transfers possibly attributable to i is the discount rate (e.g., 7 percent), and n consistent with DGA recommendations as a the increase in flexibility to SFAs are likely is the number of years (5) 52:

Discount rate Period Estimate Year dollar (percent) covered

Benefits

Qualitative: Compared with the interim rule, the final rule slightly decreases the reporting burden on States and makes permanent the increased flexibility for SFAs regarding weekly maximum grains and meat/meat alternates and the serving of frozen fruit with added sugar.

Costs

Annualized Monetized ...... n.a...... 2013 7 FY2013–2017 ($millions/year) ...... n.a...... 2013 3

As discussed in Section V.A., the reduction in administrative costs to State agencies as a result of the reduced quarterly reporting requirement on SFA compliance is already in our baseline. The reduction in burden for State agencies who will no longer have to submit quarterly reports on SFA compliance once all SFAs have been certified is minimal. The final rule may also slightly reduce the costs of complying with the meal patterns for some SFAs, and reduce the costs of maintaining compliance by others. This reduction in SFA cost is not estimated, and likely lies within our range of alternate estimates for the interim rule.

46 Federal Register, Vol. 77, No. 17 pp. 4088– 48 Federal Register, Vol. 77, No. 17 pp. 4088– 50 Furthermore, we do not estimate any Federal 4167. 4167. administrative savings as a result of the shorter 47 USDA estimate contained in the regulatory 49 Report of the Dietary Guidelines Advisory quarterly reports. impact analysis for the interim rule, ‘‘National Committee on the Dietary Guidelines for 51 Federal Register, Vol. 77, No. 82 pp. 25024– School Lunch Program: School Food account Americans, 2010, p. B1–2. (http:// 25036. Revenue Amendments Related to the Healthy, Hunger-Free Kids Act of 2010.’’ Federal Register www.cnpp.usda.gov/DGAs2010-DGACReport.htm). 52 The Excel formula for this is PMT (rate num; Vol. 76, No. 117, pp. 35301–35318. periods, PV, 0, 1)

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Discount rate Period Estimate Year dollar (percent) covered

Transfers

Annualized Monetized ...... n.a...... 2013 7 FY2013–2017 (millions/year) ...... n.a...... 2013 3

The changes in the final rule that are designed to facilitate compliance with the new meal patterns are expected to increase slightly the number of SFAs that are certified by their State agencies to receive the additional 6 cents per reimbursable lunch. This increased transfer from the Federal government to SFAs will be realized after the end of SY 2013–2014 (primarily in FY 2014 and beyond) when the grains, meat/meat alternate, and frozen fruit provisions contained in FNS policy memos would have expired in the absence of the rule. This possible, small in- crease in Federal transfers to SFAs also likely lies within our range of alternate estimates for the interim rule.

[FR Doc. 2013–31433 Filed 12–31–13; 11:15 am] and established the process by which a depository institutions with a transition BILLING CODE 3410–30–P state member bank and an uninsured period to facilitate compliance with the state branch or agency of a foreign bank requirements of the section. By its may request transition period relief in terms, section 716 applies to insured FEDERAL RESERVE SYSTEM order to conform its swaps activities to depository institutions only with the requirements of section 716 respect to swaps and security-based 12 CFR Part 237 (‘‘interim final rule’’). swaps entered into after the expiration Section 716 generally prohibits the [Docket No. R–1458; RIN 7100 AD 96] of the transition period. provision of ‘‘Federal assistance’’ to any The provisions of section 716 became Prohibition Against Federal Assistance ‘‘swaps entity’’ with regard to any swap, effective on July 16, 2013.6 to Swaps Entities (Regulation KK) security-based swap, or other activity of the swaps entity.1 ‘‘Federal assistance’’ I. Description of Final Rule AGENCIES: Board of Governors of the is defined by section 716 to include A. Treatment of Uninsured U.S. Federal Reserve System (‘‘Board’’). ‘‘advances from any Federal Reserve Branches and Agencies of Foreign ACTION: Final rule. credit facility or discount window that Banks is not part of a program or facility with As discussed in the interim final rule, SUMMARY: The Board is adopting a final broad-based eligibility under section the structure, language, and purpose of rule that treats an uninsured U.S. 13(3)(A) of the Federal Reserve Act’’ and section 716 create an ambiguity as to branch or agency of a foreign bank as an Federal Deposit Insurance Corporation whether the term ‘‘insured depository insured depository institution for 2 (‘‘FDIC’’) insurance or guarantees. For institution’’ includes uninsured U.S. purposes of section 716 of the Dodd- purposes of section 716, the term branches and agencies of foreign banks Frank Wall Street Reform and Consumer ‘‘swaps entity’’ generally includes any for purposes of the various provisions of Protection Act (the ‘‘Dodd-Frank Act’’) swap dealer, security-based swap section 716. The term ‘‘insured and establishes a process by which a dealer, major swap participant, or major depository institution’’ is not defined state member bank or uninsured state security-based swap participant that is for purposes of these provisions. Section branch or agency of a foreign bank may registered under the Commodity 2 of the Dodd-Frank Act provides that request a transition period to conform Exchange Act or the Securities ‘‘except as the context otherwise its swaps activities to the requirements Exchange Act of 1934, as applicable.3 requires. . .,’’7 the definition of of section 716 of the Dodd-Frank Act. Section 716 includes several ‘‘insured depository institution’’ has the provisions applicable to insured DATES: This rule is effective on January same meaning as in the Federal Deposit depository institutions. It provides a 31, 2014. Insurance Act. ‘‘Insured depository specific exclusion from the definition of FOR FURTHER INFORMATION CONTACT: institution’’ is defined by section 3(c)(2) ‘‘swaps entity’’ for any insured Laurie Schaffer, Associate General of the Federal Deposit Insurance Act to depository institution that is a major Counsel, (202) 452–2272, Victoria mean a bank or savings association the swap participant or major security- Szybillo, Counsel, (202) 475–6325, deposits of which are insured by the based swap participant,4 and provides Christine Graham, Counsel, (202) 452– FDIC, and, for some purposes under that the prohibition on Federal 3005, or Michelle Kidd, Senior section 3(c)(3), an uninsured U.S. assistance does not apply to an insured Attorney, (202) 736–5554, Legal branch or agency of a foreign bank.8 depository institution that limits its Division; or Jordan Bleicher, The interim final rule resolved this swaps activities to certain specified Supervisory Financial Analyst, (202) ambiguity by providing that the term activities.5 973–6123, Division of Banking Section 716 provides insured ‘‘insured depository institution’’ Supervision and Regulation, Board of included uninsured U.S. branches and 1 See Section 716(a) of the Dodd-Frank Act; 15 Governors of the Federal Reserve U.S.C. 8305(a). agencies of foreign banks for purposes of System, 20th Street and Constitution 2 Section 716(b) of the Dodd-Frank Act; 15 U.S. Avenue NW., Washington, DC 20551. C. 8305(b). rates or reference assets permissible for investment Users of Telecommunication Device for 3 Id. by a national bank pursuant to 12 U.S.C. Deaf (TDD) only, call (202) 263–4869. 4 Id. This exclusion is available to major swap 24(Seventh), other than acting as a swaps entity for participants and major security-based swap non-cleared credit default swaps. Section 716(b)(2) SUPPLEMENTARY INFORMATION: On June 5, participants that are not otherwise swap dealers or of the Dodd-Frank Act; 15 U.S.C. 8305(b)(2). 2013, the Board sought comment on an security-based swap dealers. 6 See Guidance on the Effective Date of Section interim final rule that addressed the 5 See section 716(d) of the Dodd-Frank Act; 15 716 of the Dodd-Frank Wall Street Reform and application of section 716 of the Dodd- U.S.C. 8305(d). Those identified activities are: (i) Consumer Protection Act, 77 FR 27465 (May 10, Hedging and other similar risk-mitigating activities 2012). Frank Act (‘‘section 716’’) to swaps directly related to the activities of the insured 7 See section 2 (chapeau) and (18)(A) of the Dodd- entities that are uninsured U.S. depository institution, and (ii) acting as a swaps Frank Act; 12 U.S.C. 5301 (chapeau) and (18)(A). branches or agencies of foreign banks entity for swaps or security-based swaps involving 8 See 12 U.S.C. 1813(c)(2), (c)(3).

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section 716.9 Accordingly, uninsured U.S. branches and agencies of foreign Furthermore, the commenter’s branches and agencies of foreign banks banks may receive Federal Reserve assertions referred to practices in are provided the same exceptions and advances on the same terms and existence before the Dodd-Frank Act. transition period relief as provided to conditions that apply to domestic The Dodd-Frank Act directed the Board insured depository institutions. insured member banks.10 Federal to establish enhanced prudential The Board received four comments in Reserve advances are the only type of standards, including enhanced liquidity response to its invitation for public Federal assistance that causes uninsured requirements, in order to prevent or comment on the interim final rule. Two U.S. branches and agencies of foreign mitigate risks to U.S. financial stability of these comment letters were from banks to be affected by section 716. that could arise from the material industry groups, one letter was from a Congress generally requires the Board financial distress or failure, or ongoing public interest group, and one letter was to regulate foreign banking activities of foreign banking from an individual. Three of the four organizations in accordance with the organizations with total consolidated commenters expressed strong support principle of national treatment, which assets of $50 billion or more. The Board for the approach taken in the interim means that foreign banking has issued a proposal to implement final rule. These commenters agreed organizations operating in the United those requirements, which included that section 716 is predicated on the States are generally treated no less liquidity requirements meant to address treatment of uninsured U.S. branches favorably than similarly-situated U.S. risks associated with the funding and agencies of foreign banks as insured banking organizations, and are generally vulnerabilities the commenter cited.14 depository institutions for purposes of subject to the same restrictions and In addition, the Board notes that qualifying for Federal assistance and obligations in the United States that uninsured branches and agencies of that similar treatment for purposes of apply to the domestic operations of U.S. foreign banks are not insured by, and section 716 is consistent with banking organizations.11 Congress therefore do not pose a threat to, the Congressional intent. One of these provided U.S. uninsured branches and FDIC’s deposit insurance fund. commenters expressed the view that the agencies of foreign banks with access to As such, for purposes of section 716, treatment in the interim final rule was Federal Reserve advances on the same the Board believes that treating necessary to secure equal treatment terms as insured depository institutions, uninsured branches and agencies of between U.S. banks and uninsured U.S. and has permitted uninsured U.S. foreign banks as insured depository branches and agencies of foreign banks branches and agencies to engage in the institutions is appropriate. The final under the provisions of section 716. same activities as insured depository rule adopts the interim final rule’s One commenter disagreed with the institutions, in furtherance of this definition of insured depository Board’s analysis and argued that U.S. principle.12 Congress did not express an institution without change. branches and agencies of foreign banks indication to deviate from this principle should not be treated as ‘‘insured in the Dodd-Frank Act. Instead, the B. Transition Period for Insured depository institutions’’ for purposes of interim final rule is consistent with Depository Institutions and Uninsured section 716. The commenter expressed Congress’s intent to treat U.S. branches U.S. Branches and Agencies of Foreign the view that the purpose of section 716 and agencies of foreign banks like Banks is to reduce systemic risk. The insured depository institutions for Section 716 provides insured commenter argued that treating U.S. purposes of section 716.13 Regarding the commenter’s views on depository institutions with a transition branches and agencies of foreign banks 15 as insured depository institutions does the safety and soundness regime period to conform their activities. not achieve that purpose because U.S. applicable to U.S. uninsured branches Under section 716(f), the appropriate branches and agencies are subject to a and agencies of foreign banks, all U.S. Federal banking agency for an insured safety and soundness regime that the branches and agencies are subject to depository institution, in consultation commenter asserted is less rigorous than prudential supervision and regulation with the SEC and CFTC, as appropriate, the regime applicable to insured and must conduct swaps activities in a is required to establish the length of the depository institutions. The commenter safe and sound manner. To the extent transition period for conformance with also argued that U.S. branches and the safety and soundness regime the requirements of section 716. That agencies of foreign banks have volatile applicable to uninsured branches and transition period may be up to 24 liability structures and relatively weak agencies of foreign banks differs from months and may be extended for a capital requirements. For these reasons, the regime applicable to insured period of up to one additional year. the commenter concluded that U.S. depository institutions, these In establishing the length of the branches and agencies of foreign banks differences reflect the structural transition period for an insured should not be treated in the same differences between an uninsured depository institution, the Board is manner as insured depository branch or agency and an insured required by statute to take into account institutions and should not be allowed depository institution. and make written findings regarding the to continue swaps activities pursuant to potential impact of divestiture or the same exceptions. 10 Section 13(14) of the Federal Reserve Act; 12 cessation of swap or security-based As discussed in the preamble to the U.S.C. 347d. swaps activities on the insured 11 See, e.g., International Banking Act of 1978, depository institution’s: (i) Mortgage interim final rule, the interim final Public Law 95–369, 12 U.S.C. 3101 et seq; S. Rep. rule’s definition of ‘‘insured depository No. 95–1073 (Aug. 8, 1978) (legislative history of lending; (ii) small business lending; (iii) institution’’ is premised on the fact that, the International Banking Act of 1978); Gramm- job creation; (iv) capital formation Leach-Bliley Act of 1999, Public Law 106–102, versus the potential negative impact on by statute, both uninsured and insured section 141, 12 U.S.C. 3106(c); Dodd-Frank Act, Public Law 111–203, section 165(b)(2), 12 U.S.C. insured depositors and the Deposit 9 The interim final rule defined the terms branch, 5365(b)(2). Insurance Fund of the FDIC; and (v) any agency, and foreign bank by cross-reference to 12 12 U.S.C. 347d; 12 U.S.C. 3106. other factor that the Board believes section 1 of the International Banking Act of 1978. 13 See 156 Cong. Rec. S5904 (daily ed. July 15, appropriate to consider. 12 U.S.C. 3101. Insured branches of foreign banks 2010) (statement of Sen. Lincoln, the sponsor of are separately included in the definition of ‘‘insured section 716, indicating that uninsured U.S. depository institution’’ under section 3(c)(2) of the branches and agencies should be treated in the 14 77 FR 76628 (December 28, 2012). Federal Deposit Insurance Act. same manner as insured depository institutions). 15 See 15 U.S.C. 8305(f).

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The interim final rule provided that a II. Administrative Law Matters information: (1) The length of the state member bank and an uninsured transition period requested; (2) a A. Solicitation of Comments on Use of description of the quantitative and state branch and agency of foreign bank Plain Language may seek a transition period of up to 24 qualitative impacts of divestiture or months from July 16, 2013 (for an entity Section 722 of the Gramm-Leach- cessation of swap or security-based that is a swaps entity as of July 16, Bliley Act required the Federal banking swaps activities on the insured 2013), or from the date on which the agencies to use plain language in all depository institution, including entity becomes a swaps entity (if that proposed and final rules published after information that addresses the factors in January 1, 2000. The Board sought to date occurs after July 16, 2013), by section 237.22(c); and (3) a detailed present the interim final rule in a simple submitting a written request to the explanation of the insured depository and straightforward manner and did not institution’s plan for conforming its Board. The request must include: (i) The receive any comments on the use of length of the transition period activities to the requirements of section plain language. 716 of the Dodd-Frank Act. requested; (ii) a description of the quantitative and qualitative impacts of B. Paperwork Reduction Act Analysis Section 237.22(e) would allow the immediate divestiture or cessation of Board to extend a transition period for In accordance with section 3512 of a period of up to one additional year. To swap or security-based swaps activities the Paperwork Reduction Act of 1995 request an extension of the transition on the institution, including regarding (44 U.S.C. 3501–3521) (PRA), the Board period, an insured depository the potential impact of divestiture or may not conduct or sponsor, and a institution must submit a written cessation of swap or security-based respondent is not required to respond request containing the information set swaps activities on the institution’s to, an information collection unless it forth in section 237.22(a) no later than mortgage lending, small business displays a currently valid Office of 60 days before the end of the transition lending, job creation, capital formation Management and Budget (OMB) control period. versus the potential negative impact on number. The OMB control number for insured depositors and the Deposit this information collection will be Estimated Paperwork Burden assigned. The Board reviewed the final Insurance Fund of the FDIC; and (iii) a Number of Respondents: 2 (12 initial rule under the authority delegated to the description of the insured institution’s submissions for transition period relief). Board by OMB. The Board received no plan for conforming its activities to the Estimated Average Hours per requirements of section 716. comments on the PRA. The final rule contains requirements Response: 7 hours. The interim final rule indicated that subject to the PRA. The reporting Total Estimated Annual Burden: 14 the Board may also request additional requirements are found in sections hours (84 hours for initial submissions information that it believes is necessary 237.22(a)(1) and 237.22(e). This for transition period relief). in order to act on a request for a information collection requirement The Board has a continuing interest in transition period. The Board will seek to would implement section 716 of the the public’s opinions of collections of act on a request for a transition period Dodd-Frank Act. information. At any time, comments expeditiously after the receipt of a regarding the burden estimate, or any Proposed Information Collection complete request. The final rule allows other aspect of this collection of the Board to impose conditions on any Title of Information Collection: information, including suggestions for transition period granted if the Board Reporting Requirements Associated reducing the burden, may be sent to: determines such conditions are with Regulation KK. Secretary, Board of Governors of the necessary and appropriate. Consistent Frequency of Response: On occasion. Federal Reserve System, 20th and C Affected Public: Businesses or other with section 716(f), the final rule also Streets NW., Washington, DC 20551; for-profit. and to the Office of Management and permits the Board, in consultation with Respondents: Uninsured U.S. Budget, Paperwork Reduction Project, the SEC and CFTC, as appropriate, to branches or agencies of a foreign bank Washington, DC 20503. extend the transition period for up to and state member banks. one additional year. To request an Abstract: The final rule would treat an List of Subjects in 12 CFR Part 237 extension of the transition period, an uninsured U.S. branch or agency of a Administrative practice and insured depository institution must foreign bank as an insured depository procedure, Banks and banking, Capital, submit a written request no later than 60 institution and establish a process by Foreign banking, Holding companies, days before the end of the transition which a state member bank and Margin requirements, Reporting and period. uninsured branch or agency of a foreign recordkeeping requirements, Risk, Two commenters expressed support bank may request a transition period to Derivatives. conform its swaps activities to the regarding the Board’s expeditious action Authority and Issuance on transition period requests submitted requirements of section 716 of the in advance of section 716’s July 16, Dodd-Frank Act (15 U.S.C. 8305). For the reasons stated in the 2013, effective date. The commenter Section 237.22(a)(1) provides that an Supplementary Information, the interim indicated that factors governing insured depository institution for which rule adding part 237 to 12 CFR Chapter the Board is the appropriate Federal transition period request determinations II and published at 78 FR 34545 on June banking agency may request a transition prescribed in Regulation KK are 10, 2013, is adopted as final with the period of up to 24 months from the later appropriate and provide the Board following changes: of July 16, 2013, or the date on which sufficient flexibility to address the it becomes a swaps entity, to conform its PART 237—MARGIN AND CAPITAL particular circumstances presented by swaps activities to the requirements of REQUIREMENTS FOR COVERED individual requests. section 716 of the Dodd-Frank Act by SWAPS ENTITIES (REGULATION KK) The Board is finalizing these submitting a request in writing to the transition period procedures as Board. Any request submitted must, at ■ 1. The authority citation for part 237 proposed. a minimum, include the following continues to read as follows:

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Authority: 15 U.S.C. 8305, 12 U.S.C. 343– § 237.21 Definition of insured depository U.S.C. 8305) and this subpart based on 350, 12 U.S.C. 818, 12 U.S.C. 3101 et seq. institution for purposes of section 716 of its consideration of the factors in ■ 2. Subpart B is revised to read as the Dodd-Frank Act. paragraph (c). follows: For purposes of section 716 of the (c) Factors governing Board Dodd-Frank Act (15 U.S.C. 8305) and Subpart B—Prohibition Against Federal determinations. In establishing an Assistance to Swaps Entities this rule, the term ‘‘insured depository institution’’ includes any insured appropriate transition period pursuant Sec. depository institution as defined in to any request under this section, the 237.20 Definitions. Board will take into account and make 237.21 Definition of insured depository section 3 of the Federal Deposit institution for purposes of section 716 of Insurance Act (12 U.S.C. 1813) and any written findings regarding: the Dodd-Frank Act. uninsured U.S. branch or agency of a (1) The potential impact of divestiture 237.22 Transition period for insured foreign bank. The terms branch, agency, or cessation of swap or security-based depository institutions. and foreign bank are defined in section swaps activities on the insured 1 of the International Banking Act of Subpart B—Prohibition Against depository institution’s: 1978 (12 U.S.C. 3101). Federal Assistance to Swaps Entities (i) Mortgage lending; § 237.22 Transition period for insured (ii) Small business lending; § 237.20 Definitions. depository institutions. (iii) Job creation; and Unless otherwise specified, for (a) Approval of transition period. (1) purposes of this subpart: To the extent an insured depository (iv) Capital formation versus the (a) Board means the Board of institution for which the Board is the potential negative impact on insured Governors of the Federal Reserve appropriate Federal banking agency depositors and the Deposit Insurance System. Fund of the Federal Deposit Insurance (b) Dodd-Frank Act means the Dodd- qualifies as a ‘‘swaps entity’’ and would Frank Wall Street Reform and Consumer be subject to the Federal assistance Corporation; and Protection Act. prohibition in section 716(a) of the (2) Any other factor that the Board (c) Foreign bank has the same Dodd-Frank Act (15 U.S.C. 8305(a)), the believes appropriate. meaning as in § 211.21(n) of the Board’s insured depository institution may request a transition period of up to 24 (d) Timing of Board review. The Board Regulation K (12 CFR 211.21(n)). will seek to act on a request under (d) Major security-based swap months from the later of July 16, 2013, participant has the same meaning as in or the date on which it becomes a swaps paragraph (a) of this section section 3(a)(67) of the Securities entity, during which to conform its expeditiously after the receipt of a Exchange Act of 1934 (15 U.S.C. swaps activities to the requirements of complete request. 78c(a)(67)) and as implemented in rules section 716 of the Dodd-Frank Act (15 (e) Extension of transition period. The and orders issued by the Securities and U.S.C. 8305) by submitting a request in Board may extend a transition period Exchange Commission. writing to the Board. provided under this section for a period (e) Major swap participant has the (2) Any request submitted pursuant to of up to one additional year. To request same meaning as in section 1a(33) of the this paragraph (a) of this section shall, an extension of the transition period, an Commodity Exchange Act (7 U.S.C. at a minimum, include the following insured depository institution must 1a(33)) and as implemented in rules and information: submit a written request containing the (i) The length of the transition period orders issued by the Commodity Futures information set forth in paragraph (a) of requested; Trading Commission. this section no later than 60 days before (f) Security-based swap has the same (ii) A description of the quantitative meaning as in section 3(a)(68) of the and qualitative impacts of divestiture or the end of the transition period. Securities Exchange Act of 1934 (15 cessation of swap or security-based (f) Authority to impose restrictions U.S.C. 78c(a)(68)) and as implemented swaps activities on the insured during any transition period. The Board in rules and orders issued by the depository institution, including may impose such conditions on any Securities and Exchange Commission. information that addresses the factors in transition period granted under this (g) Security-based swap dealer has the paragraph (c) of this section; and section as the Board determines are same meaning as in section 3(a)(71) of (iii) A detailed explanation of the necessary or appropriate. the Securities Exchange Act of 1934 (15 insured depository institution’s plan for (g) Consultation. The Board shall U.S.C. 78c(a)(71)) and as implemented conforming its activities to the consult with the Commodity Futures in rules and orders issued by the requirements of section 716 of the Securities and Exchange Commission. Dodd-Frank Act (15 U.S.C. 8305) and Trading Commission or the Securities (h) Swap dealer has the same meaning this part. and Exchange Commission, as as in section 1a(49) of the Commodity (3) The Board may, at any time, appropriate, prior to the approval of a Exchange Act (7 U.S.C. 1a(49)) and as request additional information that it request by an insured depository implemented in rules and orders issued believes is necessary for its decision. institution for a transition period under by the Commodity Futures Trading (b) Transition period for insured this section. Commission. depository institutions. Following By order of the Board of Governors of the (i) Swaps entity means a person that review of a written request submitted Federal Reserve System, December 24, 2013. is registered as a swap dealer, security- under paragraph (a) of this section, the Margaret McCloskey Shanks, based swap dealer, major swap Board shall permit an insured participant, or major security-based depository institution for which it is the Deputy Secretary of the Board. swap participant under the Commodity appropriate Federal banking agency up [FR Doc. 2013–31204 Filed 1–2–14; 8:45 am] Exchange Act or Securities Exchange to 24 months after the later of July 16, BILLING CODE 6210–01–P Act of 1934, other than an insured 2013, or the date on which the insured depository institution that is registered depository institution becomes a swaps as a major swap participant or major entity, to comply with the requirements security-based swap participant. of section 716 of the Dodd-Frank Act (15

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DEPARTMENT OF TRANSPORTATION Department of Transportation, Docket Request Not To Reduce Life Limits Operations, M–30, West Building One commenter indicated that eddy Federal Aviation Administration Ground Floor, Room W12–140, 1200 current inspections (ECIs) or surface New Jersey Avenue SE., Washington, wave ultrasonic test (SWUT) 14 CFR Part 39 DC 20590. inspections of the HPT stage 2 wheels [Docket No. FAA–2009–0811; Directorate FOR FURTHER INFORMATION CONTACT: Kyri have proven satisfactory to this point as Identifier 2008–NE–41–AD; Amendment 39– Zaroyiannis, Aerospace Engineer, there have been no failures of engines in 17715; AD 2013–26–06] Chicago Aircraft Certification Office, service worldwide. The commenter RIN 2120–AA64 Small Airplane Directorate, FAA, 2300 noted that reducing the life limit for E. Devon Ave., Des Plaines, IL 60018; these HPT stage 2 wheels is not Airworthiness Directives; Rolls-Royce phone: 847–294–7836; fax: 847–294– justified. Corporation Turbofan Engines 7834; email: [email protected]. We do not agree. Per FAA risk guidelines as published in Advisory AGENCY: Federal Aviation SUPPLEMENTARY INFORMATION: Circular (AC) No. 39–8 ‘‘Continued Administration (FAA), DOT. Discussion Airworthiness Assessments Of ACTION: Final rule. Powerplant And Auxiliary Power Unit We issued a notice of proposed Installations Of Transport Category SUMMARY: We are superseding rulemaking (NPRM) to amend 14 CFR Airplanes,’’ dated September 8, 2003 airworthiness directive (AD) 2010–19– part 39 to supersede AD 2010–19–01, (online at http://www.faa.gov/ 01 for certain Rolls-Royce Corporation Amendment 39–16429 (75 FR 57660, documentLibrary/media/Advisory_ (RRC) AE 3007A series turbofan September 22, 2010), (‘‘AD 2010–19– Circular/AC39-8.pdf), we do not rely on engines. AD 2010–19–01 required 01’’). AD 2010–19–01 applied to the recurring inspections to serve as a final removing certain high-pressure turbine specified products. The NPRM corrective action unless there is no (HPT) stage 2 wheels, or performing published in the Federal Register on practicable alternative. In this case, inspections on them, and reduced their August 8, 2013 (78 FR 48339). The analysis and testing performed on the approved life limits. This new AD NPRM proposed to clarify the AE 3007A affected wheels by RRC has shown that clarifies the AE 3007A turbofan engine turbofan engine model applicability, the life limit for the affected wheels model applicability, further reduces the further reduce the approved life limits must be reduced. We did not change approved life limits of affected HPT of affected HPT stage 2 wheels, and this AD. stage 2 wheels, and eliminates the eliminate the inspections required by inspections required by the existing AD. the existing AD. Request Not To Issue AD This AD was prompted by additional The same commenter noted that analysis that concluded that lower life Comments reduced life limits are already required limits for the affected HPT stage 2 We gave the public the opportunity to based on an ASB published by RRC and wheels are necessary. We are issuing incorporation of these life limits in the this AD to prevent uncontained failure participate in developing this AD. The following presents the comments new RRC Engine Maintenance Manual of the HPT stage 2 wheel, damage to the (EMM), dated January 20, 2013. engine, and damage to the airplane. received on the proposal and the FAA’s response to each comment. Operators have to consider these DATES: This AD is effective February 7, updates in their own maintenance 2014. Request To Clarify Applicability programs. Therefore, an AD is not ADDRESSES: For service information necessary. identified in this AD, contact Rolls- One commenter indicated that the We do not agree. Companies cannot Royce Corporation, 450 South Meridian compliance section may lead the mandate that operators follow new life Street, Mail Code NB–01–06, operator to remove all engines with HPT limits. AD compliance is mandatory. We Indianapolis, IN 46225, phone: 317– stage 2 wheels, part number (P/N) did not change this AD. 230–1667; email: CMSEindyOSD@rolls- 23074462, while only a few engines are Request To Revise the Cost of royce.com; Internet: www.rolls- affected. He noted that compliance Compliance Estimate royce.com. You may view this service paragraphs in previous ADs on HPT information at the FAA, Engine & stage 2 wheels used tables to identify The same commenter requested that Propeller Directorate, 12 New England affected and non-affected wheels. the FAA include the number of aircraft Executive Park, Burlington, MA. For We do not agree. The applicability affected worldwide in its cost of information on the availability of this section of this AD states that the AD compliance estimate. He also indicated material at the FAA, call 781–238–7125. applies to RRC AE 3007A, A1, A1/1, that cost of compliance should include A1/2, A1/3, A1P, A1E, and A3 turbofan an estimated labor cost of $250 per Examining the AD Docket engines with an installed HPT stage 2 engine for each HPT stage 2 wheel You may examine the AD docket on wheel, P/N 23084520 or P/N 23069438, change. the Internet at http:// 23069592, 23074462, 23074644, or We do not agree. First, our ADs apply www.regulations.gov by searching for 23075345, except for the HPT stage 2 only to U.S. registered or operated and locating Docket No. FAA–2009– wheel serial numbers listed in Table 2 products, not to products registered 0811; or in person at the Docket through Table 5 of RRC Alert Service elsewhere. Therefore, costs to operators Management Facility between 9 a.m. Bulletin (ASB) No. AE 3007A–A–72– registered elsewhere are speculative. and 5 p.m., Monday through Friday, 414, Revision 1, dated December 5, Second, our cost estimate in this AD except Federal holidays. The AD docket 2012. Therefore, as noted in the AD, is based on the pro-rated cost of the contains this AD, the regulatory operators do not need to remove engines reduction in life to the wheel. The labor evaluation, any comments received, and with HPT stage 2 wheels, P/N 23074462 cost of replacing the wheel is the same other information. The address for the with the serial numbers listed in Table as it would be if the life of the wheel Docket Office (phone: 800–647–5527) is 2 through Table 5 of this ASB. We did had not been changed. We did not Document Management Facility, U.S. not change this AD. change this AD.

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Request To Continue Inspections and replaced during an engine shop visit at PART 39—AIRWORTHINESS Related Compliance Issues no additional labor cost. Based on these DIRECTIVES The same commenter suggested figures, we estimate the total cost of the AD to U.S. operators to be $2,619,432. ■ 1. The authority citation for part 39 revising the compliance section of this continues to read as follows: AD by continuing with ECIs and/or Authority for This Rulemaking SWUT inspections at the interval Authority: 49 U.S.C. 106(g), 40113, 44701. Title 49 of the United States Code required by AD 2010–19–01 (75 FR § 39.13 [Amended] 57660, September 22, 2010) or if the specifies the FAA’s authority to issue ■ inspections are not performed at the rules on aviation safety. Subtitle I, 2. The FAA amends § 39.13 by required interval, then (1) the new life Section 106, describes the authority of removing airworthiness directive (AD) limit published in the RRC EMM, dated the FAA Administrator. Subtitle VII, 2010–19–01, Amendment 39–16429 (75 January 20, 2013, shall be considered; Aviation Programs, describes in more FR 57660, September 22, 2010) and (2) at the next engine shop visit or when detail the scope of the Agency’s adding the following new AD: the life limit is reached, the affected authority. 2013–26–06 Rolls-Royce Corporation parts will be changed; and (3) no engine We are issuing this rulemaking under (Formerly Allison Engine Company): can be released from an engine shop the authority described in Subtitle VII, Amendment 39–17715; Docket No. with life limits that exceed those Part A, Subpart III, Section 44701, FAA–2009–0811; Directorate Identifier 2008–NE–41–AD. published in the RRC EMM, dated ‘‘General requirements.’’ Under that January 20, 2013. section, Congress charges the FAA with (a) Effective Date The commenter asked that if this promoting safe flight of civil aircraft in This AD is effective February 7, 2014. change cannot be accepted, then RRC air commerce by prescribing regulations (b) Affected ADs should be required to lend an engine to for practices, methods, and procedures the operator free of charge and change the Administrator finds necessary for This AD supersedes AD 2010–19–01, Amendment 39–16429 (75 FR 57660, the HPT wheels free of charge. safety in air commerce. This regulation September 22, 2010). The commenter also indicated that is within the scope of that authority providing a grace period of 15 cycles in because it addresses an unsafe condition (c) Applicability service before removal of the engine for that is likely to exist or develop on This AD applies to the following Rolls- an issue that has been known and products identified in this rulemaking Royce Corporation (RRC) AE 3007A, A1, managed for the last 5 years without action. A1/1, A1/2, A1/3, A1P, A1E, and A3 turbofan incident is not justified. engines: Regulatory Findings We do not agree. Repetitive (1) With an installed high-pressure turbine (HPT) stage 2 wheel, part number (P/N) inspection of the affected HPT wheels is We have determined that this AD will 23084520, or not a replacement for reduction in their not have federalism implications under (2) With an installed HPT stage 2 wheel, life limit. As stated above, based on Executive Order 13132. This AD will P/N 23069438, 23069592, 23074462, FAA risk guidelines as published in AC not have a substantial direct effect on 23074644, or 23075345, except for the HPT 39–8, we do not rely on recurring the States, on the relationship between stage 2 wheel serial numbers listed in Table inspections to serve as a final corrective the national government and the States, 2 through Table 5 of RRC Alert Service Bulletin (ASB) No. AE 3007A–A–72–414, action unless there is no practicable or on the distribution of power and alternative. In the case of these affected Revision 1, dated December 5, 2012. Those responsibilities among the various HPT stage 2 wheels maintain their existing wheels, analysis has shown that the life levels of government. approved life limits. of these wheels must be reduced. For the reasons discussed above, I (d) Unsafe Condition Second, requests for warranty support, certify that this AD: i.e., that RRC provide a free lease engine This AD was prompted by additional and free replacement HPT stage 2 wheel (1) Is not a ‘‘significant regulatory analysis that concluded that lower life limits are economic issues between the action’’ under Executive Order 12866, for the affected HPT stage 2 wheels are operator and the original equipment (2) Is not a ‘‘significant rule’’ under necessary. We are issuing this AD to prevent uncontained failure of the HPT stage 2 wheel, manufacturer. Third, successful DOT Regulatory Policies and Procedures damage to the engine, and damage to the performance of a part has no effect on (44 FR 11034, February 26, 1979), airplane. the need to remove that part once it has (3) Will not affect intrastate aviation (e) Compliance reached its life limit. However, we are in Alaska to the extent that it justifies providing a 15-cycle allowance to making a regulatory distinction, and Comply with this AD within the minimize disruptions to operators. This compliance times specified, unless already (4) Will not have a significant grace period is supported by our risk done. economic impact, positive or negative, (1) For HPT stage 2 wheels, P/N 23069438 assessment. We did not change this AD. on a substantial number of small entities and P/N 23069592, do the following: Conclusion under the criteria of the Regulatory (i) For HPT stage 2 wheels that have 9,500 Flexibility Act. cycles since new (CSN) or more on the We reviewed the relevant data, effective date of this AD, remove the HPT considered the comments received, and List of Subjects in 14 CFR Part 39 stage 2 wheel from service within 15 cycles- determined that air safety and the in-service (CIS) after the effective date of this public interest require adopting this AD Air transportation, Aircraft, Aviation AD. as proposed. safety, Incorporation by reference, (ii) After the effective date of this AD, do Safety. not approve for return to service any engine Costs of Compliance with an HPT stage 2 wheel, P/N 23069438 or Adoption of the Amendment P/N 23069592, that exceeds the new life limit We estimate that this AD affects 18 of 9,500 CSN. engines installed on airplanes of U.S. Accordingly, under the authority (2) For HPT stage 2 wheels, P/N 23074462, registry. We also estimate that a delegated to me by the Administrator, do the following: replacement HPT stage 2 wheel costs the FAA amends 14 CFR part 39 as (i) For AE 3007A1E turbofan engines with about $145,524, and that it will be follows: HPT stage 2 wheels installed that have 7,500

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CSN or more on the effective date of this AD, (4) You may view this service information were received. Subsequent to and for the AE 3007A, A1, A1/1, A1/2, A1/ at the FAA, Engine & Propeller Directorate, publication the FAA found that the 3, A1P, and A3 turbofan engines with HPT 12 New England Executive Park, Burlington, geographic coordinates of the airport stage 2 wheels installed that have 9,500 CSN MA. For information on the availability of were transposed. This action makes the or more on the effective date of this AD, this material at the FAA, call 781–238–7125. remove the wheel from service within 15 CIS correction. Class E airspace designations after the effective date of this AD. (h) Material Incorporated by Reference are published in paragraph 6002 of FAA (ii) Thereafter: None. Order 7400.9X dated August 7, 2013, (A) Do not approve for return to service Issued in Burlington, Massachusetts, on and effective September 15, 2013, which any AE 3007A1E turbofan engine with an December 17, 2013. is incorporated by reference in 14 CFR HPT stage 2 wheel, P/N 23074462, installed, Colleen M. D’Alessandro, 71.1. The Class E airspace designations that exceeds the new life limit of 7,500 CSN; listed in this document will be Assistant Directorate Manager, Engine & and published subsequently in the Order. (B) Do not approve for return to service any Propeller Directorate, Aircraft Certification AE 3007A, A1, A1/1, A1/2, A1/3, A1P, and Service. The Rule A3 turbofan engines with an HPT stage 2 [FR Doc. 2013–30734 Filed 1–2–14; 8:45 am] This amendment to Title 14, Code of wheel, P/N 23074462, installed, that exceeds BILLING CODE 4910–13–P the new life limit of 9,500 CSN. Federal Regulations (14 CFR) part 71 (C) Throughout the life of the HPT stage 2 establishes the Class E airspace wheel, always use the lowest life limit DEPARTMENT OF TRANSPORTATION extending upward from the surface applicable to any engine model in which the within a 6-mile radius at Leesburg part was used in service. If life usage records Federal Aviation Administration Executive Airport, providing the are not sufficient to identify all engine controlled airspace required to aid models in which the part has been flown, the Potomac TRACON in the safe and lowest life applicable to any engine model for 14 CFR Part 71 orderly flow of air traffic at Leesburg, which the part is eligible must be used. [Docket No. FAA–2013–0033; Airspace (3) For HPT stage 2 wheels, P/N 23074644 Docket No. 13–AEA–1] VA. Also, the geographic coordinates of and P/N 23075345, do the following: the airport are adjusted to coincide with (i) For HPT stage 2 wheels that have 9,500 Establishment of Class E Airspace; the FAA’s aeronautical database. CSN or more on the effective date of this AD, Leesburg, VA The FAA has determined that this remove the HPT stage 2 wheel from service regulation only involves an established within 15 CIS after the effective date of this AGENCY: Federal Aviation body of technical regulations for which AD. Administration (FAA), DOT. frequent and routine amendments are (ii) Thereafter, do not approve for return to ACTION: Final rule. service any engine with an HPT stage 2 necessary to keep them operationally current, is non-controversial and wheel, P/N 23074644 or P/N 23075345, SUMMARY: This action establishes Class unlikely to result in adverse or negative installed, that exceeds the new life limit of E Airspace at Leesburg, VA, creating 9,500 CSN. comments. It, therefore, (1) is not a controlled airspace to aid Potomac (4) For HPT stage 2 wheels, P/N 23084520, ‘‘significant regulatory action’’ under TRACON in the safe and orderly flow of do the following: Executive Order 12866; (2) is not a air traffic at Leesburg Executive Airport. (i) For HPT stage 2 wheels that have 23,000 ‘‘significant rule’’ under DOT This action enhances the safety and CSN or more on the effective date of this AD, Regulatory Policies and Procedures (44 remove the HPT stage 2 wheel from service management of Instrument Flight Rules FR 11034; February 26, 1979); and (3) before the next flight after the effective date (IFR) operations at the airport. This does not warrant preparation of a of this AD. action also updates the geographic Regulatory Evaluation as the anticipated (ii) Thereafter, do not approve for return to coordinates of the airport. service any engine with an HPT stage 2 impact is so minimal. Since this is a DATES: wheel, P/N 23084520, installed, that exceeds Effective 0901 UTC, February 6, routine matter that only affects air traffic the new life limit of 23,000 CSN. 2014. The Director of the Federal procedures and air navigation, it is Register approves this incorporation by (f) Alternative Methods of Compliance certified that this rule, when reference action under title 1, Code of promulgated, does not have a significant The Manager, Chicago Aircraft Federal Regulations, part 51, subject to economic impact on a substantial Certification Office, may approve alternative the annual revision of FAA Order methods of compliance for this AD. Use the number of small entities under the 7400.9 and publication of conforming criteria of the Regulatory Flexibility Act. procedures 14 CFR 39.19 to make your amendments. request. The FAA’s authority to issue rules FOR FURTHER INFORMATION CONTACT: John regarding aviation safety is found in (g) Related Information Fornito, Operations Support Group, Title 49 of the United States Code. (1) For more information about this AD, Eastern Service Center, Federal Aviation Subtitle I, Section 106 describes the contact Kyri Zaroyiannis, Aerospace Administration, P.O. Box 20636, authority of the FAA Administrator. Engineer, Chicago Aircraft Certification Office, Small Airplane Directorate, FAA, Atlanta, Georgia 30320; telephone (404) Subtitle VII, Aviation Programs, 2300 E. Devon Ave., Des Plaines, IL 60018; 305–6364. describes in more detail the scope of the phone: 847–294–7836; fax: 847–294–7834; SUPPLEMENTARY INFORMATION: agency’s authority. This rulemaking is email: [email protected]. promulgated under the authority (2) RRC ASB No. AE 3007A–A–72–414, History described in Subtitle VII, Part A, Revision 1, dated December 5, 2012, which On April 8, 2013, the FAA published Subpart I, Section 40103. Under that is not incorporated by reference in this AD, in the Federal Register a notice of section, the FAA is charged with can be obtained from RRC, using the contact proposed rulemaking to establish Class prescribing regulations to assign the use information in paragraph (g)(3) of this AD. E airspace at Leesburg, VA (78 FR of airspace necessary to ensure the (3) For service information identified in this AD, contact Rolls-Royce Corporation, 20846) Docket No. FAA–2012–0033. safety of aircraft and the efficient use of 450 South Meridian Street, Mail Code NB– Interested parties were invited to airspace. This regulation is within the 01–06, Indianapolis, IN 46225, phone: 317– participate in this rulemaking effort by scope of that authority as it establishes 230–1667; email: CMSEindyOSD@rolls- submitting written comments on the controlled airspace at Leesburg royce.com; Internet: www.rolls-royce.com. proposal to the FAA. No comments Executive Airport, Leesburg, VA.

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Environmental Review PENSION BENEFIT GUARANTY Employee Retirement Income Security CORPORATION Act of 1974 (ERISA), which authorizes The FAA has determined that this PBGC to issue regulations to carry out action qualifies for categorical exclusion 29 CFR Part 4007 the purposes of title IV of ERISA, and under the National Environmental RIN 1212–AB26 section 4007 of ERISA, which gives Policy Act in accordance with FAA PBGC authority to set premium due Order 1050.1E, ‘‘Environmental Payment of Premiums; Large-Plan Flat- dates and to assess late payment Impacts: Policies and Procedures,’’ Rate Premium penalties. paragraph 311a. This airspace action is Executive Summary—Major Provisions not expected to cause any potentially AGENCY: Pension Benefit Guaranty of the Regulatory Action significant environmental impacts, and Corporation. no extraordinary circumstances exist ACTION: Final rule. In recent years, premium due dates that warrant preparation of an have depended on size of plan and type SUMMARY: Based on its regulatory review environmental assessment. of premium. Large plans have paid the under Executive Order 13563 flat-rate premium early in the premium Lists of Subjects in 14 CFR Part 71 (Improving Regulation and Regulatory payment year and the variable-rate Review), the Pension Benefit Guaranty Airspace, Incorporation by reference, premium later in the year. Mid-size Corporation (PBGC) is moving the flat- plans have paid both the flat- and Navigation (air). rate premium due date for large plans to variable-rate premiums by that same Adoption of the Amendment later in the premium payment year—to later due date. Small plans have paid the same date as the variable-rate the flat- and variable-rate premiums in In consideration of the foregoing, the premium due date for such plans— the following year. On July 23, 2013, Federal Aviation Administration starting with the 2014 plan year. Thus, PBGC proposed to simplify the due-date amends 14 CFR Part 71 as follows: large calendar-year plans’ 2014 flat-rate rules by providing that all annual premiums will be due October 15, 2014. premiums for plans of all sizes will be PART 71—DESIGNATION OF CLASS A, This action implements part of a PBGC due on the same day in the premium B, C, D AND E AIRSPACE AREAS; AIR project to make its premium rules more payment year—the historical variable- TRAFFIC SERVICE ROUTES; AND effective and less burdensome by rate premium due date. As part of that REPORTING POINTS simplifying due dates, coordinating the simplification process, this rule due date for terminating plans with the eliminates the separate due date for the ■ 1. The authority citation for Part 71 termination process, making conforming flat-rate premiums of large plans continues to read as follows: and clarifying changes to the variable- beginning with the 2014 plan year. rate premium rules, providing for relief Authority: 49 U.S.C. 106(g); 40103, 40113, from penalties, and making other Background 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– changes. The rest of the project will be 1963 Comp., p. 389. PBGC administers the pension plan implemented by a separate final rule. termination insurance program under § 71.1 [Amended] DATES: Effective January 3, 2014. title IV of the Employee Retirement Applicable to plan years that begin on Income Security Act of 1974 (ERISA). ■ 2. The incorporation by reference in or after January 1, 2014. Under ERISA sections 4006 and 4007, 14 CFR 71.1 of Federal Aviation FOR FURTHER INFORMATION CONTACT: plans covered by the program must pay Administration Order 7400.9X, Airspace Catherine B. Klion, Assistant General premiums to PBGC. PBGC’s premium Designations and Reporting Points, Counsel for Regulatory Affairs regulations—on Premium Rates (29 CFR dated August 7, 2013, effective ([email protected]), or Deborah part 4006) and on Payment of Premiums September 15, 2013, is amended as C. Murphy, Deputy Assistant General (29 CFR part 4007)—implement ERISA follows: Counsel for Regulatory Affairs sections 4006 and 4007. Paragraph 6002 Class E Airspace Areas ([email protected]), Office of There are two kinds of annual 1 Extending Upward From the Surface of the the General Counsel, Pension Benefit premiums. The flat-rate premium is Earth. Guaranty Corporation, 1200 K Street based on the number of plan NW., Washington DC 20005–4026; 202– participants, determined as of the * * * * * 326–4024. (TTY and TDD users may call participant count date. The participant AEA VA E2 Leesburg, VA [New] the Federal relay service toll-free at count date is generally the last day of Leesburg Executive Airport, VA 800–877–8339 and ask to be connected the plan year preceding the premium (Lat. 39°04′41″ N., long. 77°33′27″ W.) to 202–326–4024.) payment year; in some cases, however That airspace extending upward from the SUPPLEMENTARY INFORMATION: (such as for plans that are new or are involved in certain mergers or spinoffs), surface within a 6-mile radius of Leesburg Executive Summary—Purpose of the Executive Airport. the participant count date is the first Regulatory Action day of the premium payment year. The Issued in College Park, Georgia, on This rulemaking is needed as part of variable-rate premium (which applies December 19, 2013. a larger project to make PBGC’s only to single-employer plans) is based Paul Lore, premium rules more effective and less on a plan’s unfunded vested benefits Acting Manager, Operations Support Group, burdensome. The rule contributes to the (UVBs)—the excess of its premium Eastern Service Center, Air Traffic simplification and streamlining of due funding target over its assets. Organization. dates by making the flat-rate premium Section 4007 of ERISA authorizes [FR Doc. 2013–31062 Filed 1–2–14; 8:45 am] due date for large plans the same as the PBGC to set premium due dates and BILLING CODE 4910–13–P variable-rate premium due date for such assess penalties for failure to pay plans. PBGC’s legal authority for this action 1 There is also a termination premium, which is comes from section 4002(b)(3) of the unaffected by this final rule.

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premiums timely. Beginning in 1999,2 PBGC reviewed its premium For many large plans, making the flat- PBGC set the variable-rate premium due regulations and identified a number of rate premium due when the variable- date for plans of all sizes as 91⁄2 calendar ways to simplify and clarify the rate premium is due will cut the number months after the beginning of the regulations, reduce burden, provide of premium transactions with PBGC by premium payment year (October 15 for penalty relief, and generally make the two, rather than just one. That is calendar-year plans). This was done so regulations work better. On July 23, because underestimating the flat-rate that the due date would correspond 2013 (at 78 FR 44056), PBGC published premium has typically given rise not with the extended due date for the a proposed rule to replace the system of only to penalties (which are often annual report for the prior year that is three premium due dates (based on plan waived) but also to interest charges filed on Form 5500. Coordination of the size and premium type) with a single (which cannot be waived). Thus, after premium and Form 5500 due dates due date corresponding to the Form paying an estimate of the flat-rate promotes consistency and simplicity 5500 extended due date, to coordinate premium, and then paying the balance and avoids confusion and the due date for terminating plans with due, a large plan has usually had to administrative burden. In 2008, the termination process, to make make yet another payment, of the however, to conform to changes made conforming and clarifying changes to interest on the amount by which its by the Pension Protection Act of 2006 the variable-rate premium rules, to initial estimated payment fell short of (PPA 2006), small-plan due dates were provide for relief from penalties, and to the correct amount. Eliminating the extended to 16 months after the make other changes. Under the need for flat-rate premium estimates beginning of the premium payment year proposal, large plans would no longer will eliminate interest payments on (April 30 of the following year for have to pay flat-rate premiums early and shortfalls in those estimates. calendar-year plans). small plans would have the same due The due date change will mean that Most plans’ flat-rate premiums have dates as other plans but get more time plan consultants can do all of a plan’s been due at the same time as variable- to value benefits. premium filing work at one time, once rate premiums. However, flat-rate PBGC received comments from six a year. PBGC will receive one premium premiums for large plans (those with commenters—two employer filing for each plan each year and will 500 or more participants) are due two associations, two associations of be able to process a plan’s entire annual calendar months after the beginning of pension practitioners, an actuarial firm, premium in a single operation. the premium payment year (the end of and an individual actuary. All of the Reducing the number of due dates will February for calendar-year plans).3 commenters approved of the proposal, be simpler for all concerned. Less Because of the impracticality of and one specifically urged that it be complexity means less chance for counting participants so soon after the made effective for 2014. The mistakes and the time and expense of participant count date, the premium commenters also had suggestions for correcting them. Moving to a single due payment regulation provides an additional changes PBGC might make in date will also simplify PBGC’s premium elaborate system of safe harbors from its premium regulations or procedures. processing systems and save PBGC late-payment penalties for estimated None of those suggestions dealt with the money on future periodic changes to large-plan flat-rate premiums, and the large-plan flat-rate premium due date. those systems (because it is less practice of most large plans has been to The first large-plan flat-rate filing expensive to modify simpler systems). pay an estimate of the flat-rate premium deadline for 2014 is February 28, 2014. In short, PBGC believes that this at the early due date and ‘‘true up’’ Thus the provision of the proposed rule change in the large-plan flat-rate when they pay the variable-rate setting the flat-rate premium due date premium due date will produce a premium later in the year. for large plans later in the year—on the significant reduction in administrative same date as the variable-rate premium burden for both plans and PBGC. Proposed Rule due date for such plans—is by far the Executive Orders 12866 and 13563 On January 18, 2011, the President most time-sensitive aspect of the issued Executive Order 13563, proposal. For that reason, and in light of PBGC has determined, in consultation ‘‘Improving Regulation and Regulatory the fact that this provision generated with the Office of Management and Review,’’ to ensure that Federal only positive comments, PBGC is Budget, that this rulemaking is a regulations seek more affordable, less finalizing this one change separately ‘‘significant regulatory action’’ under intrusive means to achieve policy goals, and ahead of the other changes in the Executive Order 12866. The Office of and that agencies give careful proposal. Management and Budget has therefore consideration to the benefits and costs PBGC expects to deal with all other reviewed this rule under Executive of those regulations. In response to and aspects of the July 23 proposal in a Order 12866. in support of the Executive Order, PBGC separate final rule to be issued in time Executive Orders 12866 and 13563 on August 23, 2011, promulgated its to provide all plans with adequate direct agencies to assess all costs and Plan for Regulatory Review,4 noting advance guidance for timely compliance benefits of available regulatory several regulatory areas—including with the new procedures in 2014. If the alternatives and, if regulation is premiums—for immediate review. situation changes, PBGC will advise the necessary, to select regulatory public as appropriate. approaches that maximize net benefits 2 See PBGC final rule at 63 FR 68684 (Dec. 14, Regulatory Changes Made by This Final (including potential economic, 1998). Rule environmental, public health and safety 3 This requirement was adopted in response to a effects, distributive impacts, and recommendation in the 1984 report of the Grace This final rule makes the flat-rate equity). Executive Order 13563 Commission (the President’s Private Sector Survey premium due date for large plans the emphasizes the importance of on Cost Control). See PBGC final rule at 50 FR same as their variable-rate due date. For 12533 (Mar. 29, 1985). The requirement was quantifying both costs and benefits, of effective for 1985 for very large plans (those with calendar-year plans, that due date will 5 10,000 or more participants) and for 1986 for all be October 15. the penalty safe harbors for under-estimates of large other large plans. plans’ flat-rate premiums, this final rule eliminates 4 See http://www.pbgc.gov/documents/plan-for- 5 To conform to this change in the large-plan flat- those safe harbor provisions from the premium regulatory-review.pdf. rate premium due date, which makes unnecessary payment regulation.

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reducing costs, of harmonizing rules, sector of the economy, productivity, under the criteria in Executive Order and of promoting flexibility. This final competition, jobs, the environment, 12866. rule is associated with retrospective public health or safety, or State, local, The estimate of the amount of flat-rate review and analysis in PBGC’s Plan for or tribal governments or communities.’’ premium shifted from one fiscal year to Regulatory Review issued in accordance PBGC premium payments are the next, and the estimate (below) of the with Executive Order 13563. included as receipts in the Federal Executive Orders 12866 and 13563 budget, and the large-plan flat-rate amount of interest shifted from PBGC to require that a comprehensive regulatory premium deferral will cause a one-time plans, are revised from the estimates in impact analysis be performed for any shift of about $1.5 billion (attributable the proposed rule to reflect projected economically significant regulatory primarily to calendar year plans) from 2014 per-participant flat premium rates action, which, under Section 3(f)(1) of one fiscal year to the next. Although no ($49 (instead of $35) for single-employer Executive Order 12866, is one that ‘‘is premium revenue will be lost, there will plans and $12 (instead of $9) for likely to result in a rule that may . . . be the appearance of a one-time loss for multiemployer plans) and the following [h]ave an annual effect on the economy the year when the due dates change, and participant-count data for large plans for of $100 million or more or adversely PBGC has therefore determined that this plan years beginning in 2012 (instead of affect in a material way the economy, a final rule is economically significant 2010):

Approximate number of partici- pants in large plans (millions) Large plans whose flat-rate All large plans premium shifts to the next fiscal year

Single-employer ...... 30 28 Multiemployer ...... 10 9

In accordance with OMB Circular A– due dates. PBGC estimates that the securities, at about 2 percent. PBGC 4, PBGC has examined the economic average gain per large plan will be about estimates plans’ rate of return at 6 and policy implications of this final rule $11,300 per year. To put this figure in percent. The following table shows the and has concluded that the action’s perspective, large plans pay over $1 estimated average interest earnings benefits justify its costs. That billion in flat-rate premiums—about 95 calculated with four rates: two percent conclusion is based on the following percent of PBGC’s flat-rate premium (PBGC’s best estimate for PBGC’s rate of analysis of the impact of the due date income. return), six percent (PBGC’s best change. Because earning rates differ between estimate for plans’ rate of return), and The due date change will shift, from PBGC and plans, PBGC’s loss will be three and seven percent (the discount PBGC to plans, the earnings on about one-third as much as plans’ gain. rates recommended by OMB Circular A– premium payments by large plans for PBGC estimates its rate of return, from the 7c months between the old and new investment in U.S. Government 4).

Approximate average interest earnings per large plan at— 2 percent 3 percent 6 percent 7 percent

$3,800 $5,600 $11,300 $13,200

In addition, PBGC estimates that the Immediate Effective Date Procedure Act). The first large-plan flat- reduction in large plans’ administrative rate filing deadline for 2014 is February Pursuant to section 553(d)(3) of the burden attributable to the change in 28, 2014. To ensure that all large plans Administrative Procedure Act (5 U.S.C. their flat-rate premium due date will will be able to rely on this final rule for 551 et seq.) and section 808(2) of the translate into average annual savings of the 2014 plan year, PBGC is making this Congressional Review Act (5 U.S.C. 801 rule effective upon publication. 3 hours per plan. (PBGC arrived at this et seq.), PBGC for good cause finds that estimate on the basis of inquiries made notice and public procedure on this Regulatory Flexibility Act to pension practitioners.) The dollar final rule are unnecessary and contrary equivalent of this saving is about to the public interest and that this final The Regulatory Flexibility Act (5 6 $1,050. rule should be effective upon U.S.C. 601 et seq.) imposes certain Accordingly, PBGC foresees an publication. The project as a whole, requirements with respect to rules that average net benefit (in dollar terms) including the relief provided by this are subject to the notice and comment from adoption of the new uniform due final rule, has received only positive requirements of section 553(b) of the date of about $12,350 for each large plan comment from the public. This rule Administrative Procedure Act. Unless (about $11,300 in saved interest plus requires no affirmative action by the an agency determines that a final rule is about $1,050 in saved administrative regulated community. On the contrary, not likely to have a significant economic expenses). it provides relief from the restrictive impact on a substantial number of small large-plan flat-rate early-filing entities, section 604 of the Regulatory 6 PBGC assumes for this purpose that enrolled requirement for PBGC premiums (see Flexibility Act requires that the agency actuaries charge about $350 per hour. section 553(d)(1) of the Administrative present a final regulatory flexibility

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analysis at the time of the publication of that the change in the large-plan flat-rate PART 4007—PAYMENT OF PREMIUMS the final rule describing the impact of premium due date will have no impact the rule on small entities and steps on any small plans. ■ 1. The authority citation for part 4007 taken to minimize the impact. Small continues to read as follows: Paperwork Reduction Act entities include small businesses, Authority: 29 U.S.C. 1302(b)(3), 1303(A), organizations and governmental The information requirements under 1306, 1307. jurisdictions. this final rule have been approved by § 4007.8 [Amended] Small Entities the Office of Management and Budget under the Paperwork Reduction Act (44 ■ 2. In § 4007.8, paragraphs (f), (g), (h), For purposes of the Regulatory U.S.C. 3501 et seq.) (OMB control and (i) are removed and reserved. Flexibility Act requirements with number 1212–0009; expires October 31, § 4007.11 [Amended] respect to this final rule, PBGC 2015). An agency may not conduct or considers a small entity to be a plan sponsor, and a person is not required to ■ 3. In § 4007.11: with fewer than 100 participants. This respond to, a collection of information ■ a. Paragraph (a) introductory text is is consistent with certain requirements unless it displays a currently valid OMB amended by removing the words ‘‘due in title I of ERISA 7 and the Internal control number. dates for large plans are prescribed’’ and 8 Revenue Code, as well as the definition The only changes PBGC is making in adding in their place the words ‘‘due of a small entity that the Department of its premium information collection in date for large plans is prescribed’’. Labor (DOL) has used for purposes of ■ b. Paragraphs (a)(3)(i) and (iii) are 9 connection with this final rule are that the Regulatory Flexibility Act. Using PBGC will give notice that estimated removed and reserved. ■ this proposed definition, about 64 flat-rate filings are discontinued for plan c. Paragraph (a)(3)(ii) is amended by percent (16,500 of 25,600) of plans years starting in 2014. (PBGC will also removing the words ‘‘for the variable- covered by title IV of ERISA in 2011 rate premium required by § 4006.3(b) of 10 notify private-sector premium filing were small plans. software developers of the change so this chapter for single-employer plans’’. Further, while some large employers that it can be reflected in their Issued in Washington, DC, this 20 day of may have small plans, in general most products.) 11 December 2013. small plans are maintained by small Joshua Gotbaum, employers. Thus, PBGC believes that PBGC needs the information in a premium filing to identify the plan for Director, Pension Benefit Guaranty assessing the impact of the rule on small Corporation. plans is an appropriate substitute for which the premium is paid to PBGC, to [FR Doc. 2013–31109 Filed 1–2–14; 8:45 am] evaluating the effect on small entities. verify the amount of the premium, to The definition of small entity help PBGC determine the magnitude of BILLING CODE 7709–02–P considered appropriate for this purpose its exposure in the event of plan differs, however, from a definition of termination, to help PBGC track the small business based on size standards creation of new plans and the transfer ENVIRONMENTAL PROTECTION promulgated by the Small Business of plan assets and liabilities among AGENCY plans, and to keep PBGC’s inventory of Administration (13 CFR 121.201) 40 CFR Parts 9, 260 and 261 pursuant to the Small Business Act. In insured plans up to date. PBGC receives its proposed rule, therefore, PBGC premium filings from about 25,700 [EPA–HQ–RCRA–2010–0695; FRL–9904– requested comments on the respondents each year and estimates 84–OSWER] that the total annual burden of the appropriateness of the size standard RIN 2050–AG60 used in evaluating the impact of the collection of information will be about 12 proposed rule on small entities. No 8,900 hours and $59,250,000. Hazardous Waste Management comments were received on this issue. List of Subjects in 29 CFR Part 4007 System: Conditional Exclusion for Carbon Dioxide (CO ) Streams in Certification 2 Employee benefit plans, Penalties, Geologic Sequestration Activities On the basis of its definition of small Pension insurance, Reporting and entity, PBGC certifies under section recordkeeping requirements. AGENCY: Environmental Protection 605(b) of the Regulatory Flexibility Act In consideration of the foregoing, Agency (EPA). that the amendments in this final rule PBGC amends 29 CFR part 4007 as ACTION: Final rule. will not have a significant economic follows: impact on a substantial number of small SUMMARY: The U.S. Environmental entities. Accordingly, as provided in Protection Agency (EPA or the Agency) 11 The more comprehensive changes to PBGC’s is revising the regulations for hazardous section 605 of the Regulatory Flexibility premium information collection arising from the Act, sections 603 and 604 do not apply. separate final rule that PBGC anticipates issuing— waste management under the Resource This certification is based on the fact dealing with aspects of the July 23 proposal other Conservation and Recovery Act (RCRA) than the large-plan flat-rate premium due date— to conditionally exclude carbon dioxide will be addressed in that separate final rule. 7 (CO2) streams that are hazardous from See, e.g., ERISA section 104(a)(2), which permits 12 This burden estimate reflects both a decrease in the Secretary of Labor to prescribe simplified burden attributable to the change in the large-plan the definition of hazardous waste, annual reports for pension plans that cover fewer flat-rate premium due date under this final rule and provided these hazardous CO2 streams than 100 participants. an increase in burden attributable to a re-estimate are captured from emission sources, are 8 See, e.g., Code section 430(g)(2)(B), which of the existing premium filing burden. The increase injected into Underground Injection permits plans with 100 or fewer participants to use in burden due to re-estimation is about 31,300 valuation dates other than the first day of the plan hours, and the decrease due to the due date change Control (UIC) Class VI wells for year. is about 17,000 hours, a net increase of about 14,300 purposes of geologic sequestration (GS), 9 See, e.g., DOL’s final rule on Prohibited hours from the currently approved burden (about and meet certain other conditions. EPA Transaction Exemption Procedures, 76 FR 66637, 163,600). PBGC assumes that about 95 percent of is taking this action because the Agency 66644 (Oct. 27, 2011). the work is contracted out at $350 per hour, so the 10 See PBGC 2011 pension insurance data table S– 17,000-hour decrease attributable to the final rule believes that the management of these 31, http://www.pbgc.gov/documents/pension- is equivalent to about 850 hours of in-house labor CO2 streams, when meeting certain insurance-data-tables-2011.pdf. and about $5,650,000 of contractor costs. conditions, does not present a

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substantial risk to human health or the transportation (NAICS 48–49); and II. Abbreviations, Acronyms, and environment, and therefore additional manufacturing (NAICS 31–33). More Definitions regulation pursuant to RCRA’s detailed information on the potentially A. Abbreviations and Acronyms hazardous waste regulations is affected entities is presented in Section unnecessary. EPA expects that this VI of this preamble. If you have AoR Area of Review amendment will substantially reduce questions regarding the applicability of CAA Clean Air Act the uncertainty associated with this action to a particular entity, consult CCS Carbon Capture and Storage identifying these CO2 streams under the person listed in the preceding FOR CERCLA Comprehensive Environmental RCRA subtitle C, and will also facilitate FURTHER INFORMATION CONTACT section. Response, Compensation, and Liability Act the deployment of GS by providing CO2 Carbon Dioxide additional regulatory certainty. Preamble Outline EOR/EGR Enhanced Oil or Gas Recovery EPA Environmental Protection Agency I. Statutory Authority DATES: This final rule is effective on GHG Greenhouse Gas March 4, 2014. II. Abbreviations, Acronyms, and Definitions GS Geologic Sequestration ADDRESSES: EPA has established a A. Abbreviations and Acronyms HSWA Hazardous and Solid Waste docket for this action under Docket ID B. Definitions Used in This Preamble Amendments III. Proposed Rule No. EPA–HQ–RCRA–2010–0695. All RCRA Resource Conservation and Recovery A. Summary of Proposed Rule Act documents in the docket are listed in B. Authority for Conditional Exclusion the www.regulations.gov index. SDWA Safe Drinking Water Act From RCRA Subtitle C Requirements TC Toxicity Characteristic Although listed in the index, some IV. Changes to the Proposed Rule TCLP Toxicity Characteristic Leaching information is not publicly available, V. Summary of Comments and Responses to Procedure such as Confidential Business Major Comments UIC Underground Injection Control Information (CBI) or other information A. Definition of Solid Waste USDW Underground Source of Drinking whose disclosure is restricted by statute. B. Definition of Hazardous Waste Water C. Justification for Conditional Exclusion Certain other material, such as B. Definitions Used in This Preamble copyrighted material, is not placed on D. Certification Statement E. On-Site Pipelines the internet and will be publicly Authorized representative: The person F. Definition of Carbon Dioxide Stream available only in hard copy form. responsible for the overall operation of a Publicly available docket materials are G. Adaptive Approach facility or an operational unit (i.e., part of a available either electronically at VI. State Authorization facility), e.g., the plant manager, A. Applicability of the Rule in Authorized www.regulations.gov or in hard copy at superintendent or person of equivalent States responsibility. the OSWER Docket, EPA/DC, EPA West, B. Effect on State Authorization Room 3334, 1301 Constitution Ave. Carbon dioxide (CO2) stream: Carbon VII. Statutory and Executive Order (EO) dioxide that has been captured from an NW., Washington, DC. The Public Reviews emission source (e.g., power plant), plus Reading Room is open from 8:30 a.m. to A. Executive Order 12866: Regulatory incidental associated substances derived 4:30 p.m. Monday through Friday, Planning and Review and Executive from the source materials and the capture excluding legal holidays. The telephone Order 13563: Improving Regulation and process, and any substances added to the number for the Public Reading Room is Regulatory Review stream to enable or improve the injection (202) 566–1744 and the telephone B. Paperwork Reduction Act process. number for the OSWER Docket is (202) C. Regulatory Flexibility Act Enhanced Oil or Gas Recovery (EOR/EGR): 566–0270. D. Unfunded Mandates Reform Act Typically, the process of injecting a fluid E. Executive Order 13132: Federalism (e.g., water, brine, or CO2) into an oil or gas FOR FURTHER INFORMATION CONTACT: F. Executive Order 13175: Consultation bearing formation to recover residual oil or Melissa Kaps, Office of Resource and Coordination With Indian Tribal natural gas. The injected fluid thins Conservation and Recovery (5304P), Governments (decreases the viscosity) or displaces small Environmental Protection Agency, 1200 G. Executive Order 13045: Protection of amounts of extractable oil and gas, which is Pennsylvania Avenue NW., Washington, Children From Environmental Health then available for recovery. This is also DC 20460; telephone number: 703–308– Risks and Safety Risks known as secondary or tertiary recovery. 6787; fax number: 703–308–0514; email H. Executive Order 13211: Actions Supercritical CO2: Carbon dioxide that is above its critical temperature (31.1 °C, or 88 address: [email protected]. Concerning Regulations That ° Significantly Affect Energy Supply, F) and pressure (73.8 bar, or 1070 psi). SUPPLEMENTARY INFORMATION: Supercritical substances have physical Distribution, or Use properties intermediate to those of gases and A. Does this action apply to me? I. National Technology Transfer and liquids. This final rule applies to generators, Advancement Act J. Executive Order 12898: Federal Actions transporters, and owners or operators of III. Proposed Rule treatment, storage, and disposal To Address Environmental Justice in facilities engaged in the management of Minority Populations and Low-Income A. Summary of Proposed Rule Populations carbon dioxide streams that would K. Congressional Review Act On August 8, 2011, EPA published a otherwise be regulated as hazardous proposed rule that would conditionally wastes under the RCRA subtitle C I. Statutory Authority exclude from the definition of hazardous waste regulations as part of hazardous waste certain carbon dioxide geologic sequestration activities. This These regulations are promulgated (CO2) streams that are to be injected into includes entities in the following under the authority of sections 2002, Underground Injection Control (UIC) industries: operators of carbon dioxide 3001–3009 and 3013 of the Solid Waste Class VI wells for purposes of geologic injection wells used for geologic Disposal Act (SWDA) of 1970, as sequestration (GS). 76 FR 48073. The sequestration; and certain industries amended by the Resource Conservation proposed rule was based upon EPA’s identified by their North American and Recovery Act (RCRA) of 1976, and determination that the management of Industry Classification System (NAICS) the Hazardous and Solid Waste these CO2 streams in accordance with code: oil and gas extraction facilities Amendments of 1984 (HSWA), 42 the proposed conditions would provide (NAICS 211111); utilities (NAICS 22); U.S.C. 6912, 6921–6929, 6934. no reduced protection to human health

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and the environment, and, therefore, 2010, the task force delivered a series of facility, which would likely occur via a additional regulation pursuant to the recommendations to the President on pipeline will not involve storage at the Resource Conservation and Recovery overcoming the barriers to the generator facility (i.e., at the CO2 Act’s (RCRA) hazardous waste widespread, cost-effective deployment source), but rather will occur in a regulations would be unnecessary. of CCS within 10 years. One of those continuous fashion (capture process → Specifically, EPA proposed to amend recommendations was that EPA address compression/dehydration → pipeline 40 CFR 261.4 by adding an exclusion RCRA applicability to CO2 that is insertion). Because there would not be from the definition of hazardous waste captured from an emission source for any substantive 4 RCRA subtitle C for CO2 streams that would otherwise be purposes of sequestration.1 generator requirements applicable to regulated as hazardous waste under GS is the process of injecting CO2 such a continuous delivery scenario, the RCRA subtitle C that met all of the captured from an emission source (e.g., regulation of the movement of captured following conditions: (1) Transportation a power plant or industrial facility) into CO2 streams from the point of capture of the CO2 stream must be in deep subsurface rock formations in to either an on-site UIC Class VI well or compliance with applicable Department order to isolate the CO2 permanently. to an off-site DOT-regulated pipeline, of Transportation (DOT) requirements; GS is a key component of CCS, which would not be significantly different (2) injection of the CO2 stream must be is a set of climate change mitigation under the presence or absence of the in compliance with the applicable technologies. CCS can be described as a conditional exclusion. EPA also stated requirements for UIC Class VI wells; (3) three-step process, beginning with the its view that other programs provided no other hazardous wastes may be capture and compression of the CO2 equivalent notice and reporting mixed with, or otherwise co-injected stream from fossil-fuel power plants or requirements to the RCRA requirements. with, the CO2 stream; and (4) generators other industrial sources, after which the Thus, EPA concluded that additional and UIC Class VI well owners or CO2 stream is transported (usually in regulation pursuant to RCRA subtitle C operators claiming the exclusion must pipelines as a supercritical fluid 2) to an would not provide additional sign a certification statement that the on-site or off-site location, where it is protections over existing regulatory conditions of the exclusion were met. then injected underground for purposes requirements for generators of CO2 The proposed rule also would have of sequestration.3 Additional streams. required retention of the signed background information on the GS of Second, with respect to certification on-site for no less than CO2 streams can be found in the August transportation, EPA examined existing three years, and required the 8, 2011 proposed rule, as well as in the requirements for pipeline and non- certification be made available within UIC Class VI final rule and record for pipeline transportation. In the preamble 72 hours of request by the Regional that rule published on December 10, to the proposed rule, EPA specifically Administrator (or state Director, if 2010 (75 FR 77230). discussed the DOT’s Pipeline and located in an authorized state). In developing the August 8, 2011 Hazardous Materials Safety EPA proposed this rule because the proposed rule, EPA looked at how CO2 Administration (PHMSA) requirements Agency expected that this amendment is captured, transported, and injected in in 49 CFR Part 195, which apply to to the RCRA hazardous waste rules CCS activities. For CO2 capture, pipeline facilities used for transporting would substantially reduce the transport, and injection, EPA reviewed hazardous liquids or supercritical CO2. uncertainty associated with defining and compared regulations and EPA’s review indicated that DOT’s and managing these CO2 streams under requirements from other statutes and regulations addressed risks posed by RCRA subtitle C and also would programs (e.g., DOT, SDWA) which pipelines in a way that is consistent facilitate the deployment of GS by might apply to each of these activities with RCRA’s goal of preventing releases providing additional regulatory if the CO2 stream is also regulated as in order to protect human health and certainty. hazardous waste. The Agency the environment. EPA concluded that Several other Agency activities are considered how these existing applicable DOT requirements (which related to carbon capture and storage regulations and requirements control apply to supercritical CO streams (CCS), including an EPA final rule that 2 releases of hazardous constituents that regardless of whether or not these created a new class of injection wells might be present in the CO2 streams. materials meet the definition of (Class VI) for GS of CO under the Safe First, regarding the generator 2 hazardous waste) will ensure that CO Drinking Water Act (SDWA) UIC requirements, EPA reviewed the subtitle 2 streams are managed in a manner that Program. December 10, 2010 (75 FR C regulatory requirements applicable to 77230). During the development of that RCRA generators, including addresses the potential risks to human UIC Class VI final rule, EPA was made requirements for tanks and containers health and the environment that these aware that the participants in the CCS and recordkeeping and reporting, among materials may pose, prior to arrival at a industry were asking for clarification on others. EPA also reviewed the available Class VI injection well facility. Therefore, EPA concluded that RCRA how the RCRA hazardous waste information on CO2 capture processes offers no additional protection, and did requirements apply to CO2 streams that and estimates of CO2 capture rates. EPA are geologically sequestered. concluded that, because of the large not propose any specific conditions beyond that of compliance with In addition, in February 2010, volumes of CO2 projected to be applicable DOT regulations. EPA President Obama created the captured, on-site storage of CO2 in Interagency Task Force on Carbon pressure vessels was unlikely. Rather, assessed the DOT hazardous materials Capture and Storage to develop a EPA stated its expectation that the regulations applicable to non-pipeline comprehensive and coordinated federal process of capturing and compressing transportation and reached similar conclusions. EPA also addressed issues strategy to speed the commercial CO2 prior to delivery to a UIC Class VI development and deployment of clean surrounding on-site pipelines that may coal technologies. The task force 1 Report of the Interagency Task Force on Carbon not be regulated by DOT pipelines and consisted of 14 executive departments Capture and Storage, August 2010, p. 12. 2 4 and federal agencies, and it was co- Ibid., p. 61. ‘‘Substantive’’ was used to describe 3 Carbon Dioxide Capture and Storage. requirements directly related to storage, chaired by EPA and the U.S. Intergovenrmental Panel on Climate Change (IPCC), transportation, treatment, or disposal and not Department of Energy. On August 12, 2005, p. 3. notification or biennial reporting.

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the lack of a manifest under the criteria for hazardous wastes to enter or necessary to protect human health and proposed conditional exclusion. See 76 exit the subtitle C regulatory system. the environment. FR 48083, August 8, 2011. EPA’s longstanding regulatory criteria Thus, where a waste might pose a Third, EPA discussed the UIC Class for determining whether wastes pose hazard only under limited management VI injection well requirements, which hazards that require regulatory control scenarios, and other regulatory are specifically designed to ensure that incorporate the idea that a waste that is programs already address such the CO2 (and any incidental associated otherwise hazardous may not present a scenarios, EPA is not required to substances derived from the source hazard if already subject to adequate classify a waste as hazardous waste materials and the capture process) will regulation. (See, e.g., 40 CFR subject to regulation under subtitle C. At be isolated within the injection zone. 261.11(a)(3)(x), which requires EPA to least three decisions by the U.S. Court EPA concluded that the elimination of consider action taken by other of Appeals for the D.C. Circuit provide exposure routes through these governmental agencies or regulatory support for this approach to regulating requirements, which are implemented programs based on the health or wastes as hazardous waste only where through a SDWA UIC permit, will environmental hazard posed by the necessary to protect human health and ensure protection of human health and waste.) the environment. In Military Toxics the environment such that RCRA EPA’s interpretation is further Project v. EPA, 146 F.3d 948 (D.C. Cir. subtitle C regulation would be supported by the text of RCRA sections 1998), the court upheld a conditional duplicative and unnecessary. 1004(5), and 3002–3004, and RCRA’s exemption whereby the storage and In addition, to further ensure legislative history. This interpretation transportation of certain military protection of human health and the has also been upheld upon judicial munitions are not considered hazardous environment, EPA proposed to limit the review. See, e.g., Military Toxics Project waste subject to regulation under RCRA scope of the exclusion by including a v. EPA, 146 F.3d 948 (D.C. Cir. 1998) subtitle C, provided the munitions are condition that no other hazardous waste (upholding conditional exemption for stored and transported in compliance can be mixed with, or otherwise co- storage of military munitions, based on with regulations issued by the injected with, the CO2 streams. Thus, if EPA determination that such wastes are Department of Defense and the hazardous waste is mixed with the CO2 subject to binding standards that meet Department of Transportation, stream, that stream would not be or exceed RCRA standards, in addition respectively. See 40 CFR 266.203, eligible for the conditional exclusion to an institutional oversight process). 266.205. The court ruled that EPA’s under the proposed rule. Rather, that The statutory definition of hazardous interpretation of RCRA as authorizing a stream would need to be managed as a waste, section 1004(5)(B), informs EPA’s conditional exemption is ‘‘a permissible RCRA hazardous waste, and, if well interpretation that EPA may consider construction of the statute.’’ 146 F.3d at injection is selected as the means of good management practices in 958. The court cited its own precedent disposal, injected into a UIC Class I determining the need to regulate waste as recognizing ‘‘ ‘that Congress intended hazardous well. as hazardous under RCRA. That section the agency to have substantial room to defines a ‘‘hazardous waste’’ as ‘‘a solid B. Authority for Conditional Exclusion exercise its expertise in determining the waste, or combination of solid wastes, From RCRA Subtitle C Requirements appropriate grounds for listing,’ ’’ id. which because of its quantity, (citing NRDC v. EPA, 25 F.3d 1063, As explained in the proposed rule, concentration, or physical, chemical or 1070 (D.C. Cir. 1994)), and concluded RCRA provides EPA with authority to infectious characteristics may * * * (B) that, although the military munitions issue conditional exclusions from the pose a substantial present or potential rule ‘‘does not involve the listing hazardous waste regulations. EPA has hazard to human health or the regulations at issue in NRDC v. EPA, we previously interpreted RCRA section environment when improperly treated, think the principle at work there also 3001(a) to authorize the issuance of stored, transported, or disposed of, or supports the conditional exemption at ‘‘conditional exemptions’’ from the otherwise managed.’’ (Emphasis added.) issue here.’’ Id. requirements of subtitle C, where it EPA has interpreted the statutory In NRDC v. EPA, the court held that determines that ‘‘a waste might pose a definition as incorporating the idea that EPA appropriately used its discretion in hazard only under limited management a waste that is otherwise hazardous does relying on several existing regulatory scenarios, and other regulatory not require regulation under RCRA so frameworks governing used oil in programs already address such long as it is properly managed. For determining not to list certain used oils scenarios.’’ 62 FR at 6636 (February 12, example, EPA’s standards for listing as a hazardous waste. NRDC, 25 F.3d at 1997); 66 FR at 27222–27223 (May 16, hazardous wastes require consideration 1071. Similarly, in Edison Electric 2001). The final rule takes a similar of a waste’s potential for Institute v. EPA, 2 F.3d 438 (D.C. Cir. approach to those earlier rules. mismanagement. See 40 CFR 1993), the court upheld a temporary Section 3001(a) provides the Agency 261.11(a)(3)(vii) (incorporating the exemption from subtitle C for with flexibility to consider the need for language of RCRA section 1004(5)(B) petroleum-contaminated media based regulation in deciding whether to list or and requiring EPA to consider on the fact that the potential hazards of identify a waste as hazardous. ‘‘plausible types of improper such materials are already controlled Specifically, RCRA section 3001(a) management’’). under the underground storage tank requires that EPA, in determining The statute also directs EPA to regulations under RCRA subtitle I. In whether to list a waste as a hazardous regulate hazardous waste generators reaching its decision, the court waste, or to otherwise identify a waste (RCRA § 3002(a)), transporters (RCRA considered the fact that the subtitle I as a hazardous waste, decide whether a § 3003(a)) and treatment, storage and standards could prevent threats to waste ‘‘should be subject to’’ the disposal facilities (RCRA § 3004(a)) ‘‘as human health and the environment to requirements of subtitle C. Hence, RCRA may be necessary to protect human be an important factor supporting the section 3001 authorizes EPA to health and the environment.’’ By exemption. Id. at 453. determine when subtitle C regulation is extension, the decision of when a waste The legislative history of RCRA appropriate. EPA has consistently should be subject to the regulatory subtitle C also supports this interpreted section 3001 of RCRA to requirements of subtitle C is a question interpretation, stating that ‘‘the basic give it broad flexibility in fashioning of whether such regulatory controls are thrust of this hazardous waste title is to

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identify what wastes are hazardous in exclusion. Because the proposed V. Summary of Comments and what quantities, qualities, and condition at § 261.4(h)(1) only referred Responses to Major Comments concentrations, and the methods of to compliance with applicable DOT In response to the proposed rule, EPA disposal which may make such wastes regulations, EPA decided to modify the received 29 distinct comments. The hazardous.’’ H. Rep. No. 94–1491, 94th wording of the condition to add commenters represented a variety of Cong., 2d Sess. 6 (1976), reprinted in A language that also refers to compliance organizations, including electric Legislative History of the Solid Waste with ‘‘pipeline safety regulations utilities, energy companies, the oil and Disposal Act, as Amended, adopted and administered by a state gas industry, environmental groups, two Congressional Research Service, Vol.1, authority pursuant to a certification states, and the public. 567 (1991) (emphasis added). Finally, as under 49 U.S.C. § 60105’’ to reflect Nearly all commenters supported discussed above, in finalizing this situations where a pipeline facility must EPA’s decision to clarify the regulatory comply with state, rather than federal, conditional exemption from RCRA, EPA scheme applicable to CO management is in part relying on the regulatory regulation. Again, EPA is making this 2 for CCS. Many commenters generally controls for Class VI wells, under the change in order to more accurately supported EPA’s proposed conditional UIC program of the SDWA, 42 U.S.C. describe how pipeline facilities are exclusion. Other commenters stated that 300f et seq. EPA notes that such reliance already regulated under applicable a conditional exclusion is not necessary is also consistent with the direction pipeline regulations (be they State or because the CO streams are not subject provided in section 1006(b) of RCRA, Federal). EPA also made a conforming 2 to RCRA regulation, but suggested which directs EPA to integrate the change to the related certification certain changes be made should EPA provisions of RCRA, for purposes of language so as to mirror the revised proceed with a conditional exclusion. administration and enforcement and to condition in § 261.4(h)(1). Below is a detailed discussion of the avoid duplication, to the maximum The proposed exclusion required extent practicable, with those of certain generators and UIC Class VI well owners major comments received, as well as other statutes, including the SDWA, to or operators who claim the conditional EPA’s response to those comments. EPA the extent that it can be done in a exclusion to sign a certification also notes that a more comprehensive manner that is consistent with the goals statement that the conditions of the response to comment document was and policies of both RCRA and the other exclusion were met. EPA had proposed prepared and placed in the docket relevant statute(s). specific language for the certification associated with today’s final rule. statement. In today’s final rule, the A. Definition of Solid Waste IV. Changes to the Proposed Rule certification statement has been revised EPA is finalizing the conditional so that there are now two separate In the proposed rule, EPA stated that a supercritical CO2 stream injected into exclusion largely as proposed on August certification statements—one for CO2 8, 2011, with some revisions. The stream generators and another for UIC a permitted UIC Class VI well for following is a summary of the changes Class VI well owners or operators. This purposes of GS is a RCRA solid waste, to the proposed rule. change was in response to commenters because it is a ‘‘discarded material’’ EPA slightly modified the regulatory who were concerned about persons within the plain meaning of the term in language for the condition that the CO2 certifying to circumstances outside of RCRA § 1004(27). That is, a supercritical stream be transported in compliance their control. Under the final rule, the CO2 stream is a solid waste when it is with applicable DOT requirements (see certification statement that the generator to be discarded through abandonment § 261.4(h)(1) in today’s final rule), by would sign is specific to the activities by disposing of the material in a UIC adding reference to state pipeline within the generator’s control; likewise, Class VI well (see 40 CFR 261.2(a)(2)(i) regulations that may be applicable (in the certification statement that the UIC and (b)(1)). While some commenters lieu of the DOT regulations) in certain Class VI well owner or operator would agreed that EPA correctly identified situations. Several commenters had sign is specific to the activities within supercritical CO2 injected into a Class noted that in cases where CO2 pipelines the owner or operator’s control. VI well for GS as a solid waste, a start and stop within the same state (i.e., These revisions do not change how number of commenters disagreed, intrastate pipelines), these pipelines the conditional exclusion is stating that supercritical CO2 streams would be regulated by the state rather implemented under today’s final rule. A that are to be injected into a UIC Class than by DOT. EPA consulted with DOT CO2 stream must meet all the conditions VI well are not a solid waste, and and confirmed that with respect to the to qualify for and maintain the therefore cannot be a hazardous waste. DOT regulations in 49 CFR part 195 exclusion from the hazardous waste These commenters generally supported (which apply to pipeline facilities used regulations, and a violation of a excluding supercritical CO2 streams in the transportation of hazardous condition at any point in the from RCRA regulation, but stated that liquids or supercritical CO2), while management of a CO2 stream (that is these streams were already excluded. some states have adopted regulations otherwise hazardous) would result in Commenters presented several reasons that apply to the transportation of that CO2 stream being subject to all for this. supercritical CO2 and are certified by applicable subtitle C regulatory Some commenters argued that CO2 is DOT to directly regulate these intrastate requirements, from the point of not a contained gas and, therefore, does pipelines, many states do not have such generation. not meet the RCRA statutory definition a certification, and DOT remains the Furthermore, the final rule now of solid waste. Some commenters also direct regulator of both interstate and requires that the signed certification noted that CO2 is a commodity that has intrastate pipelines in those states. EPA statement must be readily accessible on commercial/beneficial uses, including notes that state pipeline regulations are the facility’s publicly-available Web use in enhanced oil or gas recovery required to be at least as stringent as the site, if such Web site exists, to serve as (EOR/EGR) and manufacturing federal DOT requirements; therefore, a public notification, in addition to operations and, therefore, argued that it compliance with either the applicable being kept on-site for no less than three should not be classified as a waste. In DOT regulations or the applicable years. For further discussion on the fact, one commenter noted that storage certified state regulations has the same changes to the certification statement, (as in Carbon Capture and Storage) effect under the proposed conditional see section V.D. of this preamble. implies possible future use. Still other

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commenters cited dictionary definitions specific questions they may have the other types of wastes specifically of the terms used in EPA regulations, regarding the status of CO2 in situations referenced by the definition. They are, concluding that CO2 sent to Class VI that are beyond the scope of this final therefore, RCRA statutory solid wastes. facilities is not discarded, abandoned, rule. B. Definition of Hazardous Waste or recycled. As stated above, some commenters EPA disagrees that CO2 streams sent said that these CO2 streams are not Under EPA’s existing RCRA subtitle C to UIC Class VI wells for purposes of GS ‘‘contained gases’’ and therefore are not regulations, generators are required to are not solid waste. As was stated in the solid wastes under the RCRA statutory determine whether a solid waste preamble to the proposed rule, GS is an definition of solid waste.6 More exhibits a RCRA characteristic by testing option to reduce CO2 emissions to the specifically, these commenters argued the waste or applying their knowledge atmosphere by injecting the CO2 streams that these carbon dioxide streams are of the hazard characteristic of a waste, into deep subsurface geologic ‘‘uncontained gases’’ and as such were in light of the materials or processes formations, with the express purpose of statutorily excluded from RCRA by used. In the proposed rule, EPA isolating the CO2 so that it does not Congress, while others said that discussed the applicability of the RCRA return to the atmosphere. August 8, Congress ‘‘never envisioned regulation’’ hazardous waste regulations to 2011 (76 FR at 48075). Therefore, EPA of a gas such as CO2 under RCRA. As supercritical CO2 streams. 76 FR at views these CO2 streams as ‘‘discarded EPA noted in the proposed rule, the CO2 48077–78. Specifically, EPA stated that material’’ within the plain meaning of streams are delivered by pipeline and because there are no hazardous waste the term in RCRA § 1004(27). The fact injected into UIC Class VI wells for GS listings that apply to the supercritical that the sequestration of CO2 streams in a supercritical state, which EPA CO2 streams being considered here, a into deep geologic formations is at times stated at proposal was ‘‘. . . rather CO2 stream could only be defined as a labeled as ‘‘long-term containment’’ or unique in that it has properties hazardous waste if it exhibits one or ‘‘long-term storage’’ does not change intermediate between a liquid and a more of the hazardous waste this view. gas.’’ 76 FR at 48078. The scientific term characteristics as defined in 40 CFR part In addition, several commenters used to describe or define this 261, subpart C. EPA also discussed pointed out that with the exception of supercritical state (i.e., when a issues specifically related to applying demonstration and related projects, substance is at or above its critical the Toxicity Characteristic (TC) to most if not all of the CO2 that is temperature and critical pressure) is as supercritical CO2 streams and requested geologically injected today is used for a ‘‘supercritical fluid.’’ 78 The RCRA comment on the RCRA characterization EOR/EGR, and in that application, it is statutory definition of solid waste issue. purchased and transacted as a valuable specifically refers to ‘‘other discarded Some commenters responded and commodity. EPA acknowledges that the material, including solid, liquid, said that even if these supercritical CO2 underground injection of CO2 has semisolid, or contained gaseous material streams were RCRA solid wastes, it largely been (and continues to be) for resulting from industrial, commercial, should not be assumed that they are a the purpose of EOR/EGR, and does not mining, and agricultural operations, and hazardous waste, and that the very disagree that CO2 can and does have a from community activities . . .’’ While consideration of a conditional exclusion variety of commercial and EPA has indeed interpreted the meaning unnecessarily suggests that these manufacturing uses,5 but this does not of specific terms listed, including streams could be hazardous. Many affect the regulatory status of CO2 ‘‘contained gaseous material,’’ the RCRA commenters argued that EPA has not streams when they are to be injected definition of solid waste encompasses demonstrated that the supercritical CO2 into UIC Class VI wells for the purpose ‘‘other discarded material’’ and does not streams would exhibit any of the RCRA of GS. As EPA noted in the preamble to speak to materials such as supercritical characteristics, and asserted that the the proposed rule, this conditional fluids. Like the listed ‘‘solid, liquid, supercritical CO2 streams would not exclusion is not intended to affect the semisolid, or contained gaseous exhibit any of the RCRA hazardous waste characteristics, or that the RCRA regulatory status of CO2 streams that are material’’ specifically referenced, CO2 injected into wells other than UIC Class streams sequestered for purposes of GS characteristic regulations do not VI wells. EPA reiterates that these issues are ‘‘other discarded material’’ from otherwise apply to supercritical CO2 are beyond the scope of this final rule, industrial and commercial operations streams. With respect to the TC and EPA did not develop information and, therefore, are of a similar kind to specifically, commenters said that there for inclusion in the proposal on well is no record evidence that sequestered classes other than UIC Class VI wells. 6 ‘‘The term ‘‘solid waste’’ means any garbage, CO2 streams are managed in municipal However, in the interest of public refuse, sludge from a waste treatment plant, water solid waste landfills (the waste supply treatment plant, or air pollution control management scenario EPA originally transparency and in light of the several facility and other discarded material, including public comments on this issue, EPA solid, liquid, semisolid, or contained gaseous considered when establishing the TC) does note that (based on the limited material resulting from industrial, commercial, and in fact the conditional exclusion is information provided in the public mining, and agricultural operations, and from premised on the material being managed community activities, but does not include solid or only in a UIC Class VI well. Therefore, comments) should CO2 be used for its dissolved material in domestic sewage, or solid or intended purpose as it is injected into dissolved materials in irrigation return flows or these commenters argued there is no UIC Class II wells for the purpose of industrial discharges which are point sources basis for applying the TC to sequestered subject to permits under section 402 of the Federal CO2 streams. EOR/EGR, it is EPA’s expectation that Water Pollution Control Act, as amended (86 Stat. such an injection process would not EPA appreciates these commenters’ 880), or source, special nuclear, or byproduct concerns regarding the application of generally be a waste management material as defined by the Atomic Energy Act of activity. EPA would encourage persons 1954, as amended (68 Stat. 923).’’ [emphasis the hazardous waste regulations to to consult with the appropriate added]. RCRA § 1004(27). supercritical CO2 streams being 7 See, for example, the definition of supercritical regulatory authority to address any fact- sequestered. EPA believes these fluid in Kirk-Othmer Concise Encylopedia of concerns exist as a result of the unique Chemical Technology, 5th edition. 5 For example, urea yield boosting, enhanced oil 8 Carbon dioxide becomes a supercritical fluid at circumstances associated with recovery, food processing and packaging, beverage a temperature of approximately 31.3 degrees C, and addressing the applicability of RCRA to carbonation, wine making. a pressure of 1,070 pounds per square inch (psi). CCS at such an early stage in the

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development of CCS. However, it is of the conditional exclusion is are at least as protective as UIC Class I important to note that EPA did not set voluntary, even those generators who hazardous waste wells for CO2 streams. out in this rulemaking to conclude that characterize their streams as RCRA As discussed in Section III.B in this those supercritical CO2 streams that are hazardous waste may continue to preamble, determining whether a solid wastes would, as a class, exhibit manage their streams as RCRA conditional exclusion is appropriate a RCRA characteristic. Indeed, EPA hazardous wastes from the point of includes consideration of whether a indicated in the proposed rule that it generation. The only effect is upon waste may not present a hazard because could not unequivocally conclude that those persons who choose to comply it is already subject to adequate supercritical CO2 streams will never with the terms of the conditional regulation. In determining whether exhibit any RCRA hazardous waste exclusion. existing regulation is adequate, EPA characteristic and commenters provided does not necessarily need to show that C. Justification for Conditional no information to the contrary. each existing requirement has a Exclusion Alternatively, EPA acknowledges that corresponding analogue in the RCRA some RCRA hazardous characteristics In the proposed rule, EPA discussed subtitle C regulations. The UIC Class VI are unlikely to apply to a waste at length the protections provided by requirements are designed to ensure that composed of >90% CO2, such as the UIC Class VI well program and the CO2 streams (which may include ignitability (i.e., RCRA Waste Code EPA’s conclusion that regulation under low concentrations of hazardous D001). Thus, in light of the early state RCRA would not provide additional constituents) remain isolated in the of data development in this area, EPA protections to human health and the injection zone and confined by intends to bring additional clarity to the environment for CO2 streams injected confining zones in an appropriate, well- regulatory regime through this rule, by for purposes of GS. See 76 FR 48083– characterized geologic setting that is establishing a conditional exclusion 86. Two commenters claimed that EPA’s continuously monitored to ensure that from the definition of hazardous waste conclusions in this respect were not the CO2 streams remain in the injection that would apply in the event a adequately supported. The commenters zone. EPA views the elimination of generator determines that its CO2 stated that, by including a condition exposure routes through these streams exhibit a RCRA hazardous prohibiting the mixing or co-injection of requirements as determinative in its characteristic. hazardous waste into the CO2 stream, evaluation of whether the RCRA subtitle EPA notes that it is not required to EPA was implying that UIC Class I C regulatory requirements for hazardous affirmatively demonstrate, as part of this hazardous waste wells are more waste disposal provide any substantial, rulemaking, that a particular CO2 appropriate for hazardous wastes and additional protection for CO2 streams stream, or a portion of all CO2 streams, therefore offer greater safeguards than which exhibit a characteristic of necessarily qualifies as RCRA hazardous UIC Class VI wells for hazardous CO2 hazardous waste and are disposed in waste. Rather, under the conditional streams. These commenters also stated UIC Class VI wells. Moreover, in some exclusion concept, EPA considers that EPA should offer an analysis on a instances, a point-by-point comparison whether RCRA subtitle C regulation is point-by-point basis showing that the may not even be appropriate. For necessary to protect human health and requirements for UIC Class VI wells are example, the UIC Class VI requirements the environment. As explained in at least as protective as UIC Class I are designed for the unique today’s rule, after consideration of hazardous waste wells. Finally, the characteristics of CO2, including its public comment, EPA has reached the commenters said that EPA should not large volume and its buoyancy relative conclusion that management of CO2 conditionally exclude CO2 streams from to other fluids in the subsurface, unlike streams under existing standards, subtitle C regulation without a better the typical fluids injected into UIC Class including the UIC requirements for understanding of their composition, I hazardous waste wells. Finally, EPA Class VI wells, as well as DOT their potentially hazardous also notes that the commenters, despite standards, will protect human health characteristics in all plausible their general criticism that EPA did not and the environment from potential environments, and without identifying undertake a particular enough analysis risks associated with CO2 streams allowable contaminants and setting of the respective regulatory regimes, did (including associated constituents that limits for their concentration in these not actually reject EPA’s ultimate might be present). This conclusion is streams. conclusion that the UIC Class VI based on EPA’s analysis of those other EPA does not agree that the hazardous requirements are sufficiently protective, regulatory programs directly. EPA’s waste mixing prohibition implies that nor did they provide any evidence of analysis and conclusions are UIC Class VI wells offer lesser gaps in protection or other deficiencies independent of, and thus unaffected by, safeguards than UIC Class I hazardous in the analysis that only a more the question of whether a stream is waste wells, for CO2 streams that are the particularized analysis would reveal. classified as a hazardous waste under subject of this conditional exclusion. Regarding the comment that EPA did EPA’s RCRA regulations. This conditional exclusion is limited to not evaluate the ‘‘potentially hazardous Finally, EPA notes that the a specific, unique waste—CO2 streams characteristics’’ of CO2 streams ‘‘in all conditional exclusion has a limited that are hazardous waste themselves plausible environments,’’ EPA notes effect on the regulated community (i.e., that exhibit a characteristic of that the commenters did not identify the directly and the exclusion imposes no hazardous waste due to the presence of plausible environments to which they affirmative obligations upon them. impurities)—therefore, EPA needed to were referring. EPA’s response is that Generators of non-hazardous waste CO2 make clear that any other type of the scope of its evaluation of the streams are not subject to the RCRA hazardous waste injection must adequacy of existing regulatory subtitle C regulations, and they are not continue to occur in UIC Class I requirements (and therefore the scope of obligated to make use of this conditional hazardous waste wells. the conditional exclusion) is limited to exclusion (although they still may EPA also disagrees that it needs to the management of supercritical CO2 choose to do so in situations where, for compare the UIC Class I hazardous streams from capture at a CO2 source to example, the generator may be uncertain waste and Class VI requirements point- injection into a UIC Class VI well. regarding the hazardous waste status of by-point in order to demonstrate that EPA agrees with the commenter that the CO2 stream). Moreover, because use the requirements for UIC Class VI wells obtaining more data on the composition

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of CO2 streams that will be injected into for the generator and the UIC Class VI As proposed, the certification UIC Class VI wells is important, but well owner or operator. EPA requested statements would only be required of disagrees that the conditional exclusion comment on the certification statement generators and UIC Class VI well owners should not be promulgated unless EPA and, particularly, on whether it would or operators. EPA had requested identifies specific contaminants that appropriately ensure compliance with comment on whether or not transporters may be injected and at what the conditional exclusion. or pipeline owners and operators also concentrations. As explained above, While the commenters did not should sign a certification statement. EPA has concluded that the injection of generally have concerns with signing a One commenter stated that this CO2 streams, including incidental certification statement, some certification would help ensure that associated substances derived from the commenters were concerned that the pipeline owners and operators or other source materials and the capture certification as proposed would require transporters do not purposefully mix process,9 can be performed in a signatories to attest to certain activities hazardous wastes into the CO2 stream. protective manner at a permitted UIC that were outside of their control. For Several other commenters, however, Class VI well. This is the case regardless example, several commenters thought it asserted that this certification was of the precise contaminants, and their inappropriate for the CO2 generator to unnecessary because transport through concentrations, because the UIC Class have to certify to the injection well’s pipelines or by other means must meet VI permitting requirements will take owner or operator’s compliance with the applicable transport requirements for all into account the physical and chemical UIC Class VI rules. EPA agrees, and, in materials moved, and therefore, characteristics of the CO2 streams before today’s final rule, the certification certification that they meet these any injection may occur, as part of statement has been revised so that there requirements only for a specific material establishing the appropriate conditions are now two separate certification (i.e., CO2 to be sequestered) provides no for the successful confinement of CO2 in statements worded slightly differently— additional protection and is a manner that is protective of USDWs. one for generators and another for UIC unnecessary. EPA therefore has not altered its Class VI well owners or operators EPA agrees with those commenters conclusion that the conditional claiming this exclusion. As revised, the who said that a certification by the exclusion is appropriate, and sees no generator certification statement reads transporter is not necessary. If EPA were need to delay further action on the as set forth in 40 CFR 261.4(h)(4)(i), and to require such a certification, conditional exemption to gather the UIC Class VI well owner or operator consistent with the approach described additional data. certification reads as set forth in 40 CFR above, it would be limited to the Nevertheless, EPA emphasizes that 261.4(h)(4)(ii). conditions within the control of pipeline owners and operators or other the UIC Class VI regulations themselves EPA is making these revisions to transporters, which is compliance with require that the chemical composition better reflect actions over which each applicable DOT requirements and to not and physical characteristics of the CO2 party has control. EPA emphasizes that mix hazardous waste into the CO streams be known as part of the initial these revisions do not change how the 2 streams. Regarding compliance with permitting process, as well as during conditional exclusion is implemented— operation of the well, in order to ensure DOT requirements, EPA agrees that if that a CO2 stream that is hazardous must that these CO streams can be injected persons transporting supercritical CO2 2 meet all the conditions in § 261.4(h)(1)– must comply with the applicable in a manner that is protective of human (4) to qualify for and maintain the health and the environment. EPA transportation requirements for all exclusion from the hazardous waste supercritical CO being moved, it seems expects that this will provide a full 2 regulations. Thus, as discussed in the unnecessary to require that they certify understanding of the properties of the proposed rule, a violation of a condition compliance with DOT for a specific CO streams being injected, including 2 at any point in the management of a CO2 material (i.e., supercritical CO streams specific contaminants and their 2 stream (that is otherwise hazardous) to be sequestered). In addition, EPA concentrations. As discussed in more would result in that CO2 stream being does not have information, nor did detail below in Section V.G. of this subject to all applicable subtitle C commenters provide any new preamble EPA intends to monitor any regulatory requirements from the point information, indicating that CO data on the chemical composition and 2 of generation. See 76 FR at 48087. pipeline owners and operators or other physical characteristics of the CO 2 One additional note regarding transporters would mix hazardous waste streams being injected by the UIC Class situations where both the capture and into CO streams being delivered to UIC VI permitting program, and to use that 2 the injection of CO2 streams is occurring Class VI facilities. information to determine whether at the same site, such that the CO2 One commenter pointed out that it is changes to the conditional exclusion streams are not being sent off-site either unlikely that these CO2 streams will be may be appropriate. in a pipeline or via transportation such transported other than by pipelines D. Certification Statement as by truck. EPA clarifies that (except where small quantities are § 261.4(h)(1) requires compliance with involved in some experimental wells, One of the conditions for the DOT (and state analogue) requirements which are likely to be food grade CO2 proposed exclusion was that generators only as these requirements according to this commenter). As EPA and UIC Class VI well owners or independently apply (i.e., ‘‘as discussed at proposal, PHMSA requires operators who claim the exclusion must applicable’’). Thus, EPA would not that pipeline owners and operators sign a certification statement that all of consider this condition to have been ensure that supercritical CO2 streams be the conditions of the exclusion were violated merely because no pipeline or chemically compatible with the pipeline met. EPA had proposed specific other transportation were used. and any commodities in the pipeline language for a certification statement, Similarly, EPA does not intend for a and will not corrode the pipeline and where the same language would be used generator in this situation to be pipeline system. 76 FR at 48087. EPA prevented from signing the certification expects that pipeline owners and 9 EPA reiterates that CO2 streams by definition may contain ‘‘incidental associated substances statement as drafted, because of the operators engaged in delivering derived from the source materials and the capture references to applicable DOT and state supercritical CO2 have strong process.’’ regulations. disincentives to mix any hazardous

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waste into their pipeline system, both in prominently on the signatory’s choose to submit the certification to the order to honor their contractual corporate Web site, if such Web site UIC Program Director to provide the arrangement with customers, and also to exists. As EPA made clear in the necessary clarity on the status of the 13 maintain their equipment. For these proposed rule, one of its key concerns CO2 streams under RCRA. reasons, EPA does not see the need for with the certification statement was to E. On-Site Pipelines a transporter certification, and is not ensure compliance with the terms of the changing its proposed approach and conditional exclusion. Posting the In the proposed rule, EPA stated that transporters and pipeline owners and signed certification statements on-line some pipelines used to transport CO2 operators will not be required to sign a will promote compliance and might not be subject to the DOT certification statement as a condition of accountability by providing efficient requirements and requested information the exclusion. However, EPA will access by regulatory authorities and on how these pipelines are currently continue to monitor compliance issues interested members of the public regulated, including any design and going forward and may revisit this (consistent with the intent of the RCRA operating standards that apply to such condition as appropriate as part of its Enhanced Public Participation Rule pipelines. EPA also assumed that, in the adaptive approach (discussed in Section cited by one commenter) to the typical case, captured CO2 will not be V.G. in this preamble). exclusion certifications and the stored at the generator facility but Finally, EPA proposed that the signed identities of the responsible officials. would be transferred in a continuous certification statement must be kept on- Moreover, EPA expects that posting the manner either to an on-site or off-site site for no less than three years and be certifications on-line will simplify the UIC Class VI well. While EPA did not made available upon request within 72 reporting obligation for the regulated propose to apply RCRA subtitle C hours of a written request from either community because accessible internet requirements to these pipelines as a EPA or the state. In the proposed rule, posting obviates the need for a condition of the proposed exclusion, it EPA discussed how the certification regulatory agency to request a hard did request comment on the plays an important role in ensuring that copy. appropriateness of applying the RCRA the conditions in the exclusion are met EPA notes that it is not requiring the subtitle C standards to these non-DOT and its desire to safeguard the efforts of creation of any new corporate or other regulated pipelines. Several commenters facilities to comply with the rule by Web site. Entities without a Web site responded and said that EPA should not designing a regulatory scheme both thus would not be required to post their apply the subtitle C requirements to enforceable and structured to ensure certifications on-line. EPA expects, non-DOT regulated pipelines as a compliance. EPA specifically requested however, that most, if not all, affected condition of this rule. These comment on whether any new entities already operate external Web commenters referenced the Pressure monitoring, recordkeeping, or reporting sites to communicate to the public and, Piping standards set by the American therefore, the posting requirement will Society of Mechanical Engineers requirements were necessary to ensure 14 compliance with the proposed be useful to regulators, the public, and (ASME) and noted that non-DOT regulated CO pipelines on-site are conditional exclusion. the regulated community. The public 2 EPA received a few diverse comments disclosure of information is an designed, constructed and maintained on this provision. One commenter increasingly common and important in accordance with these standards. According to ASME, such standards stated that requiring the certification to regulatory tool.11 In 2010, the Office of promote safety, reliability, productivity, be kept on-site is not sufficient, citing Management and Budget (OMB) issued and efficiency in industries that rely on the fact that the RCRA Enhanced Public guidance with principles to assist engineering components or equipment. Participation Rule would not apply.10 agencies in using information disclosure While EPA acknowledges that ASME to achieve regulatory objectives,12 and Instead, this commenter suggested that standards are not by themselves EPA believes that regulatory EPA require the certification to be regulatory requirements,15 these information disclosure can cost- submitted to the UIC Program Director standards (e.g., ASME B31) are designed effectively improve compliance and and be made publicly available on the to ensure that the piping and associated regulator’s Web site. Another accountability. Finally, in today’s final rule EPA is commenter stated that requiring 13 The UIC Program Director may also request production within 72 hours was too not requiring that the signed certain information prior to the issuance of a permit short and that the certification certification statement be submitted to for the construction of a new Class VI well (or the requirement should reflect ‘‘modern the UIC Program Director as suggested conversion of an existing Class I, Class II, or Class by one commenter. EPA does not V well to a Class VI well). 40 CFR 146.82(a)(21). electronic filing systems where a paper Additionally, an owner or operator may choose to copy may not be held in a file drawer. believe that an additional submission submit a signed certification statement in Making an electronic document requirement will be necessary because conjunction with other Class VI permit application available and submitting it the signed certification statement will in information on the chemical and physical most circumstances be directly characteristics of the CO2 stream required under 40 electronically should both be allowed.’’ CFR 146.82(a)(7), to inform Class VI permit In the final rule, EPA has kept the accessible on the injection facility’s Web decisions. original proposed on-site retention time site. EPA also notes that as part of the 14 The B31 Code for pressure piping, developed of no less than three years for the signed process of obtaining a UIC Class VI by American Society of Mechanical Engineers certification statement, but has added a permit, owners and operators who plan (ASME) covers Power Piping, Fuel Gas Piping, Process Piping, Pipeline Transportation Systems for provision for the statement to be posted to claim the conditional exclusion may Liquid Hydrocarbons and Other Liquids, Refrigeration Piping and Heat Transfer Components 10 The commenter is referring to regulations 11 Cass R. Sunstein, Informational Regulation and and Building Services Piping. promulgated on December 11, 1995, that improve Informational Standing: Akins and Beyond, 147 U. 15 According to ASME, standards are considered the process for permitting RCRA hazardous waste Pa. L. Rev. 613, 613 (1999). voluntary and serve as guidelines. ASME publishes treatment, storage, or disposal facilities by 12 Memorandum for the Heads of Executive its standards, accredits users of standards to ensure providing earlier opportunities for public Departments and Agencies—Disclosure and that they are capable of manufacturing products involvement in the process and expanding public Simplification as Regulatory Tools (Cass R. that meet those standards, and provides stamps that access to information throughout the permitting Sunstein, OMB; June 18, 2010). http:// accredited manufacturers place on their products, process and the operational lives of facilities. 60 FR www.whitehouse.gov/sites/default/files/omb/assets/ indicating that a product was manufactured 63417. inforeg/disclosure_principles.pdf according to a standard.

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equipment meet certain quality and the proposed rule or in today’s final commenter stated that, at their GS safety criteria. In addition, that these conditional exclusion. injection site, they do not add any ASME B31 standards have been One commenter requested that EPA substances to improve the injectivity of incorporated by reference in various revise the term ‘‘emission source’’ to the CO2 stream. Another commenter federal and state regulatory programs make it plural (‘‘sources’’) in order to said that it may be necessary to add illustrates the high degree of confidence recognize that CO2 streams can come substances to the CO2 streams to and acceptance placed on these from more than one source, otherwise improve injectivity, including standards. Ultimately, EPA did not find the definition ‘‘. . . could be interpreted substances to reduce viscosity, inhibit a compelling reason to require RCRA as requiring the CO2 stream to come reactions with brine or formation rocks, subtitle C standards to on-site piping from a single source to qualify for the or otherwise improve permeability. associated with supercritical CO2 exemption.’’ EPA never intended to While this commenter did not provide streams. limit the conditional exclusion to CO2 information on what these substances streams from a single source but rather might include, EPA emphasizes that any F. Definition of Carbon Dioxide Stream believes the existing language also addition of substances to CO2 streams to EPA proposed adding a definition for would include CO2 streams generated enable or improve the injection process the term carbon dioxide stream to the from two or more independently- would be occurring as part of the UIC hazardous waste regulations in 40 CFR produced CO2 streams, provided that Class VI permitted activity (subject to 260.10. EPA is finalizing that definition the conditions of the exclusion are met that program’s oversight) and thus without change: Carbon dioxide stream for all streams for which it is being ultimately implemented in a manner to is defined as ‘‘carbon dioxide that has claimed. Thus, we are not making this prevent the endangerment of been captured from an emission source change. Underground Sources of Drinking (e.g., a power plant), plus incidental This same commenter also requested Water. that EPA delete the term ‘‘incidental’’ associated substances derived from the G. Adaptive Approach source materials and the capture from the proposed definition, arguing process, and any substances added to that if a substance qualifies as an EPA did not receive any significant the stream to enable or improve the ‘‘associated substance derived from the comments on the adaptive approach, injection process.’’ EPA explained that source materials and the capture and no commenters disagreed with this the proposed definition was intended to process,’’ then it should be eligible for approach; however, we believe it is work in concert with the definition of the exclusion regardless of the quantity important to reiterate what was presented in the preamble to the ‘‘carbon dioxide stream’’ in the UIC in which it exists in the stream. The proposed rule, which was that after the Class VI regulations at 40 CFR commenter stated that the word conditional exclusion is promulgated 146.81(d). EPA also requested comment ‘‘incidental’’ connotes a volume limitation, and its use in the definition any new information would be reviewed on the types and characteristics of suggests that if such ‘‘associated and used to inform whether changes substances that are added to CO 2 substances’’ are present at sufficient should be made to the conditional streams to enable or improve the volume, then they will no longer qualify exclusion, which could require injection process. as being ‘‘incidental,’’ resulting in additional rulemaking. August 8, 2011 Most commenters agreed with the elimination of the exclusion. (76 FR at 48088). This approach is proposed definition. One commenter EPA disagrees with the suggestion consistent with the approach EPA stated the definition as written is critical that ‘‘incidental’’ be deleted. In order to described for considering changes to the to ensure that the conditional exclusion provide the regulatory clarity sought UIC Class VI final rule, in order to is practicable, as any captured CO2 through this rule, it is critical that there incorporate new research, data, and stream will contain some substances be a consistent definition of carbon information about GS and associated from the source materials and the dioxide stream in both today’s final rule technologies. See December 10, 2010 capture process. One commenter asked and the UIC Class VI final rule. This Federal Register (75 FR at 77240–41, EPA to confirm that ‘‘incidental consistent definition is important 77243, and 77257). associated substances’’ means other because the applicability of the UIC One example of where EPA has substances captured together with the Class VI requirements and the acknowledged it plans to consider new CO2 from a gas stream and that the applicability of the conditional information that may have relevance to numerical values provided in the exclusion are linked in instances where the overall protectiveness and/or proposed rule preamble (as estimates of the exclusion is being claimed. EPA is implementation of this conditional possible hazardous constituent concerned that employing different exclusion is related to the composition concentrations in CO2 streams) were not definitions will result in confusion as to of CO2 streams. As described in Section intended to establish any numerical which streams are subject to both rules. V.C. of this preamble, one commenter threshold of ‘‘incidental associated In any event, EPA finds it unlikely that cited EPA’s lack of information on the substances.’’ EPA confirms that the applicability of the conditional nature of CO2 streams as a concern, and ‘‘incidental associated substances exclusion will turn on how ‘incidental’ EPA has stated that it intends to look at derived from the source materials and is interpreted; that is, in any instance data generated on the chemical and the capture process’’ is intended to refer where it has been determined that a physical characteristics of the CO2 to those substances that are captured ‘‘carbon dioxide stream’’ (as defined in streams that are to be injected into UIC together with the CO2. EPA also either rule) can be safely and legally Class VI wells, to inform its confirms that it did not intend that the injected into a UIC Class VI well, the consideration of whether changes numerical concentrations of hazardous conditional exclusion is applicable, should be made to the conditional constituents described in the proposal’s provided the other specified conditions exclusion. discussion of RCRA characterization are met. Another commenter expressed issues16 define what constitutes EPA also requested comment on the concern that the conditional exclusion ‘‘incidental associated substances’’ in types and characteristics of substances may actually create uncertainty, rather that are added to CO2 streams to enable than reduce it, and that any exclusion 16 See 76 FR at 48079. or improve the injection process. One ‘‘. . . needs to address carbon dioxide

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streams for the full range of scenarios VI. State Authorization B. Effect on State Authorization under which the uses of captured A. Applicability of the Rule in anthropogenic carbon dioxide streams The provisions in today’s notice are Authorized States are likely to occur.’’ This commenter promulgated pursuant to non-HSWA authority, and would eliminate the stated that EPA should not assume that Under Section 3006 of RCRA, EPA hazardous waste requirements for those the producer of CO2 streams will always may authorize qualified states to CO2 streams that would otherwise meet send their CO2 streams through a administer their own hazardous waste the RCRA definition of hazardous waste, dedicated pipeline to a single UIC Class programs in lieu of the federal program VI well for geologic sequestration, and within the state. Following when these streams are managed in requested that EPA explain how the authorization, EPA retains enforcement accordance with certain conditions. conditional exclusion would be authority under Sections 3008, 3013, Therefore, this exclusion is less implemented under a variety of and 7003 of RCRA, although authorized stringent than the federal program, and states are not required to adopt this hypothetical situations, involving CO2 states have primary enforcement 19 streams from anthropogenic and natural responsibility. The standards and provision. Nevertheless, while states sources that may be co-mingled in the requirements for state authorization are do not have to adopt this provision, EPA strongly encourages them to do so, same CO2 pipeline, for delivery either to found at 40 CFR Part 271. because this amendment will one or more UIC Class II wells (for Prior to enactment of the Hazardous substantially reduce the uncertainty EOR), UIC Class VI wells (for GS), or to and Solid Waste Amendments of 1984 associated with defining and managing both types of wells. (HSWA), a state with final RCRA these CO streams under RCRA subtitle authorization administered its 2 EPA appreciates the commenter’s C, which will remove the uncertainty hazardous waste program entirely in request, and notes that currently there is regarding the type of permit needed for a lack of sufficient information to lieu of EPA administering the federal the GS of CO2 streams. inform the agency on how to best program in that state. The federal address the ‘‘full range of scenarios’’ requirements no longer applied in the EPA notes that in situations involving presented by the commenter because authorized state, and EPA could not the interstate transportation of many of such scenarios are still under issue permits for any facilities in that conditionally-excluded waste, the development. EPA notes that the state, since only the state was exclusion must be authorized in the purpose of developing this final rule authorized to issue RCRA permits. state where the waste is generated, any was to provide for the option of a When new, more stringent federal states through which the waste passes, conditional hazardous waste exclusion requirements were promulgated, the and the state where the UIC Class VI that could be used, where necessary,17 state was obligated to enact equivalent injection well is located, in order for to provide clarity as to the applicability authorities within specified time frames. that conditionally-excluded waste to be of RCRA subtitle C, and in particular However, the new federal requirements managed as excluded from subtitle C with respect to removing barriers to did not take effect in an authorized state from point of generation to injection in initiating near-term CCS projects.18 until the state adopted the federal a UIC Class VI well. A state that has not requirements as state law. adopted the conditional exclusion may These examples illustrate why EPA is impose state requirements, including committed to an adaptive approach on In contrast, under RCRA Section 3006(g) (42 U.S.C. 6926(g)), which was the uniform hazardous waste manifest CCS generally, so that the Agency may added by HSWA, new requirements and requirement (where applicable) 20 if identify and address additional prohibitions imposed under HSWA characteristically-hazardous CO2 information and respond, including via authority take effect in authorized states streams are being transported through rulemaking, should that be necessary. at the same time that they take effect in that state. EPA recommends in EPA emphasizes that the adaptive unauthorized states. EPA is directed by situations where the conditional approach is not limited to the examples the statute to implement these exclusion is being asserted, involving cited above, and where additional requirements and prohibitions in one or more states that have not yet information may increase authorized states, including the adopted this rule, that persons engaged protectiveness, streamline issuance of permits, until the state is in the transaction consult with these implementation, or otherwise inform granted authorization to do so. While states to ensure no additional the requirements for GS injection of states must still adopt HSWA related requirements apply. CO2, EPA may need to evaluate whether provisions as state law to retain final changes are necessary. Thus, the Agency authorization, EPA implements the commits to reviewing, in a manner HSWA provisions in authorized states similar to the adaptive approach until the states do so. planned for the UIC Class VI rule, new Authorized states are required to 19 research, data, and information related modify their programs only when EPA Some states incorporate the federal regulations to today’s conditional exclusion. by reference, or have specific state statutory enacts federal requirements that are requirements that their state program can be no more stringent or broader in scope than more stringent than the federal regulations. In those 17 EPA also notes that this conditional exclusion existing federal requirements. RCRA cases, the conditional exclusion would be adopted is voluntary, and regulated parties are not obligated Section 3009 allows states to impose by these states, consistent with state laws and to make use of this conditional exclusion. For standards more stringent than those in administrative procedures (unless explicit action is example, generators of non-hazardous waste CO2 the federal program (see also 40 CFR taken by such a state to decline the revisions, as streams are not subject to the RCRA subtitle C 271.1). Therefore, authorized states may, specified under that state’s laws). regulations, and they are not obligated to make use 20 As discussed in the proposed rule (see 76 FR of this conditional exclusion. but are not required to, adopt federal at 48083), the off-site movement of hazardous waste 18 See Executive Summary, Report of the regulations that are considered less through pipelines does not require the use of a Interagency Task Force on Carbon Capture and stringent than previous federal hazardous waste manifest under the federal subtitle Storage, August 2010. regulations. C hazardous waste regulations.

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VII. Statutory and Executive Order (EO) existing regulatory framework (i.e., lack EPA and state government annualized Reviews of Federal legislation), it appears costs associated with the review of unlikely that there would be any selected CO2 exclusion certification A. Executive Order 12866: Regulatory significant expansion in CCS statements are negligible (i.e., < $1,000/ Planning and Review and Executive management for CO2 over the next year). Order 13563: Improving Regulation and These cost savings are expected to Regulatory Review several years. As a result, we have made a downward revision to our high-end occur without any discernible increase Under Executive Order 12866 (58 FR estimate of the number of facilities in negative impacts to human health 51735, October 4, 1993), this action is a potentially affected by the final rule. and the environment, as discussed ‘‘significant regulatory action’’ because The preamble to the proposed rule above. it raises novel legal or policy issues. discussed the Agency’s high level of B. Paperwork Reduction Act Accordingly, EPA submitted this action uncertainty regarding the percent of CO2 to the Office of Management and Budget streams that may be characterized as The Office of Management and Budget (OMB) for review under Executive RCRA subtitle C hazardous waste. (OMB) has preapproved the information Orders 12866 and 13563 (76 FR 3821, Available information at the time collection requirements contained in January 21, 2011) and any changes made indicated that it was possible that some this rule under the provisions of the in response to OMB recommendations Paperwork Reduction Act, 44 U.S.C. CO2 streams might meet the definition have been documented in the docket for of hazardous waste, but the Agency 3501 et seq. and has assigned OMB this action. considered this information to be control number 2050–0207. The EPA In addition, EPA prepared a revised insufficient to make a justifiable point ICR number is 2421.04. This final rule is an important part of analysis of the potential cost impacts estimate or reasonable range. Reflecting the Agency’s efforts to establish a associated with the final rule. This this uncertainty, we applied a broad revised analysis is presented in the regulatory framework for GS. The range of 10 percent to 90 percent for following support document: certifications included in the rule (as CO streams that may be RCRA Assessment of the Potential Costs, 2 well as the requirement for posting such hazardous waste. The proposed rule Benefits, and Other Impacts— certification on the signatories corporate requested that commenters provide Hazardous Waste Management System: Web site, if such Web site exists) are characterization data relevant to Conditional Exclusion for Carbon required for entities wishing to take whether CO streams meet the Dioxide (CO ) Streams in Geologic 2 advantage of the flexibility provided by 2 definition of RCRA hazardous waste and Sequestration Activities: Final Rule the conditional exclusion. The indicated that the Agency would (Assessment document). A copy of this certification statements would be used continue to research and assess this document is available in the docket for to hold generators and UIC Class VI well today’s action. The findings from this issue. In response to our request, EPA owner/operators accountable for analysis are briefly summarized below. received no new information or data knowing the conditions applicable to Entities that may be directly affected that would indicate what percentage of them (e.g., during an on-site inspection). captured CO2 streams would be defined by the final rule include CO2 generators The certification statements also would and sequestration facilities that have as a RCRA hazardous waste. Therefore, be used by generators and owner/ UIC Class VI wells. These entities are there remains a degree of uncertainty as operators to demonstrate that they are likely to experience net cost savings as to what percentage of CO2 streams might aware of, and complying with, the a result of the rule. Entities transporting be defined as a RCRA hazardous waste. conditions. However, within this uncertainty, EPA the CO2 stream that would otherwise be We believe that the certifications are hazardous under subtitle C of RCRA has considered all available information a practical way to assure compliance must continue to meet the baseline DOT and now believes that the high-end because they hold a single person at requirements and are expected to estimate of 90 percent is likely to be a each facility accountable for compliance experience no increased costs, or cost significant overestimate. Therefore, in (i.e., the authorized representative). savings. Increased costs associated with an effort to present a more realistic and Because of this, the representative has a conservative estimate of cost savings, the review of selected CO2 exclusion personal incentive to make sure that the certification statements are expected for we are dropping the high-end 90 facility complies with the conditions. EPA and state governments. percent hazardous waste scenario for The final rule requires that the Our revised analysis for the final rule our final rule Assessment. certification be renewed every year, and incorporates modified estimates Based on these considerations, the be posted on the signatories corporate regarding the high-end number of final rule is estimated to result in Web site, if such Web site exists, that potentially affected facilities and the undiscounted total net cost savings the generator or UIC Class VI well percent of CO2 streams that may be ranging from $4.96 million/year to $7.23 owner/operator claims the RCRA RCRA hazardous.21 Market dynamics million/year. Applying a 3 percent conditional exclusion, in order to affecting the capture, compression, and discount rate, total net savings were ensure that the certification remains sequestration of CO2 streams have found to range from $4.68 million/year current. EPA estimates the total annual changed since the Agency prepared the to $6.83 million/year. Application of a burden to respondents (i.e., the private Assessment document for the proposed 7 percent discount rate resulted in total sector and state governments) under the action. The total number of CO2 capture net savings ranging from $4.24 million/ new paperwork requirements to be 38 facilities potentially affected by the final year to $6.19 million/year. These figures hours and $3,765. There are no capital rule remains uncertain. However, based represent more than an eighty percent costs. The annual public reporting and upon current market conditions and the reduction from estimates presented for recordkeeping burden for this collection the proposal. Similar to the proposal, of information is estimated to average 21 For a complete discussion of these changes see: impacts to sequestration facilities that 4.8 hours per respondent. EPA estimates ‘‘Assessment of the Potential Costs, Benefits, and have UIC Class VI wells represented less there to be 7 private entity respondents Other Impacts—Hazardous Waste Management System: Conditional Exclusion for Carbon Dioxide than one half of one percent of the total and 1 state government respondent that (CO2) Streams in Geologic Sequestration Activities: annualized net cost savings, in all cases will respond once per year. In addition, Final Rule.’’ examined. The revised estimates for EPA estimates an annual burden savings

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under the existing paperwork In determining whether a rule has a explained above, today’s final rule requirements of 103 hours and $8,497. significant economic impact on a conditionally excludes CO2 streams that This results in a net annual savings of substantial number of small entities, the would otherwise be RCRA hazardous 65 hours and $4,733. The bottom-line impact of concern is any significant from the definition of hazardous waste, burden savings to respondents over adverse economic impact on small where such streams, in accordance with three years is estimated to be 195 hours entities, since the primary purpose of the rule, are captured from emission and $14,199. Burden is defined at 5 CFR the regulatory flexibility analyses is to sources and injected into UIC Class VI 1320.3(b). identify and address regulatory wells for purposes of GS. However, An agency may not conduct or alternatives ‘‘which minimize any States would not be required to adopt sponsor, and a person is not required to significant economic impact of the this rule. Thus, Executive Order 13132 respond to, a collection of information proposed rule on small entities’’ 5 does not apply to this action. unless it displays a currently valid OMB U.S.C. 603 and 604. Thus, an agency control number. The OMB control may certify that a rule will not have a F. Executive Order 13175: Consultation numbers for EPA’s regulations in 40 significant economic impact on a and Coordination With Indian Tribal CFR are listed in 40 CFR Part 9. In substantial number of small entities if it Governments addition, EPA is amending the table in relieves regulatory burden, or otherwise This action does not have tribal 40 CFR part 9 of currently approved has a positive economic effect on all of implications, as specified in Executive OMB control numbers for various the small entities subject to the rule. Order 13175 (65 FR 67249, November 9, regulations to list the regulatory This rule is projected to reduce the 2000). No tribal governments are known citations for the information burden on regulated entities by to generate CO2 streams, or own or requirements contained in this final conditionally excluding, from the RCRA operate UIC Class VI wells subject to the rule. subtitle C hazardous waste management final rule. Furthermore, we have requirements, hazardous CO streams C. Regulatory Flexibility Act 2 identified no existing CO2 pipelines that that are captured, transported, and cross tribal lands. Thus, Executive The Regulatory Flexibility Act (RFA) injected into UIC Class VI wells and Order 13175 does not apply to this generally requires an agency to prepare meet certain other conditions. We, action. a regulatory flexibility analysis of any therefore, have concluded that today’s rule subject to notice and comment rule will relieve regulatory burden for G. Executive Order 13045: Protection of rulemaking requirements under the all affected small entities. Children From Environmental Health Administrative Procedure Act or any Risks and Safety Risks other statute unless the agency certifies D. Unfunded Mandates Reform Act This action is not subject to EO 13045 that the rule will not have a significant This action contains no Federal economic impact on a substantial mandates under the provisions of Title (62 FR 19885, April 23, 1997) because number of small entities. Small entities II of the Unfunded Mandates Reform it is not economically significant as include small businesses, small Act of 1995 (UMRA), 2 U.S.C. 1531– defined in EO 12866, and because the organizations, and small governmental 1538 for State, local, or tribal Agency does not believe the jurisdictions. governments or the private sector. As environmental health or safety risks For purposes of assessing the impacts explained above, this exclusion is less addressed by this action present a of today’s rule on small entities, small stringent than the current RCRA federal disproportionate risk to children. entity is defined as: (1) A small program, and states are not required to H. Executive Order 13211: Actions business, based on the size standards of adopt it. Thus, the action imposes no Concerning Regulations That the Small Business Administration enforceable duties on State, local or Significantly Affect Energy Supply, (SBA), that is primarily engaged in the tribal governments. Moreover, private Distribution, or Use generation, capture, storage, sector regulated entities are not required transportation, and GS of excluded to use the conditional exclusion, and This action is not a ‘‘significant hazardous CO2 streams, as defined by may continue to manage their hazardous energy action’’ as defined in Executive Order 13211 (66 FR 28355, May 22, NAICS codes 211111, 221112, 322121, CO2 streams in accordance with the full 324110, 324199, 325120, 325193, RCRA hazardous waste regulations. 2001), because it is not likely to have a 325311, and 327310, with total Therefore, this action is not subject to significant adverse effect on the supply, corporate employment ranging from 500 the requirements of sections 202 or 205 distribution, or use of energy. The only to 1,500 persons 22; (2) a small of the UMRA. This action is also not effect of this action will be to governmental jurisdiction that is a subject to the requirements of section conditionally exclude CO2 streams that government of a city, county, town, 203 of UMRA because it contains no otherwise would be RCRA hazardous school district or special district with a regulatory requirements that might from the definition of hazardous waste, population of less than 50,000; and (3) significantly or uniquely affect small where such streams are captured from a small organization that is any not-for- governments. emission sources and injected into UIC profit enterprise which is independently Class VI wells for purposes of GS. This owned and operated and is not E. Executive Order 13132: Federalism conditional exclusion would allow for dominant in its field. This action does not have federalism the GS of CO2, while maintaining After considering the economic implications. It will not have substantial protection of human health and the impacts of today’s final rule on small direct effects on the states, on the environment, and would not entities, I certify that this action will not relationship between the national significantly disrupt the supply, have a significant economic impact on government and the states, or on the distribution, or use of energy.23 a substantial number of small entities. distribution of power and 23 responsibilities among the various As noted earlier in the preamble, where CO2 22 211111 (500 persons), 221112 (500 persons), levels of government, as specified in streams are beneficially used for EOR/EGR in other 322121 (750 persons), 324110 (1,500 persons), than UIC Class VI wells—even where some 324199 (500 persons), 325120 (1,000 persons), Executive Order 13132. This rule will sequestration may occur in the process of 325193 (1,000 persons), 325311 (1,000 persons), not impose any requirements on States, recovering oil or gas—these activities are beyond and 327310 (750 persons). or any other level of government. As the scope of this final rule.

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I. National Technology Transfer and environmental effects on minority or 40 CFR Part 260 Advancement Act low-income populations because it does Environmental protection, Hazardous Section 12(d) of the National not affect the level of protection provided to human health or the waste, Recycling, Reporting and Technology Transfer and Advancement recordkeeping requirements. Act of 1995 (‘‘NTTAA’’), Public Law environment. The only effect of this 104–113, 12(d) (15 U.S.C. 272 note) action will be to conditionally exclude 40 CFR Part 261 directs EPA to use voluntary consensus CO2 streams that would otherwise be standards in its regulatory activities RCRA hazardous from the definition of Environmental protection, unless to do so would be inconsistent hazardous waste, where such streams Administrative practice and procedure, with applicable law or otherwise are captured from emission sources and Confidential business information, impractical. Voluntary consensus injected into UIC Class VI wells and Hazardous waste, Reporting and standards are technical standards (e.g., meet other specified conditions. recordkeeping requirements. materials specifications, test methods, Existing regulations governing the generation, transportation, and injection Dated: December 17, 2013. sampling procedures, and business Gina McCarthy, practices) that are developed or adopted of CO2 streams in UIC Class VI wells are by voluntary consensus standards expected to protect human health and Administrator. bodies. NTTAA directs EPA to provide the environment, making additional For the reasons set out in the Congress, through OMB, explanations regulation under RCRA subtitle C preamble, Parts 9, 260 and 261 of title when the Agency decides not to use unnecessary. (See Section V.C. in this 40, Chapter I of the Code of Federal available and applicable voluntary preamble for further discussion.) Regulations are amended as follows: consensus standards. K. Congressional Review Act This action does not involve technical PART 9—OMB APPROVALS UNDER standards. Therefore, EPA did not The Congressional Review Act, 5 THE PAPERWORK REDUCTION ACT consider the use of any voluntary U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement consensus standards. ■ Fairness Act of 1996, generally provides 1. The authority citation for part 9 J. Executive Order 12898: Federal that before a rule may take effect, the continues to read as follows: Actions To Address Environmental agency promulgating the rule must Authority: 7 U.S.C. 135 et seq., 136–136y; Justice in Minority Populations and submit a rule report, which includes a 15 U.S.C. 2001, 2003, 2005, 2006, 2601–2671; Low-Income Populations copy of the rule, to each House of the 21 U.S.C. 331j, 346a, 348; 31 U.S.C. 9701; 33 Executive Order (EO) 12898 (59 FR Congress and to the Comptroller General U.S.C. 1251 et seq., 1311, 1313d, 1314, 1318, 7629, February 16, 1994)) establishes of the United States. EPA will submit a 1321, 1326, 1330, 1342, 1344, 1345(d) and federal executive policy on report containing this rule and other (e), 1361; E.O. 11735, 38 FR 21243, 3 CFR, environmental justice. Its main required information to the U.S. Senate, 1971–1975 Comp. p. 973; 42 U.S.C. 241, provision directs federal agencies, to the the U.S. House of Representatives, and 242b, 243, 246, 300f, 300g, 300g–1, 300g–2, greatest extent practicable and the Comptroller General of the United 300g–3, 300g–4, 300g–5, 300g–6, 300j–1, permitted by law, to make States prior to publication of the rule in 300j–2, 300j–3, 300j–4, 300j–9, 1857 et seq., environmental justice part of their the Federal Register. A Major rule 6901–6992k, 7401–7671q, 7542, 9601–9657, mission by identifying and addressing, cannot take effect until 60 days after it 11023, 11048. as appropriate, disproportionately high is published in the Federal Register. ■ 2. In § 9.1, add the following section and adverse human health or This action is not a ‘‘major rule’’ as in numerical order under the environmental effects of their programs, defined by 5 U.S.C. 804(2). This rule undesignated center heading policies, and activities on minority will be effective March 4, 2014. ‘‘Identification and Listing of Hazardous populations and low-income List of Subjects Waste’’ to read as follows: populations in the United States. EPA has determined that this final 40 CFR Part 9 § 9.1 OMB approvals under the Paperwork rule will not have disproportionately Environmental protection, Reporting Reduction Act. high and adverse human health or and recordkeeping requirements. * * * * *

40 CFR citation OMB control No.

*******

Identification and Listing of Hazardous Waste

******* 261.4(h)(4) ...... 2050–0207

*******

* * * * * Authority: 42 U.S.C. 6905, 6912(a), 6921– Subpart B—Definitions 6927, 6930, 6934, 6935, 6937, 6938, 6939, PART 260—HAZARDOUS WASTE and 6974. ■ 4. Section 260.10 is amended by MANAGEMENT SYSTEM: GENERAL adding in alphabetical order the ■ 3. The authority citation for Part 260 definition of ‘‘Carbon dioxide stream’’ to continues to read as follows: read as follows:

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§ 260.10 Definitions. have transported the carbon dioxide stream ENVIRONMENTAL PROTECTION * * * * * in compliance with (or have contracted with AGENCY Carbon dioxide stream means carbon a pipeline operator or transporter to transport dioxide that has been captured from an the carbon dioxide stream in compliance 40 CFR Part 52 with) Department of Transportation emission source (e.g., power plant), plus [EPA–R09–OAR–2013–0668; FRL–9902–71– incidental associated substances derived requirements, including the pipeline safety Region 9] from the source materials and the laws (49 U.S.C. 60101 et seq.) and regulations capture process, and any substances (49 CFR Parts 190–199) of the U.S. Revisions to the California State added to the stream to enable or Department of Transportation, and the Implementation Plan, Antelope Valley improve the injection process. pipeline safety regulations adopted and Air Quality Management District, administered by a state authority pursuant to * * * * * Mojave Desert Air Quality Management a certification under 49 U.S.C. 60105, as District, Monterey Bay Unified Air PART 261—IDENTIFICATION AND applicable, for injection into a well subject to Pollution Control District, and South LISTING OF HAZARDOUS WASTE the requirements for the Class VI Coast Air Quality Management District Underground Injection Control Program of ■ 5. The authority citation for Part 261 the Safe Drinking Water Act. AGENCY: Environmental Protection continues to read as follows: Agency (EPA). (ii) Any Class VI Underground Injection ACTION: Direct final rule. Authority: 42 U.S.C. 6905, 6912(a), 6921, Control well owner or operator, who 6922, 6924(y), and 6938 claims that a carbon dioxide stream is SUMMARY: The Environmental Protection ■ 6. Section 261.4 is amended by adding excluded under paragraph (h) of this Agency (EPA) is taking direct final paragraph (h) to read as follows: section, must have an authorized action to approve revisions to the representative (as defined in 40 CFR Antelope Valley Air Quality § 261.4 Exclusions. Management District (AVAQMD), 260.10) sign a certification statement * * * * * Mojave Desert Air Quality Management worded as follows: (h) Carbon dioxide stream injected for District (MDAQMD), Monterey Bay geologic sequestration. Carbon dioxide I certify under penalty of law that the Unified Air Pollution Control District streams that are captured and carbon dioxide stream that I am claiming to (MBUAPCD), and South Coast Air transported for purposes of injection be excluded under 40 CFR 261.4(h) has not Quality Management District into an underground injection well been mixed with, or otherwise co-injected (SCAQMD) portion of the California subject to the requirements for Class VI with, hazardous waste at the Underground State Implementation Plan (SIP). These Underground Injection Control wells, Injection Control (UIC) Class VI permitted revisions concern volatile organic including the requirements in 40 CFR facility, and that injection of the carbon compound (VOC) emissions from Parts 144 and 146 of the Underground dioxide stream is in compliance with the architectural coatings, liquefied Injection Control Program of the Safe applicable requirements for UIC Class VI petroleum gas transfer, and ignition of Drinking Water Act, are not a hazardous wells, including the applicable requirements barbecue charcoal. We are approving waste, provided the following in 40 CFR Parts 144 and 146. three local rules and rescinding one conditions are met: local rule that regulate these emission (1) Transportation of the carbon (iii) The signed certification statement sources under the Clean Air Act (CAA dioxide stream must be in compliance must be kept on-site for no less than or the Act). three years, and must be made available with U.S. Department of Transportation DATES: This rule is effective on March 4, requirements, including the pipeline within 72 hours of a written request 2014 without further notice, unless EPA safety laws (49 U.S.C. 60101 et seq.) and from the Administrator, Regional receives adverse comments by February regulations (49 CFR Parts 190–199) of Administrator, or state Director (if 3, 2014. If we receive such comments, the U.S. Department of Transportation, located in an authorized state), or their we will publish a timely withdrawal in and pipeline safety regulations adopted designee. The signed certification the Federal Register to notify the public and administered by a state authority statement must be renewed every year that this direct final rule will not take pursuant to a certification under 49 that the exclusion is claimed, by having effect. U.S.C. 60105, as applicable. an authorized representative (as defined ADDRESSES: Submit comments, (2) Injection of the carbon dioxide in 40 CFR 260.10) annually prepare and identified by docket number EPA–R09– stream must be in compliance with the sign a new copy of the certification OAR–2013–0668, by one of the applicable requirements for Class VI statement within one year of the date of following methods: Underground Injection Control wells, the previous statement. The signed 1. Federal eRulemaking Portal: including the applicable requirements certification statement must also be www.regulations.gov. Follow the on-line in 40 CFR Parts 144 and 146; readily accessible on the facility’s instructions. (3) No hazardous wastes shall be publicly-available Web site (if such Web 2. Email: [email protected]. mixed with, or otherwise co-injected site exists) as a public notification with 3. Mail or deliver: Andrew Steckel with, the carbon dioxide stream; and the title of ‘‘Carbon Dioxide Stream (Air–4), U.S. Environmental Protection (4)(i) Any generator of a carbon Certification’’ at the time the exclusion Agency Region IX, 75 Hawthorne Street, dioxide stream, who claims that a San Francisco, CA 94105–3901. is claimed. carbon dioxide stream is excluded Instructions: All comments will be under this paragraph (h), must have an [FR Doc. 2013–31246 Filed 1–2–14; 8:45 am] included in the public docket without authorized representative (as defined in BILLING CODE 6560–50–P change and may be made available 40 CFR 260.10) sign a certification online at www.regulations.gov, statement worded as follows: including any personal information I certify under penalty of law that the provided, unless the comment includes carbon dioxide stream that I am claiming to Confidential Business Information (CBI) be excluded under 40 CFR 261.4(h) has not or other information whose disclosure is been mixed with hazardous wastes, and I restricted by statute. Information that

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you consider CBI or otherwise protected electronically at www.regulations.gov Table of Contents should be clearly identified as such and and in hard copy at EPA Region IX, 75 I. The State’s Submittal should not be submitted through Hawthorne Street, San Francisco, A. What rules did the State submit? www.regulations.gov or email. California 94105–3901. While all B. Are there other versions of these rules? www.regulations.gov is an ‘‘anonymous documents in the docket are listed at C. What is the purpose of the submitted access’’ system, and EPA will not know www.regulations.gov, some information rule revisions? your identity or contact information may be publicly available only at the II. EPA’s Evaluation and Action unless you provide it in the body of hard copy location (e.g., copyrighted A. How is EPA evaluating the rules? your comment. If you send email material, large maps), and some may not B. Do the rules meet the evaluation directly to EPA, your email address will be publicly available in either location criteria? C. EPA Recommendations To Further be automatically captured and included (e.g., CBI). To inspect the hard copy Improve the Rules as part of the public comment. If EPA materials, please schedule an D. Public Comment and Final Action cannot read your comment due to appointment during normal business III. Statutory and Executive Order Reviews technical difficulties and cannot contact hours with the contact listed in the FOR you for clarification, EPA may not be FURTHER INFORMATION CONTACT section. I. The State’s Submittal able to consider your comment. FOR FURTHER INFORMATION CONTACT: A. What rules did the State submit? Electronic files should avoid the use of Nicole Law, EPA Region IX, (415) 947– special characters, any form of Table 1 lists the rules we are 4126, [email protected]. encryption, and be free of any defects or approving and rescinding with the dates viruses. SUPPLEMENTARY INFORMATION: that they were adopted or rescinded by Docket: Generally, documents in the Throughout this document, ‘‘we,’’ ‘‘us,’’ the local air agencies and submitted by docket for this action are available and ‘‘our’’ refer to EPA. the California Air Resources Board.

TABLE 1—SUBMITTED RULES

Adopted/ Local agency Rule No. Rule title amended Rescinded Submitted

MDAQMD ...... 1113 Architectural Coatings...... 04/23/12 ...... 02/06/13 MBUAPCD ...... 426 Architectural Coatings...... 08/15/12 ...... 04/22/13 AVAQMD ...... 1174 Control of Volatile Organic Compound Emis- 10/05/90 11/20/12 04/22/13 sions from the Ignition of Barbecue Charcoal. SCAQMD ...... 1177 Liquefied Petroleum Gas Transfer and Dis- 06/01/12 ...... 02/06/13 pensing.

On April 9, 2013, EPA determined health and the environment. Section ozone NAAQS (see 40 CFR Part 81.305), that the submittal for MDAQMD Rule 110(a) of the CAA requires States to so Rule 1177 must fulfill RACT. The 1113 and SCAQMD Rule 1177 met the submit regulations that control VOC MBUAPCD and MDAQMD rules completeness criteria in 40 CFR Part 51 emissions. MDAQMD Rule 1113 and regulate an area source and are not Appendix V, which must be met before MBUAPCD Rule 426 lower VOC content required to fulfill RACT, though we formal EPA review. On June 26, 2013, limits of various architectural coatings have evaluated them for enforceability, EPA determined that the submittal for and SCAQMD Rule 117 limits VOC stringency, and backsliding. The MBUAPCD Rule 426 and AVAQMD emissions from liquefied petroleum gas rescission of the AVAQMD rule must Rule 1174 met the completeness criteria transfer. AVAQMD Rule 1174 controlled not relax existing requirements (see in 40 CFR Part 51 Appendix V, which VOC emissions from ignition of sections 110(l) and 193 of the CAA). must be met before formal EPA review. barbecue charcoal, but is being rescinded because EPA and CARB have Guidance and policy documents that B. Are there other versions of these adopted redundant regulations. EPA’s we use to evaluate enforceability and rules? technical support documents (TSD) RACT requirements consistently include the following: There are no previous versions of have more information about these SCAQMD Rule 1177 in the SIP. We rules. 1. ‘‘State Implementation Plans; General Preamble for the approved an earlier version of II. EPA’s Evaluation and Action AVAQMD Rule 1174 into the SIP on Implementation of Title I of the Clean October 4, 1994 (59 FR 50498). Limited A. How is EPA evaluating the rules? Air Act Amendments of 1990,’’ 57 FR approvals of MDAQMD Rule 1113 and Generally, SIP rules must be 13498 (April 16, 1992); 57 FR 18070 MBUAPCD Rule 426 were published on enforceable (see section 110(a) of the (April 28, 1992). January 1, 2004 (69 FR 34) for inclusion Act), must require Reasonably Available 2. ‘‘Issues Relating to VOC Regulation in the SIP. The MDAQMD and Control Technology (RACT) for each Cutpoints, Deficiencies, and MBUAPCD adopted revisions to the SIP- category of sources covered by a Control Deviations,’’ EPA, May 25, 1988 (the approved versions on April 23, 2012 Techniques Guidelines (CTG) document Bluebook). and August 15, 2012 and CARB as well as each NOX or VOC major submitted them to us on February 6, source in ozone nonattainment areas 3. ‘‘Guidance Document for Correcting 2013, and April 22, 2013. classified as moderate or above (see Common VOC & Other Rule sections 182(b)(2) and 182(f)), and must Deficiencies,’’ EPA Region 9, August 21, C. What is the purpose of the submitted 2001 (the Little Bluebook). rule revisions? not relax existing requirements (see sections 110(l) and 193). SCAQMD 4. ‘‘Suggested Control Measure for VOCs help produce ground-level regulates an ozone nonattainment area Architectural Coatings,’’ CARB, October ozone and smog, which harm human classified as extreme for the 8-hour 2007.

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B. Do the rules meet the evaluation additional requirements beyond those the U.S. House of Representatives, and criteria? imposed by State law. For that reason, the Comptroller General of the United this action: States prior to publication of the rule in We believe these rules are consistent • with the relevant policy and guidance Is not a ‘‘significant regulatory the Federal Register. A major rule regarding enforceability, RACT, and SIP action’’ subject to review by the Office cannot take effect until 60 days after it relaxations. The AVAQMD is requesting of Management and Budget under is published in the Federal Register. rescission of rule 1174 because EPA and Executive Order 12866 (58 FR 51735, This action is not a ‘‘major rule’’ as CARB have adopted similar regulations October 4, 1993); defined by 5 U.S.C. 804(2). • and we believe the rule rescission is does not impose an information Under section 307(b)(1) of the Clean consistent with policy and guidance. collection burden under the provisions Air Act, petitions for judicial review of The TSDs have more information on our of the Paperwork Reduction Act (44 this action must be filed in the United evaluation. U.S.C. 3501 et seq.); States Court of Appeals for the • is certified as not having a appropriate circuit by March 4, 2014. C. EPA Recommendations To Further significant economic impact on a Filing a petition for reconsideration by Improve the Rules substantial number of small entities the Administrator of this final rule does The TSDs describe additional rule under the Regulatory Flexibility Act (5 not affect the finality of this action for revisions that we recommend for the U.S.C. 601 et seq.); the purposes of judicial review nor does next time the local agencies modify the • does not contain any unfunded it extend the time within which a rules. mandate or significantly or uniquely petition for judicial review may be filed, affect small governments, as described and shall not postpone the effectiveness D. Public Comment and Final Action in the Unfunded Mandates Reform Act of such rule or action. Parties with As authorized in section 110(k)(3) of of 1995 (Pub. L. 104–4); objections to this direct final rule are the Act, EPA is fully approving the • does not have Federalism encouraged to file a comment in submitted rules and rule rescission implications as specified in Executive response to the parallel notice of because we believe they fulfill all Order 13132 (64 FR 43255, August 10, proposed rulemaking for this action relevant requirements. We do not think 1999); published in the Proposed Rules section anyone will object to this approval, so • is not an economically significant of today’s Federal Register, rather than we are finalizing it without proposing it regulatory action based on health or file an immediate petition for judicial in advance. However, in the Proposed safety risks subject to Executive Order review of this direct final rule, so that Rules section of this Federal Register, 13045 (62 FR 19885, April 23, 1997); EPA can withdraw this direct final rule we are simultaneously proposing • is not a significant regulatory action and address the comment in the approval of the same submitted rules subject to Executive Order 13211 (66 FR proposed rulemaking. This action may and rule rescission. If we receive 28355, May 22, 2001); not be challenged later in proceedings to adverse comments by February 3, 2014, • is not subject to requirements of enforce its requirements (see section we will publish a timely withdrawal in Section 12(d) of the National 307(b)(2)). the Federal Register to notify the public Technology Transfer and Advancement List of Subjects in 40 CFR Part 52 that the direct final approval will not Act of 1995 (15 U.S.C. 272 note) because take effect and we will address the application of those requirements would Environmental protection, Air comments in a subsequent final action be inconsistent with the Clean Air Act; pollution control, Incorporation by based on the proposal. If we do not and reference, Intergovernmental relations, receive timely adverse comments, the • does not provide EPA with the Ozone, Reporting and recordkeeping direct final approval will be effective discretionary authority to address requirements, Volatile organic without further notice on March 4, disproportionate human health or compounds. 2014. This will incorporate the three environmental effects with practical, Dated: September 25, 2013. rules into and remove the one rule from appropriate, and legally permissible Jared Blumenfeld, the federally enforceable SIP. methods under Executive Order 12898 Regional Administrator, Region IX. Please note that if EPA receives (59 FR 7629, February 16, 1994). adverse comment on an amendment, Part 52, Chapter I, Title 40 of the Code paragraph, or section of this rule and if In addition, this rule does not have of Federal Regulations is amended as that provision may be severed from the tribal implications as specified by follows: remainder of the rule, EPA may adopt Executive Order 13175 (65 FR 67249, as final those provisions of the rule that November 9, 2000), because the SIP is PART 52 APPROVAL AND are not the subject of an adverse not approved to apply in Indian country PROMULGATION OF comment. located in the State, and EPA notes that IMPLEMENTATION PLANS. it will not impose substantial direct III. Statutory and Executive Order costs on tribal governments or preempt ■ 1. The authority citation for Part 52 Reviews tribal law. continues to read as follows: Under the Clean Air Act, the The Congressional Review Act, 5 Authority: 42 U.S.C. 7401 et seq. Administrator is required to approve a U.S.C. 801 et seq., as added by the Small SIP submission that complies with the Business Regulatory Enforcement Subpart F—California provisions of the Act and applicable Fairness Act of 1996, generally provides ■ 2. Section 52.220 is amended by Federal regulations. 42 U.S.C. 7410(k); that before a rule may take effect, the adding paragraphs (c)(184)(i)(B)(12), 40 CFR 52.02(a). Thus, in reviewing SIP agency promulgating the rule must (c)(428)(i)(C) and (D), and (c)(429)(i)(C) submissions, EPA’s role is to approve submit a rule report, which includes a to read as follows: State choices, provided that they meet copy of the rule, to each House of the the criteria of the Clean Air Act. Congress and to the Comptroller General § 52.220 Identification of plan. Accordingly, this action merely of the United States. EPA will submit a * * * * * approves State law as meeting Federal report containing this action and other (c) * * * requirements and does not impose required information to the U.S. Senate, (184) * * *

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(i) * * * DATES: This rule is effective on March 4, made available on the Internet. If you (B) * * * 2014 without further notice, unless the submit an electronic comment, the EPA (12) Previously approved on October EPA receives adverse comment by recommends that you include your 4, 1994 in paragraph (c)(184)(i)(B)(4) of February 3, 2014. If we receive adverse name and other contact information in this section and now deleted without comment, we will publish a timely the body of your comment and with any replacement, for the Antelope Valley withdrawal in the Federal Register disk or CD–ROM you submit. If the EPA area only, Antelope Valley Rule 1174, informing the public that this rule, or cannot read your comment due to previously South Coast Rule 1174. relevant provisions of this rule, will not technical difficulties and cannot contact South Coast Rule 1174 remains in effect take effect. you for clarification, the EPA may not for the South Coast area. ADDRESSES: You may submit comments, be able to consider your comment. * * * * * identified by Docket ID Number EPA– Electronic files should not include (428) * * * HQ–OAR–2011–0344, by one of the special characters, any form of (i) * * * following methods: encryption, and be free of any defects or (C) Mojave Desert Air Quality • http://www.regulations.gov: Follow viruses. For additional information Management District. the online instructions for submitting about the EPA’s public docket, visit the (1) Rule 1113, ‘‘Architectural comments. EPA Docket Center homepage at http:// Coatings,’’ amended on April 23, 2012. • Email: [email protected], www.epa.gov/dockets. (D) South Coast Air Quality Attention Docket ID Number EPA–HQ– Docket. The EPA has established a Management District. OAR–2011–0344. docket for this rulemaking under Docket (1) Rule 1177, ‘‘Liquefied Petroleum • Fax: (202) 566–9744, Attention ID Number EPA–HQ–OAR–2011–0344. Gas Transfer and Dispensing,’’ adopted Docket ID Number EPA–HQ–OAR– All documents in the docket are listed on June 1, 2012. 2011–0344. in the http://www.regulations.gov index. (429) * * * • Mail: U.S. Postal Service, send Although listed in the index, some (i) * * * comments to: EPA Docket Center, EPA information is not publicly available, (C) Monterey Bay Unified Air West (Air Docket), Attention Docket ID e.g., CBI or other information whose Pollution Control District. Number EPA–HQ–OAR–2011–0344, disclosure is restricted by statute. (1) Rule 426, ‘‘Architectural U.S. Environmental Protection Agency, Certain other material, such as Coatings,’’ amended on August 15, Mailcode: 2822T, 1200 Pennsylvania copyrighted material, is not placed on 2012. Ave., NW., Washington, DC 20460. the Internet, and will be publicly available only in hard copy. Publicly * * * * * Please include a total of two copies. [FR Doc. 2013–30861 Filed 1–2–14; 8:45 am] • Hand Delivery: U.S. Environmental available docket materials are available either electronically in http:// BILLING CODE 6560–50–P Protection Agency, EPA West (Air Docket), Room 3334, 1301 Constitution www.regulations.gov or in hard copy at Ave., NW., Washington, DC 20004, the EPA Docket Center, EPA West, ENVIRONMENTAL PROTECTION Attention Docket ID Number EPA–HQ– Room 3334, 1301 Constitution Ave. AGENCY OAR–2011–0344. Such deliveries are NW., Washington, DC. The Public only accepted during the Docket’s Reading Room is open from 8:30 a.m. to 40 CFR Part 63 normal hours of operation, and special 4:30 p.m., Monday through Friday, arrangements should be made for excluding legal holidays. The telephone [EPA–HQ–OAR–2011–0344; FRL–9904–38– number for the Public Reading Room is OAR] deliveries of boxed information. Instructions. Direct your comments to (202) 566–1744, and the telephone RIN 2060–AR66 Docket ID Number EPA–HQ–OAR– number for the EPA Docket Center is (202) 566–1742. National Emissions Standards for 2011–0344. The EPA’s policy is that all comments received will be included in FOR FURTHER INFORMATION CONTACT: For Hazardous Air Pollutants from questions about this action, contact Mr. Secondary Lead Smelting the public docket without change and may be made available online at http:// Nathan Topham, Metals and Inorganic AGENCY: Environmental Protection www.regulations.gov, including any Chemicals Group, Sector Policies and Agency (EPA). personal information provided, unless Programs Division (D243–02), U.S. Environmental Protection Agency, ACTION: Direct final rule. the comment includes information claimed to be confidential business Research Triangle Park, NC 27711; SUMMARY: The Environmental Protection information (CBI) or other information telephone number: (919) 541–0483; fax Agency (EPA) is taking direct final whose disclosure is restricted by statute. number: (919) 541–3207; and email action to promulgate amendments to a Do not submit information that you address: [email protected]. final rule that revised national emission consider to be CBI or otherwise SUPPLEMENTARY INFORMATION: standards for hazardous air pollutants protected through http:// Organization of this Document. The for existing and new secondary lead www.regulations.gov or email. The following outline is provided to aid in smelters. The final rule was published http://www.regulations.gov Web site is locating information in the preamble. on January 5, 2012. This direct final an ‘‘anonymous access’’ system, which I. What is the background for the action amends certain regulatory text to means the EPA will not know your amendments? clarify compliance dates. Additionally, identity or contact information unless II. What are the changes to the final rule? we are making amendments to clarify you provide it in the body of your III. Statutory and Executive Order Reviews certain provisions in the 2012 final rule comment. If you send an email A. Executive Order 12866: Regulatory related to monitoring of negative comment directly to the EPA without Planning and Review, and Executive pressure in total enclosures. This action going through http:// Order 13563: Improving Regulation and Regulatory Review also corrects typographical errors in a www.regulations.gov, your email B. Paperwork Reduction Act table listing congeners of dioxins and address will be automatically captured C. Regulatory Flexibility Act furans and the testing requirements for and included as part of the comment D. Unfunded Mandates Reform Act total hydrocarbons. that is placed in the public docket and E. Executive Order 13132: Federalism

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F. Executive Order 13175: Consultation smelters. In the 2011 proposed rule, the comments in any subsequent final rule and Coordination With Indian Tribal total hydrocarbon standard for furnace based on the proposed rule. We will Governments charging process fugitive emissions that address other issues for which we have G. Executive Order 13045: Protection of are not combined with furnace process received requests for reconsideration in Children From Environmental Health emissions did not require correction to a separate proposal that will be Risks and Safety Risks H. Executive Order 13211: Actions 4-percent carbon dioxide (CO2). See the published at a later date. Federal Register at 76 FR 29072, May Concerning Regulations That II. What are the changes to the final 19, 2011. In the 2012 final rule, this Significantly Affect Energy Supply, rule? Distribution, or Use standard inadvertently included I. National Technology Transfer and correction to 4-percent CO2. See the We are clarifying compliance Advancement Act Federal Register at 77 FR 582, January requirements for existing sources for the J. Executive Order 12898: Federal Actions 5, 2012. period beginning January 5, 2012, and To Address Environmental Justice in Finally, petitioners asked the EPA to ending on the compliance date for Minority Populations and Low-Income clarify several monitoring provisions for existing sources established in the final Populations total enclosures. Industry requested rule published in the Federal Register at K. Congressional Review Act flexibility in defining the term 77 FR 584, January 5, 2012. See 40 CFR I. What is the background for the ‘‘windward wall’’ when a total 63.546(a). When the final rule was amendments? enclosure is not impacted by ambient published in the Federal Register, the wind. The regulatory text was unclear subpart was reprinted in its entirety to On January 5, 2012 (77 FR 556), EPA where to place monitors when ambient aid the public in locating and published final amendments to the wind does not affect the total enclosure. understanding the requirements for National Emissions Standards for Petitioners requested clarification in secondary lead smelters. This Hazardous Air Pollutants (NESHAP) how to monitor enclosures that are inadvertently removed the earlier From Secondary Lead Smelting. The divided into multiple areas all under version of 40 CFR part 63, subpart X EPA has subsequently determined, negative pressure. Petitioners also asked from the CFR. This direct final rule following discussions with affected the EPA to clarify that data from clarifies that secondary lead smelters parties, that the final rule warrants differential pressure monitors should be that commenced construction or clarification in four areas. used to calculate 15-minute averages. reconstruction before May 19, 2011 (i.e., The EPA inadvertently removed from Petitioners also stated that the EPA all sources existing as of that time, 40 CFR part 63, subpart X the should clarify the meaning of which includes sources classified as requirement for facilities constructed or ‘‘accuracy’’ in 40 CFR 63.548(k)(3). both existing and new under the reconstructed on or before May 19, The EPA is issuing the amendments previous rule), are still subject to the 2011, to comply with the previous as a direct final rule, without a prior requirements of subpart X for new and version of the NESHAP between proposal, because we view the revisions existing sources that were effective prior promulgation of the January 5, 2012, as noncontroversial and anticipate no to the January 5, 2012, amendments, amendments and the subsequent adverse comment. The EPA never and remain subject to those provisions compliance date for existing sources, intended to remove the pre-January until the compliance date for the which is January 6, 2014. Since existing 2012 NESHAP from the Code of Federal January 5, 2012, amendments. sources remain subject to the pre- Regulations (CFR), and no commenters Specifically, sources that were classified existing standards until the compliance suggested such an action. Additionally, as new under the previous rule, (i.e., date for the January 2012 standards, the the errors in Table 3 to subpart X of part those which commenced construction EPA is amending the rule to restore the 63 and the THC correction for furnace after June 9, 1994) are subject to the deleted language. charging process fugitive emissions are previous rule’s new source standards The EPA received petitions for simply typographical errors. The (codified at former 40 CFR 63.543 reconsideration of the final rule from differential pressure monitoring through 63.545). Existing sources under the secondary lead smelting industry. clarifications do not alter the impacts of the previous rule are subject to the One issue raised in the petitions relates the 2012 final rule and simply clarify previous rule’s existing source to the table of dioxin and furan requirements from that rulemaking. The standards (codified at former 40 CFR congeners contained in the regulatory monitoring clarifications include the 63.543 through 63.545). We have added text (Table 3 to Subpart X of Part 63— following: Clarifying the definition of paragraph (c) to 40 CFR 63.546 to Toxic Equivalency Factors). This table windward wall; clarifying how to correct this inadvertent error. included incorrect values for some monitor pressure in situations where The EPA is also correcting dioxin toxic equivalency factors (TEF) smaller enclosures are located within typographical errors in Table 3 to and omitted some congeners. The EPA larger full enclosures; clarifying the subpart X of part 63. The table did not intended to use the 2005 World Health averaging time for the monitoring; and include all of the 2005 WHO TEF and Organization (WHO) TEF in Table 3 to clarifying the calibration requirements had incorrect TEF values for some of the subpart X of part 63. See 76 FR 29051, for the monitoring equipment. However, congeners included in the table. The ‘‘The TEQ emissions will be calculated in the Proposed Rules section of this EPA is not changing the emission using the toxic equivalency factors Federal Register issue, the EPA is also standards for dioxins and furans from (TEF) outlined by the World Health publishing a separate document that the 2012 final rule or using different Organization (WHO) in 2005 (available will serve as the proposal to amend the congeners than we intended to include at Web site: http://www.epa.gov/raf/ Secondary Lead Smelting NESHAP with in the 2011 proposed rule or 2012 final hhtefguidance/).’’ the same amendments contained in this rule. See 76 FR 29051, ‘‘The TEQ Industry petitioners expressed direct final action if significant adverse emissions will be calculated using the concern that the agency changed one comments are submitted. The EPA will toxic equivalency factors (TEF) outlined aspect of the emission standard for total not institute a second comment period by the World Health Organization hydrocarbons (THC) between proposing on this action. Any parties interested in (WHO) in 2005 (available at Web site: and finalizing the risk and technology commenting must do so at this time. http://www.epa.gov/raf/ review amendments for secondary lead The EPA will address all public hhtefguidance/)’’.

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We are removing the CO2 correction we are clarifying that in such situations, than a specific certified accuracy level. requirement that we inadvertently owners or operators may choose which We are clarifying this requirement in the added to 40 CFR 63.543(f) in the final wall to define as the ‘‘windward wall’’ regulatory text. We are changing the rule. We did not intend to make this for placing differential pressure sensitivity requirement from 0.0005 change between the proposed and final monitors. We are also adding regulatory inches of water to 0.001 inches of water. rules, did not receive comments on this text that allows a permit authority to Industry commenters noted difficulty issue, and did not discuss it in the approve an alternative location for the finding monitors with sufficient preamble to the final rule or supporting third monitor placed between the sensitivity to meet the original documents. The hoods that capture windward and leeward wall monitors. requirement. Monitors capable of furnace charging process fugitive Industry commenters stated that recording data in increments of 0.001 emissions draw a large amount of excess irregularly shaped enclosures would inches of water are sufficient to ambient air with very low make it difficult to determine where to determine compliance with the concentrations of CO2. Measured place the monitor under the current standard. This clarification will not concentrations of THC would be requirements. This clarification will not have any impact on the cost or inappropriately multiplied by 10 if CO2 adversely affect the quality or frequency environmental impacts of the 2012 final corrections were required for these of data collection from differential rule or impact the quality or frequency sources. This amendment will not pressure monitors. of differential pressure data collection. change the impacts of the 2012 final 2. Averaging Time for Differential 4. Calibration Schedule for Differential rule since we did not intend to make Pressure Monitoring Data Pressure Monitors this change between the proposed and final rules. The 2012 final rule for secondary lead We are amending the regulatory text We are also clarifying five parts of the smelters requires differential pressure to simplify requirements for calibrating rule establishing differential pressure monitors in order to demonstrate differential pressure monitors. See 40 monitoring requirements for negative continuous compliance with the CFR 63.548(k)(5). We have changed the pressure enclosures. These corrections requirements of 40 CFR 63.544(c)(1). regulatory text to require calibration per are intended to clarify existing Industry petitioners stated that the 2012 manufacturer’s specifications rather requirements and do not change the final rule creates uncertainty about how than on a prescribed schedule. It has impacts of the final rule. to handle data collected from come to our attention that some differential pressure monitors. The 2012 manufacturers of differential pressure 1. Placement of Pressure Monitors for final rule did not explicitly state how to monitors do not require or recommend Total Enclosures Inside Larger use the data collected from the calibration as frequently as once per Structures monitors, although the rule did year. The amended requirements will Industry petitioners requested that the incorporate 40 CFR 63.10(b)(2)(vii), ensure that monitors are calibrated EPA clarify how differential pressure which requires records of 15-minute properly without requiring adjustments monitors should be arranged within averages of data collected from more frequently than manufacturers total enclosures when those enclosures continuous monitoring systems. In this recommend. exist within or as part of a larger action, we are clarifying that the data 5. Monitoring Enclosures That Only structure. The EPA granted collected from the continuous pressure Open Into Other Enclosures reconsideration in order to provide monitors must be used to calculate 15- needed clarifications. In the 2012 final minute averages that are used to We are adding regulatory text to rule, differential pressure monitors are demonstrate compliance. This address how negative pressure within required on walls within a total amendment does not alter the impacts total enclosures must be monitored enclosure to ensure negative pressure is of the 2012 final rule. Rather, it simply when those enclosures only open into maintained within the enclosure. See 40 clarifies the existing requirements other totally enclosed process areas. If a CFR 63.548(k). The EPA included already included in the 2012 rule by source, or group of sources, is in a definitions for ‘‘windward’’ and explicitly stating the requirements totally enclosed part of a building that ‘‘leeward’’ walls to determine which previously referenced in the general only opens into other areas that are also walls within a total enclosure should provisions. totally enclosed under negative have differential pressure monitors. pressure, the source only needs to Windward and leeward walls were 3. Differential Pressure Monitoring monitor differential pressure on the defined using prevailing ambient wind Device Accuracy outermost walls of the enclosure that directions. See 40 CFR 63.542. Industry The 2012 final rule included a opens to areas that are not enclosed petitioners stated that some total requirement for differential pressure under negative pressure. This change enclosures are within larger structures monitors with ‘‘minimum accuracy of ensures that facilities maintain negative that shield the total enclosure from plus or minus 0.001 millimeters of pressure in structures housing process impacts of ambient wind. Furthermore, mercury (0.0005 inches of water).’’ See areas without unnecessary monitoring we have determined there are 40 CFR 63.548(k)(3). Industry has requirements. It is redundant to monitor significant technical difficulties expressed concerns that there are not negative pressure in process areas that associated with monitoring negative monitors available with certified open into other totally enclosed process pressure in areas that open into other accuracy at the levels prescribed in the areas under negative pressure. areas that are also under negative 2012 final rule. We included the Additionally, it has come to our pressure. Therefore, as explained in accuracy requirement in the 2012 final attention that there are technical more detail under item number 5 below, rule to ensure that the differential difficulties associated with monitoring in situations where smaller enclosures pressure monitors display and record negative pressure in areas that open into are contained within larger total data with sufficient sensitivity to other areas also under negative pressure. enclosed structures, we are clarifying demonstrate compliance with the The modified regulatory text will ensure that facilities only need to monitor standard. Our goal was to require that monitors are able to function pressure differential for the larger total monitors that display and record data properly by specifying that monitors are enclosure. Furthermore, in this action, with sufficient significant figures, rather not to be placed on walls with no

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exposure to ambient pressure on either After considering the economic G. Executive Order 13045: Protection of side of the wall. impact of this direct final rule on small Children From Environmental Health We have not made any other changes entities, I certify that this action will not Risks and Safety Risks to the final rule in this direct final have a significant economic impact on The EPA interprets Executive Order action. We note that we are not re- a substantial number of small entities. 13045 (62 FR 19885, April 23, 1997) as proposing, reconsidering, or in any This final rule will not impose any applying only to those regulatory other way re-opening any other aspects requirements on small entities because actions that concern health or safety of the final rule for comment through it does not add any additional risks, such that the analysis required this direct final action. regulatory requirements and only under section 5–501 of the EO has the III. Statutory and Executive Order clarifies the existing compliance potential to influence the regulation. Reviews requirements. This action is not subject to EO 13045 because it does not establish an A. Executive Order 12866: Regulatory D. Unfunded Mandates Reform Act environmental standard intended to Planning and Review, and Executive mitigate health or safety risks. This This action contains no Federal Order 13563: Improving Regulation and action simply clarifies certain Regulatory Review mandates under the provisions of Title requirements in the final rule and II of the Unfunded Mandates Reform corrects typographical errors. This action is not a ‘‘significant Act of 1995 (UMRA), 2 U.S.C. 1531– regulatory action’’ under the terms of 1538 for State, local, or tribal H. Executive Order 13211: Actions Executive Order (EO) 12866 (58 FR governments or the private sector. The Concerning Regulations That 51735, October 4, 1993), and is, action imposes no enforceable duties on Significantly Affect Energy Supply, therefore, not subject to review under Distribution, or Use Executive Order 12866 and 13563 (76 any state, local or tribal governments or This action is not subject to Executive FR 3821, January 21, 2011). the private sector. Therefore, this action is not subject to the requirements of Order 13211 (66 FR 28355 (May 22, B. Paperwork Reduction Act sections 202 or 205 of the UMRA. 2001)), because it is not a significant regulatory action under Executive Order This action does not impose any new This action is also not subject to the 12866. information collection burden. This requirements of section 203 of UMRA action adds clarifications and because it contains no regulatory I. National Technology Transfer and corrections to the final standards. requirements that might significantly or Advancement Act However, OMB has previously approved uniquely affect small governments Section 12(d) of the National the information collection requirements because it contains no requirements that Technology Transfer and Advancement contained in the existing regulation (40 apply to such governments nor does it Act of 1995 (NTTAA), Public Law 104– CFR part 63, subpart X) under the impose obligations upon them. 113, 12(d) (15 U.S.C. 272 note) directs provisions of the Paperwork Reduction the EPA to use voluntary consensus Act, 44 U.S.C. 3501, et seq., and has E. Executive Order 13132: Federalism standards (VCS) in its regulatory assigned OMB control number 2060– activities, unless to do so would be 0296. The OMB control numbers for This action does not have federalism implications. It will not have substantial inconsistent with applicable law or EPA’s regulations in 40 CFR are listed otherwise impractical. The VCS are direct effects on the states, on the in 40 CFR part 9. technical standards (e.g., materials relationship between the national C. Regulatory Flexibility Act specifications, test methods, sampling government and the states or on the procedures, and business practices) that The Regulatory Flexibility Act distribution of power and are developed or adopted by VCS generally requires an agency to prepare responsibilities among the various bodies. NTTAA directs the EPA to a regulatory flexibility analysis of any levels of government, as specified in provide Congress, through OMB, rule subject to notice and comment Executive Order 13132. This direct final explanations when the agency decides rulemaking requirements under the rule primarily affects private industry, not to use available and applicable VCS. Administrative Procedure Act or any and does not impose significant This action does not involve technical other statute unless the agency certifies economic costs on state or local standards. Therefore, EPA did not that the rule will not have a significant governments. Thus, Executive Order consider the use of any VCS. economic impact on a substantial 13132 does not apply to this action. number of small entities. Small entities J. Executive Order 12898: Federal include small businesses, small F. Executive Order 13175: Consultation Actions To Address Environmental organizations, and small governmental and Coordination With Indian Tribal Justice in Minority Populations and jurisdictions. Governments Low-Income Populations For purposes of assessing the impact Executive Order 12898 (59 FR 7629, of this rule on small entities, small This action does not have tribal February 16, 1994) establishes federal entity is defined as: (1) A small business implications, as specified in Executive executive policy on environmental as defined by Small Business Order 13175 (65 FR 67249, November 9, justice. Its main provision directs Administration (SBA) regulations at 13 2000). It will not have substantial direct federal agencies, to the greatest extent CFR 121.201; (2) a small governmental effect on tribal governments, on the practicable and permitted by law, to jurisdiction that is a government of a relationship between the federal make environmental justice part of their city, county, town, school district, or government and Indian tribes or on the mission by identifying and addressing, special district with a population of less distribution of power and as appropriate, disproportionately high than 50,000; and (3) a small responsibilities between the federal and adverse human health or organization that is any not-for-profit government and Indian tribes as environmental effects of their programs, enterprise which is independently specified in Executive Order 13175. policies and activities on minority owned and operated and is not Thus, Executive Order 13175 does not populations and low-income dominant in its field. apply to this action. populations in the United States.

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EPA has determined that this final impacted by the wind in its most effect prior to the January 5, 2012, rule will not have disproportionately prevailing direction determined by a amendments. This means that high and adverse human health or wind rose using available data from the secondary lead smelters that environmental effects on minority or closest representative meteorological commenced construction or low-income populations because it does station. When openings into enclosures reconstruction on or before June 9, 1994, not affect the level of protection are not impacted by ambient wind due must continue to demonstrate provided to human health or the to the enclosure being part of a larger compliance with existing source environment. This action merely structure, the owner or operator may requirements of this subpart that were corrects and clarifies existing designate which wall of the enclosure to in effect prior to the January 5, 2012, requirements, it does not change any define as the windward wall. amendments until the date specified in regulatory requirements. ■ 3. Amend § 63.543 by revising § 63.546(a). Secondary lead smelters paragraph (f) to read as follows: that commenced construction or K. Congressional Review Act reconstruction after June 9, 1994, and on The Congressional Review Act, 5 § 63.543 What are my standards for or before May 19, 2011, must continue U.S.C. 801, et seq., as added by the process vents? to demonstrate compliance with new Small Business Regulatory Enforcement * * * * * source requirements of this subpart that Fairness Act of 1996, generally provides (f) If you do not combine the furnace were in effect prior to the January 5, that, before a rule may take effect, the charging process fugitive emissions with 2012, amendments until the date agency promulgating the rule must the furnace process emissions, and specified in § 63.546(a). submit a rule report which includes a discharge such emissions to the ■ 6. Amend § 63.548 by revising copy of the rule, to each House of the atmosphere through separate emissions paragraphs(k)(1)(iii), (k)(3), (k)(4) and Congress and to the Comptroller General points, you must maintain the total (k)(5) to read as follows: of the United States. The EPA will hydrocarbons concentration in the submit a report containing this final rule exhaust gas at or below 20 parts per § 63.548 Monitoring requirements. and other required information to the million by volume, expressed as * * * * * United States Senate, the United States propane. (k) * * * (1) * * * House of Representatives and the * * * * * Comptroller General of the United (iii) An exterior wall that connects the ■ 4. Amend § 63.544 by revising the first leeward and windward wall at a States prior to publication of the direct sentence of paragraph (c) introductory final rule in the Federal Register. A location defined by the intersection of a text and adding paragraph (c)(3) to read perpendicular line between a point on major rule cannot take effect until 60 as follows: days after it is published in the Federal the connecting wall and a point on its furthest opposite exterior wall, and Register. This action is not a ‘‘major § 63.544 What are my total enclosure intersecting within plus or minus 10 rule’’ as defined by 5 U.S.C. 804(2). The standards? meters of the midpoint of a straight line final rule will be effective on March 4, * * * * * between the two other monitors 2014. (c) You must construct and operate specified. The midpoint monitor must total enclosures for the sources listed in List of Subjects for 40 CFR Part 63 not be located on the same wall as either paragraph (a) of this section as specified of the other two monitors. If approved Environmental protection, in paragraphs (c)(1) through (3) of this Administrative practice and procedures, by the permitting authority, this third section.* * * monitor may be placed in an alternative Air pollution control, Hazardous * * * * * substances, Intergovernmental relations, location on the midpoint wall or an (3) If areas that contain one or more exterior wall that is not the windward Reporting and recordkeeping sources listed in paragraphs (a)(1) requirements. wall, leeward wall or midpoint wall. through (9) of this section are enclosed * * * * * Dated: December 20, 2013. within a larger building that also meets (3) The digital differential pressure Gina McCarthy, the definition of a total enclosure under monitoring systems must be certified by Administrator. § 63.542, the requirements of paragraphs the manufacturer to be capable of For the reasons stated in the (c)(1) and (2) shall be monitored measuring and displaying negative preamble, part 63 of title 40, chapter I, pursuant to § 63.548(k) at only one pressure containing values in the range of the Code of Federal Regulations is leeward, one windward and one of 0.01 to 0.2 millimeters mercury amended as follows: additional wall of the outermost portion (0.005 to 0.11 inches of water) and of the larger totally enclosed building capable of recording data in increments PART 63—NATIONAL EMISSION rather than each individual area within of 0.002 millimeters of mercury (0.001 STANDARDS FOR HAZARDOUS AIR the building. inches of water). POLLUTANTS FOR SOURCE * * * * * (4) You must equip each digital CATEGORIES ■ 5. Amend § 63.546 by adding differential pressure monitoring system paragraph (c) to read as follows: with a continuous recorder. To ■ 1. The authority citation for part 63 demonstrate compliance with the continues to read as follows: § 63.546 Compliance dates. standard for differential pressure, you Authority: 42 U.S.C. 7401, et seq. * * * * * must maintain the pressure in total ■ 2. Amend § 63.542 by revising the (c) Until the date specified in enclosures such that the average definition of ‘‘Windward wall’’ to read 63.546(a), secondary lead smelters that pressure in any 15-minute period does as follows: commenced construction or not fall below the level specified in reconstruction on or before May 19, § 63.544(c)(1). The 15-minute averages § 63.542 Definitions. 2011, must continue to demonstrate must include at least one reading per * * * * * compliance with the requirements of minute. Windward wall means the exterior this subpart, codified in 40 CFR 63.541 (5) You must calibrate each digital wall of a total enclosure that is most through 40 CFR 63.550, that were in differential pressure monitoring system

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in accordance with manufacturer’s § 63.550 Recordkeeping and reporting chosen as the windward wall must be specifications. requirements. included in the records required by * * * * * * * * * * § 63.10(c) if a total enclosure located (e) * * * within a larger structure is not impacted ■ 7. Section 63.550 is amended by (10) Records of 15-minute periods by ambient wind. when the pressure was not maintained revising paragraph (e)(10) to read as * * * * * follows: as required in § 63.544(c) or power was lost to the continuous pressure ■ 8. Amend Table 3 to Subpart X of Part monitoring system as required in 63—Toxic Equivalency Factors by § 63.548(k). Records of which wall is revising to read as follows:

TABLE 3 TO SUBPART X OF PART 63—TOXIC EQUIVALENCY FACTORS

Toxic Dioxin/furan congener equivalency factor

2,3,7,8-tetrachlorinated dibenzo-p-dioxin ...... 1 1,2,3,7,8-pentachlorinated dibenzo-p-dioxin ...... 1 1,2,3,4,7,8-hexachlorinated dibenzo-p-dioxin ...... 0.1 1,2,3,7,8,9-hexachlorinated dibenzo-p-dioxin ...... 0.1 1,2,3,6,7,8-hexachlorinated dibenzo-p-dioxin ...... 0.1 1,2,3,4,6,7,8-heptachlorinated dibenzo-p-dioxin ...... 0.01 octachlorinated dibenzo-p-dioxin ...... 0.0003 2,3,7,8-tetrachlorinated dibenzofuran ...... 0.1 2,3,4,7,8-pentachlorinated dibenzofuran ...... 0.3 1,2,3,7,8-pentachlorinated dibenzofuran ...... 0.03 1,2,3,4,7,8-hexachlorinated dibenzofuran ...... 0.1 1,2,3,6,7,8-hexachlorinated dibenzofuran ...... 0.1 1,2,3,7,8,9-hexachlorinated dibenzofuran ...... 0.1 2,3,4,6,7,8-hexachlorinated dibenzofuran ...... 0.1 1,2,3,4,6,7,8-heptachlorinated dibenzofuran ...... 0.01 1,2,3,4,7,8,9-heptachlorinated dibenzofuran ...... 0.01 octachlorinated dibenzofuran ...... 0.0003

[FR Doc. 2013–31267 Filed 1–2–14; 8:45 am] In addition to the designation, the Act Review Room between the hours of BILLING CODE 6560–50–P EPA now issues a technical amendment 8:30 a.m. and 4:30 p.m. weekdays to correct seven typographical errors. except for legal holidays. Contact the The designation of the Atchafalaya person listed in the FOR FURTHER ENVIRONMENTAL PROTECTION ODMDS-West disposal site does not by INFORMATION CONTACT paragraph below AGENCY itself authorize the disposal of dredged to make an appointment. If possible, material, but makes the site available for please make the appointment at least 40 CFR Part 228 use for dredged material from the ARBC two working days in advance of your if no environmentally preferable, visit. There will be a 15 cent per page [EPA–R06–OW–2013–0221; FRL–9904–86] practicable alternative for managing that fee for making photocopies of dredged material exists, and if analysis documents. On the day of the visit, Ocean Dumping Regulations: of the dredged material indicates that it please check in at the EPA Region 6 Atchafalaya-West Ocean Dredged is suitable for open-water disposal. This reception area at 1445 Ross Avenue, Material Disposal Site Designation; action is to designate adequate, Suite 700, Dallas, Texas. Calcasieu, Sabine Neches, and environmentally-acceptable ocean FOR FURTHER INFORMATION CONTACT: Atchafalaya-East Site Corrections disposal site capacity for suitable Jessica Franks, Ph.D., Marine and dredged material from the ARBC. AGENCY: Environmental Protection Coastal Section (6WQ–EC), Agency (EPA). DATES: This final rule is effective on Environmental Protection Agency, February 3, 2014. ACTION: Final rule and technical Region 6, 1445 Ross Avenue, Suite 700, amendment. ADDRESSES: The EPA established a Dallas, Texas 75202–2733, telephone docket for this action under Docket ID (214) 665–8335, fax number (214) 665– SUMMARY: Pursuant to section 102(c) of No. EPA–R06–OW–2013–0221. All 6689; email address franks.jessica@ the Marine Protection, Research and documents in the docket are listed on epa.gov. Sanctuaries Act of 1972 (MPRSA), the the http://www.regulations.gov Web EPA today designates the Atchafalaya- site. Publicly available docket materials SUPPLEMENTARY INFORMATION: West Ocean Disposal Site (ODMDS- are available either electronically Throughout this document wherever West), located adjacent to and west of through http://www.regulations.gov or ‘‘we,’’ ‘‘us,’’ or ‘‘our’’ is used, we mean the Atchafalaya River Bar Channel in hard copy at the Marine & Coastal the EPA. (ARBC) of Louisiana as a permanent Section (6WQ–EC), Environmental Table of Contents ocean dredged material disposal site Protection Agency, 1445 Ross Avenue, (ODMDS). This designation will allow Suite 700, Dallas, Texas 75202–2733. I. Background continued use of the site, which was The file will be made available by II. Final Action previously designated a temporary site appointment for public inspection in III. Regulatory Requirements pursuant to MPRSA section 103(b). the Region 6 Freedom of Information IV. Statutory and Executive Order Reviews

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I. Background —It complies with the Endangered —It has no Tribal implications, as The background for today’s action is Species Act (ESA), regarding specified in Executive Order 13175 discussed in detail in our May 21, 2013 consultation with the U.S. Fish and (65 FR 67249, November 9, 2000); proposal [78 FR 29687, Tuesday, May Wildlife Service in that designation of —It is not an economically significant 21, 2013]. We received no comments on the ocean disposal site is not expected regulatory action subject to Executive the proposed rule itself, and two to adversely affect any threatened or Order 12866 (62 FR 19885, April 23, comments on the draft Environmental endangered species or their critical 1997), and does not present a Impact Statement (EIS) for the proposed habitat; disproportionate risk to children; designation. Those comments were —It complies with the Magnuson- —It is not a significant regulatory action addressed in the Final EIS (Section Stevens Fishery Conservation and under Executive Order 12866 and so 4.3.6.2 and Section 5.3), which is Management Act of 1996 (MSFCMA) is not subject to Executive Order available at http://www.epa.gov/ regarding consultation with the 13211, ‘‘Actions Concerning region6/water/ecopro/feis-odmds-west- National Marine Fisheries Service Regulations That Significantly Affect final.pdf. (NMFS) in that designation of the Energy Supply, Distribution, or Use’’ For the Calcasieu, LA, Dredged ocean disposal site is not expected to (66 FR 28355 (May 22, 2001) ; Material Site 3, the EPA found a have significant impacts to marine —It is not subject to requirements of typographical error in 40 CFR fishery resources; Section 12(d) of the National 228.15(j)(7)(i), 4th longitudinal —It complies with the Coastal Zone Technology Transfer and coordinate, which was incorrectly Management Act, regarding federal Advancement Act of 1995 (Pub. L. published as 93°16′5″ W. The correct activities that affect a state’s coastal 104–113, 12(d) (15 U.S.C. 272 note) as longitude for coordinate number 4 is zone in that the designation of the it does not involve technical 93°16′25″ W. For the Sabine-Neches, ODMDS-West is not inconsistent with standards; and TX, Dredged Material Site D, the EPA the approved Louisiana Coastal —It will not have a disproportionately found a typographical error in 40 CFR Resources Program; high and adverse human health or environmental effects on minority or 228.15(j)(25)(i), 3rd longitudinal —It complies with the Coastal Barrier low-income populations subject to coordinate, which was incorrectly Improvement Act of 1990 in that ° ′ ″ Executive Order 12898 (59 FR 7629). published as 93 44 10 W. The correct project activities related to disposal The Congressional Review Act, 5 longitude for coordinate number 3 is are exempt from the prohibitions set ° ′ ″ U.S.C. 801 et seq., as amended by the 93 41 10 W. For the Sabine-Neches, forth in the act. TX, Dredged Material Sites A–D and Small Business Regulatory Enforcement Atchafalaya East, LA, the EPA did not IV. Statutory and Executive Order Fairness Act of 1996, generally provides clarify which North American Datum Reviews that before a rule may take effect, the was used for the location coordinates. agency promulgating the rule must Details of the applicability of According to 228.15(a)(3) the default submit a rule report, which includes a executive orders and statutory datum is NAD27. The correct North copy of the rule, to each House of the provisions to this rule are in our May American Datum for these sites is Congress and to the Comptroller General 21, 2013 proposed rule, 78 FR 29695, NAD83. of the United States. The EPA will Tuesday, May 21, 2013. To summarize, This final rule is also a record of submit a report containing this action this final rule complies with applicable decision in accordance with 40 CFR and other required information to the executive orders and statutory 1505.2. U.S. Senate, the U.S. House of provisions as follows: II. Final Action Representatives, and the Comptroller —It is not a ‘significant regulatory General of the United States prior to The EPA hereby designates the action’’ subject to office of publication of the rule in the Federal Atchafalaya-West Ocean Disposal Site Management and Budget (OMB) Register. This action is not a ‘‘major (ODMDS-West) as a permanent ocean review under Executive Order 12866 rule’’ as defined by 5 U.S.C. 804(2) and dredged material disposal site (ODMDS) (58 FR 51735, October 4, 1993); its effective date thus need not be pursuant to MPRSA Section 102(c). This —It does not impose an information delayed for 60 days. ODMDS is located adjacent to and west collection burden under the of the Atchafalaya River Bar Channel of provisions of the Paperwork List of Subjects in 40 CFR Part 228 Louisiana. Reduction Act 44 U.S.C. 3501 et seq; Environmental protection, Water This action also corrects the —It is certified as not having a pollution control. typographical errors as noted in the significant economic impact on a Background section of this preamble. Dated: December 18, 2013. substantial number of small entities Ron Curry, under the Regulatory Flexibility Act III. Regulatory Requirements Regional Administrator, Region 6. (5 U.S.C. 601); Details of the regulatory requirements In consideration of the foregoing, part of this rule are in our May 21, 2013 —It does not contain any unfunded 228, Chapter I of Title 40 of the Code of proposed rule, 78 FR 29694, Tuesday, mandate or significantly or uniquely Federal Regulation is amended as May 21, 2013. To summarize, this final affect small governments, as described follows: rule complies as follows: in the Unfunded Mandates Reform Act of 1995 (Public Law 104–4); —It complies with the National PART 228—CRITERIA FOR THE Environmental Policy Act of 1969 —It does not have Federalism MANAGEMENT OF DISPOSAL SITES (NEPA) under the doctrine of implications as specified in Executive FOR OCEAN DUMPING functional equivalency; the EPA has Order 13132 (64 FR 43255, August 10, relied on information from the final 1999); ■ 1. The authority citation for part 228 Environmental Impact Statement in —It is not an economically significant continues to read as follows: its consideration and application of regulatory action based on health or Authority: 33 U.S.C. 1412 and 1418. ocean dumping criteria to the safety risks subject to Executive Order ODMDS-West; 13045 (62 FR 19885, April 23, 1997); ■ 2. Section 228.15 is amended by

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■ a. Revising paragraph (j)(7)(i); 91E34′27.51″ W; thence to point of (26) Atchafalaya River and Bayous ■ b. Revising paragraph (j)(21)(i); beginning. Chene, Boeuf, and Black, LA (ODMDS- ■ c. Revising paragraph (j)(22)(i); * * * * * West) ■ d. Revising paragraph (j)(23)(i) (22) * * * ° ′ ″ ° ′ ″ (i) Location (NAD83): 29 22 06 N, ■ e. Revising paragraph (j)(24)(i); (i) Location (NAD83): 29 24 47 N., 91°27′38″ W; 29°20′30″ N, 91°25′13″ W; 93°43′29″ W.; 29°24′47″ N., 93°41′08″ ■ 29°09′16″ N, 91°35′12″ W; 29°10′52″ N, f. Revising paragraph (j)(25)(i); and W.; 29°22′48″ N., 93°41′09″ W.; ■ 91°37′33″ W; thence to point of g. Adding paragraph (j)(26). 29°22′49″ N., 93°43′29″ W.; thence to The additions and revisions read as point of beginning. beginning. follows: * * * * * (ii) Size: 48 square miles. § 228.15 Dumping sites designated on a (23) * * * (iii) Depth: Ranges from 4 to 23 feet. (i) Location (NAD83): 29°21′59″ N., final basis. (iv) Primary Use: Dredged material. 93°43′29″ W.; 29°21′59″ N., 93°41′08″ * * * * * W.; 29°20′00″ N., 93°41′09″ W.; (v) Period of Use: Continuing use. (j) * * * 29°20′00″ N., 93°43′29″ W.; thence to (vi) Restrictions: Disposal shall be (7) * * * point of beginning. limited to dredged material from the (i) Location: 29°37′50″ N., 93°19′37″ * * * * * Atchafalaya River Bar channel that W.; 29°37′25″ N., 93°19′33″ W.; (24) * * * complies with EPA’s Ocean Dumping 29°33′55″ N., 93°16′23″ W.; 29°33′49″ ° ′ ″ (i) Location (NAD83): 29 19 11 N., Regulations. Dredged material that does N., 93°16′25″ W.; 29°30′59″ N., 93°43′29″ W.; 29°19′11″ N, 93°41′09″ 93°13′51″ W.; 29°29′10″ N., 93°13′49″ ° ′ ″ ° ′ ″ not meet the criteria set forth in 40 CFR W.; 29 17 12 N., 93 41 09 W.; part 227 shall not be placed at the site. W.; 29°29′05″ N., 93°14′23″ W.; 29°17′12″ N., 93°43′29″ W.; thence to Disposal operations shall be conducted 29°30′49″ N., 93°14′25″ W.; 29°37′26″ point of beginning. N., 93°20′24″ W.; 29°37′44″ N., in accordance with requirements ° ′ ″ * * * * * specified in a Site Management and 93 20 27 W. (25) * * * * * * * * (i) Location (NAD83): 29°16′22″ N., Monitoring Plan developed by EPA and USACE, to be reviewed periodically, at (21) * * * 93°43′29″ W.; 29°16′22″ N., 93°41′10″ least every 10 years. (i) Location (NAD83): 9E20′59.92″ N, W.; 29°14′24″ N., 93°41′10″ W.; 91E23′33.23″ W, 29E20′43.94″ N, 29°14′24″ N., 93°43′29″ W.; thence to * * * * * 91E23′09.73″ W, 29E08′15.46″ N, point of beginning. [FR Doc. 2013–31263 Filed 1–2–14; 8:45 am] 91E34′51.02″ W, and 29E07′59.43″ N, * * * * * BILLING CODE 6560–50–P

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Proposed Rules Federal Register Vol. 79, No. 2

Friday, January 3, 2014

This section of the FEDERAL REGISTER replace it with a charge of 10% of the Although we are exempted from the contains notices to the public of the proposed face value of the postage refund amount notice and comment requirements of the issuance of rules and regulations. The being requested. This proposal affected Administrative Procedure Act (5 U.S.C. purpose of these notices is to give interested postage refunds for dated or undated, 553(b), (c)) regarding proposed persons an opportunity to participate in the unused postage meter indicia and for rulemaking by 39 U.S.C. 410(a), we rule making prior to the adoption of the final ® rules. stamps affixed to Business Reply Mail invite public comments on the (BRM) pieces. following proposed revisions to Mailing The proposed rule also included Standards of the United States Postal POSTAL SERVICE adding general language to the DMM on Service, Domestic Mail Manual (DMM), refund periods for extra service fees of incorporated by reference in the Code of 39 CFR Part 111 not less than 10 days, or more than 18 Federal Regulations. See 39 CFR 111.1. months, for services not rendered. The Accordingly, 39 CFR part 111 is Revised Postage and Fee Refund proposed rule included a 30-day proposed to be amended as follows: Criteria comment period. After review of the PART 111—[AMENDED] AGENCY: Postal Service TM. comments and further analysis, the Postal Service is publishing this ACTION: Proposed rule. revision of its proposed rule. ■ 1. The authority citation for 39 CFR SUMMARY: The Postal Service TM The Postal Service proposes to align part 111 continues to read as follows: proposes to revise Mailing Standards of the current assessments for processing Authority: 5 U.S.C. 552(a); 13 U.S.C. 301– the United States Postal Service, postage refunds, in effect since 2003, 307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, Domestic Mail Manual (DMM®) section with current costs. Therefore, if this 401, 403, 404, 414, 416, 3001–3011, 3201– 604.9 to update the hourly charges and revised rule is adopted, the Postal 3219, 3403–3406, 3621, 3622, 3626, 3632, related postage threshold used in Service will update the hourly factor 3633, and 5001. assessing certain types of postage used in various refund assessments from ■ 2. Revise the following sections of refunds and to provide the allowable $35.00 an hour to $50.00 an hour. Mailing Standards of the United States time periods for requesting refunds for Additionally, the threshold for assessing Postal Service, Domestic Mail Manual extra service fees. certain postage refunds at the hourly (DMM), as follows: factor will be updated from postage DATES: Submit comments on or before Mailing Standards of the United February 3, 2014. amounts exceeding $350.00 to postage amounts exceeding $500.00. The refund States Postal Service, Domestic Mail ADDRESSES: Mail or deliver written assessment amounts in this proposed Manual (DMM) comments to the manager, Product ® rule would not revise the current * * * * * Classification, U.S. Postal Service , 475 standards for providing service failure L’Enfant Plaza SW., Room 4446, refunds or when USPS® is at fault. 600 Basic Standards for All Mailing Washington, DC 20260–5015. You may The Postal Service also proposes to Services inspect and photocopy all written ® add language to the DMM to provide * * * * * comments at USPS Headquarters customers with information on refund 604 Postage Payment Methods Library, 475 L’Enfant Plaza SW., 11th time periods for extra service fees that Floor N, Washington, DC by align with the revised claims filing * * * * * appointment only between the hours of periods (being made effective January 9.0 Exchanges and Refunds 9 a.m. and 4 p.m., Monday through 26, 2014) to promote timely Friday, by calling 202–268–2906 in adjudication. Therefore, if this proposed * * * * * advance. Email comments, containing rule is adopted, the Postal Service will 9.2 Postage and Fee Refunds the name and address of the commenter, include the following information in the may be sent to: ProductClassification@ DMM: Refund requests for Registered * * * * * usps.gov, with a subject line of ‘‘Revised ® Mail TM, Certified Mail , Signature 9.2.4 Postage Refunds Not Available Postage and Fee Refund Criteria’’. Faxed Confirmation TM, USPS Tracking TM, comments are not accepted. Adult Signature services, and insurance Refunds are not made for the FOR FURTHER INFORMATION CONTACT: fees must be made by the mailer no following: Douglas Germer, Revenue/Field sooner than 10 days, or more than 60 * * * * * Accounting, douglas.g.germer@ days, from the date the service was usps.gov, 202–268–8522; Karen Key, [Add new item 9.2.4h to read as purchased. follows:] Manager Shipping Products, Additionally, if these proposed [email protected], 202–268–7492; or changes are adopted, PS Form 3533, h. For extra service fees paid for Suzanne Newman, Product Application for Refund of Fees, Registered Mail, Certified Mail, Classification, suzanne.j.newman@ Products and Withdrawal of Customer Signature Confirmation, USPS Tracking, usps.gov, 202–268–5581. Accounts, will be revised to reflect the Adult Signature services and insurance SUPPLEMENTARY INFORMATION: On March changes. when a refund request is made by the 14, 2013, the Postal Service published a mailer less than 10 days, or more than notice of proposed rulemaking (78 FR List of Subjects in 39 CFR Part 111 60 days, from the date the service was 16213–16220) to eliminate hourly Administrative practice and purchased. charges for processing refunds and procedure, Postal Service. * * * * *

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9.2.6 Postage Affixed to Business for Standard Mail pieces that are eligible expected delivery date for the DSCF Reply Mail for a DSCF rate and that are properly Standard Mail entered on Thursday and [Revise the seventh sentence of 9.2.6 accepted before the day zero Critical Friday, which are two of the three to read as follows:] Entry Time on a Friday or Saturday, and heaviest days for acceptance of such * * * A charge of $50.00 per hour, or (b) from four days to five days for DSCF mail. Moreover, in Fiscal Year 2013, fraction thereof, is assessed for the Standard Mail properly accepted at the DSCF Standard Mail comprised 62 workhours used to process the credit or SCF in San Juan, Puerto Rico and percent of Standard Mail volume and 32 refund. * * * destined to the United States Virgin percent of overall mail volume. Islands, and properly accepted DSCF Accordingly, DSCF Standard Mail has a * * * * * Standard Mail destined to American significant impact on processing and 9.3.2 General Standards for Metered Samoa. delivery operations through which it Indicia Refunds DATES: Comments must be received on passes. The Postal Service faces an uneven * * * For both types of unused or before February 3, 2014. workload for postal delivery operations metered indicia, submit refund requests ADDRESSES: Written comments should and extraordinary allocations of as follows: be mailed to the Manager, Industry resources to meet Monday delivery * * * * * Engagement and Outreach, United expectations, based on current service b. * * * Charges for processing a States Postal Service, 475 L’Enfant Plaza standards. Specifically, the high volume refund request for unused, dated meter SW., Room 4107, Washington, DC of Standard Mail with a service standard indicia are as follows, depending on the 20260–4107, or transmitted by email to that creates a Monday delivery total face value of the indicia: [email protected]. Copies of expectation contributes to the [Revise 9.3.2b1 and 9.3.2b2 to read as all comments will be available for significant challenge faced by the Postal follows:] inspection and photocopying at the Service in seeking to achieve efficient 1. When the total face value of the Postal Service Headquarters Library, 475 and timely completion of delivery indicia is $500.00 or less, the amount L’Enfant Plaza SW., 11th Floor North, operations on Monday, and to make refunded is 90% of the face value. USPS Washington, DC 20260, between 9 a.m. dispatch of collection mail picked up by may process the refund payment via a and 4 p.m., Monday through Friday, by carriers to mail processing plants for no-fee postal money order; or appointment (please call 202–268–5585 timely cancellation. This general 2. When the total face value of the to schedule an appointment). imbalance in the proportion of volume indicia is more than $500.00, the FOR FURTHER INFORMATION CONTACT: with a Monday delivery expectation amount refunded is the total face value Anthony Frost, Industry Engagement contributes significantly to increased reduced by $50.00 per hour for the and Outreach, at 202–268–8093; or overtime workhours in delivery USPS time to process the refund, with Prathmesh Shah, Processing and operations at a time when the Postal a minimum charge of $50.00. The Distribution Center Operations, at 404– Service is faced with increased costs charge is $50.00 for each hour spent, 792–3195. while revenues decline as a result of the with the last fraction of an hour treated SUPPLEMENTARY INFORMATION: overall reduction in mail volumes. as a full hour. Payment processing for The Postal Service seeks to address refunds of $500.01 or more is through I. Introduction these issues by proposing an adjustment the Accounting Service Center. Standard Mail may include any to the service standard applicable to * * * * * mailable matter weighing less than 16 DSCF Standard Mail entered on We will publish an appropriate ounces that is not otherwise required to designated days of the week. Realization amendment to 39 CFR part 111 to reflect be mailed as First-Class Mail or of a more balanced distribution of DSCF these changes if our proposal is Periodicals mail. Of the Standard Mail Standard Mail across delivery days adopted. products, High Density and Saturation requires a modification to the current * * * * * Letters, High Density and Saturation service standards for that mail. Flats/Parcels, Carrier Route, Letters, Accordingly, the Postal Service is Stanley F. Mires, Flats, and Parcels are eligible for the exploring a proposal (the Proposal) to Attorney, Legal Policy & Legislative Advice. DSCF rate, provided that the mail meets revise service standards applicable to [FR Doc. 2013–31443 Filed 1–2–14; 8:45 am] the standards for such a rate.1 Among DSCF Standard Mail that is entered on BILLING CODE 7710–12–P other requirements, to qualify for a a Friday or Saturday. The Proposal DSCF rate, a mailing must contain at would change the delivery day for DSCF least 200 addressed pieces or 50 pounds Standard Mail accepted on Friday and POSTAL SERVICE of addressed pieces; 2 mailers must Saturday. DSCF Standard Mail that is make an appointment to deposit DSCF accepted before the Critical Entry Time 39 CFR Part 121 Standard Mail; 3 and mail must be (CET) on Friday will have a Tuesday delivery expectation, rather than Service Standards for Destination prepared and delivered in a specific 4 Monday. DSCF Standard Mail that is Sectional Center Facility Rate Standard manner. DSCF Standard Mail primarily accepted before the CET on Saturday Mail consists of direct mail letters, catalogs, flyers, and other advertising mail. will have a Wednesday delivery AGENCY: Postal ServiceTM. Currently, DSCF Standard Mail has a expectation, rather than Tuesday. The 5 ACTION: Proposed rule 3-day service standard. Monday is the proposed changes will apply to DSCF Standard Mail that is dropped at the SUMMARY: The Postal Service seeks 1 (Draft) Mail Classification Schedule secs. SCF in Puerto Rico and destined to the public comment on proposed revisions 1200.1(a) and 1200.2, revised December 5, 2013. 2 to the service standards for Standard Domestic Mail Manual (DMM) 246.2.2(a). American Samoa has a 4-day service standard. 39 3 Mail that is eligible for Destination DMM 246.2.6.3. CFR 121.3(b)(3). The proposed changes will also 4 DMM 246.4.0. apply to the service standard for mail that is Sectional Center Facility (DSCF) rates. 5 39 CFR 121.3(b)(2). DSCF Standard Mail that is dropped at the SCF in Puerto Rico and destined to The revisions would change the service dropped at the SCF in Puerto Rico and destined to the U.S. Virgin Islands, and mail that is destined standard (a) from three days to four days the U.S. Virgin Islands, or mail destined to to American Samoa.

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U.S. Virgin Islands, or mail destined to from the day of entry, whereas if the PART 121—SERVICE STANDARDS American Samoa, which currently has a mail piece is entered after the CET, its FOR MARKET DOMINANT MAIL 4-day service standard and would have service standard is calculated from the PRODUCTS a 5-day service standard under the following day. For example, if the Proposal. By adjusting the processing applicable CET is 4:00 p.m., and a letter ■ 1. The authority citation for 39 CFR and delivery of DSCF Standard Mail is entered at 3:00 p.m. on a Tuesday, its part 121 continues to read as follows: accepted on Friday and Saturday, the service standard will be calculated from Authority: 39 U.S.C. 101, 401, 403, 404, Postal Service seeks to achieve a more Tuesday, whereas if the letter is entered 1001, 3691. even distribution of mail volume at 5:00 p.m. on a Tuesday, its service ■ delivered throughout the week.6 standard will be calculated from 2. In part 121, revise § 121.3 Pursuant to 39 U.S.C. 3661(b), the Postal Wednesday. paragraph (b)(2) and (b)(3) to read as Service has also requested an advisory The Postal Service is proposing to follows: opinion from the Postal Regulatory revise the Standard Mail service PART 121—SERVICE STANDARDS Commission regarding these changes in standards for pieces that qualify for a FOR MARKET-DOMINANT MAIL the nature of DSCF Standard Mail DSCF rate and are accepted before the PRODUCTS service.7 day zero CET at the proper DSCF on II. Proposed Revisions to Service Friday or Saturday, to enable a more * * * * * Standards balanced distribution of Standard Mail volume across delivery days. For these § 121.3 Standard Mail. Before describing how service Standard Mail pieces entered on Friday * * * * * standards will be revised, it is important or Saturday at the DSCF rate, the Postal (b) * * * to explain how service standards are Service is proposing to change the (2) Standard Mail pieces that qualify structured. Service standards are current three-day delivery expectation for a DSCF rate and that are accepted comprised of two components: (1) A to a four-day delivery expectation. And before the day-zero Critical Entry Time delivery day range within which all for pieces entered at the SCF in San at the proper DSCF have a 3-day service mail in a given product is expected to Juan, PR and destined for the U.S. standard when accepted on Sunday be delivered; and (2) business rules that Virgin Islands, as well as all DSCF entry through Thursday and a 4-day service determine, within a product’s pieces destined for American Samoa, standard when accepted on Friday or applicable day range, the specific the delivery expectation for pieces Saturday, except for mail dropped at the number of delivery days after entered on Friday or Saturday would SCF in the territory of Puerto Rico and acceptance of a mail piece by which a change from four days to five days. destined to the territory of the U.S. customer can expect that piece to be The Postal Service is not proposing Virgin Islands, or mail destined to delivered, based on the 3-digit ZIP Code any other revisions to its service American Samoa. prefixes associated with the piece’s standards in this notice. point of entry into the mail stream and (3) Standard Mail pieces that qualify its delivery address. III. Request for Comments for a Destination Sectional Center Business rules are based on the CET. Facility (DSCF) rate and that are Although exempt from the notice and accepted before the day zero Critical The CET is the latest time on a comment requirements of the particular day that a mail piece can be Entry Time at the SCF in the territory Administrative Procedure Act [5 U.S.C. of Puerto Rico and destined for the entered into the postal network and still 553(b), (c)] regarding proposed have its service standard calculated territory of the U.S. Virgin Islands, or rulemaking by 39 U.S.C. 410(a), the are destined to American Samoa, have based on that day (this day is termed Postal Service invites public comment ‘‘day-zero’’). In other words, if a mail a 4-day service standard when accepted on the proposed revisions to 39 CFR on Sunday through Thursday and a 5- piece is entered before the CET, the mail part 121 and on the Proposal generally. piece’s service standard is calculated day service standard when accepted on A more extensive discussion of the Friday or Saturday. Proposal and its associated operational 6 Under the proposed schedule, Wednesday and service implications is available in * * * * * becomes the expected delivery date for DSCF ■ 3. In Appendix A to part 121, revise Standard Mail entered on both Saturday and the materials filed by the Postal Service Sunday. Due to the relatively small volume of mail with the Postal Regulatory Commission Tables 5 and 6 to read as follows: accepted on Saturdays and Sundays, the Postal in Docket No. N2014–1, available at Appendix A to Part 121—Tables Service does not believe that the Proposal will http://www.prc.gov. If the Postal Service present a challenge regarding the ability to more Depicting Service Standard Day Ranges evenly distribute mail volume throughout the week. determines to implement the Proposal, 7 Request of the United States Postal Service for it will publish a final rule in the Federal The following tables reflect the service an Advisory Opinion on Changes in the Nature of Register. standard day ranges resulting from the Postal Services, Docket No. N2014–1 (Dec. 27, Accordingly, for the reasons stated, application of the business rules applicable 2013). Documents pertaining to the Request are the Postal Service proposes the to the market-dominant mail products available at the Postal Regulatory Commission referenced in §§ 121.1 through 121.4: (PRC) Web site, http://www.prc.gov, under Docket following amendment to 39 CFR part No. N2014–1. 121: * * * * *

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TABLE 5—DESTINATION ENTRY SERVICE STANDARD DAY RANGES FOR MAIL TO THE CONTIGUOUS 48 STATES AND THE DISTRICT OF COLUMBIA

Contiguous United States

Mail class Destination entry (at appropriate facility) DDU SCF ADC NDC (days) (days) (days) (days)

Periodicals ...... 1 1 1–2 1–2 Standard Mail ...... 2 3–4 ...... 5 Package Services ...... 1 2 ...... 3

TABLE 6—DESTINATION ENTRY SERVICE STANDARD DAY RANGES FOR MAIL TO NON-CONTIGUOUS STATES AND TERRITORIES

Destination entry (at appropriate facility) SCF (days) ADC (days) NDC (days) Mail class DDU Hawaii, Hawaii, Hawaii, (days) Guam, & Puerto Guam, & Puerto Guam, & Puerto Alaska American Rico & Alaska American Rico & Alaska American Rico & Samoa USVI Samoa USVI Samoa USVI

Periodicals ...... 1 1–2 1 1–2 1–3 (AK) 1 (HI) 1–2 10–11 10 8–10 11 (JNU) 2 (GU) 11 (KTN) Standard Mail...... 2 3–4 3–5 3–5 ...... 14 13 12 Package Services.... 1 2 2 2–3 ...... 12 11 11 AK = Alaska 3-digit ZIP Codes 995–997; JNU = Juneau AK 3-digit ZIP Code 998; KTN = Ketchikan AK 3-digit. ZIP Code 999; HI = Hawaii 3-digit ZIP Codes 967 and 968; GU = Guam 3-digit ZIP Code 969.

* * * * * architectural coatings, liquefied your identity or contact information Stanley F. Mires, petroleum gas transfer, and ignition of unless you provide it in the body of Attorney, Legal Policy & Legislative Advice. barbecue charcoal. We are approving your comment. If you send email three local rules and rescinding one directly to EPA, your email address will [FR Doc. 2013–31442 Filed 1–2–14; 8:45 am] local rule that regulate these emission be automatically captured and included BILLING CODE 7710–12–P sources under the Clean Air Act (CAA as part of the public comment. If EPA or the Act). cannot read your comment due to DATES: Any comments on this proposal technical difficulties and cannot contact ENVIRONMENTAL PROTECTION must arrive by February 3, 2014. you for clarification, EPA may not be AGENCY ADDRESSES: Submit comments, able to consider your comment. Electronic files should avoid the use of 40 CFR Part 52 identified by docket number EPA–R09– OAR–2013–0668, by one of the special characters, any form of [EPA–R09–OAR–2013–0668; FRL–9902–73– following methods: encryption, and be free of any defects or Region 9] 1. Federal eRulemaking Portal: viruses. www.regulations.gov. Follow the on-line Docket: Generally, documents in the Revisions to the California State instructions. docket for this action are available Implementation Plan, Antelope Valley 2. Email: [email protected]. electronically at www.regulations.gov Air Quality Management District, 3. Mail or deliver: Andrew Steckel and in hard copy at EPA Region IX, 75 Mojave Desert Air Quality Management (Air-4), U.S. Environmental Protection Hawthorne Street, San Francisco, District, Monterey Bay Unified Air Agency Region IX, 75 Hawthorne Street, California 94105–3901. While all Pollution Control District, and South San Francisco, CA 94105–3901. documents in the docket are listed at Coast Air Quality Management District Instructions: All comments will be www.regulations.gov, some information may be publicly available only at the AGENCY: Environmental Protection included in the public docket without hard copy location (e.g., copyrighted Agency (EPA). change and may be made available material, large maps), and some may not ACTION: Proposed rule. online at www.regulations.gov, including any personal information be publicly available in either location SUMMARY: The Environmental Protection provided, unless the comment includes (e.g., CBI). To inspect the hard copy EPA is proposing to approve revisions Confidential Business Information (CBI) materials, please schedule an to the Antelope Valley Air Quality or other information whose disclosure is appointment during normal business Management District, Mojave Desert restricted by statute. Information that hours with the contact listed in the FOR AQMD, Monterey Bay Unified Air you consider CBI or otherwise protected FURTHER INFORMATION CONTACT section. Pollution Control District, and South should be clearly identified as such and FOR FURTHER INFORMATION CONTACT: Coast AQMD portion of the California should not be submitted through Nicole Law, EPA Region IX, (415) 947– State Implementation Plan (SIP). These www.regulations.gov or email. 4126, [email protected]. revisions concern volatile organic www.regulations.gov is an ‘‘anonymous SUPPLEMENTARY INFORMATION: This compound (VOC) emissions from access’’ system, and EPA will not know proposal addresses the following local

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rules: Mojave Desert AQMD Rule 1113 proposing amendments to clarify certain unless the comment includes Architectural Coatings, Monterey Bay provisions in the 2012 final rule relating information claimed to be confidential Unified APCD Rule 426 Architectural to monitoring of negative pressure in business information (CBI) or other Coatings, Antelope Valley AQMD Rule total enclosures. This action also information whose disclosure is 1174 Control of Volatile Organic proposes corrections of typographical restricted by statute. Do not submit Compound Emissions from the Ignition errors in a table listing congeners of information that you consider to be CBI of Barbecue Charcoal, and South Coast dioxins and furans and testing or otherwise protected through http:// AQMD Rule 1177 Liquefied Petroleum requirements for total hydrocarbons. www.regulations.gov or email. The Gas Transfer and Dispensing. In the DATES: Comments. Comments must be http://www.regulations.gov Web site is Rules and Regulations section of this received on or before February 3, 2014, an ‘‘anonymous access’’ system, which Federal Register, we are approving or 30 days after date of public hearing, means the EPA will not know your three of these local rules and rescinding if one is requested. If anyone contacts identity or contact information unless one local rule in a direct final action the EPA requesting a public hearing by you provide it in the body of your without prior proposal because we January 10, 2014, the EPA will comment. If you send an email believe these SIP revisions are not announce the details as to when the comment directly to the EPA without controversial. If we receive adverse hearing will be held in a separate going through http:// comments, however, we will publish a Federal Register notice. www.regulations.gov, your email timely withdrawal of the direct final Public Hearing. The EPA will hold a address will be automatically captured rule and address the comments in public hearing on this proposed rule if and included as part of the comment subsequent action based on this requested. Requests for a hearing must that is placed in the public docket and proposed rule. Please note that if we be made by January 10, 2014. Contact made available on the Internet. If you receive adverse comment on an Nathan Topham at topham.nathan@ submit an electronic comment, the EPA amendment, paragraph, or section of epa.gov or (919) 541–0483 by January recommends that you include your this rule and if that provision may be 10, 2014 to request a public hearing. If name and other contact information in severed from the remainder of the rule, a hearing is requested, the EPA will the body of your comment and with any we may adopt as final those provisions announce the details, including specific disk or CD–ROM you submit. If the EPA of the rule that are not the subject of an dates, times, addresses and contact cannot read your comment due to adverse comment. information for the hearing, in a technical difficulties and cannot contact We do not plan to open a second separate Federal Register notice. you for clarification, the EPA may not comment period, so anyone interested ADDRESSES: Submit your comments, be able to consider your comment. in commenting should do so at this identified by Docket ID Number EPA– Electronic files should not include time. If we do not receive adverse HQ–OAR–2011–0344, by one of the special characters, any form of comments, no further activity is following methods: encryption, and be free of any defects or planned. For further information, please • http://www.regulations.gov: Follow viruses. For additional information see the direct final action. the online instructions for submitting about the EPA’s public docket, visit the Dated: September 25, 2013. comments. EPA Docket Center homepage at Jared Blumenfeld, • Email: [email protected], http://www.epa.gov/dockets. Docket. The EPA has established a Regional Administrator, Region IX. Attention Docket ID Number EPA–HQ– OAR–2011–0344. docket for this proposed action under [FR Doc. 2013–30872 Filed 1–2–14; 8:45 am] • Docket ID Number EPA–HQ–OAR– BILLING CODE 6560–50–P Fax: (202) 566–9744, Attention Docket ID Number EPA–HQ–OAR– 2011–0344. All documents in the docket 2011–0344. are listed in the http:// ENVIRONMENTAL PROTECTION • Mail: U.S. Postal Service, send www.regulations.gov index. Although AGENCY comments to: EPA Docket Center, EPA listed in the index, some information is West (Air Docket), Attention Docket ID not publicly available, e.g., CBI or other 40 CFR Part 63 Number EPA–HQ–OAR–2011–0344, information whose disclosure is U.S. Environmental Protection Agency, restricted by statute. Certain other [EPA–HQ–OAR–2011–0344; FRL–9904–39– material, such as copyrighted material, OAR] Mailcode: 2822T, 1200 Pennsylvania Ave. NW., Washington, DC 20460. is not placed on the Internet, and will RIN 2060–AR66 Please include a total of two copies. be publicly available only in hard copy. • Hand Delivery: U.S. Environmental Publicly available docket materials are National Emissions Standards for Protection Agency, EPA West (Air available either electronically in http:// Hazardous Air Pollutants From Docket), Room 3334, 1301 Constitution www.regulations.gov, or in hard copy at Secondary Lead Smelting Ave. NW., Washington, DC 20004, the EPA Docket Center, EPA West, AGENCY: Environmental Protection Attention Docket ID Number EPA–HQ– Room 3334, 1301 Constitution Ave. Agency (EPA). OAR–2011–0344. Such deliveries are NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to ACTION: Proposed rule amendments. only accepted during the Docket’s normal hours of operation, and special 4:30 p.m., Monday through Friday, SUMMARY: The Environmental Protection arrangements should be made for excluding legal holidays. The telephone Agency (EPA) is proposing amendments deliveries of boxed information. number for the Public Reading Room is to a final rule that revised national Instructions. Direct your comments to (202) 566–1744, and the telephone emission standards for hazardous air Docket ID Number EPA–HQ–OAR– number for the EPA Docket Center is pollutants for existing and new 2011–0344. The EPA’s policy is that all (202) 566–1742. secondary lead smelters. The final rule comments received will be included in FOR FURTHER INFORMATION CONTACT: For was published on January 5, 2012. This the public docket without change and questions about this proposed action, action proposes amendments to clarify may be made available online at contact Mr. Nathan Topham, Metals and certain regulatory text related to http://www.regulations.gov, including Inorganic Chemicals Group, Sector compliance dates. Additionally, we are any personal information provided, Policies and Programs Division (D243–

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02), U.S. Environmental Protection C. What is the background for the proposed proposed action. These standards, once Agency, Research Triangle Park, NC amendments? finalized, will be directly applicable to 27711; telephone number: (919) 541– II. Direct Final Rule affected sources. Federal, state, local III. Statutory and Executive Order Reviews 0483; fax number: (919) 541–3207; and and tribal government entities are not email address: [email protected]. I. General Information affected by this proposed action. As SUPPLEMENTARY INFORMATION: A. Does this action apply to me? defined in the source category listing report published by the EPA in 1992, Organization of this Document. The The regulated industrial source the Secondary Lead Smelting source following outline is provided to aid in category that is the subject of this category is defined as any facility at locating information in the preamble. proposal is listed in Table 1 of this which lead-bearing scrap materials I. General Information preamble. Table 1 of this preamble is (including, but not limited to lead acid A. Does this action apply to me? not intended to be exhaustive, but rather B. What should I consider as I prepare my provides a guide for readers regarding batteries) are recycled by smelting into 1 comments for the EPA? the entities likely to be affected by this elemental lead or lead alloys.

TABLE 1—NESHAP AND INDUSTRIAL SOURCE CATEGORIES AFFECTED BY THIS PROPOSED ACTION

NAICS 1 MACT 2 Source category NESHAP code code

Secondary Lead Smelting ...... Secondary Lead Smelting ...... 331492 0205 1 North American Industry Classification System. 2 Maximum Achievable Control Technology.

B. What should I consider as I prepare Docket. The docket number for this EPA is amending the rule to restore the my comments for the EPA? action is Docket ID Number EPA–HQ– deleted language. OAR–2011–0344. The EPA received petitions for Submitting Confidential Business World Wide Web (WWW). In addition reconsideration of the final rule from Information. Do not submit information to being available in the docket, an the secondary lead smelting industry. containing CBI to the EPA through electronic copy of this action will be One issue raised in the petitions relates http://www.regulations.gov or email. posted on the WWW through the to the table of dioxin and furan Clearly mark the part or all of the Technology Transfer Network Web site congeners contained in the regulatory information that you claim to be CBI. (TTN Web). Following signature, the text (Table 3 to Subpart X of Part 63— For CBI information on a disk or CD EPA will post a copy of this action on Toxic Equivalency Factors). This table ROM that you mail to the EPA, mark the the TTN’s policy and guidance page at included incorrect values for some outside of the disk or CD ROM as CBI http://www.epa.gov/ttn/oarpg. The TTN dioxin toxic equivalency factors (TEF) and then identify electronically within provides information and technology and omitted some congeners. The EPA the disk or CD ROM the specific exchange in various areas of air intended to use the 2005 World Health information that is claimed as CBI. In pollution control. Organization (WHO) TEF in Table 3 to addition to one complete version of the subpart X of part 63. See 76 FR 29051, comment that includes information C. What is the background for the ‘‘The TEQ emissions will be calculated claimed as CBI, a copy of the comment proposed amendments? using the toxic equivalency factors (TEF) outlined by the World Health that does not contain the information On January 5, 2012 (77 FR 556), the claimed as CBI must be submitted for Organization (WHO) in 2005 (available EPA issued final amendments to the at Web site: http://www.epa.gov/raf/ inclusion in the public docket. If you National Emissions Standards for submit a CD ROM or disk that does not hhtefguidance/).’’ Hazardous Air Pollutants (NESHAP) Industry petitioners expressed contain CBI, mark the outside of the from Secondary Lead Smelting. The concern that the agency changed one disk or CD ROM clearly that it does not EPA has subsequently determined, aspect of the emission standard for total contain CBI. Information not marked as following discussions with affected hydrocarbons (THC) between proposing CBI will be included in the public parties, that the final rule warrants and finalizing the RTR amendments for docket and the EPA’s electronic public clarification in four areas. secondary lead smelters. In the 2011 docket without prior notice. Information The EPA inadvertently removed from proposed rule, the total hydrocarbon marked as CBI will not be disclosed 40 CFR part 63, subpart X the standard for furnace charging process except in accordance with procedures requirement for facilities constructed or fugitive emissions that are not combined set forth in 40 CFR part 2. Send or reconstructed on or before May 19, with furnace process emissions did not deliver information identified as CBI 2011, to comply with the previous require correction to 4-percent carbon only to the following address: Roberto version of the NESHAP between dioxide (CO2). See 76 FR 29072, May 19, Morales, OAQPS Document Control promulgation of the January 5, 2012, 2011. In the 2012 final rule, this Officer (C404–02), Office of Air Quality amendments and the subsequent standard inadvertently included Planning and Standards, U.S. compliance date for existing sources, correction to 4-percent CO2. See 77 FR Environmental Protection Agency, which is January 6, 2014. Since existing 582, January 5, 2012. Research Triangle Park, North Carolina sources remain subject to the pre- Finally, petitioners asked the EPA to 27711, Attention Docket ID Number existing standards until the compliance clarify several monitoring provisions for EPA–HQ–OAR–2011–0344. date for the January 2012 standards, the total enclosures. Industry requested

1 USEPA. Documentation for Developing the Initial Source Category List—Final Report, USEPA/ OAQPS, EPA–450/3–91–030, July 1992.

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flexibility in defining the term to this action, see the direct final rule in Street SW., Washington, DC 20472, ‘‘windward wall’’ when a total the ‘‘rules and Regulations’’ section of (202) 646–4064, or (email) enclosure is not impacted by ambient this Federal Register. [email protected]. wind. The regulatory text was unclear List of Subjects for 40 CFR Part 63 SUPPLEMENTARY INFORMATION: On March where to place monitors when ambient 28, 2012, FEMA published a proposed Environmental protection, wind does not affect the total enclosure. notice at 77 FR 18837, proposing flood Administrative practice and procedures, Petitioners requested clarification in hazard determinations in Bullitt County, Air pollution control, Hazardous how to monitor irregularly shaped Kentucky. FEMA is withdrawing the substances, Intergovernmental relations, enclosures or enclosures that are proposed notice. divided into multiple areas all under Reporting and recordkeeping negative pressure. Petitioners also asked requirements. Authority: 42 U.S.C. 4104; 44 CFR 67.4. the EPA to clarify that data from Dated: December 20, 2013. Date: November 22, 2013. differential pressure monitors should be Gina McCarthy, Roy E. Wright, used to calculate 15-minute averages. Deputy Associate Administrator for Petitioners also stated that the EPA Administrator. [FR Doc. 2013–31266 Filed 1–2–14; 8:45 am] Mitigation, Department of Homeland should clarify the meaning of Security, Federal Emergency Management BILLING CODE 6560–50–P ‘‘accuracy’’ in 40 CFR 63.548(k)(3). Agency. II. Direct Final Rule [FR Doc. 2013–30946 Filed 1–2–14; 8:45 am] BILLING CODE 9110–12–P A direct final rule that would make DEPARTMENT OF HOMELAND the same changes as those proposed in SECURITY this document appears in the Rules and Regulations section of this Federal Federal Emergency Management DEPARTMENT OF COMMERCE Register. The EPA is taking direct final Agency National Oceanic and Atmospheric action on these amendments because we Administration view the amendments as 44 CFR Part 67 noncontroversial and anticipate no 50 CFR Part 679 significant adverse comments. The EPA [Docket ID FEMA–2012–0003; Internal Agency Docket No. FEMA–B–1241] has explained our reasons for the [Docket No. 130903776–3776–01] amendments in the direct final rule. If Proposed Flood Hazard RIN 0648–BD66 no significant adverse comments are Determinations for Bullitt County, received, no further action will be taken Kentucky and Incorporated Areas Fisheries of the Exclusive Economic on the proposal, and the direct final rule Zone Off Alaska; Modifications to will become effective as provided in AGENCY: Federal Emergency Identification Markings on Fishing that action. Management Agency, DHS. Gear Marker Buoys If the EPA receives significant adverse ACTION: Proposed notice; withdrawal. comments, we will withdraw only those AGENCY: National Marine Fisheries provisions on which we received those SUMMARY: The Federal Emergency Service (NMFS), National Oceanic and comments. The EPA will publish a Management Agency (FEMA) is Atmospheric Administration (NOAA), timely withdrawal in the Federal withdrawing its proposed notice Commerce. Register indicating which provisions concerning proposed flood hazard ACTION: Proposed rule; request for will become effective, and which determinations, which may include the comments. provisions are being withdrawn. If part addition or modification of any Base or the entire direct final rule in the Flood Elevation, base flood depth, SUMMARY: NMFS proposes to revise the Rules and Regulations section of this Special Flood Hazard Area boundary or identification marking requirements for Federal Register is withdrawn, all zone designation, or regulatory fishing gear marker buoys (buoys) used comments pertaining to those floodway on the Flood Insurance Rate in Federal waters off Alaska. This provisions will be addressed in a Maps, and where applicable, in the proposed rule would eliminate the subsequent final rule based on these supporting Flood Insurance Study requirement that hook-and-line, proposed amendments. The EPA will reports for Bullitt County, Kentucky and longline pot, and pot-and-line buoys be not institute a second comment period Incorporated Areas. marked with the vessel’s name. The on the subsequent final action. Any DATES: This withdrawal is effective requirement to mark buoys with either parties interested in commenting must January 3, 2014. the vessel’s Federal fisheries permit do so at this time. number or Alaska Department of Fish ADDRESSES: You may submit comments, and Game (ADF&G) number remains in The changes to the regulatory text identified by Docket No. FEMA–B– proposed in this notice are identical to effect. This action is needed to remove 1241, to Luis Rodriguez, Chief, a regulatory requirement that is those for the direct final rule published Engineering Management Branch, in the Rules and Regulations section of unnecessary. This action is intended to Federal Insurance and Mitigation promote the goals and objectives of the this Federal Register. For further Administration, Federal Emergency information, including the detailed Magnuson-Stevens Fishery Management Agency, 500 C Street SW., Conservation and Management Act rationale for the proposal and the Washington, DC 20472, (202) 646–4064, regulatory revisions, see the direct final (Magnuson-Stevens Act), the Fishery or (email) Management Plan for Groundfish of the rule published in a separate part of this [email protected]. Federal Register. Bering Sea and Aleutian Islands FOR FURTHER INFORMATION CONTACT: Luis Management Area (BSAI Groundfish III. Statutory and Executive Order Rodriguez, Chief, Engineering FMP), the Fishery Management Plan for Reviews Management Branch, Federal Insurance Groundfish of the Gulf of Alaska (GOA For a complete discussion of all of the and Mitigation Administration, Federal Groundfish FMP), and other applicable administrative requirements applicable Emergency Management Agency, 500 C laws.

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DATES: Comments must be received no BSAI and GOA Groundfish FMPs. These non-groundfish species when later than February 3, 2014. FMPS were prepared by the North incidentally caught groundfish must be ADDRESSES: You may submit comments, Pacific Fishery Management Council, retained. Regulations at § 679.7(f)(8) identified by FDMS Docket Number under the authority of the Magnuson- prohibit vessels with individual fishing NOAA–NMFS–2013–0137, by any of the Stevens Act, 16 U.S.C. 1801 et seq., and quota (IFQ) halibut or sablefish on board following methods: other applicable laws, and approved by from discarding rockfish or Pacific cod • Electronic Submissions: Submit all the Secretary of Commerce. Regulations under various conditions. Thus, vessels electronic public comments via the implementing the FMPs appear at 50 used to fish for halibut IFQ are required Federal eRulemaking Portal. Go to CFR part 679. General regulations that to have FFPs and comply with all www.regulations.gov/ pertain to U.S. fisheries appear at regulations in 50 CFR part 679 that #!docketDetail;D=NOAA-NMFS-2013- subpart H of 50 CFR part 600. apply to vessels required to have FFPs, including requirements for marking 0137, click the ‘‘Comment Now!’’ icon, Background complete the required fields, and enter buoys. Other non-groundfish fisheries or attach your comments. Federal regulations pertaining to gear have no comparable discard • Mail: Submit written comments to markings for groundfish are set forth at prohibitions. Glenn Merrill, Assistant Regional § 679.24. These regulations apply to Identification markings on buoys in Administrator, Sustainable Fisheries operators of vessels required to carry a the Federal waters off Alaska also are Division, Alaska Region NMFS, Attn: Federal fisheries permit (FFP) while regulated by the State of Alaska (State) Ellen Sebastian. Mail comments to P.O. fishing in the groundfish and halibut and the International Pacific Halibut Box 21668, Juneau, AK 99802–1668. fisheries in Federal waters off Alaska. Commission (IPHC). The State shares • Fax: Address written comments to The proposed rule implementing these management responsibilities with Glenn Merrill, Assistant Regional requirements was published on August NMFS for king crab and Tanner crab in Administrator, Sustainable Fisheries 16, 1989 (54 FR 33737), and the final the Federal waters off Alaska, and Division, Alaska Region NMFS, Attn: rule on January 2, 1990 (55 FR 31). regulates the buoy identification Ellen Sebastian. Fax comments to 907– Buoys are used to indicate the positions markings in these fisheries. The State 586–7557. of hook-and-line, pot, and pot-and-line requires at least one buoy on each Instructions: Comments sent by any gear in these fisheries. Section 679.24 commercial king or Tanner crab pot or other method, to any other address or requires buoys to be marked to make it ring net to be legibly marked with the individual, or received after the end of possible to identify the vessel from permanent ADF&G license number of the comment period, may not be which the gear was deployed. The the vessel using the gear (5 AAC 34.051; considered by NMFS. All comments NMFS Office of Law Enforcement and 5 AAC 35.051). Identification marking received are a part of the public record the United States Coast Guard use the requirements for halibut gear buoys are and will generally be posted for public identification markings from buoys set by the IPHC. The IPHC’s regulations when issuing violations, prosecutions, viewing on http://www.regulations.gov for 2013 require that all setline or skate and other enforcement actions. without change. All personal identifying buoys carried onboard or used by any Cooperating fishermen use the information (e.g., name, address), U.S. vessel for commercial halibut identification markings to report the confidential business information, or fishing shall be marked with the vessel’s placement or occurrence of gear in otherwise sensitive information state license number or the vessel’s unauthorized areas. Identification submitted voluntarily by the sender will registration number. Both State and markings are also necessary to facilitate be publicly accessible. NMFS will IPHC commercial identification the return of lost or stolen gear. accept anonymous comments (enter markings must be maintained in a Fishermen that correctly mark their gear N/A in the required fields if you wish legible condition, in characters at least ultimately benefit because this deters four inches high (10.2 cm) and one-half- to remain anonymous). Attachments to unauthorized and illegal fishing and inch (1.3 cm) wide, in a contrasting electronic comments will be accepted in reduces the need for more burdensome color, and visible above the water. The Microsoft Word or Excel or Adobe PDF regulations. principal difference between the State file formats only. Federal regulations at § 679.24(a) and IPHC commercial regulations and Electronic copies of the Categorical require that buoys carried onboard or Exclusion and the Regulatory Impact 50 CFR part 679 is the requirement for used by any vessel subject to 50 CFR buoys to be marked with the vessel Review/Initial Regulatory Flexibility part 679 that is using hook-and-line, Analysis (RIR/IRFA) prepared for this name. longline pot, or pot-and-line gear must Information on the extent of action are available from http:// be marked with the vessel’s name and compliance with the existing www.regulations.gov or from the NMFS either the vessel’s FFP number or the regulations is not available; however, Alaska Region Web site at http:// vessel’s Alaska Department of Fish and non-compliance has not been raised as alaskafisheries.noaa.gov. Game (ADF&G) vessel registration a concern by enforcement agencies. Written comments regarding the number. In addition, the markings burden-hour estimates or other aspects ‘‘shall be in characters at least 4 inches Description of the Proposed Action of the collection-of-information (10.16 cm) in height and 0.5 inch (1.27 The proposed action would eliminate requirements contained in this rule may cm) in width in a contrasting color the requirement that buoys carried be submitted to NMFS at the above visible above the water line and shall be onboard or marking the location of address and by email to hook-and-line, longline pot, and pot- _ maintained so the markings are clearly OIRA [email protected] or fax visible.’’ and-line gear deployed by vessels with to 202–395–7285. These regulations apply to ‘‘vessels FFPs be marked with the vessel’s name. FOR FURTHER INFORMATION CONTACT: regulated under this part’’ which refers This action is needed to remove a Michael Camacho, 907–586–7228. to those vessels required to carry FFPs regulatory requirement that experience SUPPLEMENTARY INFORMATION: NMFS under § 679.4(b). FFPs are required for has shown is not necessary. While one Alaska Region manages the U.S. vessels fishing for groundfish (a legal vessel may share the same name as groundfish fisheries in the Exclusive category that does not include halibut) another vessel, vessel identification Economic Zone off Alaska under the in the GOA or BSAI, or fishing for any numbers are exclusive and unique to the

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recipient vessel. Therefore, the this proposed rule would have on small Collection-of-Information Requirements proposed rule would eliminate the entities, if adopted. A description of the This rule contains collection-of- requirement in § 679.24(a) to mark action, why it is being considered, and information requirements, subject to buoys with the vessel’s name, but the legal basis for this action are review and approval by the Office of maintain the requirement for marking contained in the Background and Management and Budget (OMB) under buoys with either the vessel’s FFP Description of the Proposed Action the Paperwork Reduction Act (PRA). number or ADF&G number. The sections of this proposed rule. A This requirement has been submitted to proposed action should reduce costs to summary of the analysis follows. A copy the OMB for approval under OMB vessel owners by reducing the labor and of this analysis is available from NMFS control number 0648–0353. The public materials needed to mark buoys. In (see ADDRESSES). reporting burden is estimated to average addition, the proposed action would On June 20, 2013, the Small Business make buoy marking regulations at per response 10 minutes or less to Administration issued a final rule collect the information and paint it on § 679.24(a) consistent with Alaska’s revising the small business size State crab and IPHC regulations. a buoy. standards for several industries effective This estimate includes the time for Classification July 22, 2013 (78 FR 37398; June 20, reviewing instructions, searching Pursuant to section 305(d) of the 2013). The rule increased the size existing data sources, gathering and Magnuson-Stevens Act, the NMFS standard for Finfish Fishing from $4.0 to maintaining the data needed, and Assistant Administrator has determined $19.0 million, Shellfish Fishing from completing and reviewing the that this proposed rule is consistent $4.0 to $5.0 million, and Other Marine collection-of-information. Fishing from $4.0 to $7.0 million. The with the BSAI and GOA Groundfish Public comment is sought regarding: new size standards were used to prepare FMPs, other provisions of the whether this proposed collection of the IRFA for this action. Magnuson-Stevens Act, and other information is necessary for the proper applicable law, subject to further Vessels are directly regulated by this performance of the functions of the consideration after public comment. action when required to carry an FFP agency, including whether the This proposed rule has been and using hook-and-line, pot, or pot- information shall have practical utility; determined not to be significant for the and-line gear in Federal groundfish or the accuracy of the burden estimate; purposes of Executive Order 12866. halibut fisheries in the GOA or BSAI. ways to enhance the quality, utility, and An RIR was prepared for this action NMFS estimates that, in 2012, the most clarity of the information to be that assesses all costs and benefits of recent year for which gross revenues collected; and ways to minimize the available regulatory alternatives. The information is available, 761 entities burden on the collection of information, RIR describes the potential size, would have been directly regulated by including through the use of automated distribution, and magnitude of the this action. NMFS estimates that 693 collection techniques or other forms of economic impacts this action may be would have been small entities. Median information technology. expected to have. The RIR finds that this gross revenues for the small entities Send comments on these or any other action has a positive net economic would have been about $327,000, while aspects of the collection of information impact to commercial fishing operations 75 percent would have had gross to NMFS (see ADDRESSES) and by email since it reduces the cost of compliance revenues under about $779,000, and 25 to [email protected], or with identification marking percent would have had gross revenues fax to 202–395–7285. requirements for buoys. This action under about $144,000. The 99th Notwithstanding any other provision does not create additional percentile of gross revenues was about of the law, no person is required to administrative costs and does not $2,974,000. respond to, nor shall any person be impose new requirements on fishing An IRFA also requires a description of subject to a penalty for failure to comply operations, or modify other existing any significant alternatives to the with, a collection of information subject ones. preferred alternative that accomplish to the requirements of the PRA, unless Section 610 of the Regulatory the stated objectives, are consistent with Flexibility Act (RFA) requires ‘‘periodic that collection of information displays a applicable statutes, and that would currently valid OMB control number. review of the rules issued by the agency minimize any significant economic which have or will have a significant impact of the proposed rule on small List of Subjects in 50 CFR Part 679 economic impact upon a substantial entities. The preferred alternative (the number of small entities. * * * The Alaska, Fisheries, Reporting and action alternative removing the recordkeeping requirements. purpose of the review shall be to requirement that vessel names be placed Dated: December 26, 2013. determine which such rules should be on marker buoys) places somewhat continued without change, or should be smaller obligations on directly regulated Alan D. Risenhoover, amended or rescinded, consistent with small entities than the alternative of Director, Office of Sustainable Fisheries, the stated objectives of applicable retaining the status quo. Thus, there are performing the functions and duties of the Deputy Assistant Administrator for statues, to minimize any significant no alternatives that have a smaller economic impact of the rules upon a Regulatory Programs, National Marine adverse economic impact on directly Fisheries Service. substantial number of such small regulated small entities. entities.’’ Regulations requiring vessel For the reasons set out in the This action will reduce, in a small names on buoys was identified by preamble, 50 CFR part 679 is proposed way, the reporting and recordkeeping NMFS during a section 610 review of to be amended as follows: past final rules as a requirement that requirements of small entities was not necessary and could be participating in the BSAI and GOA PART 679—FISHERIES OF THE removed from regulations. groundfish fisheries. EXCLUSIVE ECONOMIC ZONE OFF An initial regulatory flexibility The analysis revealed no Federal rules ALASKA analysis (IRFA) was prepared, as that would conflict with, overlap, or be required by section 603 of the RFA. The duplicated by the alternatives under ■ 1. The authority citation for part 679 IRFA describes the economic impact consideration. continues to read as follows:

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Authority: 16 U.S.C. 773 et seq.; 1801 et § 679.24 Gear limitations. under this part shall be marked with the seq.; 3631 et seq.; Pub. L. 108–447. * * * * * vessel’s Federal fisheries permit number ■ 2. In § 679.24, revise paragraph (a)(1) (a) * * * or ADF&G vessel registration number. to read as follows: (1) All hook-and-line, longline pot, * * * * * and pot-and-line marker buoys carried [FR Doc. 2013–31416 Filed 1–2–14; 8:45 am] on board or used by any vessel regulated BILLING CODE 3510–22–P

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Notices Federal Register Vol. 79, No. 2

Friday, January 3, 2014

This section of the FEDERAL REGISTER FOR FURTHER INFORMATION CONTACT: consists of grand fir dominated stands contains documents other than rules or Mike Ward, Interdisciplinary Team that have insect and disease infestations proposed rules that are applicable to the Leader, (208) 926–6413 that are contributing to increased tree public. Notices of hearings and investigations, SUPPLEMENTARY INFORMATION: The mortality, or are at risk from stand committee meetings, agency decisions and replacing events. Stands proposed for rulings, delegations of authority, filing of objective of the Middle Fork Project is petitions and applications and agency to move the area towards a more diverse treatment are currently losing volume statements of organization and functions are and resilient landscape structure by and value due to insects and disease. examples of documents appearing in this creating a range of age and size classes Harvest of the timber would provide section. that more closely emulates a mixed- materials to local industries. severity fire regime. Also, the desired Fire Regime/Natural Disturbance species composition would be moved Restoration and Fuel Reduction DEPARTMENT OF AGRICULTURE more towards the early-seral species Purpose: Break up fuel continuity (ponderosa pine, western larch, and created by past wildfires which would Forest Service white pine) by retaining these species in reduce the potential for large scale variable retention harvesting and by Nez Perce-Clearwater National Forest; crown fires. Reduce shade tolerant planting post-harvest, which would Idaho; Middle Fork Vegetation ladder fuels around existing legacy trees improve resilience to root diseases, bark Management to retain those more fire resistant legacy beetles, fire and a changing climate over trees on the landscape over the long AGENCY: Forest Service, USDA. the long-term. term. These activities would emulate Watershed improvement activities ACTION: Notice of intent to prepare an mixed severity fire. environmental impact statement. would reduce road related impacts to Need: Effective fire suppression in the watershed and important aquatic this area has created a vegetative shift to SUMMARY: The Forest Service gives habitats while still providing a stable less fire resistant species, and an notice of its intent to prepare an and cost efficient transportation system increase in ladder fuels that can Environmental Impact Statement for the and dispersed recreation opportunities. contribute to the risk of high intensity Middle Fork Vegetation Management Vegetation Management and potentially resource damaging Project. The Proposed action would use wildfire. Past harvest patterns do not a combination of timber harvest, pre- Purpose: Trend vegetation species emulate natural disturbance patterns commercial thinning, prescribed fire composition, structure, and nor do they emulate natural habitat and reforestation to achieve the desired distributions toward desired conditions structure. There is a need to increase range of age classes, size classes, described in the Forest Plan. patch sizes to shift age and size class vegetative species distributions habitat Need: The project area has a high distributions to increase high quality complexity (diversity) and landscape proportion of grand fir/Douglas fir cover early seral wildlife habitats. Landscape pattern across the forested portions of types. These species tend to be more burning and timber harvest that mimics the project area. Road decommissioning, susceptible/vulnerable to insects and natural fire would help increase forest and road improvements are also diseases and grand fir is unlikely to resilience, help reduce risk of wildfires, proposed to improve watershed health. survive in wildfire. There is a need to and help create high quality habitats The EIS will analyze the effects of the trend the area towards a more diverse that would benefit birds, small proposed action and alternatives. The and resilient forest structure by creating mammals, and big game species. Fire Nez Perce-Clearwater Forests invites a range of age classes, size classes, dependent wildlife species would comments and suggestions on the issues species diversity and disturbance benefit from landscape burning. to be addressed. The agency gives notice patterns that more closely emulate Watershed Improvement of the National Environmental Policy natural mixed severity disturbance. Act (NEPA) analysis and decision Shifting tree species composition by Purpose: Reduce potential sediment making process on the proposal so retaining and planting early seral inputs into the aquatic ecosystem. interested and affected members of the species (i.e. ponderosa pine, western Need: Sediment input from gravel and public may participate and contribute to larch and western white pine) in native surface roads can flow into the final decision. managed areas would help trend the streams, negatively affecting fish habitat area toward or maintain desired habitat and water quality. Improvement of DATES: Comments concerning the scope conditions and would make these watershed function and stream of the analysis must be received by habitats more resistant and resilient to conditions can be accomplished by February 3, 2014. The draft change agents such as insect, disease, reducing road densities and repairing environmental impact statement is and fire. existing roads and culverts to reduce expected in May 2014 and the final Goods and Service sediment and improve drainage. environmental impact statement is Decompacting soils and adding organic expected November 2014. Purpose: To utilize timber outputs material on old skid trails and landings ADDRESSES: Send written comments to produced through forest management can also help to improve watershed Mike Ward, Interdisciplinary Team activities to support the economic function. Leader; 502 Lowry Street, Kooskia, structure of local communities. The Proposed Action would: Idaho 83539. Comments may also be Need: The need to provide a sustained Improve forest health, provide goods sent via email to comments-northern- yield of resource outputs is directed in and services, reduce fuels and improve [email protected] the Forest Plan. Much of the area wildlife habitat by:

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• Conducting ‘‘variable retention’’ Responsible Official and Lead Agency CONTACT PERSON FOR MORE INFORMATION: regeneration harvest and post-harvest The USDA Forest Service is the lead Melissa D. Jurgens, 202–418–5516. burning activities on up to 2300 acres agency for this proposal. The Nez Perce- Melissa D. Jurgens, distributed across the focus areas to Clearwater Forest Supervisor is the create early sucessional plant Secretary of the Commission. responsible official. [FR Doc. 2013–31549 Filed 12–31–13; 4:15 pm] communities and improve wildlife The Decision To Be Made is whether habitat while re-establishing long-lived to adopt the proposed action, in whole BILLING CODE 6351–01–P early seral tree species. Variable or inpart, or another alternative; and retention harvest would include areas of what mitigation measures and full retention (clumps), irregular edges, management requirements will be BUREAU OF CONSUMER FINANCIAL and retention of snags and legacy trees implemented. PROTECTION to provide structure and a future source The Scoping Process for the EIS is [Docket No.: CFPB–2013–0036] of woody debris. Openings would likely being initiated with this notice. The exceed 40 acres. Creation of openings scoping process will identify issues to Request for Information Regarding the over 40 acres requires 60 day public be analyzed in detail and will lead to Mortgage Closing Process review and Regional Forest approval. the developemnt of alternatives to the AGENCY: This letter provides public notice that proposal. The Forest Service is seeking Bureau of Consumer Financial an environmental impact statement will information and comments from other Protection. be prepared and Regional Forester Federal, State, and local agencies; Tribal ACTION: Notice and request for approval requested. Governments; and organizations and information. • Applying improvement harvest individuals who may be interested in or SUMMARY: This notice requests (thin from below) on approximately 875 affected by the proposed action. information from the public about acres to remove encroachment and Comments received in response to this mortgage closing. Specifically, the ladder fuels from ponderosa pine notice, including the names and Consumer Financial Protection Bureau dominated stands. addresses of those who comment, will (CFPB) seeks information on key • Construct up to 18 miles of be a part of the project record and consumer ‘‘pain points’’ associated with temporary roads to carry out the available for public review. mortgage closing and how those pain Early Notice of Importance of Public proposed action. Roads would be points might be addressed by market Participation in Subsequent designed and located to minimize innovations and technology. Environmental Review: A draft environmental effects and The CFPB seeks to encourage the environmental impact statement will be decommissioned after use. development of a more streamlined, prepared for comment. The second • Harvest would be conducted by efficient, and educational closing major opportunity for public input will ground based (tractor/skyline) and aerial process as the mortgage industry be when the draft EIS is published. The (helicopter) logging systems. Logs increases its usage of technology, comment period for the draft EIS will be would likely be landed in the Wild and electronic signatures, and paperless 45 days from the date the Scenic River corridor at designated processes. The next phase of CFPB’s Environmental Protection Agency helicopter landings. Know Before You Owe initiative aims to publishes the notice of availability in • Creating a shaded fuel break and identify ways to improve the mortgage defensible space for approximately 300 the Federal Register. The Draft EIS is anticipated to be available for public closing process for consumers. This feet on NFS lands adjacent to private review in May 2013. project will encourage interventions that properties within the project area. This increase consumer knowledge, may include commercial and non- Dated: December 20, 2013. understanding, and confidence at commercial thinning, pruning of ladder Rick Brazell, closing. fuels and hand piling of slash. Forest Supervisor. This notice seeks information from market participants, consumers, and Watershed Improvement [FR Doc. 2013–31457 Filed 1–2–14; 8:45 am] BILLING CODE 3410–11–P other stakeholders who work closely • 2–3 miles of system roads no longer with consumers. The information will considered necessary for transportation inform the CFPB’s understanding of needs would be decommissioned. COMMODITY FUTURES TRADING what consumers find most problematic • Maintaining and improving of 7–10 COMMISSION about the current closing process and miles of roads used to support the inform the CFPB’s vision for an proposed actions. Maintenance or Sunshine Act Meeting improved closing experience. improvement may include culvert DATES: Submit comments on or before TIME AND DATE: installation or replacement, ditch 10:00 a.m., Friday, February 7, 2014. January 10, 2014. cleaning, and riprap placement for ADDRESSES: You may submit responsive PLACE: drainage improvement. It may also 1155 21st St. NW., Washington, information and other comments, include gravel placement, road grading DC, 9th Floor Commission Conference identified by Docket No. CFPB–2013– and dust abatement. Room. 0036, by any of the following methods: Possible Alternatives the Forest STATUS: Closed. • Electronic: http:// Service will consider include a no- MATTERS TO BE CONSIDERED: www.regulations.gov. Follow the action alternative, which will serve as a Surveillance, Enforcement Matters, and instructions for submitting comments. baseline for comparison of alternatives. Examinations. In the event that the • Mail/Hand Delivery/Courier: The proposed action will be considered times, dates, or locations of this or any Monica Jackson, Office of the Executive along with additional alternatives that future meetings change, an Secretary, Consumer Financial will be developed to meet the purpose announcement of the change, along with Protection Bureau, 1700 G Street NW., and need for action, and to address the new time and place of the meeting Washington, DC 20552. significant issues identified during will be posted on the Commission’s Instructions: The Bureau encourages scoping. Web site at http://www.cftc.gov. the early submission of comments. All

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submissions must include the document • Housing attorneys; Improving Closing • title and docket number. Because paper Fair lending, civil rights, and 14. What, if anything, would you mail in the Washington, DC area and at consumer and community advocates; • change about the closing process to the Bureau is subject to delay, Providers of financial and housing make it a better experience for commenters are encouraged to submit counseling; consumers? comments electronically. Please note • Settlement closing agents; and • 15. What questions should consumers the number associated with any Other interested parties. ask at closing? What are the most question to which you are responding at The Bureau is interested in responses important pieces of information/ the top of each response (you are not in the following general areas, as well as documents for them to review? required to answer all questions to specific questions below. Please feel free 16. What is the single most important receive consideration of your to respond to any of the questions question a consumer should ask at comments). In general, all comments outlined below. closing? received will be posted without change Consumers and Closing 17. What is the single most important to http://www.regulations.gov. In thing a consumer should do before addition, comments will be available for 1. What are common problems or coming to the closing table? public inspection and copying at 1700 issues consumers face at closing? What parts of the closing process do Dated: December 13, 2013. G Street NW., Washington, DC 20552, Christopher D’Angelo, on official business days between the consumers find confusing or overwhelming? Chief of Staff, Bureau of Consumer Financial hours of 10 a.m. and 5 p.m. Eastern Protection. Time. You can make an appointment to 2. Are there specific parts of the [FR Doc. 2013–31436 Filed 1–2–14; 8:45 a.m.] inspect the documents by telephoning closing process that borrowers find 202–435–7275. particularly helpful? BILLING CODE 4810–AM–P All submissions, including 3. What do consumers remember attachments and other supporting about closing as related to the overall materials, will become part of the public mortgage/home-buying process? What CONSUMER PRODUCT SAFETY record and subject to public disclosure. do consumers remember about closing? COMMISSION Sensitive personal information, such as 4. How long does the closing process Sunshine Act Meeting account numbers or Social Security usually take? Do borrowers feel that the time at the closing table was an numbers, should not be included. TIME AND DATE: Wednesday, January 8, appropriate amount of time? Is it too Submissions will not be edited to 2014, 10 a.m.–12 p.m. long? Too short? Just right? remove any identifying or contact PLACE: Hearing Room 420, Bethesda information. 5. How empowered do consumers seem to feel at closing? Did they come Towers, 4330 East West Highway, FOR FURTHER INFORMATION CONTACT: For to closing with questions? Did they Bethesda, Maryland. general inquiries, submission process review the forms beforehand? Did they STATUS: Commission Meeting—Open to questions or any additional information, know that they can request their the Public. please contact Monica Jackson, Office of documents in advance? Did they MATTER TO BE CONSIDERED: Decisional Executive Secretary, at 202–435–7275. negotiate? Matter: Bedside Sleepers (Section Authority: 12 U.S.C. 5511(c). 6. What, if anything, have you found 104)—Final Rule. SUPPLEMENTARY INFORMATION: Buying a helps consumers understand the terms A live Webcast of the Meeting can be home is often a consumer’s single of the loan? viewed at www.cpsc.gov/live. For a recorded message containing the largest financial purchase. According to Errors and Changes at Closing the latest numbers from the National latest agenda information, call (301) Association of Realtors, the median 7. What are some common errors you 504–7948. price of homes purchased in the United have seen at closing? How are these CONTACT PERSON FOR MORE INFORMATION: States is now $207,000. By comparison, errors detected, if at all? Tell us about Todd A. Stevenson, Office of the the median household income is about errors that were detected after closing. Secretary, U.S. Consumer Product $51,000, according to the Census 8. What changes, diverging from what Safety Commission, 4330 East West Bureau. It is crucial that consumers was originally presented at closing, Highway, Bethesda, MD 20814, (301) consider the numbers carefully before often surprise consumers at closing? 504–7923. making this potentially long-term How do consumers react to changes at Dated: December 31, 2013. commitment, and closing is often their closing? Todd A. Stevenson, last opportunity to do so. Other Parties at Closing Secretary. However, closing can be stressful and [FR Doc. 2013–31536 Filed 12–31–13; 11:15 am] confusing for consumers. The CFPB 9. How, if at all, do consumers BILLING CODE 6355–01–P plans to conduct several initiatives in typically seek advice during closing? In order to test and study various ways in person? By phone? Online? which the closing process might be 10. Where and to whom do consumers CORPORATION FOR NATIONAL AND improved. This information will help turn for advice during closing? Whom COMMUNITY SERVICE inform those initiatives. do they typically trust? The Bureau encourages comments Closing Documents Proposed Information Collection; from the public, including: Comment Request • Consumers; 11. What documents do borrowers • Mortgage lenders and loan usually remember seeing? What AGENCY: Corporation for National and servicers; documents they remember signing? Community Service. • Housing finance professionals; 12. What documents do consumers ACTION: Notice. • Brokers and service providers in the find particularly confusing? residential real estate industry; 13. What resources do borrowers use SUMMARY: The Corporation for National • Real estate agents; to define unfamiliar terms of the loan? and Community Service (CNCS), as part

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of its continuing effort to reduce (1) By mail sent to: Corporation for Opportunity application process. This paperwork and respondent burden, National and Community Service, project involves a survey of grant conducts a pre-clearance consultation Senior Corps Program; Attention applicants, non-applicants and potential program to provide the general public Anthony Nerino, Research Associate, applicants for the 2013 RSVP NOFO. and federal agencies with an Office #10913A; 1201 New York Avenue Additionally the study involves a series opportunity to comment on proposed NW., Washington, DC 20525. of brief interviews with various and/or continuing collections of (2) By hand delivery or by courier to stakeholders in the application process information in accordance with the the CNCS mailroom at Room 6010 at the to augment and assist in understanding Paperwork Reduction Act of 1995 mail address given in paragraph (1) the survey results. (PRA95) (44 U.S.C. 3506(c)(2)(A)). This above, between 9:00 a.m. and 4:00 p.m. Potential survey respondents will be program helps to ensure that requested Eastern Time, Monday through Friday, drawn from three sources; current data can be provided in the desired except Federal holidays. applicants, potential applicants that format, reporting burden (time and (3) Electronically through the filed a notice of intent to apply but did financial resources) is minimized, Corporation’s email system to anerino@ not file a grant application, and collection instruments are clearly cns.gov. potential applicants (non-profits and understood, and the impact of collection Individuals who use a public agencies) that have not yet requirement on respondents can be telecommunications device for the deaf applied or filed notice of intent letter. properly assessed. (TTY–TDD) may call 1–800–833–3722 Potential interview respondents will Currently, CNCS is soliciting between 8:00 a.m. and 8:00 p.m. Eastern include grant applicant stakeholders comments concerning its proposed Time, Monday through Friday. including grant managers, non-profit Senior Corps RSVP Notice Of Funding FOR FURTHER INFORMATION CONTACT: and public agency administrators. Opportunity Non-applicant Study. The Anthony Nerino, (202–606–3913), or by Survey data will be collected using an study involves two data collection email at [email protected]. on-line survey program. Interview data phases. Phase I is a survey of SUPPLEMENTARY INFORMATION: will be collected via taped and written individuals representing organizations, CNCS is particularly interested in responses to telephone conversations. non-profits, and public agencies that are comments that: Data analysis will focus on identifying • (1) current applicants, (2) current non- Evaluate whether the proposed and understanding factors associated applicants, and (3) potential applicants collection of information is necessary with the decision to apply, factors for the RSVP Notice of Funding for the proper performance of the associated with the decision to not Opportunity. Phase II involves in-depth functions of CNCS, including whether apply, and perceived and real barriers to interviews with a range of stakeholders the information will have practical completing the grant application. that includes individuals who utility; Quantitative data analysis will include • administer grants, administer non- Evaluate the accuracy of the descriptive statistics and inferential profits and public agencies applying for agency’s estimate of the burden of the analysis of survey responses by RSVP grants and representatives of state proposed collection of information, respondent and organization commissions. including the validity of the characteristics. The survey and interviews are methodology and assumptions used; • Current Action: CNCS seeks public designed to allow CNCS Senior Corps Enhance the quality, utility, and comment on a new data collection administrators to understand how clarity of the information to be instrument and a set of interview grantees and potential grantees view the collected; and questions developed for this project. • Minimize the burden of the application process, what factors are The instrument and interview collection of information on those who important in the decision to apply, and questionnaire is being designed by the are expected to respond, including the how the NOFO can be written to contractor for this project. use of appropriate automated, generate a higher response rate from Type of Review: New. electronic, mechanical, or other potential grant applicants. Agency: Corporation for National and Copies of the information collection technological collection techniques or other forms of information technology Community Service. request can be obtained by contacting Title: Retired and Senior Volunteer the office listed in the ADDRESSES (e.g., permitting electronic submissions of responses). Program NOFO Non-applicant Study. section of this notice. OMB Number: None. DATES: Written comments must be Background Agency Number: None. submitted to the individual and office CNCS has contracted with GMMB and Affected Public: RSVP Grant listed in the ADDRESSES section by Freedman Consulting LLC to implement Applicants and Potential Applicants. March 4, 2014. a study of the RSVP grant application Total Respondents: Written Surveys ADDRESSES: You may submit comments, process in order to better understand the 300. Interviews 40. identified by the title of the information positive and prohibitive factors Frequency: One time. collection activity, by any of the associated with the Retired and Senior Average Time per Response: 30 following methods: Volunteer Program Notice of Funding minutes.

Time Respondent category Number (minutes) Total hours

Survey Respondents ...... 300 30 150 Interview Participants ...... 40 30 20

Estimated Total Burden Hours: 170. Total Burden Cost (operating/ Comments submitted in response to Total Burden Cost (capital/startup): maintenance): None. this notice will be summarized and/or None. included in the request for Office of

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Management and Budget approval of the Affected Public: Business or other for- ADDRESSES: DAU Headquarters, 9820 information collection request; they will profit; individuals or households; not Belvoir Road, Fort Belvoir, VA 22060. also become a matter of public record. for profit institutions. FOR FURTHER INFORMATION CONTACT: Dated: December 27, 2013. Frequency: Weekly. Christen Goulding, Protocol Director, Respondent’s Obligation: Voluntary. DAU. Phone: 703–805–5134. Fax: 703– Erwin Tan, OMB Desk Officer: Ms. Jasmeet Program Director, Senior Corps. 805–5940. Email: christen.goulding@ Seehra. dau.mil. [FR Doc. 2013–31481 Filed 1–2–14; 8:45 am] Written comments and BILLING CODE 6050–28–P recommendations on the proposed SUPPLEMENTARY INFORMATION: This information collection should be sent to meeting is being held under the Ms. Jasmeet Seehra at the Office of provisions of the Federal Advisory Management and Budget, Desk Officer Committee Act of 1972 (5 U.S.C., DEPARTMENT OF DEFENSE for DoD, Room 10236, New Executive Appendix, as amended), the Government in the Sunshine Act of Office of the Secretary Office Building, Washington, DC 20503. You may also submit comments, 1976 (5 U.S.C. 552b, as amended), and identified by docket number and title, 41 CFR 102–3.150. [Docket ID: DoD–2013–OS–0199] by the following method: Purpose of the Meeting: The purpose • Federal eRulemaking Portal: http:// of this meeting is to report back to the Submission for OMB Review; BoV on continuing items of interest. Comment Request www.regulations.gov. Follow the instructions for submitting comments. Agenda: ACTION: Notice. Instructions: All submissions received must include the agency name, docket 9:30 a.m. Welcome and SUMMARY: The Department of Defense number and title for this Federal announcements has submitted to OMB for clearance, the Register document. The general policy 9:45 a.m. 2013 Year in Review following proposal for collection of for comments and other submissions 10:45 a.m. Massive Open Online information under the provisions of the from members of the public is to make Courses Paperwork Reduction Act (44 U.S.C. these submissions available for public 12:30 p.m. Knowledge Repository Web Chapter 35). viewing on the Internet at http:// site Development 2:30 p.m. Adjourn DATES: Consideration will be given to all www.regulations.gov as they are comments received by February 3, 2014. received without change, including any Public’s Accessibility to the Meeting: personal identifiers or contact Pursuant to 5 U.S.C. 552b and 41 CFR FOR FURTHER INFORMATION CONTACT: Fred 102–3.140 through 102–3.165, and the Licari, 571–372–0493. information. DOD Clearance Officer: Ms. Patricia availability of space, this meeting is SUPPLEMENTARY INFORMATION: Toppings. open to the public. However, because of Title, Associated Form and OMB Written requests for copies of the space limitations, allocation of seating Number: Project Time Record System; information collection proposal should will be made on a first-come, first OMB Control Number 0704–0452. be sent to Ms. Toppings at WHS/ESD served basis. Persons desiring to attend Type of Request: Reinstatement. Information Management Division, 4800 the meeting should call Ms. Christen Number of Respondents: 1,200. Mark Center Drive, East Tower, Suite Goulding at 703–805–5134. Responses per Respondent: 52. 02G09, Alexandria, VA 22350–3100. Written Statements: Pursuant to 41 Annual Responses: 62,400. CFR 102–3.105(j) and 102–3.140, and Average Burden per Response: 15 Dated: December 30, 2013. section 10(a)(3) of the Federal Advisory minutes. Aaron Siegel, Committee Act of 1972, the public or Annual Burden Hours: 15,600. Alternate OSD Federal Register Liaison interested organizations may submit Needs and Uses: Contractors working Officer, Department of Defense. written statements to the Defense for the Defense Logistics Agency, [FR Doc. 2013–31456 Filed 1–2–14; 8:45 am] Acquisition University Board of Visitors Information Operations, J–6, log into an BILLING CODE 5001–06–P about its mission and functions. Written automated project time record system statements may be submitted at any and annotate their time on applicable time or in response to the stated agenda projects. The system collects the records DEPARTMENT OF DEFENSE of a planned meeting of the Defense for the purpose of tracking workload/ Acquisition University Board of Office of the Secretary project activity for analysis and Visitors. All written statements shall be reporting purposes, and labor Defense Acquisition University Board submitted to the Designated Federal distribution data against projects for of Visitors; Notice of Federal Advisory Officer for the Defense Acquisition financial purposes; and to monitor all Committee Meeting University Board of Visitors, and this aspects of a contract from a financial individual will ensure that the written perspective and to maintain financial AGENCY: Defense Acquisition statements are provided to the and management records associated University, DoD. membership for their consideration. with the operations of the contract; and ACTION: Meeting notice. Statements being submitted in to evaluate and monitor the contractor response to the agenda mentioned in performance and other matters SUMMARY: The Department of Defense is this notice must be received by the concerning the contract, i.e., making publishing this notice to announce that Designated Federal Officer at least five payments, and accounting for services the following Federal advisory calendar days prior to the meeting provided and received. Defense committee meeting of the Defense which is the subject of this notice. Logistics Agency, Information Acquisition University Board of Visitors Written statements received after this Operations, J–6, intends to execute this (BoV) will take place. This meeting is date may not be provided to or option on new contracts and, as open to the public. considered by the Defense Acquisition necessary, modify existing contract DATES: Wednesday, February 12, 2014, University Board of Visitors until its agreements. from 9:30 a.m. to 2:30 p.m. next meeting. Committee’s Designated

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Federal Officer or Point of Contact: Ms. same electronic docket and downloaded of drug use or drug/alcohol counseling. Kelley Berta, 703–805–5412. for review/testing. Follow the In addition, applicants are asked to Dated: December 30, 2013. instructions at http:// provide their employment history, Aaron Siegel, www.regulations.gov for submitting including any prior military service or comments. Please submit comments on legal employment, and whether or not Alternate OSD Federal Register Liaison Officer, Department of Defense. any given form identified by docket the applicant has ever left employment number, form number, and title. under unfavorable circumstances. [FR Doc. 2013–31463 Filed 1–2–14; 8:45 am] Finally, the applicants are asked to BILLING CODE 5001–06–P FOR FURTHER INFORMATION CONTACT: To request more information on this write a statement concerning their proposed information collection or to motivation for applying to the Navy JAG DEPARTMENT OF DEFENSE obtain a copy of the proposal and Corps and to select from a list of options associated collection instruments, the different reasons for applying. In Department of the Navy please write to the Office of the Judge addition to answering the questions and providing the information required in [Docket ID: USN–2013–0048] Advocate General, ATTN: Code 61. 1322 Patterson Ave SE., Suite 3000, the online questionnaire, applicants Proposed Collection; Comment Washington Navy Yard, DC 20374– must upload the following Request 5066, or call Code 61 at 202–685–7715. documentation to complete their SUPPLEMENTARY INFORMATION: application: A full length color photo, AGENCY: Department of the Navy, DoD. Title; Associated Form; and OMB college and law school transcripts for ACTION: Notice. Number: Navy JAG Corps Application; each school attended, their LSAT Score Report, a complete resume, and at least SUMMARY: OMB Control Number 0703–XXXX. In compliance with Section two letters of recommendation. 3506(c)(2)(A) of the Paperwork Needs and Uses: The U.S. Navy Judge Advocate General requires a method to Applicants with prior military service Reduction Act of 1995, the Department are required to upload their ‘‘Certificate of the Navy announces a proposed collect information from applicants to of Release or Discharge from Active public information collection and seeks confirm their eligibility to serve and Duty’’ (DD–214) or other records public comment on the provisions determine which applicants are best substantiating military service, as well thereof. Comments are invited on: (a) suited to joining the Navy JAG Corps. as any fitness reports or performance Whether the proposed collection of Affected Public: Individuals or evaluations received. Once the online information is necessary for the proper households. application is completed, applicants are performance of the functions of the Annual Burden Hours: 1200 hours. required to set up a JAG Corps agency, including whether the Number of Respondents: 800. Structured Interview. Information on information shall have practical utility; Responses per Respondent: 1. setting up an interview can be found at (b) the accuracy of the agency’s estimate Average Burden per Response: 1.5 of the burden of the proposed hours. the Navy JAG Corps Web site, information collection; (c) ways to Frequency: Semi-Annual. www.jag.navy.mil. Once the applicant is enhance the quality, utility, and clarity The Navy JAG Corps has two distinct interviewed, answers to the interview of the information to be collected; and application deadlines per year; one in questions are captured on the OPNAV (d) ways to minimize the burden of the the Fall and one in late Winter or early 1070/5 JAG Corps Structured Interview information collection on respondents, Spring. Application deadlines will be Assessment Form and objectively including through the use of automated posted on the Navy JAG Corps official scored. collection techniques or other forms of Web site. The online application is open Dated: December 30, 2013. information technology. for several months prior to each Aaron Siegel, DATES: Consideration will be given to all application deadline. Alternate OSD Federal Register Liaison comments received by March 4, 2014. This online application is used by the Officer, Department of Defense. ADDRESSES: You may submit comments, Navy JAG Corps to help determine [FR Doc. 2013–31460 Filed 1–2–14; 8:45 am] which applicants are best suited for identified by docket number and title, BILLING CODE 5001–06–P by any of the following methods: commissioning as a Navy JAG Corps • Federal eRulemaking Portal: http:// officer. The online application consists www.regulations.gov. Follow the of an online questionnaire as well as DEPARTMENT OF EDUCATION instructions for submitting comments. several documents which must be • Mail: Federal Docket Management uploaded by the applicant. The [Docket No.: ED–2013–ICCD–0125] System Office, 4800 Mark Center Drive, questionnaire requires applicants to East Tower, Suite 02G09, Alexandria, provide their home and mailing Agency Information Collection VA 22350–3100. addresses, phone number, email Activities; Submission to the Office of Instructions: All submissions received address, personal academic history (e.g., Management and Budget for Review must include the agency name, docket colleges attended, graduate or law and Approval; Comment Request; number and title for this Federal schools attended, grade point average, Student Aid Internet Gateway (SAIG) Register document. The general policy and Law School Admissions Test Enrollment Document for comments and other submissions (LSAT) scores), foreign language from members of the public is to make fluency, as well as information AGENCY: Federal Student Aid (FSA), these submissions available for public regarding their participation in or Department of Education (ED). viewing on the Internet at http:// association with any extra-curricular ACTION: Notice. www.regulations.gov as they are activities, clubs, sports, or received without change, including any organizations. Applicants must also SUMMARY: In accordance with the personal identifiers or contact provide information about any history Paperwork Reduction Act of 1995 (44 information. of criminal conduct (being arrested for, U.S.C. chapter 3501 et seq.), ED is Any associated form(s) for this charged with, or convicted of any proposing a revision of an existing collection may be located within this misdemeanor or felony) or any history information collection.

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DATES: Interested persons are invited to Title of Collection: Student Aid Dated: December 30, 2013. submit comments on or before February Internet Gateway (SAIG) Enrollment Kate Mullan, 3, 2014. Document. Acting Director, Information Collection OMB Control Number: 1845–0002. Clearance Division, Privacy, Information and ADDRESSES: Comments submitted in Records Management Services, Office of response to this notice should be Type of Review: Revision of an Management. existing collection of information. submitted electronically through the [FR Doc. 2013–31479 Filed 1–2–14; 8:45 am] Federal eRulemaking Portal at http:// Respondents/Affected Public: State, BILLING CODE 4000–01–P www.regulations.gov by selecting Local, or Tribal Governments, Private Docket ID number ED–2013–ICCD–0125 Sector. or via postal mail, commercial delivery, Total Estimated Number of Annual DEPARTMENT OF ENERGY or hand delivery. Please note that Responses: 33,140. comments submitted by fax or email Total Estimated Number of Annual Environmental Management Site- and those submitted after the comment Burden Hours: 10,128. Specific Advisory Board, Northern period will not be accepted. Written Abstract: Enrollment in the Federal New Mexico requests for information or comments Student Aid (FSA) Student Aid Internet submitted by postal mail or delivery AGENCY: Department of Energy. Gateway (SAIG) allows eligible entities should be addressed to the Director of ACTION: Notice of open meeting. to securely exchange Title IV, Higher the Information Collection Clearance Education Act (HEA) assistance SUMMARY: This notice announces a Division, U.S. Department of Education, programs data electronically with the meeting of the Environmental 400 Maryland Avenue SW., LBJ, Room Department of Education processors. Management Site-Specific Advisory 2E103, Washington, DC 20202–4537. Organizations establish Destination Board (EM SSAB), Northern New FOR FURTHER INFORMATION CONTACT: For Point Administrators (DPAs) to Mexico. The Federal Advisory questions related to collection activities transmit, receive, view and update Committee Act (Pub. L. 92–463, 86 Stat. or burden, please call Kate Mullan, 202– student financial aid records using 770) requires that public notice of this 401–0563 or electronically mail telecommunication software. Eligible meeting be announced in the Federal [email protected]. Please do not respondents include, but are not limited Register. send comments here. We will ONLY to, the following institutions of higher DATES: Wednesday, January 29, 2014, accept comments in this mailbox when education that participate in Title IV, 1:00 p.m.–5:00 p.m. HEA assistance programs, third-party the regulations.gov site is not available ADDRESSES: The Lodge at Santa Fe, 750 servicers of eligible institutions, to the public for any reason. N. St. Francis Drive, Santa Fe, New Guaranty Agencies, Federal Family Mexico 87501. SUPPLEMENTARY INFORMATION: The Education Loan Program (FFELP) Department of Education (ED), in lenders, Federal Loan Servicers, and FOR FURTHER INFORMATION CONTACT: accordance with the Paperwork local educational agencies (LEAs). The Menice Santistevan, Northern New Reduction Act of 1995 (PRA) (44 U.S.C. Enrollment Form for Post-Secondary Mexico Citizens’ Advisory Board 3506(c)(2)(A)), provides the general Schools and Servicers represents the (NNMCAB), 94 Cities of Gold Road, public and Federal agencies with an full complement of questions that must Santa Fe, NM 87506. Phone (505) 995– opportunity to comment on proposed, be presented for an organization 0393; Fax (505) 989–1752 or Email: revised, and continuing collections of enrolling in SAIG. The Enrollment Form [email protected]. information. This helps the Department for State Grant Agencies and the SUPPLEMENTARY INFORMATION: assess the impact of its information Enrollment Form for tracking Free Purpose of the Board: The purpose of collection requirements and minimize Application for Federal Student Aid the Board is to make recommendations the public’s reporting burden. It also (FAFSA) Completion for Local to DOE–EM and site management in the helps the public understand the Educational Agencies (LEAs) are a areas of environmental restoration, Department’s information collection subset of selected questions (from the waste management, and related requirements and provide the requested full complement of questions) to activities. data in the desired format. ED is streamline the form for ease of use. The Tentative Agenda soliciting comments on the proposed SAIG Application for State Grant information collection request (ICR) that Agencies Form was revised to create a 1:00 p.m. Call to Order by Deputy is described below. The Department of two-part form. The first part is the SAIG Designated Federal Officer (DDFO), Education is especially interested in Enrollment application and the second Lee Bishop Establishment of a Quorum: Roll Call public comment addressing the part is the new Participation Agreement and Excused Absences, William following issues: (1) Is this collection which establishes the conditions under Alexander necessary to the proper functions of the which the Department will permit the Welcome and Introductions, Carlos Department; (2) will this information be disclosure of certain data received or processed and used in a timely manner; Valdez, Chair generated by the Department concerning Approval of Agenda and November (3) is the estimate of burden accurate; FSA applicants. The Institutions, Third- 20, 2013 Meeting Minutes (4) how might the Department enhance Party Servicers, Guaranty Agencies, 1:15 p.m. Public Comment Period the quality, utility, and clarity of the Federal Loan Servicers, Lenders 1:30 p.m. Old Business information to be collected; and (5) how Enrollment Form was revised to allow • Written Reports might the Department minimize the Lenders and their Servicers to enroll for • Other Items burden of this collection on the COD Online access in order to receive 1:45 p.m. New Business respondents, including through the use completed electronic IBR/Pay As You • Review Bi-monthly Meeting of information technology. Please note Earn/ICR Repayment Request. Schedule for 2014 that written comments received in Additionally, all forms were revised to • Other items response to this notice will be accommodate annual rollover changes 2:00 p.m. Upcoming Hearings, Permits considered public records. (i.e. new award years). and Public Comment Periods,

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Environmental Safety Health and DEPARTMENT OF ENERGY Administrative & Outreach Committee Quality Staff Report Environmental Management Site- • 2:30 p.m. Presentation on Performance Ballots passed out for committee Specific Advisory Board, Savannah Assessment and Composite chair elections* River Site • Analysis, Sean French Recognition by DOE for outgoing Board members AGENCY: Department of Energy. 3:00 p.m. Presentation on Material 4:45 p.m. Public Comments Session Disposal Area G Corrective ACTION: Notice of open meeting. *Results of election announced Measures Evaluation, David Rhodes SUMMARY: This notice announces a directly after Public Comment 3:30 p.m. Update from Liaison meeting of the Environmental session Members Management Site-Specific Advisory 5:00 p.m. Adjourn • New Mexico Environment Board (EM SSAB), Savannah River Site. Public Participation: The EM SSAB, Department, John Kieling The Federal Advisory Committee Act Savannah River Site, welcomes the (Pub. L. 92–463, 86 Stat. 770) requires attendance of the public at its advisory • Los Alamos National Laboratory, that public notice of this meeting be committee meetings and will make Jeffrey Mousseau announced in the Federal Register. every effort to accommodate persons • DOE, Peter Maggiore DATES: Monday, January 27, 2014 1:00 with physical disabilities or special 4:30 p.m. Items from DDFO, Lee p.m.–5:00 p.m., Tuesday, January 28, needs. If you require special Bishop 2014, 8:30 a.m.–5:15 p.m. accommodations due to a disability, please contact Gerri Flemming at least ADDRESSES: Hilton Garden Inn, 1065 4:45 p.m. Wrap-Up and Comments seven days in advance of the meeting at Stevens Creek Road, Augusta, GA from Board Members, Carlos Valdez the phone number listed above. Written 30907. 5:00 p.m. Adjourn statements may be filed with the Board FOR FURTHER INFORMATION CONTACT: either before or after the meeting. Public Participation: The EM SSAB, Gerri Flemming, Office of External Individuals who wish to make oral Northern New Mexico, welcomes the Affairs, Department of Energy, statements pertaining to agenda items attendance of the public at its advisory Savannah River Operations Office, P.O. should contact Gerri Flemming’s office committee meetings and will make Box A, Aiken, SC 29802; Phone: (803) at the address or telephone listed above. every effort to accommodate persons 952–7886. Requests must be received five days with physical disabilities or special SUPPLEMENTARY INFORMATION: prior to the meeting and reasonable needs. If you require special Purpose of the Board: The purpose of provision will be made to include the accommodations due to a disability, the Board is to make recommendations presentation in the agenda. The Deputy please contact Menice Santistevan at to DOE–EM and site management in the Designated Federal Officer is least seven days in advance of the areas of environmental restoration, empowered to conduct the meeting in a meeting at the telephone number listed waste management, and related fashion that will facilitate the orderly above. Written statements may be filed activities. conduct of business. Individuals with the Board either before or after the wishing to make public comments will Tentative Agenda meeting. Individuals who wish to make be provided a maximum of five minutes oral statements pertaining to agenda Monday, January 27, 2014 to present their comments. Minutes: Minutes will be available by items should contact Menice 1:00 p.m. Combined Committees writing or calling Gerri Flemming at the Santistevan at the address or telephone Session number listed above. Requests must be Order of committees: address or phone number listed above. received five days prior to the meeting • Nuclear Materials Minutes will also be available at the and reasonable provision will be made • Administrative & Outreach following Web site: http://cab.srs.gov/ to include the presentation in the • BREAK (2:15 p.m.) srs-cab.html. agenda. The Deputy Designated Federal • Facilities Disposition & Site Issued at Washington, DC, on December 30, Officer is empowered to conduct the Remediation 2013. meeting in a fashion that will facilitate • Waste Management LaTanya R. Butler, • the orderly conduct of business. Strategic & Legacy Management Deputy Committee Management Officer. Individuals wishing to make public 4:45 p.m. Public Comments Session [FR Doc. 2013–31468 Filed 1–2–14; 8:45 am] 5:00 p.m. Adjourn comments will be provided a maximum BILLING CODE 6450–01–P of five minutes to present their Tuesday, January 28, 2014 comments. 8:30 a.m. Opening, Pledge, Approval Minutes: Minutes will be available by of Minutes, Annual Voting on ENVIRONMENTAL PROTECTION writing or calling Menice Santistevan at Approval of Existing Position AGENCY the address or phone number listed Statements, Chair and Agency [ER–FRL–9012–8] above. Minutes and other Board Updates documents are on the Internet at: 10:00 a.m. Public Comments Session Environmental Impact Statements; http://www.nnmcab.energy.gov/. Break (10:15 a.m.) Notice of Availability Nuclear Materials Report Issued at Washington, DC, on December 30, Waste Management Report Responsible Agency: Office of Federal 2013. 12:00 p.m. Public Comments Session Activities, General Information (202) LaTanya R. Butler, 12:15 p.m. Lunch Break 564–7146 or http://www.epa.gov/ Deputy Committee Management Officer. 1:30 p.m. Facilities Disposition & Site compliance/nepa/. [FR Doc. 2013–31467 Filed 1–2–14; 8:45 am] Remediation Report Weekly receipt of Environmental Impact BILLING CODE 6405–01–P Strategic & Legacy Management Statements Report Filed 12/23/2013 Through 12/27/2013

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Pursuant to 40 CFR 1506.9. ENVIRONMENTAL PROTECTION open from 8:30 a.m. to 4:30 p.m., AGENCY Monday through Friday, excluding legal Notice holidays. The telephone number for the [EPA–HQ–TRI–2013–0281; FRL–9904–82– Section 309(a) of the Clean Air Act OEI] Public Reading Room is (202) 566–1744, requires that EPA make public its and the telephone number for the comments on EISs issued by other Petition To Add the Oil and Gas ‘‘Petition to Add the Oil and Gas Federal agencies. EPA’s comment letters Extraction Industry, Standard Extraction Industry, Standard Industrial Classification Code 13, to the List of on EISs are available at: http:// Industrial Classification Code 13, to Facilities Required To Report under the www.epa.gov/compliance/nepa/ the List of Facilities Required To Toxics Release Inventory’’ Docket is eisdata.html. Report Under the Toxics Release Inventory; Notice of Receipt of Petition (202) 566–1752. EIS No. 20130381, Draft EIS, FHWA, 2. Electronic Access. You may access TX, US 181 Harbor Bridge Project, AGENCY: Environmental Protection this Federal Register document Comment Period Ends: 03/03/2014, Agency (EPA). electronically from the Government Contact: Gregory Punske 512–536– ACTION: Notice of receipt of petition. Printing Office under the ‘‘Federal 5960. Register’’ listings at FDSys (http:// SUMMARY: The Environmental Integrity www.gpo.gov/fdsys/browse/ EIS No. 20130382, Draft EIS, NPS, 00, Project (EIP) and sixteen other collection.action?collectionCode=FR). Glen Canyon National Recreation organizations submitted a petition to the Area Off-road Vehicle Management Environmental Protection Agency Dated: December 16, 2013. Plan, Comment Period Ends: 03/04/ (EPA), dated October 24, 2012, Arnold E. Layne, 2014, Contact: Brian Carey 928–608– requesting that EPA add the Oil and Gas Director, Office of Information Analysis and 6209. Extraction sector, Standard Industrial Access, Office of Environmental Information. Classification (SIC) code 13, to the scope [FR Doc. 2013–31484 Filed 1–2–14; 8:45 am] EIS No. 20130383, Final EIS, USACE, of sectors covered by the Toxics Release BILLING CODE 6560–50–P CA, Berryessa Creek Element Coyote Inventory (TRI) under section 313 of the and Berryessa Creek California Flood Emergency Planning and Community Control Project, Review Period Ends: Right-To-Know Act (EPCRA). The DEPARTMENT OF HEALTH AND 02/03/2014, Contact: Tyler Stalker petition also requests that EPA publish HUMAN SERVICES 916–557–5107. the petition in the Federal Register. Amended Notices This Federal Register Notice provides Medicare Program; Appellant Forum notice of receipt of this petition, along Regarding the Administrative Law EIS No. 20130325, Draft EIS, NPS, MO, with the Docket Identification Number Judge Hearing Program for Medicare Ozark National Scenic Riverways that can be used to view the petition Claim Appeals Draft General Management Plan, and related documents. EPA is not AGENCY: Office of Medicare Hearings soliciting public comment regarding this Wilderness Study, Comment Period and Appeals (OMHA), HHS. Ends: 02/07/2014, Contact: William notice. ACTION: Notice of Meeting. Black 573–323–4236, Revision to the FOR FURTHER INFORMATION CONTACT: FR Notice Published 12/06/2013; Gilbert Mears, Toxics Release Inventory SUMMARY: This notice announces an Extending Comment Period from 01/ Program Division, Office of Office of Medicare Hearings and 08/2014 to 02/07/2014. Environmental Information (mail code Appeals (OMHA) Medicare Appellant 2844T), Environmental Protection EIS No. 20130360, Final EIS, USFS, AZ, Forum. The purpose of this event is to Agency, 1200 Pennsylvania Avenue Rosemont Copper Project, Proposed provide updates to OMHA appellants on NW., Washington, DC 20460; telephone the status of OMHA operations; to relay Construction, Operation with number: (202) 566–0954; fax number: Concurrent Reclamation and Closure information on a number of OMHA (202) 566–0715; email address: initiatives designed to mitigate a of an Open-Pit Copper Mine, Review [email protected]. Period Ends: 02/14/2014, Contact: growing backlog in the processing of SUPPLEMENTARY INFORMATION: Medicare appeals at the OMHA-level of Mindy Vogel 520–388–8300, Revision the administrative appeals process; and to FR Notice Published 12/20/2013; I. General Information provide information on measures that Correcting the Review Period End A. How can I get copies of this appellants can take to make the Date to read 02/14/2014. document and other related administrative appeals process work Dated: December 30, 2013. information? more efficiently at the OMHA-level. Dawn Roberts, 1. Docket. EPA has established a DATES: Meeting Date: The OMHA Management Analyst, NEPA Compliance docket for this action under Docket ID Medicare Appellant Forum announced Division, Office of Federal Activities. No EPA–HQ–TRI–2013–0281. Publicly in this notice will be held on [FR Doc. 2013–31448 Filed 1–2–14; 8:45 am] available docket materials are available Wednesday, February 12, 2014. The BILLING CODE 6560–50–P either electronically through OMHA Medicare Appellant Forum will www.regulations.gov or in hard copy at begin at 10:00 a.m. Eastern Standard the ‘‘Petition to Add the Oil and Gas Time (e.s.t.) and check-in will begin at Extraction Industry, Standard Industrial 9:00 a.m. e.s.t. Classification Code 13, to the List of Deadline for Registration of Attendees Facilities Required To Report under the and Requests for Special Toxics Release Inventory’’ Docket in the Accommodation: The deadline to EPA Docket Center, (EPA/DC) EPA register to attend the OMHA Medicare West, Room 3334, 1301 Constitution Appellants Forum and request a special Ave. NW., Washington, DC. The EPA accommodation, as provided for in the Docket Center Public Reading Room is American’s with Disabilities Act, is 5:00

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p.m., e.s.t. on Tuesday, January 28, vulnerable populations. OMHA resulting in a substantial increase in the 2014. administers its program in four field adjudication time frame. ADDRESSES: Meeting Location: The offices, including the Southern Field As the unprecedented growth in claim OMHA Medicare Appellants Forum will Office in Miami, Florida; the appeals continues to exceed the be held in the Cohen Auditorium of the Midwestern Field Office in Cleveland, available adjudication resources to Wilbur J. Cohen building located at 330 Ohio; the Western Field Office in Irvine, address appeals, OMHA is taking Independence Ave. SW., Washington, California; and the Mid-Atlantic Field measures to mitigate the workload DC 20024. Office in Arlington, Virginia. OMHA increase and planning future activities We are exploring the feasibility of uses in-person, video-teleconferencing to bring efficiencies to the appeals providing a toll-free phone line and/or (VTC) and telephone conference formats process at the OMHA-level. One of the live stream technology and/or webinar. to provide appellants with hearings. immediate measures has been to ensure Information on these options will be OMHA was established in July 2005 that the relatively small numbers of posted at a later date on the OMHA Web pursuant to section 931 of the Medicare beneficiary-initiated appeals are being site; http://www.hhs.gov/omha/ Prescription Drug, Improvement, and immediately addressed by prioritizing index.html. Modernization Act of 2003 (Pub. L. 108– their cases. For the remaining cases, Registration and Special 173), which required the transfer of OMHA has suspended assignments of Accommodations: Individuals wishing responsibility for the Administrative new requests for hearing until an to attend the OMHA Medicare Law Judge hearing level of the Medicare adjudicator becomes available, which Appellant Forum must register by claim and entitlement appeals process will allow cases to be assigned more following the on-line registration from the Social Security Administration efficiently on a first in/first out basis as instructions located in section III. of this to HHS. OMHA was expected to an Administrative Law Judge’s case notice or by contacting staff listed in the improve service to appellants and docket is able to accommodate FOR FURTHER INFORMATION CONTACT reduce the average 368-day time frame additional workload. In addition, section of this notice. Individuals who to receive a hearing decision that OMHA is vigorously pursuing an need special accommodations should appellants experienced with the Social electronic case adjudication processing contact staff listed in the FOR FURTHER Security Administration, in accordance environment (ECAPE) to bring new INFORMATION CONTACT section of this with 90-day adjudication time frame efficiencies and appellant-access to the notice. mandate required by the Medicare, OMHA-level of the appeals process. The OMHA Medicare Appellant FOR FURTHER INFORMATION CONTACT: Medicaid, and SCHIP Benefits Forum will address these initiatives, as Sylvia Baquero, (703) 235–0145, Improvement and Protection Act of well as potential future initiatives, and [email protected], or Paula 2000 (Pub. L. 106–554). will solicit input from the appellant Taylor, (703) 235–0125, paula.taylor@ At the time of OMHA was established, community to help OMHA evaluate its hhs.gov. Alternatively, you may forward it was envisioned that OMHA would policies and procedures to achieve your requests via email to receive the traditional claim and meaningful backlog reduction strategies [email protected]; entitlement appeals workload from the and process efficiencies while please indicate ‘‘Request for Medicare Part A and Part B programs, remaining compliant with applicable information’’ or ‘‘Request for special and the Medicare Part C Medicare legal authorities. accommodation’’ in the subject line. Advantage program; and a new SUPPLEMENTARY INFORMATION: workload of appeals from the Medicare II. Medicare Claim Appeal Appellant Part D Prescription Drug program and Forum and Conference Calling/Webinar I. Background the Income Related Monthly Information The Office of Medicare Hearings and Adjustment Amount (IRMAA) premium Appeals (OMHA), a staff division within surcharges assessed by the Social A. Format of the OMHA Medicare the Office of the Secretary of the U.S. Security Administration. However, Appellant Forum Department of Health and Human beginning in fiscal year 2010, new As noted in section I. of this notice, Services (HHS), administers the workloads including permanent OMHA is conducting this outreach to nationwide Administrative Law Judge establishment of the Recovery Audit appellants of the Medicare claim hearing program for Medicare claim and (RA) program and termination of several appeals process to provide updates on entitlement appeals under sections demonstration projects involving initiatives to mitigate a growing backlog 1869(b)(1), 1155, 1876, 1852(g)(5), and Medicare State Agencies (MSA), have in the processing Medicare appeals at 1860D–4(h) of the Social Security Act. emerged that had not been built into the the OMHA-level, and to solicit input to OMHA ensures that Medicare OMHA workload models. The steady achieve meaningful backlog reduction beneficiaries and the providers and growth in traditional Medicare appeals strategies and process efficiencies. suppliers that furnish items or services combined with these new workloads Information regarding the OMHA to Medicare beneficiaries have a fair and has strained OMHA’s ability to meet the Medicare Appellant Forum can be impartial forum to address adjudication time frame mandate while found on the OMHA Web site at: disagreements with Medicare coverage maintaining quality. http://www.hhs.gov/omha/index.html. determinations made by Medicare As a result of the anticipated The majority of the forum will be contractors and determinations related workload increase from the traditional reserved for presentations of workload to Medicare eligibility and entitlement, appeals and the increased workload data, processes and policy discussions, and income-related premium surcharges resulting from MSA appeals and the RA and recommendations from agency made by the Social Security program, a backlog of appeals began to presenters. The time for each Administration. form in fiscal year 2012 in which more presentation will be approximately 30 to OMHA serves a broad sector of the requests for hearing were being filed 60 minutes and will be based on the public, including Medicare providers than could be adjudicated. In 2013, material being addressed in the and suppliers, and Medicare appealed claims related to the RA presentation. beneficiaries, who are often elderly or program grew to over 136,000, further Questions and comments from in- disabled and among the nation’s most exacerbating the backlog of cases and person attendees will be solicited at the

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end of each planned presentation and meetings must register by the date DEPARTMENT OF HEALTH AND during a separate question and answer specified in the DATES section of this HUMAN SERVICES session as time permits. In addition, notice. Please allow sufficient time to go questions related to the OMHA-level of through the security checkpoints. It is Centers for Disease Control and the Medicare claim appeals process will suggested that you arrive at the Wilbur Prevention also be accepted on the attendee J. Cohen building, located at 330 [30Day–14–0892] registration, for potential response Independence Ave. SW., Washington, during the appropriate presentation. DC 20024, no later than 9:30 a.m. e.s.t. Agency Forms Undergoing Paperwork B. Conference Call, Live Streaming, and if you are attending the forum in person Reduction Act Review Webinar Information so that you will be able to arrive promptly for the meeting. The Centers for Disease Control and For participants who cannot attend Prevention (CDC) publishes a list of the OMHA Medicare Appellant Forum Security measures include the information collection requests under in person, there may be an option to following: review by the Office of Management and view and participate in the OMHA • Presentation of photographic Budget (OMB) in compliance with the Medicare Appellant Forum via live identification to the Federal Protective Paperwork Reduction Act (44 U.S.C. streaming technology and/or a webinar. Service or Guard Service personnel. Chapter 35). To request a copy of these Information on the whether these • Passing through a metal detector requests, call (404) 639–7570 or send an capabilities will be available as part of and inspection of items brought into the email to [email protected]. Send written this forum will be posted on the OMHA building. We note that all items brought comments to CDC Desk Officer, Office of Web site at: http://www.hhs.gov/omha/ to the Cohen Building, whether personal Management and Budget, Washington, index.html. Please continue to check the or for the purpose of demonstration or DC 20503 or by fax to (202) 395–5806. Web site for updates on this upcoming to support a demonstration, are subject Written comments should be received event. to inspection. We cannot assume within 30 days of this notice. Disclaimer: We cannot guarantee responsibility for coordinating the Proposed Project reliability for live streaming technology receipt, transfer, transport, storage, set- and/or a webinar. up, safety, or timely arrival of any Clostridium difficile Infection (CDI) Surveillance (0920–0892, Expiration 07/ III. Registration Instructions personal belongings or items used for demonstration or to support a 31/2014)—Extension—National Center The OMHA Executive Office is demonstration. for Emerging and Zoonotic Infectious coordinating attendee registration for Diseases (NCEZID), Centers for Disease the OMHA Medicare Appellant Forum. Note: Individuals who are not registered in Control and Prevention (CDC). While there is no registration fee, advance will not be permitted to enter the Background and Brief Description individuals planning to attend the building and will be unable to attend the forum in person. The public may not enter Steady increases in the rate and forum must register to attend. In-person the building earlier than 45 minutes prior to participation is limited to two (2) the convening of the forum. severity of Clostridium difficile representatives from each organization. infection (CDI) indicate a clear need to Additional individuals can participate Attendees must enter the Cohen conduct longitudinal assessments to by telephone conference or webinar if Building thru the C-Street entrance and continue to monitor changes in CDI these services are made available. proceed to the registration desk. All epidemiology, including changes in risk Information on participation by visitors must be escorted in areas other factors for disease, as well as increases telephone conference or webinar will be than the auditorium area and access to in incidence and severity of illness posted on the OMHA Web site at: the rest rooms on the same level in the related to this pathogen. http://www.hhs.gov/omha/index.html. building. Seating capacity is limited to The title and the goals of the project Registration may be completed online at the first 400 registrants. have remained the same since the publication of the 60-day Federal the following web address: http:// Parking in Federal buildings is not Register Notice and there were no www.hhs.gov/omha/index.html. Seating available for this event. In addition, changes in burden estimates or data capacity for in-person attendees is street side and commercial parking is collection forms from what is shown in limited to the first 400 registrants. extremely limited in the downtown the current inventory. After completing the registration, area. Attendees are advised to use online registrants will receive a The surveillance population will Metro-rail to either the Federal Center consist of persons residing in the confirmation email which they should SW station (Blue/Orange line) or the bring with them to the meeting(s). If you catchment area of the participating L’Enfant Plaza station (Yellow/Green or Emerging Infections Program (EIP) sites are unable to register online, you may Blue/Orange lines). The Wilbur J. Cohen register by sending an email to 1 who are 1 year of age or older. This building is approximately 1 ⁄2 blocks surveillance poses no more than [email protected]. from each of these Metro-rail stops. Please include your first and last name, minimal risk to the study participants as title, organization, address, office (Catalog of Federal Domestic Assistance there will be no interventions or telephone number, and email address. If Program No. 93.770, Medicare—Prescription modifications to the care study Drug Coverage; Program No. 93.773, seating capacity has been reached, you participants receive. Medicare—Hospital Insurance; and Program EIP surveillance personnel will will be notified that the meeting has No. 93.774, Medicare—Supplementary reached capacity. Medical Insurance Program) perform active case finding from laboratory reports of stool specimens IV. Security, Building, and Parking Dated: December 24, 2013. testing positive for C. difficile toxin and Guidelines Nancy J. Griswold, abstract data on cases using a Because the OMHA Medicare Chief Administrative Law Judge, Office of standardized case report form. For a Appellant Forum will be conducted on Medicare Hearings and Appeals. subset of cases (e.g., community- Federal property, for security reasons, [FR Doc. 2013–31461 Filed 1–2–14; 8:45 am] associated C. difficile cases) sites will any persons wishing to attend these BILLING CODE 4150–46–P administer a health interview.

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A total of 600 individuals who screening is estimated to take 5 minutes for this data collection is estimated to be develop CDI will be contacted for a and the full telephone interview is 383 hours. telephone interview annually and, of estimated to take 40 minutes. Therefore, There are no costs to the respondents those, it is estimated that 500 will meet the total estimated annualized burden other than their time. study inclusion criteria. The interview

ESTIMATE OF ANNUALIZED BURDEN HOURS

Average Number of Number of burden per Type of respondents Form name respondents responses per response respondent (in hrs.)

Persons in the community infected with C. difficile ...... Screening Form ...... 600 1 5/60 Telephone interview ...... 500 1 40/60

Leroy Richardson, Proposed Project—Coal Workers’ employees) takes approximately 30 Chief, Information Collection Review Office, Health Surveillance Program (CWHSP) minutes. Office of Scientific Integrity, Office of the (OMB Control No. 0920–0200, • Facility Certification Document Associate Director for Science, Office of the Expiration 06/30/2014)—Revision— (2.11)—X-ray facilities seeking NIOSH- Director, Centers for Disease Control and National Institute for Occupational approval to provide miner radiographs Prevention. Safety and Health (NIOSH), Centers for under the CWHSP must complete an [FR Doc. 2013–31478 Filed 1–2–14; 8:45 am] Disease Control and Prevention (CDC). approval packet which requires BILLING CODE 4163–18–P approximately 30 minutes for Background and Brief Description completion. • NIOSH would like to submit an Miner Identification Document DEPARTMENT OF HEALTH AND Information Collection Request (ICR) to (2.9)—Miners who elect to participate in HUMAN SERVICES revise the data collection instruments the CWHSP must fill out this document being utilized within the Coal Workers’ which requires approximately 20 Centers for Disease Control and minutes. This document records Prevention Health Surveillance Program (CWHSP). The current ICR incorporates all four demographic and occupational history, [60Day–14–0200] components that fall under the CWHSP. as well as information required under Those four components include: Coal the regulations from x-ray facilities in Proposed Data Collections Submitted Workers’ X-ray Surveillance Program relation to coal miner examinations. In for Public Comment and (CWXSP), B Reader Program, Enhanced addition to completing this form, the Recommendations Coal Workers’ Health Surveillance process of capturing the chest image Program (ECWHSP), and National Coal takes approximately 15 minutes. In compliance with the requirement • Chest Radiograph Classification Workers’ Autopsy Study (NCWAS). The of Section 3506(c)(2)(A) of the Form (2.8)—Under 42 CFR Part 37, CWHSP is a congressionally-mandated Paperwork Reduction Act of 1995 for NIOSH utilizes a radiographic medical examination program for opportunity for public comment on classification system developed by the monitoring the health of underground proposed data collection projects, the International Labour Office (ILO), in the coal miners, established under the Centers for Disease Control and determination of pneumoconiosis Federal Coal Mine Health and Safety Prevention (CDC) will publish periodic among underground coal miners. Act of 1969, as amended in 1977 and summaries of proposed projects. To Physicians (B Readers) fill out this form 2006, Public Law 95–164 (the Act). The request more information on the regarding their interpretations of the proposed projects or to obtain a copy of Act provides the regulatory authority for radiographs (each image has at least two the data collection plans and the administration of the CWHSP. This separate interpretations). Based on prior instruments, call 404–639–7570 or send Program is useful in providing practice it takes the physician comments to LeRoy Richardson, 1600 information for protecting the health of approximately 3 minutes per form. Clifton Road, MS–D74, Atlanta, GA miners (whose participation is entirely • Physician Application for 30333 or send an email to [email protected]. voluntary), and also in documenting Certification (2.12)—Physicians taking Comments are invited on: (a) Whether trends and patterns in the prevalence of the B Reader examination are asked to the proposed collection of information coal workers’ pneumoconiosis (‘‘black complete this registration form which is necessary for the proper performance lung disease’’) among miners employed provides demographic information as of the functions of the agency, including in U.S. coal mines. The total estimated well as information regarding their whether the information shall have annualized burden hours of 4,420 is medical practices. It typically takes the practical utility; (b) the accuracy of the based on the following: physician about 10 minutes to complete agency’s estimate of the burden of the • Coal Mine Operators Plan (2.10)— this form. proposed collection of information; (c) Under 42 CFR Part 37.4, every coal • Spirometry Testing—Miners ways to enhance the quality, utility, and operator and construction contractor for participating in the ECWHSP clarity of the information to be each underground coal mine must component of the Program are asked to collected; and (d) ways to minimize the submit a coal mine operator’s plan every perform a spirometry test which burden of the collection of information 3 years, providing information on how requires no additional paperwork on the on respondents, including the use of they plan to notify their miners of the part of the miner, but does require automated collection techniques or opportunity to obtain the chest approximately 15 to 20 minutes for the other forms of information technology. radiographic examination. To complete test itself. Since spirometry testing is Written comments should be received this form with all requested information offered as part of the ECWHSP only, the within 60 days of this notice. (including a roster of current 2,500 respondents listed in the burden

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table below account for about half of the • Pathologist Report—42 CFR 37.203 minutes of additional burden is total participants in the CWHSP. provides the autopsy specifications. The estimated for the pathologist’s report. • • Pathologist Invoice—42 CFR 37.202 pathologist must submit information Consent, Release and History Form specifies procedures for the NCWAS. found at autopsy, slides, blocks of (2.6)—This form documents written The invoice submitted by the tissue, and a final diagnosis indicating authorization from the next-of-kin to presence or absence of pneumoconiosis. perform an autopsy on the deceased pathologist must contain a statement The format of the autopsy reports are miner. A minimum of essential that the pathologist is not receiving any variable depending on the pathologist information is collected regarding the other compensation for the autopsy. conducting the autopsy. Since an deceased miner including the Each participating pathologist may use autopsy report is routinely completed occupational history and smoking their individual invoice as long as this by a pathologist, the only additional history. From past experience, it is statement is added. It is estimated that burden is the specific request for a estimated that 15 minutes is required for only 5 minutes is required for the clinical abstract of terminal illness and the next-of-kin to complete this form. pathologist to add this statement to the final diagnosis relating to There are no costs to respondents standard invoice that they routinely use. pneumoconiosis. Therefore, only 5 other than their time.

ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of burden/ Total burden Type of respondents Form name respondents responses per response (in hrs) respondent (in hrs)

Coal Mine Operators ...... Form 2.10 ...... 200 1 30/60 100 X-ray Facility Supervisor ...... Form 2.11 ...... 100 1 30/60 50 X-ray—Coal Miners ...... No form required ...... 5,000 1 15/60 1,250 Coal Miners ...... Form 2.9 ...... 5,000 1 20/60 1,667 B Reader Physicians ...... Form 2.8 ...... 10,000 1 3/60 500 Physicians taking the B Reader Ex- Form 2.12 ...... 100 1 10/60 17 amination. Spirometry Test—Coal Miners ...... No form required ...... 2,500 1 20/60 833 Pathologist ...... Invoice—No standard form ...... 5 1 5/60 1 Pathologist ...... Pathology Report—No standard 5 1 5/60 1 form. Next-of-kin for deceased miner ...... Form 2.6 ...... 5 1 15/60 1

Total ...... 4,420

Leroy Richardson, established and reports directly to the Office of Operations Management Chief, Information Collection Review Office, Chief Operating Officer (COO). (OOM) to OHI. Office of Scientific Integrity, Office of the CMS modified its structure to: (1) Part F., Section FC. 10 (Organization) Associate Director for Science, Office of the is revised as follows: Director, Centers for Disease Control and Conduct Marketplace eligibility appeals; (2) assist Medicare beneficiaries with Office of the Administrator (FC) Prevention. Office of Equal Opportunity and Civil [FR Doc. 2013–31464 Filed 1–2–14; 8:45 am] complaints, inquiries, and grievances, and to gather the information necessary Rights (FCA) BILLING CODE 4163–18–P Office of Legislation (FCC) to file Medicare appeals; and (3) Office of the Actuary (FCE) conduct administrative hearings for Office of Strategic Operations and DEPARTMENT OF HEALTH AND institutional appeals which fall under Regulatory Affairs (FCF) HUMAN SERVICES the jurisdiction of the Provider Center for Clinical Standards and Reimbursement Review Board, the Quality (FCG) Centers for Medicare & Medicaid Medicare Geographic Classification Center for Medicare (FCH) Services Review Board, and the CMS Hearings Center for Medicaid and CHIP Services Officers. (FCJ) Statement of Organization, Functions, The functions in OPE include the Center for Strategic Planning (FCK) and Delegations of Authority Medicare Ombudsman, tribal affairs, Center for Program Integrity (FCL) Chief Operating Officer (FCM) Part F of the Statement of and emergency preparedness and continuity of operations. The Medicare Office of Minority Health (FCN) Organization, Functions, and Center for Medicare and Medicaid Ombudsman was moved to OHI, tribal Delegations of Authority for the Innovation (FCP) affairs was moved to the Center for Department of Health and Human Federal Coordinated Health Care Office Services, Centers for Medicare & Medicaid and CHIP Services (CMCS), (FCQ) Medicaid Services (CMS), (last amended and emergency preparedness and Center for Consumer Information and at Federal Register, Vol. 76, No. 75, pp. continuity of operations was moved to Insurance Oversight (FCR) 21908–21909, dated April 19, 2011, and the Consortium for Quality Office of Communications (FCT) Vol. 77, No. 140, p. 42740, dated July Improvement and Survey & Certification 20, 2012) is amended to reflect the Operations (CQISCO). In addition, the Delegations of Authority abolishment of the Office of Public Office of Marketplace Eligibility All delegations and re-delegations of Engagement (OPE). The Offices of Appeals was established in OHI, and the authority made to officials and Hearings and Inquiries (OHI) was Office of Hearings was moved from the employees of affected organizational

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components will continue in them or should always check the Agency’s Web 17, 2014. Time allotted for each their successor organization pending site at http://www.fda.gov/Advisory presentation may be limited. If the further re-delegation, provided they are Committees/default.htm and scroll number of registrants requesting to consistent with the movement of down to the appropriate advisory speak is greater than can be reasonably functions. committee meeting link, or call the accommodated during the scheduled Authority: 44 U.S.C. 3101. advisory committee information line to open public hearing session, FDA may learn about possible modifications conduct a lottery to determine the Dated: December 24, 2013. before coming to the meeting. speakers for the scheduled open public Marilyn Tavenner, If you are unable to join us in person, hearing session. The contact person will Administrator, Centers for Medicare & we encourage you to watch the Webcast. notify interested persons regarding their Medicaid Services. Visit the Risk Communication Advisory request to speak by January 21, 2014. [FR Doc. 2013–31206 Filed 1–2–14; 8:45 am] Committee Web site at http:// Persons attending FDA’s advisory BILLING CODE 4120–01–P www.fda.gov/AdvisoryCommittees/ committee meetings are advised that the CommitteesMeetingMaterials/Risk Agency is not responsible for providing CommunicationAdvisoryCommittee/ access to electrical outlets. DEPARTMENT OF HEALTH AND default.htm. The link will become FDA welcomes the attendance of the HUMAN SERVICES active shortly before the open session public at its advisory committee begins at 9 a.m. meetings and will make every effort to Food and Drug Administration Agenda: On February 3 and 4, 2014, accommodate persons with physical [Docket No. FDA–2013–N–0001] the committee will meet to discuss disabilities or special needs. If you methods for identifying the impact and require special accommodations due to Risk Communications Advisory increasing the reach of communications a disability, please contact Luis G. Bravo Committee; Notice of Meeting on topics of interest to consumers. The at least 7 days in advance of the discussion will also address how FDA meeting. AGENCY: Food and Drug Administration, can evaluate whether its ‘‘Consumer FDA is committed to the orderly HHS. Updates’’ (http://www.fda.gov/For conduct of its advisory committee ACTION: Notice. Consumers/ConsumerUpdates/ meetings. Please visit our Web site at default.htm) are reaching the targeted This notice announces a forthcoming http://www.fda.gov/Advisory population, and whether they are Committees/AboutAdvisoryCommittees/ meeting of a public advisory committee increasing awareness and understanding of the Food and Drug Administration ucm111462.htm for procedures on of the key risk messages. The discussion public conduct during advisory (FDA). The meeting will be open to the will also assess whether the public. committee meetings. communications are having the Notice of this meeting is given under Name of Committee: Risk intended impact on knowledge, the Federal Advisory Committee Act (5 Communications Advisory Committee. behaviors, or outcomes. U.S.C. app. 2). General Function of the Committee: FDA intends to make background To provide advice and material available to the public no later Dated: December 30, 2013. recommendations to the Agency on than 2 business days before the meeting. Jill Hartzler Warner, FDA’s regulatory issues. If FDA is unable to post the background Acting Associate Commissioner for Special Date and Time: The meeting will be material on its Web site prior to the Medical Programs. held on February 3 and 4, 2014, from 9 meeting, the background material will [FR Doc. 2013–31486 Filed 1–2–14; 8:45 am] a.m. to 5 p.m. be made publicly available at the BILLING CODE 4160–01–P Location: FDA White Oak Campus, location of the advisory committee 10903 New Hampshire Ave., Bldg. 31 meeting, and the background material Conference Center, the Great Room (Rm. will be posted on FDA’s Web site after DEPARTMENT OF HEALTH AND 1503), Silver Spring, MD 20993–0002. the meeting. Background material is HUMAN SERVICES Information regarding special available at http://www.fda.gov/ accommodations due to a disability, AdvisoryCommittees/Calendar/ Health Resources and Services visitor parking, and transportation may default.htm. Scroll down to the Administration be accessed at: http://www.fda.gov/ appropriate advisory committee meeting Agency Information Collection AdvisoryCommittees/default.htm; under link. the heading ‘‘Resources for You,’’ click Procedure: Interested persons may Activities: Proposed Collection: Public on ‘‘Public Meetings at the FDA White present data, information, or views, Comment Request Oak Campus.’’ Please note that visitors orally or in writing, on issues pending AGENCY: Health Resources and Services to the White Oak Campus must enter before the committee. Written Administration, HHS. through Building 1. submissions may be made to the contact ACTION: Notice. Contact Person: Luis G. Bravo, Food person on or before January 27, 2014. and Drug Administration, 10903 New Oral presentations from the public will SUMMARY: In compliance with the Hampshire Ave., Bldg. 32, Rm. 3274, be scheduled between approximately 1 requirement for opportunity for public Silver Spring, MD 20993–0002, 240– p.m. and 2 p.m. Those individuals comment on proposed data collection 402–5274, or FDA Advisory Committee interested in making formal oral projects (Section 3506(c)(2)(A) of the Information Line, 1–800–741–8138 presentations should notify the contact Paperwork Reduction Act of 1995), the (301–443–0572 in the Washington, DC person and submit a brief statement of Health Resources and Services area). A notice in the Federal Register the general nature of the evidence or Administration (HRSA) announces about last minute modifications that arguments they wish to present, the plans to submit an Information impact a previously announced names and addresses of proposed Collection Request (ICR), described advisory committee meeting cannot participants, and an indication of the below, to the Office of Management and always be published quickly enough to approximate time requested to make Budget (OMB). Prior to submitting the provide timely notice. Therefore, you their presentation on or before January ICR to OMB, HRSA seeks comments

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from the public regarding the burden of the Public Health Service Act as coordination of care, and utilization of estimate, below, or any other aspect of amended by the Ryan White HIV/AIDS RWHAP funds to provide essential the ICR. Treatment Extension Act of 2009. This services is necessary. Data from this DATES: Comments on this Information program provides HIV-related services evaluation study will be used to assess Collection Request must be received in the United States for individuals who the current status of Ryan White HIV/ within 60 days of this notice. do not have sufficient health care AIDS program services during the early ADDRESSES: Submit your comments to coverage or financial resources for (January 2014–June 2014) and later (July [email protected] or mail the HRSA coping with HIV disease. Starting 2014–December 2014) stages of Information Collection Clearance January 1, 2014, the Affordable Care Act Affordable Care Act implementation Officer, Room 10–29, Parklawn will begin making health care coverage and how well the RWHAP is positioned Building, 5600 Fishers Lane, Rockville, available to many HIV-positive to improve clinical outcomes, including MD 20857. individuals who did not previously viral suppression, retention to care, and FOR FURTHER INFORMATION CONTACT: To have access to such coverage. This linkage to care services. request more information on the Affordable Care Act expansion of health Likely Respondents: HIV/AIDS Care proposed project or to obtain a copy of coverage will impact a significant Providers. the data collection plans and draft portion of RWHAP’s traditional clients Burden Statement: Burden in this instruments, email [email protected] who will be moving into third party or call the HRSA Information Collection reimbursement care. The transition will context means the time expended by Clearance Officer at (301) 443–1984. require increased support and persons to generate, maintain, retain, disclose or provide the information SUPPLEMENTARY INFORMATION: When coordination to ensure clients do not requested. This includes the time submitting comments or requesting experience gaps in coverage or gaps in needed to review instructions; to information, please include the care. The purpose of this evaluation develop, acquire, install and utilize information request collection title for study is to assess the current status of technology and systems for the purpose reference. Ryan White HIV/AIDS program services during the early and later stages of of collecting, validating and verifying Information Collection Request Title: Affordable Care Act implementation information, processing and Special Study—Emerging Issues and to collect information on service maintaining information, and disclosing Related to Affordable Care Act provisions, quality of care, barriers, and providing information; to train Implementation: The Future of Ryan gaps, and challenges related to personnel and to be able to respond to White HIV/AIDS Services: A Snapshot Affordable Care Act implementation. a collection of information; to search of Outpatient Ambulatory Medical Care Need and Proposed Use of the data sources; to complete and review OMB No. 0915–xxxx–New. Information: The Affordable Care Act the collection of information; and to Abstract: The Health Resources and will offer new options for obtaining transmit or otherwise disclose the Services Administration, HIV/AIDS health care services for many information. The total annual burden Bureau (HRSA/HAB) administers the individuals with HIV. Due to these hours estimated for this Information Ryan White HIV/AIDS Program changes, additional information Collection Request are summarized in (RWHAP) authorized under Title XXVI concerning staffing, continuity and the table below.

TOTAL ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of Total burden per Total burden Form name respondents responses per responses response hours respondent (in hours)

Site Staff Interviews—Early Implementation ...... 90 1 90 2.0 180 Site Staff Interviews—Later Implementation ...... 90 1 90 1.0 90 List of Site HIV Outpatient Ambulatory Medicare Care Visit Activities/Services ...... 30 1 30 0.5 15

Total ...... 180 ...... 180 ...... 285

HRSA specifically requests comments Dated: December 24, 2013. DEPARTMENT OF HEALTH AND on (1) the necessity and utility of the Bahar Niakan, HUMAN SERVICES proposed information collection for the Director, Division of Policy and Information proper performance of the agency’s Coordination. Health Resources and Services Administration functions, (2) the accuracy of the [FR Doc. 2013–31473 Filed 1–2–14; 8:45 am] estimated burden, (3) ways to enhance BILLING CODE 4165–15–P Agency Information Collection the quality, utility, and clarity of the Activities: Proposed Collection: Public information to be collected, and (4) the Comment Request use of automated collection techniques or other forms of information AGENCY: Health Resources and Services technology to minimize the information Administration, HHS. collection burden. ACTION: Notice.

SUMMARY: In compliance with the requirement for opportunity for public comment on proposed data collection

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projects (Section 3506(c)(2)(A) of the Institutions eligible for these Ryan treating patients with HIV, (2) the Paperwork Reduction Act of 1995), the White HIV/AIDS programs are number and characteristics of clients Health Resources and Services accredited schools of dentistry, post- who receive HIV/AIDS program- Administration (HRSA) announces doctoral dental education programs, and supported oral health services, (3) the plans to submit an Information dental hygiene programs. The DRP types and frequency of the provision of Collection Request (ICR), described Application is the Dental Services these services, (4) the non-reimbursed below, to the Office of Management and Report that schools and programs use to costs of oral health care provided to Budget (OMB). Prior to submitting the apply for funding of non-reimbursed patients with HIV, and (5) the scope of ICR to OMB, HRSA seeks comments costs incurred in providing oral health grant recipients’ community-based from the public regarding the burden care to patients with HIV, or to report collaborations and training of providers. estimate, below, or any other aspect of annual program data. Awards are In addition to meeting the goal of the ICR. authorized under section 2692(b) of the accountability to Congress, clients, DATES: Comments on this Information Public Health Service Act (42 U.S.C. advocacy groups, and the general Collection Request must be received 300ff–111(b). The Dental Services public, information collected in the within 60 days of this notice. Report collects data in four different Dental Services Report is critical for ADDRESSES: Submit your comments to areas: Program information, patient HRSA, state and local grantees, and [email protected] or mail the HRSA demographics and services, funding, individual providers, to help assess the Information Collection Clearance and training. It also requests applicants status of existing HIV-related health Officer, Room 10–29, Parklawn to provide narrative descriptions of their service delivery systems. Building, 5600 Fishers Lane, Rockville, services and facilities, as well as their Likely Respondents: Accredited MD 20857. links and collaboration with dental education programs, including FOR FURTHER INFORMATION CONTACT: To community-based providers of oral schools of dentistry, post-doctoral request more information on the health services. The form used to collect dental education programs, and dental proposed project or to obtain a copy of this information is being revised to hygiene programs. the data collection plans and draft comply with the National HIV/AIDS Burden Statement: Burden in this instruments, email [email protected] Strategy directive to standardize data context means the time expended by or call the HRSA Information Collection collection and reduce grantee reporting persons to generate, maintain, retain, Clearance Officer at (301) 443–1984. burden. The revised form implements disclose or provide the information data collection standards for race, SUPPLEMENTARY INFORMATION: When requested. This includes the time ethnicity, and sex and eliminates some submitting comments or requesting needed to review instructions; to narrative description items; however, information, please include the develop, acquire, install and utilize the average burden per response is information request collection title for technology and systems for the purpose anticipated to remain unchanged. reference. of collecting, validating and verifying Information Collection Request Title: Need and Proposed Use of the information, processing and Ryan White HIV/AIDS Program Part F Information: The primary purpose of maintaining information, and disclosing Dental Services Report. collecting this information annually is and providing information; to train OMB No.: 0915–0151—Revision. to verify eligibility and determine personnel and to be able to respond to Abstract: The Dental Reimbursement reimbursement amounts for DRP a collection of information; to search Program (DRP) and the Community applicants, as well as to document the data sources; to complete and review Based Dental Partnership Program program accomplishments of the collection of information; and to under Part F of the Ryan White HIV/ Community-Based Dental Partnership transmit or otherwise disclose the AIDS Program offer funding to Program grant recipients. This information. The total annual burden accredited dental education programs to information also allows HRSA to learn hours estimated for this Information support the provision of oral health about (1) the extent of the involvement Collection Request are summarized in services for HIV-positive individuals. of dental schools and programs in the table below.

TOTAL ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of Total burden per Total burden Form name respondents responses per responses response hours respondent (in hours)

Dental Services Report ...... 70 1 70 20 1,400

Total ...... 70 1 70 20 1,400

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HRSA specifically requests comments the data collection plans and draft client monitoring at the systems and on (1) the necessity and utility of the instruments, email [email protected] client levels. The reporting systems proposed information collection for the or call the HRSA Information Collection consist of two online data forms, the proper performance of the agency’s Clearance Officer at (301) 443–1984. Grantee Report and the Service Provider functions, (2) the accuracy of the SUPPLEMENTARY INFORMATION: When Report, as well as a data file containing estimated burden, (3) ways to enhance submitting comments or requesting the client-level data elements. Data are the quality, utility, and clarity of the information, please include the submitted annually. information to be collected, and (4) the information request collection title for The legislation specifies the use of automated collection techniques reference. importance of grantee accountability or other forms of information Information Collection Request Title: and linking performance to budget. The technology to minimize the information Client-Level Data Reporting System. RSR is used to ensure compliance with collection burden. OMB No.: 0915–0323—Revision. the requirements of the legislation, to Dated: December 27, 2013. Abstract: The Ryan White HIV/AIDS evaluate the progress of programs, to Program’s client-level data reporting Bahar Niakan, monitor grantee and provider system, entitled the Ryan White HIV/ performance, and to meet reporting Director, Division of Policy and Information AIDS Program Services Report or the Coordination. responsibilities to the Department, Ryan White Services Report (RSR), was Congress, and OMB. [FR Doc. 2013–31475 Filed 1–2–14; 8:45 am] created in 2009 by the Health Resources BILLING CODE 4165–15–P In addition to meeting the goal of and Services Administration (HRSA). It accountability to Congress, clients, is designed to collect information from advocacy groups, and the general grantees as well as their subcontracted DEPARTMENT OF HEALTH AND public, information collected through service providers, funded under Parts A, HUMAN SERVICES the RSR is critical for HRSA, state and B, C, and D, and the Part F Minority local grantees, and individual providers Health Resources and Services AIDS Initiative of the Ryan White HIV/ to assess the status of existing HIV- Administration AIDS Treatment Extension Act of 2009 related service delivery systems, (Ryan White HIV/AIDS Program). The investigate trends in service utilization, Agency Information Collection Ryan White HIV/AIDS Program and identify areas of greatest need. Activities: Proposed Collection: Public authorized under Title XXVI of the Likely Respondents: Ryan White HIV/ Comment Request Public Health Service Act, as amended by the Ryan White HIV/AIDS Treatment AIDS Program Part A, Part B, Part C, and AGENCY: Health Resources and Services Extension Act of 2009, provides entities Part D grantees and their contracted Administration, HHS. funded by the program with flexibility service providers. ACTION: Notice. to respond effectively to the changing Burden Statement: Burden in this HIV epidemic, with an emphasis on context means the time expended by SUMMARY: In compliance with the persons to generate, maintain, retain, requirement for opportunity for public providing life-saving and life-extending services for people living with HIV disclose or provide the information comment on proposed data collection requested. This includes the time projects (Section 3506(c)(2)(A) of the across this country, as well as targeting resources to areas that have the greatest needed to review instructions; to Paperwork Reduction Act of 1995), the develop, acquire, install and utilize Health Resources and Services needs. Need and Proposed Use of the technology and systems for the purpose Administration (HRSA) announces Information: All parts of the Ryan White of collecting, validating and verifying plans to submit an Information HIV/AIDS Program specify HRSA’s information, processing and Collection Request (ICR), described responsibilities in administering grant maintaining information, and disclosing below, to the Office of Management and funds, allocating funds, evaluating and providing information; to train Budget (OMB). Prior to submitting the programs for the populations served, personnel and to be able to respond to ICR to OMB, HRSA seeks comments and improving quality of care. Accurate a collection of information; to search from the public regarding the burden records of the providers receiving Ryan data sources; to complete and review estimate, below, or any other aspect of White HIV/AIDS Program funding, the the collection of information; and to the ICR. clients served, and services provided transmit or otherwise disclose the DATES: Comments on this Information continue to be critical issues for the information. The total annual burden Collection Request must be received implementation of the legislation and hours estimated for this Information within 60 days of this notice. are necessary for HRSA to fulfill its Collection Request are summarized in ADDRESSES: Submit your comments to responsibilities. the table below. [email protected] or mail the HRSA The RSR provides data on the The estimate includes burden hours Information Collection Clearance characteristics of Ryan White HIV/AIDS associated with revisions and updates to Officer, Room 10–29, Parklawn Program-funded grantees, their client-level data (CLD) electronic data Building, 5600 Fishers Lane, Rockville, contracted service providers, and the collections systems (60,720 total hours) MD 20857. clients served with program funds. The and burden hours for the actual FOR FURTHER INFORMATION CONTACT: To RSR is intended to support clinical submission of the data (15,749 total request more information on the quality management, performance hours). Total Estimated Annualized proposed project or to obtain a copy of measurement, service delivery, and burden hours: 76,469.

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TOTAL ESTIMATED ANNUALIZED BURDEN HOURS

Average Number of Number of Total burden per Total burden RSR component respondents responses per responses response hours respondent (in hours)

Grantee Report: Part A ...... 52 1 52 2.04 106 Part B ...... 51 1 51 2.52 129 Part C ...... 351 1 351 0.32 122 Part D ...... 115 1 115 0.33 38

Subtotal ...... 569 ...... 395

The response burden for service providers is estimated as:

Service Provider Report ...... * 2,025 1 * 2,025 2.30 4,658

Subtotal ...... 2,025 ...... 4,658 Service Providers requiring revisions/updates to CLD col- lection systems ...... 1,012 1 1,012 60 60,720

Subtotal ...... 1,012 ...... 1,012 ...... 60,720 Client Report (client-level data): • Providers without electronic data systems ...... 37 1 37 106.25 3,931 • Providers with electronic data systems ...... 1,804 1 1,804 3.75 6,765

Subtotal ...... ** 1,841 ...... ** 1,841 ...... 10,696

TOTAL ...... 5,447 1 5,447 14.04 76,469 * All providers, including providers of administrative support services and direct client services. ** Providers of direct client services only.

HRSA specifically requests comments Section 100.2 of the VICP’s increase, the calculated average monthly on (1) the necessity and utility of the implementing regulation (42 CFR Part cost of a health insurance policy is proposed information collection for the 100) states that the revised amounts of $471.10 for 2013. proper performance of the agency’s an average cost of a health insurance Therefore, the Secretary announces functions, (2) the accuracy of the policy, as determined by the Secretary, that the revised average cost of a health estimated burden, (3) ways to enhance are to be published periodically in a insurance policy under the VICP is the quality, utility, and clarity of the notice in the Federal Register and filed $471.10 per month. In accordance with information to be collected, and (4) the with the United States Court of Federal § 100.2, the revised amount was use of automated collection techniques Claims (the Court). This figure is effective upon its delivery by the or other forms of information calculated using the most recent Secretary to the Court. Such notice was technology to minimize the information Medical Expenditure Panel Survey- delivered to the Court on November 21, collection burden. Insurance Component (MEPS–IC) data 2013. available as the baseline for the average Dated: December 26, 2013. Dated: December 26, 2013. monthly cost of a health insurance Bahar Niakan, policy. This baseline is adjusted by the Mary K. Wakefield, Director, Division of Policy and Information annual percentage increase/decrease Administrator. Coordination. obtained from the most recent annual [FR Doc. 2013–31470 Filed 1–2–14; 8:45 am] [FR Doc. 2013–31472 Filed 1–2–14; 8:45 am] Kaiser Family Foundation and Health BILLING CODE 4165–15–P BILLING CODE 4165–15–P Research and Educational Trust (KFF/ HRET) Employer Health Benefits survey or other authoritative source that may be DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND more accurate or appropriate. HUMAN SERVICES HUMAN SERVICES In 2013, MEPS–IC, available at National Institutes of Health Health Resources and Services www.meps.ahrq.gov, published the Administration annual 2012 average total single Proposed Collection; 60-Day Comment premium per enrolled employee at Request: Questionnaire Cognitive National Vaccine Injury Compensation private-sector establishments that Interviewing and Pretesting (NCI) Program: Revised Amount of the provide health insurance. The figure Average Cost of a Health Insurance published was $5,384. This figure is SUMMARY: In compliance with the Policy divided by 12 months to determine the requirement of Section 3506(c)(2)(A) of cost per month of $448.67. The $448.67 the Paperwork Reduction Act of 1995, The Health Resources and Services shall be increased or decreased by the for opportunity for public comment on Administration (HRSA) is publishing an percentage change reported by the most proposed data collection projects, the updated monetary amount of the recent KFF/HRET, available at National Cancer Institute (NCI), average cost of a health insurance policy www.kff.org. The percentage increase National Institutes of Health (NIH), will as it relates to the National Vaccine from 2012 to 2013, was published at 5 publish periodic summaries of proposed Injury Compensation Program (VICP). percent. By adding this percentage projects to be submitted to the Office of

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Management and Budget (OMB) for of Cancer Control and Population Survey (HINTS: OMB No. 0925–0538) review and approval. Sciences, 9609 Medical Center Drive, has undergone multiple cycles of Written comments and/or suggestions Rm 3E358, Bethesda, MD 20892–9762 or cognitive testing to refine both the from the public and affected agencies call non-toll-free number 240–276–6788 questionnaire, and supporting materials are invited on one or more of the or Email your request, including your such as advance letters and brochures. following points: (1) Whether the address to: [email protected]. Formal The types of activities covered by this proposed collection of information is requests for additional plans and Generic request include: (1) Survey necessary for the proper performance of instruments must be requested in material development and pretesting the function of the agency, including writing. based on cognitive interviewing whether the information will have DATES: Comment Due Date: Comments methodology and use of focus groups, practical utility; (2) The accuracy of the (2) Research on the cognitive aspects of agency’s estimate of the burden of the regarding this information collection are best assured of having their full effect if survey methodology, (3) Research on proposed collection of information, computer-user interface design for including the validity of the received within 60 days of the date of computer-assisted instruments, also methodology and assumptions used; (3) this publication. known as Usability Testing, (4) Pilot Ways to enhance the quality, utility, and Proposed Collection: Questionnaire Household interviews are pilot tests clarity of the information to be Cognitive Interviewing and Pretesting collected; and (4) Ways to minimize the (NCI), 0925–0589, Expiration Date 4/30/ (either personal, telephone, or Web- burden of the collection of information 2014, REVISION, National Cancer based) conducted with respondents on those who are to respond, including Institute (NCI), National Institutes of using professional field interviewers; the use of appropriate automated, Health (NIH). and (5) Formative research that depends on the use of interviewing techniques to electronic, mechanical, or other Need and Use of Information technological collection techniques or Collection: For many surveys and self- develop products such as research other forms of information technology. report-based data collection efforts, it is priorities, or expert consensus on best TO SUBMIT COMMENTS AND FOR FURTHER advantageous to the government if practices. INFORMATION: To obtain a copy of the development follows a pretesting OMB approval is requested for 3 data collection plans and instruments, sequence equivalent to that used at years. There are no costs to respondents submit comments in writing, or request National Center for Health Statistics or other than their time. The total more information on the proposed the Census Bureau. For example, the estimated annualized burden hours are project, contact: Gordon Willis, Division Health Information National Trends 3,600.

3-YEAR ESTIMATED BURDEN HOURS

Number of Time per Type of respondents Number of responses per response Burden hours respondents respondent (in hours)

Physicians, Scientists and similar Respondents ...... 1,200 1 75/60 1,500 Experts in their Field ...... 600 1 75/60 750 Administrators/Managers ...... 600 1 75/60 750 General Public ...... 1,200 1 30/60 600

Dated: December 27, 2013. portion of this meeting will be closed to Place: National Institutes of Health, Vivian Horovitch-Kelley, the public in accordance with the Building 31, Center Drive, C-Wing, NCI Project Clearance Liaison, National provisions set forth in sections Conference Room 6, Bethesda, MD 20892. Institutes of Health. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Contact Person: Yvonne T. Maddox, Ph.D., as amended for the review and Deputy Director, Eunice Kenney Shriver [FR Doc. 2013–31477 Filed 1–2–14; 8:45 am] National Institute of Child Health and BILLING CODE 4140–01–P discussion of grant applications. Human Development, NIH, 9000 Rockville Individuals who plan to attend and Pike MSC 7510, Building 31, Room 2A03, need special assistance, such as sign Bethesda, MD 20892, (301) 496–1848. DEPARTMENT OF HEALTH AND language interpretation or other Any interested person may file written HUMAN SERVICES reasonable accommodations, should comments with the committee by forwarding notify the contact person listed below in the statement to the contact person listed on National Institutes of Health advance of the meeting. this notice. The statement should include the name, address, telephone number, and when Eunice Kennedy Shriver National Name of Committee: National Advisory applicable, the business or professional Institute of Child Health & Human Child Health and Human Development affiliation of the interested person. Development (NICHD); Notice of Council. In the interest of security, NIH has Meeting Date: January 23, 2014. instituted stringent procedures for entrance Open: January 23, 2014, 8:00 a.m. to 12:00 onto the NIH campus. All visitor vehicles, Pursuant to section 10(d) of the p.m. including taxis, hotel, and airport shuttles, Federal Advisory Committee Act, as Agenda: The agenda will include: (1) will be inspected before being allowed on amended (5 U.S.C. App.), notice is Update on program issues; (2) Report of the campus. Visitors will be asked to show one Director, NICHD; (3) Report of the Director, form of identification (for example, a hereby given of a meeting of the Vision of Scientific Research; and (4) Other National Advisory Child Health and government-issued photo ID, driver’s license, business of the Council. or passport) and to state the purpose of their Human Development Council. Closed January 23, 2014, 1:00 p.m. to visit. The meeting will be open to the Adjournment. In order to facilitate public attendance at public as indicated below, with Agenda: To review and evaluate grant the open session of Council in the main attendance limited to space available. A applications. meeting room, Conference Room 6, please

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contact Ms. Lisa Kaeser, Program and Public (Catalogue of Federal Domestic Assistance performance of the functions of the Liaison Office, NICHD, at 301–496–0536 to Program Nos. 93.306, Comparative Medicine; agency, including whether the make your reservation, additional seating 93.333, Clinical Research, 93.306, 93.333, information shall have practical utility; will be available in the meeting overflow 93.337, 93.393–93.396, 93.837–93.844, (b) the accuracy of the agency’s rooms, Conference Rooms 7 and 8. 93.846–93.878, 93.892, 93.893, National Individuals will also be able to view the Institutes of Health, HHS) estimates of the burden of the collection of information; (c) ways to enhance the meeting via NIH Videocast. Please go to the Dated: December 27, 2013. following link for Videocast access quality, utility, and clarity of the Anna Snouffer, instructions at: http://www.nichd.nih.gov/ information to be collected; (d) ways to about/advisory/nachhd/Pages/virtual- Deputy Director, Office of Federal Advisory minimize the burden including the use meeting.aspx Committee Policy. of automated collection techniques or (Catalogue of Federal Domestic Assistance [FR Doc. 2013–31428 Filed 1–2–14; 8:45 am] the use of other forms of information Program Nos. 93.864, Population Research; BILLING CODE 4140–01–P technology; and (e) the annual costs 93.865, Research for Mothers and Children; burden to respondents or record keepers 93.929, Center for Medical Rehabilitation from the collection of information (a Research; 93.209, Contraception and DEPARTMENT OF HOMELAND total capital/startup costs and Infertility Loan Repayment program, National SECURITY Institutes of Health, HHS) operations and maintenance costs). The comments that are submitted will be Dated: December 26, 2013. U.S. Customs and Border Protection summarized and included in the CBP David Clary, Agency Information Collection request for Office of Management and Program Analyst, Office of Federal Advisory Budget (OMB) approval. All comments Committee Policy. Activities: Foreign Trade Zone Annual Reconciliation Certification and will become a matter of public record. [FR Doc. 2013–31427 Filed 1–2–14; 8:45 am] Record Keeping Requirement In this document CBP is soliciting BILLING CODE 4140–01–P comments concerning the following AGENCY: U.S. Customs and Border information collection: Protection (CBP), Department of Title: Foreign Trade Zone Annual DEPARTMENT OF HEALTH AND Homeland Security Reconciliation Certification and Record HUMAN SERVICES ACTION: 60-Day Notice and request for Keeping Requirement. comments; Extension of an existing OMB Number: 1651–0051. National Institutes of Health collection of information: 1651–0051. Form Number: None. Abstract: In accordance with 19 CFR Center for Scientific Review; Notice of SUMMARY: As part of its continuing effort 146.4 and 146.25 foreign trade zone Closed Meeting to reduce paperwork and respondent (FTZ) operators are required to account Pursuant to section 10(d) of the burden, CBP invites the general public for zone merchandise admitted, stored, Federal Advisory Committee Act, as and other Federal agencies to comment manipulated and removed from FTZs. amended (5 U.S.C. App.), notice is on an information collection FTZ operators must prepare a hereby given of the following meeting. requirement concerning the Foreign reconciliation report within 90 days The meeting will be closed to the Trade Zone Annual Reconciliation after the end of the zone year for a spot public in accordance with the Certification and Record Keeping check or audit by CBP. In addition, provisions set forth in sections Requirement. This request for comment within 10 working days after the annual 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., is being made pursuant to the reconciliation, FTZ operators must as amended. The grant applications and Paperwork Reduction Act of 1995 (Pub. submit to the CBP port director a letter the discussions could disclose L. 104–13; 44 U.S.C 3507). signed by the operator certifying that the confidential trade secrets or commercial DATES: Written comments should be annual reconciliation has been prepared property such as patentable material, received on or before March 4, 2014, to and is available for CBP review and is and personal information concerning be assured of consideration. accurate. These requirements are individuals associated with the grant ADDRESSES: Direct all written comments authorized by Foreign Trade Zones Act, applications, the disclosure of which to U.S. Customs and Border Protection, as amended (Title 19 U.S.C. 81a). would constitute a clearly unwarranted Attn: Tracey Denning, Regulations and Current Actions: CBP proposes to invasion of personal privacy. Rulings, Office of International Trade, extend the expiration date of this 90 K Street NE., 10th Floor, Washington, information collection with a change to Name of Committee: Center for Scientific the burden hours resulting from the Review Special Emphasis Panel; Member DC 20229–1177. addition of burden hours for the Conflict: Topics in Bacterial Pathogenesis FOR FURTHER INFORMATION CONTACT: and Virulence. Requests for additional information certification letter. There is no change to Date: January 7, 2014. should be directed to Tracey Denning, the information collected or to the Time: 1:00 p.m. to 4:00 p.m. U.S. Customs and Border Protection, record keeping requirements. Agenda: To review and evaluate grant Type of Review: Extension (with Regulations and Rulings, Office of applications. change). Place: National Institutes of Health, 6701 International Trade, 90 K Street NE., Affected Public: Businesses or other Rockledge Drive, Bethesda, MD 20892, 10th Floor, Washington, DC 20229– for-profit institutions. (Telephone Conference Call). 1177, at 202–325–0265. Recordkeeping Requirements Under Contact Person: Gagan Pandya, Ph.D., SUPPLEMENTARY INFORMATION: CBP 19 CFR 146.4. Scientific Review Officer, National Institutes invites the general public and other Estimated Number of Respondents: of Health, Center for Scientific Review, 6701 Federal agencies to comment on 260. Rockledge Drive, RM 3200, MSC 7808, proposed and/or continuing information Bethesda, MD 20892, 301–435–1167, Estimated Time per Respondent: 45 [email protected]. collections pursuant to the Paperwork minutes. This notice is being published less than 15 Reduction Act of 1995 (Pub. L. 104–13; Estimated Total Annual Burden days prior to the meeting due to the timing 44 U.S.C. 3507). The comments should Hours: 195. limitations imposed by the review and address: (a) Whether the collection of Certification Letter Under 19 CFR funding cycle. information is necessary for the proper 146.25.

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Estimated Number of Respondents: DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: Brad 260. Higdon, Planning and Environmental Bureau of Land Management Estimated Time per Respondent: 20 Specialist, and to have your name added minutes. [LLNMF02000.L16100000.DP0000] to our mailing list at telephone 575– 751–4725; address 226 Cruz Alta Road, Estimated Total Annual Burden Notice of Intent to Amend the Taos, NM 87571; or by email bhigdon@ Hours: 85.8. Resource Management Plan for the blm.gov. Persons who use a Dated: December 30, 2013. Taos Field Office and Prepare an telecommunications device for the deaf Tracey Denning, Associated Environmental (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 Agency Clearance Officer, U.S. Customs and Assessment for the Rı´o Grande del Border Protection. Norte National Monument, NM to contact the above individual during normal business hours. The FIRS is [FR Doc. 2013–31474 Filed 1–2–14; 8:45 am] AGENCY: Bureau of Land Management, available 24 hours a day, 7 days a week, BILLING CODE 9111–14–P Interior. to leave a message or question with the ACTION: Notice of intent. above individual. You will receive a reply during normal business hours. SUMMARY: In compliance with the DEPARTMENT OF HOUSING AND National Environmental Policy Act of SUPPLEMENTARY INFORMATION: This URBAN DEVELOPMENT 1969, as amended (NEPA), the Federal document provides notice that the BLM Land Policy and Management Act of Taos Field Office, New Mexico, intends 1976, as amended (FLPMA), and to prepare an RMP Amendment with an [Docket No. FR–5750–N–01] Presidential Proclamation No. 8946 associated EA for the Monument, (Establishment of the Rio Grande del announces the beginning of the scoping Federal Property Suitable as Facilities process, and seeks public input on To Assist the Homeless Norte National Monument) (March 25,2013), the Bureau of Land issues and planning criteria. The planning area is located in Taos and Rio AGENCY: Office of the Assistant Management (BLM) Taos Field Office, Taos, New Mexico, intends to prepare a Arriba Counties, New Mexico, and Secretary for Community Planning and encompasses approximately 242,500 Development, HUD. Resource Management Plan (RMP) Amendment with an associated acres of public land. The Monument ACTION: Notice. Environmental Assessment (EA) for the was established on March 25, 2013, by Rı´o Grande del Norte National Presidential Proclamation SUMMARY: This Notice identifies Monument (Monument) and by this (Proclamation) for the purposes of unutilized, underutilized, excess, and notice is announcing the beginning of protecting the historic and scientific surplus Federal property reviewed by the scoping process to solicit public values of the Rio Grande and Rio San HUD for suitability for possible use to comments and identify issues. Antonio Gorges and the Taos Plateau. assist the homeless. DATES: This notice initiates the public The Proclamation specified that the scoping process for the RMP BLM ‘‘shall prepare and maintain a FOR FURTHER INFORMATION CONTACT: Amendment and associated EA. management plan for the monument Juanita Perry, Department of Housing Comments on issues may be submitted and provide for maximum public and Urban Development, 451 Seventh in writing until February 18, 2014. involvement in the development of the Street SW., Room 7262, Washington, DC The date(s) and location(s) of any plan including, but not limited to, 20410; telephone (202) 402–3970; TTY scoping meetings will be announced at consultation with tribal, State, and local number for the hearing- and speech- least 15 days in advance through local governments as well as community land impaired (202) 708–2565, (these news media, newspapers, and the BLM grant and acequia associations.’’ A telephone numbers are not toll-free), or Web site at: http://www.blm.gov/nm/ majority of the planning area was call the toll-free Title V information line riograndedelnorte previously managed as an Area of at 800–927–7588. In order to be included in the Critical Environmental Concern under analysis, all comments must be received the Taos RMP, completed in 2012. The SUPPLEMENTARY INFORMATION: In prior to the close of the 45-day scoping purpose of the public scoping process is accordance with the December 12, 1988 period or 30 days after the last public to determine relevant issues that will court order in National Coalition for the meeting, whichever is later. We will influence the scope of the Homeless v. Veterans Administration, provide additional opportunities for environmental analysis, including No. 88–2503–OG (D.D.C.), HUD public participation as appropriate. alternatives, and guide the planning publishes a Notice, on a weekly basis, ADDRESSES: You may submit comments process. Preliminary issues for the plan identifying unutilized, underutilized, on issues and planning criteria related amendment area have been identified by excess and surplus Federal buildings to the Monument plan and EA by any BLM personnel, Federal, State, and local and real property that HUD has of the following methods: agencies; and other stakeholders. The reviewed for suitability for use to assist • Web site: http://www.blm.gov/nm/ issues include those associated with the the homeless. Today’s Notice is for the riograndedelnorte objects and resources for which the purpose of announcing that no • Email: blm_nm_tafo_comments@ monument was designated, including additional properties have been blm.gov cultural, ecological, geological, and determined suitable or unsuitable this • Fax: 575–758–1620 wildlife; opportunities for recreation week. • Mail: BLM Taos Field Office, and interpretation; and land use Dated: December 26, 2013. Attention: Brad Higdon, 226 Cruz Alta authorizations, such as rights-of-way for Road, Taos, NM 87571 utilities transmission. Preliminary Mark Johnston, Documents pertinent to this proposal planning criteria include: (1) The plan Deputy Assistant Secretary for Special Needs. may be examined at the Taos Field amendment will adhere to the mandates [FR Doc. 2013–31391 Filed 1–2–14; 8:45 am] Office at 226 Cruz Alta Road in Taos, of the Presidential Proclamation which BILLING CODE 4210–67–P New Mexico. established the Monument; (2) The plan

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amendment will be developed in be made publicly available at any time. Committee Act of 1972 (FACA), the compliance with FLPMA, NEPA, and all While you can ask us in your comment Department of the Interior, Bureau of other applicable laws, regulations, to withhold your personal identifying Land Management (BLM) Nevada will Executive and Secretarial Orders, and information from public review, we hold a joint meeting of its three policies; (3) The RMP will incorporate, cannot guarantee that we will be able to Resource Advisory Councils (RACs), the where appropriate, management do so. The minutes and list of attendees Sierra Front-Northwestern Great Basin decisions brought forward from the Taos for each scoping meeting will be RAC, the Northeastern Great Basin RAC, RMP, approved in May 2012; (4) Broad- available to the public and open for 30 and the Mojave-Southern Great Basin based public participation and days after the meeting to any participant RAC in Elko, Nevada. The meeting is collaboration will be an integral part of who wishes to clarify the views he or open to the public and a public the planning process; (5) The planning she expressed. The BLM will evaluate comment period will be available. process will provide for ongoing identified issues to be addressed in the consultation with Native American plan, and will place them into one of Dates and Times: The three RACs will tribal governments and strategies for three categories: meet on Thursday, February 6, 2014, protecting traditional uses; (6) The BLM 1. Issues to be resolved in the plan from 8 a.m. to 4:30 p.m. and Friday, will work collaboratively with amendment; February 7, 2014, from 8:00 a.m. to 1:00 cooperating agencies and all other 2. Issues to be resolved through policy p.m. A public comment period will be interested groups, agencies, and or administrative action; or held and additional information will be individuals; and (7) The plan 3. Issues beyond the scope of this plan included in the agenda, which will be amendment will recognize the State of amendment. available two weeks prior to the New Mexico’s authority to manage The BLM will provide an explanation meetings at www.blm.gov/nv. wildlife and will encourage a in the Draft RMP Amendment/EA as to FOR FURTHER INFORMATION CONTACT: cooperative partnership with the New why an issue was placed in category Mexico Department of Game and Fish. two or three. The public is also Chris Rose, telephone: (775) 861–6480, You may submit comments on issues encouraged to help identify any email: [email protected]. Persons who use and planning criteria in writing to the management questions and concerns a telecommunications device for the BLM at any public scoping meeting, or that should be addressed in the plan. deaf (TDD) may call the Federal you may submit them to the BLM using The BLM will work collaboratively with Information Relay Service (FIRS) at 1– one of the methods listed in the interested parties to identify the 800–877–8339 to contact the above ADDRESSES section above. To be most management decisions that are best individual during normal business helpful, you should submit comments suited to local, regional, and national hours. The FIRS is available 24 hours a by the close of the 45-day scoping needs and concerns. day, 7 days a week, to leave a message period or within 30 days after the last The BLM will use an interdisciplinary or question with the above individual. public meeting, whichever is later. approach to develop the plan You will receive a reply during normal The BLM will use the NEPA public amendment in order to consider the business hours. participation requirements to assist the variety of resource issues and concerns agency in satisfying the public SUPPLEMENTARY INFORMATION: identified. Specialists with expertise in The three involvement requirements under the following disciplines will be 15-member Nevada RACs advise the Section 106 of the National Historic involved in the planning process: Secretary of the Interior, through the Preservation Act (NHPA) (16 U.S.C. Archaeology, geology, wildlife and BLM Nevada State Director, on a variety 470(f)) pursuant to 36 CFR 800.2(d)(3). fisheries, rangeland ecology and of planning and management issues The information about historic and associated with public land cultural resources within the area management, outdoor recreation, forestry, and lands and realty. management in Nevada. The meeting potentially affected by the proposed will be held at The Red Lion Inn & action will assist the BLM in identifying Authority: 40 CFR 1501.7 and 43 CFR Casino, 2065 Idaho Street, Elko, Nevada. and evaluating impacts to such 1610.2. Agenda topics include a presentation resources in the context of both NEPA Aden L. Seidlitz, and discussion of accomplishments and Section 106 of the NHPA. Associate State Director. The BLM will consult with Indian during 2013; closeout reports of the tribes on a government-to-government [FR Doc. 2013–31440 Filed 1–2–14; 8:45 am] three RACs; the year ahead for the BLM basis in accordance with Executive BILLING CODE 4310–FB–P in Nevada; breakout meetings of the Order 13175 and other policies. Tribal three RACs; and scheduling meetings of concerns, including impacts on Indian the individual RACs for the upcoming DEPARTMENT OF THE INTERIOR trust assets and potential impacts to year. The public may provide written cultural resources, will be given due Bureau of Land Management comments to the three RAC groups or to consideration. Federal, State, and local an individual RAC. Individuals who agencies, along with tribes and other [LLNV912000 L10200000.PH0000 plan to attend and need further stakeholders that may be interested in or LXSS0006F0000; 14–08807; information about the meeting or need MO#4500061004] affected by the proposed action, are special assistance such as sign language invited to participate in the scoping Notice of Public Meeting: Resource interpretation or other reasonable process and, if eligible, may request or Advisory Councils, NV accommodations may contact Chris be requested by the BLM to participate Rose at the phone number or email as a cooperating agency. Before AGENCY: Bureau of Land Management, address above. including your address, phone number, Interior. email address, or other personal ACTION: Notice of Public Meeting. JoLynn Worley, identifying information in your Acting Chief, Office of Communications. comment, you should be aware that SUMMARY: In accordance with the [FR Doc. 2013–31458 Filed 1–2–14; 8:45 am] b your entire comment including your Federal Land Policy and Management BILLING CODE 4310–HC–P personal identifying information b may Act and the Federal Advisory

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DEPARTMENT OF THE INTERIOR INTERNATIONAL TRADE INTERNATIONAL TRADE COMMISSION COMMISSION Bureau of Land Management [USITC SE–13–039] Correction to Notice of Receipt of [LLIDT000000.L11200000.DD0000.241A.00] Complaint; Solicitation of Comments Sunshine Act Meeting Relating to the Public Interest Notice of Public Meetings, Twin Falls AGENCY HOLDING THE MEETING: United District Resource Advisory Council, AGENCY: U.S. International Trade States International Trade Commission. Idaho Commission. TIME AND DATE: January 6, 2014 at 11:30 ACTION: Correction to notice. a.m. AGENCY: Bureau of Land Management, PLACE: Room 101, 500 E Street SW., Interior. Washington, DC 20436, Telephone: CORRECTION: This notice corrects the (202) 205–2000. ACTION: Notice of Public Meetings. supplementary information for DN 2995 STATUS: entitled Certain Soft-Edged Trampolines Open to the public. SUMMARY: In accordance with the and Components Thereof as follows: MATTERS TO BE CONSIDERED: Federal Land Policy and Management The complaint alleges violations of 1. Agendas for future meetings: None. 2. Minutes. Act (FLPMA), the Federal Advisory section 337 of the Tariff Act of 1930 (19 3. Ratification List. Committee Act of 1972 (FACA), the U.S. U.S.C. 1337) in the importation into the Department of the Interior, Bureau of 4. Vote in Inv. Nos. 701–TA–448 and United States, the sale for importation, Land Management (BLM) Twin Falls 731–TA–1117 (Review) (Certain Off-the- and the sale within the United States District Resource Advisory Council Road Tires From China). The after importation of certain soft-edged (RAC) will meet as indicated below. Commission is currently scheduled to trampolines and components thereof. complete and file its determinations and DATES: The Twin Falls District Resource FOR FURTHER INFORMATION CONTACT: Lisa views on or before January 15, 2014. Advisory Council meeting originally 5. Vote in Inv. Nos. 701–TA–452 and scheduled for January 8, 2014, has been R. Barton, Acting Secretary to the Commission, U.S. International Trade 731–TA–1129–1130 (Review) (Raw re-scheduled to take place on January Flexible Magnets From China and Commission, 500 E Street SW., 16, 2014, at the Sawtooth Best Western Taiwan). The Commission is currently Washington, DC 20436, telephone (202) Inn, 2653 South Lincoln Ave., Jerome, scheduled to complete and file its Idaho. The meeting will begin at 9:00 205–2000. The public version of the determinations and views on or before a.m. and end no later than 4:30 p.m. The complaint can be accessed on the January 15, 2014. public comment period will take place Commission’s Electronic Document 6. Outstanding action jackets: None. from 10:10 a.m. to 10:40 a.m. Information System (EDIS) at EDIS,1 and In accordance with Commission will be available for inspection during policy, subject matter listed above, not FOR FURTHER INFORMATION CONTACT: official business hours (8:45 a.m. to 5:15 disposed of at the scheduled meeting, Heather Tiel-Nelson, Twin Falls p.m.) in the Office of the Secretary, U.S. may be carried over to the agenda of the District, Idaho, 2536 Kimberly Road, International Trade Commission, 500 E following meeting. Earlier notification Twin Falls, Idaho 83301, (208) 736– Street SW., Washington, DC 20436, of this meeting was not possible. 2352. telephone (202) 205–2000. By order of the Commission. SUPPLEMENTARY INFORMATION: The 15- General information concerning the Dated: December 30, 2013. member RAC advises the Secretary of Commission may also be obtained by William R. Bishop, the Interior, through the Bureau of Land accessing its Internet server at United Supervisory Hearings and Information Management, on a variety of planning States International Trade Commission Officer. and management issues associated with (USITC) at USITC.2 The public record [FR Doc. 2013–31535 Filed 12–31–13; 11:15 am] public land management in Idaho. for this investigation may be viewed on BILLING CODE 7020–02–P During the January 16th meeting, RAC the Commission’s Electronic Document subcommittee members will report to Information System (EDIS) at EDIS.3 the full RAC with their recommendation Hearing-impaired persons are advised DEPARTMENT OF LABOR for the Idaho and Southwest Montana that information on this matter can be Sub-regional Draft Environmental obtained by contacting the Employment and Training Impact Statement. There will also be a Commission’s TDD terminal on (202) Administration new member orientation for RAC 205–1810. members along with field manager Comment Request for Information reports, a budget outlook and wild horse By order of the Commission. Collection for Form ETA–750, issue update. Issued: December 30, 2013. Application for Alien Employment Additional topics may be added and William R. Bishop, Certification, Extension of Currently will be included in local media Supervisory Hearings and Information Approved Collection announcements. More information is Officer. AGENCY: Employment and Training available at www.blm.gov/id/st/en/res/ [FR Doc. 2013–31485 Filed 1–2–14; 8:45 am] Administration (ETA), Labor. _ resource advisory.3.html. RAC meetings BILLING CODE 7020–02–P ACTION: Notice. are open to the public. SUMMARY: Dated: December 18, 2013. 1 Electronic Document Information System The Department of Labor (DOL), as part of its continuing effort to Jenifer L. Arnold, (EDIS): http://edis.usitc.gov. 2 United States International Trade Commission reduce paperwork and respondent District Manager (Acting). (USITC): http://edis.usitc.gov. burden, conducts a preclearance [FR Doc. 2013–31449 Filed 1–2–14; 8:45 am] 3 Electronic Document Information System consultation program to provide the BILLING CODE 4310–GG–P (EDIS): http://edis.usitc.gov. public and Federal agencies with an

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opportunity to comment on proposed skilled labor to gain permanent Affected Public: Individuals, Business and/or continuing collections of admission into the United States. The or other for-profits, and not-for-profit information in accordance with the Form ETA–750 is used to certify that the institutions. Paperwork Reduction Act of 1995 (44 admission of an alien athlete meets Form(s): ETA–750. U.S.C. 3506(c)(2)(A)). This program these requirements. Section Total Annual Respondents: 2033. helps ensure that requested data can be 212(a)(5)(A)(iii) of the INA deals Annual Frequency: On occasion. provided in the desired format, specifically with professional athletes Total Annual Responses: 2033. reporting burden (time and financial coming to the United States on a Average Time per Response: 1 hour resources) is minimized, collection permanent basis as immigrants. Part B 49 minutes. instruments are clearly understood, and of Form ETA–750 is also required by the Estimated Total Annual Burden the impact of collection requirements on Department of Homeland Security Hours: 3,692. respondents can be properly assessed. under 8 CFR 204.5(k)(4)(ii) for aliens Total Annual Burden Cost for Currently, ETA is soliciting comments applying for the National Interest Respondents: 0. concerning the collection of data about Waiver (NIW) of the job offer Comments submitted in response to Form ETA–750, Application for Alien requirement, which allows aliens to this comment request will be Employment Certification (OMB Control self-petition without an employer summarized and/or included in the Number 1205–0015), which expires sponsor and does not require a labor request for OMB approval of the ICR; April 30, 2014. The form is used by certification. they will also become a matter of public employers to request permission to record. II. Review Focus bring professional athletes to the United Signed at Washington, DC, this 13th day of States and by individuals applying for a DOL is particularly interested in December, 2013. waiver in the national interest of the job comments that: Eric M. Seleznow, offer requirement in employment-based • Evaluate whether the proposed Acting Assistant Secretary for Employment immigration. collection of information is necessary and Training, Labor. for the proper performance of the DATES: Written comments must be [FR Doc. 2013–31469 Filed 1–2–14; 8:45 am] submitted to the office listed in the functions of the agency, including BILLING CODE 4510–FP–P addresses section below on or before whether the information will have March 4, 2014. practical utility; • ADDRESSES: Submit written comments evaluate the accuracy of the DEPARTMENT OF LABOR to William L. Carlson, Ph.D., agency’s estimate of the burden of the Administrator, Office of Foreign Labor proposed collection of information, Employment and Training Certification, Room C–4312, including the validity of the Administration Employment & Training Administration, methodology and assumptions used; U.S. Department of Labor, 200 • enhance the quality, utility, and [TA–W–82,728] clarity of the information to be Constitution Avenue NW., Washington, The Boeing Company, Boeing Defense DC 20210. Telephone number: 202– collected; and • and Space Division, Including On-Site 693–3010 (this is not a toll-free minimize the burden of the Leased Workers From Geologics number). Individuals with hearing or collection of information on those who Corporation, Wichita, Kansas; Notice speech impairments may access the are to respond, including through the of Negative Determination on Remand telephone number above via TTY by use of appropriate automated, calling the toll-free Federal Information electronic, mechanical, or other On October 22, 2013, the United Relay Service at 1–877–889–5627 (TTY/ technological collection techniques or States Court of International Trade TDD). Fax: 202–693–2768. Email: other forms of information technology, (USCIT) granted the Department of [email protected] subject line: e.g., permitting electronic submissions Labor’s request for voluntary remand to ETA–750. A copy of the proposed of responses. conduct further investigation in Former information collection request (ICR) can III. Current Actions Employees of The Boeing Company, be obtained by contacting the office Boeing Defense and Space Division, listed above. In order to meet its statutory Wichita, Kansas v. United States SUPPLEMENTARY INFORMATION: responsibilities under the INA, DOL Secretary of Labor (Court No. 13– needs to extend an existing collection of 00281). I. Background information pertaining to employers On May 14, 2013, former workers of The information collection is required seeking to import foreign labor. The The Boeing Company, Boeing Defense by sections 203(b)(2)(B)(i) and form used to collect the information is and Space Division, Wichita, Kansas 212(a)(5)(A) of the Immigration and used not only by DOL, but also by other (subject firm) filed a petition for Trade Nationality Act (INA) (8 U.S.C. Federal agencies to meet the Adjustment Assistance (TAA) on behalf 1153(b)(2)(B)(i) and 1182(a)(5)(A) and 8 requirements of the INA. DOL uses the of workers at the subject firm. AR 1–3. CFR 204.5(k)(4)(ii). The Secretary of information collected in its permanent Workers at the subject firm (subject Labor is required by the INA to certify certification program for the worker group) are engaged in that any alien seeking to enter the employment of alien professional employment related to the maintenance United States for the purpose of athletes. The Department of Homeland and modification of military aircraft. performing skilled or unskilled labor Security U.S. Citizenship and The initial investigation revealed that does not adversely affect wages and Immigration Services uses the form for the subject firm had not shifted abroad working conditions of U.S. workers its NIW program for employment-based services like or directly competitive similarly employed and that there are immigration. with those provided by the subject not sufficient U.S. workers able, willing, Type of Review: Extension. worker group, had not acquired such and qualified to perform such skilled or Title: Form ETA–750, Application for services from abroad, and there had not unskilled labor. Many foreign Alien Employment Certification. been an increase in imports of articles professional athletes must qualify as OMB Number: 1205–0015. like or directly competitive with those

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produced or services supplied by the (aa) into which one or more component supplied by the certified worker groups subject firm. AR 54–62. parts produced by such firm are directly at those Boeing facilities are not like or incorporated, or directly competitive with those Additionally, with respect to Section (bb) which are produced directly using 222(c) of the Act, the initial services supplied by such firm, have provided by the subject worker group. investigation revealed that the subject increased; or AR 456–465. Specifically, due to the firm could not be considered a Supplier (III) imports of articles directly nature of the services supplied by the or Downstream Producer to a firm that incorporating one or more component parts subject worker group and the laws and employed a worker group eligible to produced outside the United States that are regulations governing the services apply for TAA benefits. AR 54–62. like or directly competitive with imports of articles incorporating one or more provided by the subject firm worker On June 12, 2013, the Department of component parts produced by such firm have group, the work is not considered to be Labor (Department) issued a negative increased; and interchangeable with the work Determination regarding eligibility to (iii) the increase in imports described in performed by other certified Boeing apply for TAA applicable to workers clause (ii) contributed importantly to such facilities. Consequently, the Department and former workers of the subject firm. workers’ separation or threat of separation determines that the services supplied by The Department’s Notice of negative and to the decline in the sales or production of such firm; or the subject worker group are neither like determination was published in the (B)(i)(I) there has been a shift by such nor directly competitive with those Federal Register on July 2, 2013 (78 FR workers’ firm to a foreign country in the supplied by the above-mentioned 39776). production of articles or the supply of former and current workers of Boeing The petitioning workers did not services like or directly competitive with who are eligible to apply for TAA articles which are produced or services request administrative reconsideration benefits. of the Department’s negative which are supplied by such firm; or (II) such workers’ firm has acquired from The remand investigation findings determination. a foreign country articles or services that are confirmed that the workers were not In the complaint filed with the USCIT like or directly competitive with articles impacted by a shift in services or foreign on August 6, 2013, the Plaintiffs which are produced or services which are acquisition of services by Boeing at claimed that their separations were supplied by such firm; and other facilities. AR 456–465. directly caused by the subject firm (ii) the shift described in clause (i)(I) or the shifting services like or directly acquisition of articles or services described in The remand investigation findings clause (i)(II) contributed importantly to such also confirmed that the subject firm competitive with those supplied by the workers’ separation or threat of separation. subject firm worker group to a certified worker group does not provide services Boeing facility within the U.S. The During the remand investigation, the like or directly competitive with the Plaintiffs claimed that the Wichita Department confirmed all previously work which the Plaintiffs claimed was facility should fall under the collected information, obtained done by the subject firm worker group certification umbrella covered under additional information from the subject within the relevant time period under various other Boeing certified facilities. firm regarding domestic and foreign investigation. AR 456–465. AR 80. operations, and solicited input from the Plaintiffs. AR 71–452. For Section 222(a)(A)(ii)(II)(bb) of the The intent of the Department is for a The information the Department Act to be met, imports of articles like or certification to cover all workers of a received on remand contained directly competitive with articles which subject firm, or appropriate subdivision, additional detail regarding the are produced directly using services who were adversely affected by operations of the subject firm supplied by such firm, must have increased imports of articles produced domestically and abroad. In order to increased. Because ITAR establishes or services supplied by the firm or shifts determine whether there was a shift that imports of services like or directly in production or services, based on facts abroad of the maintenance and competitive with those provided by the obtained during the investigation of the modification services provided by the TAA petition. On October 20, 2013, the workers at the subject firm is illegal, the subject worker group, the Department criterion has not been met. Department requested voluntary remand had to first determine whether the Based on a careful review of to address the allegations made by the services provided are covered under the previously submitted information and Plaintiffs, to determine whether the International Traffic in Arms subject worker group is eligible to apply Regulations, 22 U.S.C. 2778, 22 CFR new information obtained during the for TAA under the Trade Act of 1974, 120.1–130.17 (ITAR). remand investigation, the Department as amended (hereafter referred to as the The investigation revealed that the reaffirms that the petitioning workers Act), and to issue a new determination. maintenance and modification services have not met the eligibility criteria of The group eligibility requirements for provided by the workers at the subject Section 222(a) of the Trade Act of 1974, workers of a firm under Section 222(a) firm are covered as stipulated in ITAR as amended. of the Act, 19 U.S.C. 2272(a), can be and, therefore, cannot be completed Conclusion satisfied if the following criteria are met: outside of the United States. AR 456– (1) a significant number or proportion of 465. After careful reconsideration of the the workers in such workers’ firm have Although the Plaintiffs declare that administrative record, I affirm the become totally or partially separated, or are the subject firm shifted maintenance original notice of negative threatened to become totally or partially and modification services like or determination of eligibility to apply for separated; and directly competitive with those (2)(A)(i) the sales or production, or both, of worker adjustment assistance applicable provided by the subject worker group to to workers and former workers of The such firm have decreased absolutely; Boeing facilities which employ worker (ii)(I) imports of articles or services like or Boeing Company, Boeing Defense and groups eligible to apply for TAA located directly competitive with articles produced Space Division, including on-site leased or services supplied by such firm have in the United States (AR 160), based upon the information collected during workers from Geologics Corporation, increased; Wichita, Kansas. (II) imports of articles like or directly the remand investigation, the competitive with articles— Department determines that the services

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Signed at Washington, DC this 20th day of commercial courier, they must deliver period and the Judges adopted them in December 2013. the submissions to the Congressional 2010. See 75 FR 14074 (Mar. 24, 2010). Del Min Amy Chen, Courier Acceptance Site, located at 2nd With the current rates set to expire on Certifying Officer, Office of Trade Adjustment and D Street NE., Washington, DC. The December 31, 2015, the Judges, by this Assistance. envelope must be addressed to: notice, commence the rate proceeding [FR Doc. 2013–31424 Filed 1–2–14; 8:45 am] Copyright Royalty Board, Library of for the license period 2016–2020. See 17 BILLING CODE 4510–FN–P Congress, James Madison Memorial U.S.C. 803(b)(1)(A)(i)(III), 804(b)(3)(C). Building, LM–403, 101 Independence Scope of Proceeding Avenue SE., Washington, DC 20559– LIBRARY OF CONGRESS 6000. In addition to all other submissions and arguments required by the Act and FOR FURTHER INFORMATION CONTACT: Copyright Royalty Board the applicable regulations, and in LaKeshia Keys, CRB Program Specialist, addition to any other submissions or [14–CRB–0002–NSR (2016–2020)] by telephone at (202) 707–7658 or email arguments that the Participants choose at [email protected]. to make, the Judges note below certain Determination of Royalty Rates for SUPPLEMENTARY INFORMATION: potential matters that the Participants New Subscription Services for Digital Background may elect to address in this proceeding. Performance Right in Sound The Judges are open to receiving Recordings and Ephemeral Section 114(f)(2)(C) of the Copyright evidence, testimony, and argument Recordings Act, title 17 of the United States Code, regarding any reasonable rate structure provides that a copyright owner of AGENCY: Copyright Royalty Board, that a Participant may elect to propose, sound recordings or an eligible Library of Congress. such as, inter alia, a rate structure based nonsubscription service or a new on the number of subscribers or a ACTION: Notice announcing subscription service may file a petition percentage of webcaster revenue. This commencement of proceeding with with the Copyright Royalty Judges openness is consistent with the request for Petitions to Participate. (Judges) requesting the determination of determination in Web II, 72 FR at reasonable terms and rates of royalty 2 SUMMARY: The Copyright Royalty Judges 24089, in which the Judges held that, payments for a new type of eligible announce the commencement of the although the record did not support a nonsubscription service or a new proceeding to determine the rates and percentage-of-revenue based royalty, subscription service on which sound terms for the use of sound recordings in ‘‘[t]his does not mean that some recordings are performed that is or is transmissions made by new revenue-based metric could not be about to become operational. Upon subscription services and for the making successfully developed as a proxy for receipt of such a petition, the Judges of ephemeral recordings necessary for the usage-based metric at some time in must commence a proceeding to the facilitation of such transmissions for the future. . . .’’ The Judges make determine such reasonable terms and the period beginning on January 1, 2016, particular note of this holding in Web II rates by publishing a notice in the and ending on December 31, 2020. A because they recognize that, as a Federal Register. 17 U.S.C. party wishing to participate in this rate practical and strategic matter, 803(b)(1)(A)(i)(III), 804(b)(3)(C)(ii). determination proceeding must file its participants in these proceedings In 2005, the Judges received a petition Petition to Participate and the carefully consider prior rate proceedings requesting that reasonable rates and accompanying $150 filing fee by the as roadmaps to ascertain the structure of terms be set for a new type of deadline in this notice. the rates they propose. subscription service that ‘‘performs Pursuant to 17 U.S.C. 114(f)(2)(B), DATES: Petitions to Participate and the sound recordings on digital audio ‘‘[i]n determining . . . rates and terms filing fee are due no later than February channels programmed by the licensee the Copyright Royalty Judges shall base 3, 2014. for transmission by a satellite television their decision on . . . information ADDRESSES: Participants must submit a distribution service to its residential presented by the parties. . . .’’ Petition to Participate in a hard-copy customers, where the audio channels (emphasis added). Thus, the Judges are original, with five paper copies and an are bundled with television channels as best served if the participants, their electronic copy in Portable Document part of a ‘basic’ package of service and economic witnesses, and their counsel Format (PDF) on a Compact Disc, along not for a separate fee’’; the Judges craft arguments in a manner that assists with the $150 filing fee, to the Copyright commenced a proceeding as required by the Judges in identifying and applying Royalty Board by either mail or hand section 804(b)(3)(C)(ii). See 70 FR the optimal economic analysis when delivery. Participants may not submit 72471, 72472 (Dec. 5, 2005). The Judges establishing rates and terms pursuant to Petitions to Participate and the $150 adopted the rates and terms agreed to by the Act. As a former federal appellate filing fee by an overnight delivery the parties to that proceeding 1; those jurist has noted: service other than the U.S. Postal rates expired on December 31, 2010. See The truism that judicial analysis, economic Service Express Mail. If participants 72 FR 72253 (Dec. 20, 2007). or otherwise, takes place only in the context choose to use the U.S. Postal Service In order to have successor rates and of lawsuits between two or more parties (including overnight delivery), they terms in place prior to the expiration of imposes a practical constraint on the judge’s must address their submissions to: those rates, the Judges, in 2009, ability to use economic analysis. . . . [A] Copyright Royalty Board, P.O. Box commenced the rate determination judge will, for the most part, be limited by what the parties serve up to her. 70977, Washington, DC 20024–0977. If proceeding for the 2011–2015 period for participants choose hand delivery by a the new subscription service as defined Patricia Wald, Limits on the Use of private party, they must deliver the in § 383.2(h). See 17 U.S.C. 804(b)(3)(C), Economic Analysis in Judicial submissions to the Library of Congress, 74 FR 319 (Jan. 5, 2009). The parties James Madison Memorial Building, LM– reached agreement regarding the rates 2 Digital Performance Right in Sound Recordings and Ephemeral Recordings, Final rule and order, 72 401, 101 Independence Avenue SE., and terms for the 2011–2015 license FR 24084 (May 1, 2007), aff’d in relevant part sub Washington, DC 20559–6000. If nom. Intercollegiate Broad. Sys. v. Copyright participants choose delivery by a 1 The rates are codified at 37 CFR Part 383. Royalty Bd., 574 F.3d 748 (D.C. Cir. 2009) (Web II).

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Decisionmaking, 50 Duke J.L. & 2. Should royalty rates embody any Center Distinguished Lecture Award Contemp. Prob. 225, 228 (1987). form of economic ‘‘price Monograph 2006) (‘‘[U]nder common Accordingly, the Judges invite discrimination’’ in order to reflect the conditions, firms will adopt price Participants, within the written direct statutory hypothetical marketplace? discrimination as their optimal strategy statements, written rebuttal statements, In Web II, the Judges set forth a for recoupment of common costs. . . . proposed findings of fact and concise and accurate summary of [U]nder competitive conditions, the firm conclusions of law, and through their market circumstances in which price will normally be forced to adopt witnesses and attorneys, as appropriate, discrimination—and therefore multiple discriminatory pricing wherever that is to consider addressing the following prices for the same good or service— feasible. Put another way, uniform questions.3 will arise: pricing is not to be taken as the normal 1. What is the importance, if any, of the A segmented marketplace may have characteristic of equilibrium of the presence of economic variations among multiple equilibrium prices because it has competitive firm.’’) (emphasis in the buyers and sellers? multiple demand curves for the same original). commodity relative to a single supply curve. Web II contains the following . . . In other words, price differentiation or The Judges invite the Participants to observation. price discrimination is a feature of such include in their proffered evidence, markets. The multiple demand curves testimony, and/or arguments a In the hypothetical marketplace we attempt represent distinct classes of buyers and each to replicate, there would be significant consideration of the potential demand curve exhibits a different price applicability or inapplicability of price variations, among both buyers and sellers, in elasticity of demand. . . . Typically, the terms of sophistication, economic resources, submarket characterized by lesser price discrimination within the commercial business exigencies, and myriad other elasticity will exhibit a higher price. All the webcaster segment of the market as factors. economists who testified in this proceeding, well. Web II, 72 FR at 24087 (emphasis for both the Services and the copyright owners generally agreed with this 3. What are the potential disadvantages added). This statement echoed the description. of establishing a statutory royalty rate Librarian’s finding in Webcaster I (Web not based on a per performance royalty I) 4 that a marketplace unconstrained by 72 FR at 24097 (emphasis added); see rate? a statutory license would experience ‘‘a also Web I, 67 FR at 45258 (‘‘economic differences between . . . businesses’’ range of negotiated rates. . . .’’ Web I, Although there are possible would cause a per-performance rate 67 FR at 45244. advantages to the establishment of a appropriate for one type of business ‘‘to If the marketplace indeed would statutory royalty rate based upon a establish multiple rates, the adoption of overstate the market value’’ of a performance for another type of structure other than a per-performance a rate structure consistent with that 5 method, there are potential result might be more realistic than a business). ‘‘[A] seller price discriminates by disadvantages as well. Accordingly, the single per-performance rate. When such charging different prices to buyers when Judges invite the Participants to include, ‘‘significant variations’’ exist, especially the price difference cannot be explained in their proffered evidence, testimony, among ‘‘willing buyers,’’ each buyer by a cost difference in supplying the and/or arguments, information may place a different economic value on copyrighted work.’’ Michael Meurer, regarding any potential disadvantages to a performance. To impose a rate that is Copyright Law and Price modifying or departing from a per- economically appropriate for one such Discrimination, 23 Cardozo L. Rev. 55, willing buyer upon any or all other performance royalty rate. In response to 58 (2001); see also Jean Tirole, The willing buyers might not necessarily this question, the Judges invite the Theory of Industrial Organization 133– satisfy the statutory requirement of Participants to consider the following 34 (1988) (‘‘Price discrimination reflects replicating the marketplace, but rather specific sub-issues. differences in the mark-up of price over might be inconsistent with the rate marginal cost across sales.’’); Harold a. Is it prohibitively difficult to identify structure of an actual market for sound Demsetz, The Private Production of webcaster revenues for the purpose of recordings. Thus, the Judges invite the Public Goods, 13 J. Law & Econ. 293, calculating a percentage-of-revenue Participants to address in their proffered 303–04 (1970) (‘‘There is no single price based royalty rate? evidence, testimony, and/or arguments that can satisfy all equilibrium whether any economic variations among requirements . . . under the condition In Web II, the Judges described the commercial webcasters might affect the that differences in demand prices can be following three areas in which potential selection of an appropriate rate identified at relatively low cost.... problems existed in the percentage-of- structure. [C]ompetitively produced public goods revenue rate proposals presented by the lend themselves to price participants in that proceeding: (1) 3 Nothing in this section should be construed as discrimination.’’); Paul Samuelson, Revenue measurement; (2) revenue a statement by the Judges that any evidence or testimony proffered will be ultimately deemed Aspects of Public Expenditure Theories, definition; and (3) auditing and admissible, competent, relevant, probative, or 40 The Rev. of Econ. & Statistics, 332, enforcement. 72 FR at 24089–90. The dispositive as to any issue, or that the Judges will 336 (1958) (when attempting to price present Judges remain concerned with ultimately consider, accept, or adopt any argument additional copies of public goods with whether those potential problems would made in response to this section. Additionally, nothing in this section should be construed as an marginal costs approximating zero ‘‘the affect any potential use of a percentage- indication that the Judges will consider ultimately easy formulas of classical economics no of-revenue based royalty rate. any of these issues in any determination rendered longer light our way.’’); see generally Accordingly, the Judges invite the by them. Finally, by soliciting information William Baumol, Regulation Misled by regarding these issues, the Judges are not indicating Participants to include, in their that they have reached any preliminary decisions as Misread Theory 6 (AEI-Brookings Joint proffered evidence, testimony, and/or to any of these issues. arguments, a discussion of such 4 Determination of Reasonable Rates and Terms 5 The Judges understand the foregoing statements potential problems and any proposed for the Digital Performance of Sound Recordings in Web I and Web II regarding price discrimination and Ephemeral Recordings, Final rule and order, 67 to explain why rates for noncommercial webcasters means to resolve such problems. FR 45240 (July 8, 2002) (Web I). were lower than rates for commercial webcasters.

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b. Is there an ‘‘intrinsic’’ value to a diminished by different types of ADDRESSES: Participants must submit a performance of a sound recording that marketing practices or contractual Petition to Participate in a hard-copy is omitted if a percentage of revenue relationships. . . . [I]f the base royalty original, with five paper copies and an royalty rate were to be adopted? for a service were a percentage of electronic copy in Portable Document In Web II, the Judges expressed a revenues, the minimum fee might be a Format (PDF) on a Compact Disc, along concern that a percentage-of-revenue flat rate per year (or a flat rate per with the $150 filing fee, to the Copyright based royalty rate would fail to capture subscription per year for a new Royalty Board by either mail or hand subscription service)’’ (emphasis added). the ‘‘intrinsic’’ value of a performance of delivery. Participants may not submit Accordingly, the Judges invite the a sound recording. Id. The Judges in Petitions to Participate and the $150 Participants to include, in their filing fee by an overnight delivery Web IV are interested in the proffered evidence, testimony, and/or Participants’ understanding of the service other than the U.S. Postal arguments, a discussion of the problem Service Express Mail. If participants ‘‘intrinsic’’ value, if any, of a of ‘‘disproportionality’’ between a performance of a sound recording. choose to use the U.S. Postal Service royalty rate based upon a percentage of (including overnight delivery), they Accordingly, the Judges invite the webcaster revenue and the use by Participants to include, in their must address their submissions to: webcasters of sound recordings, Copyright Royalty Board, P.O. Box proffered evidence, testimony, and/or including the details identified supra. arguments, a discussion of their 70977, Washington, DC 20024–0977. If understanding of the ‘‘intrinsic’’ value, Petitions To Participate participants choose hand delivery by a if any, of a performance of a sound Parties with a significant interest must private party, they must deliver the recording, and how it might not be file Petitions to Participate (PTP) in submissions to the Library of Congress, embodied in a royalty rate calculated as accordance with 37 CFR 351.1(b)(1). James Madison Memorial Building, LM– a percentage of webcaster revenue. PTPs must be accompanied by the $150 401, 101 Independence Avenue SE., filing fee in the form of check or money Washington, DC 20559–6000. If c. Would a royalty rate calculated as a participants choose delivery by a percentage of webcasters’ revenue be order payable to the ‘‘Copyright Royalty Board’’; cash will not be accepted. commercial courier, they must deliver ‘‘disproportionate’’ to webcasters’ use of the submissions to the Congressional sound recordings? The Judges will address scheduling and further procedural matters after Courier Acceptance Site, located at 2nd In Web II, the Judges also expressed receiving PTPs. and D Street NE., Washington, DC. The concern regarding whether a disparity Dated: December 20, 2013. envelope must be addressed to: could arise between a royalty rate Copyright Royalty Board, Library of Suzanne M. Barnett, calculated as a percentage of webcaster Congress, James Madison Memorial royalty and webcaster use of sound Chief Copyright Royalty Judge. Building, LM–403, 101 Independence recordings. Id. The present Judges share [FR Doc. 2013–30916 Filed 1–2–14; 8:45 am] Avenue SE., Washington, DC 20559– that concern. BILLING CODE 1410–72–P 6000. Specifically, the Judges inquire whether ‘‘disproportionality’’ could FOR FURTHER INFORMATION CONTACT: arise if some webcasters declined to LIBRARY OF CONGRESS LaKeshia Keys, CRB Program Specialist, by telephone at (202) 707–7658 or email attempt to maximize profits, and instead Copyright Royalty Board attempted to maximize market share. at [email protected]. [14–CRB–0001–WR (2016–2020)] Licensors then would suffer the SUPPLEMENTARY INFORMATION: ‘‘opportunity cost’’ of foregone revenues. Cf. William Baumol, The Free Determination of Royalty Rates for Background Market Innovation Machine 221 (2002) Digital Performance in Sound (licensors must consider not only the Recordings and Ephemeral Section 804(b)(3)(A) of the Copyright marginal dollar cost, but also the Recordings (Web IV) Act, title 17 of the United States Code, requires the Copyright Royalty Judges ‘‘opportunity cost’’ of granting a AGENCY: Copyright Royalty Board, licensing to a given licensee). As noted Library of Congress. (Judges) to commence a proceeding to determine the rates and terms for public by one of SoundExchange’s economic ACTION: Notice announcing performances of sound recordings by experts during the proceedings in Web commencement of proceeding with means of an eligible nonsubscription III, Dr. Janusz Ordover, both of these request for Petitions to Participate. reactions—profit maximization and transmission and transmissions made by market share maximization—would be SUMMARY: The Copyright Royalty Judges a new subscription service, under 17 possible outcomes. Ordover WRT at announce the commencement of the U.S.C. 114, and the making of an ¶¶ 25–26. proceeding to determine reasonable ephemeral recording in furtherance of The Judges also seek evidence, rates and terms for two statutory making a permitted public performance testimony and argument on whether this licenses permitting certain digital of the sound recording, under 17 U.S.C. risk could be mitigated by combining a performances of sound recordings and 112, every five years. Section percentage-of-revenue based royalty rate the making of ephemeral recordings for 803(b)(1)(A)(i)(III) of the Copyright Act with a significant minimum fee. See the period beginning January 1, 2016, requires the Judges to publish in the H.R. Rep. No. 105–796, at 85–86 (1998) and ending on December 31, 2020. A Federal Register a notice of (Conf. Rep.) (‘‘A minimum fee should party wishing to participate in this rate commencement for a proceeding to ensure that copyright owners are fairly determination proceeding must file its determine rates and terms for the compensated in the event that other Petition to Participate and the section 114 and 112 statutory licenses methodologies for setting rates might accompanying $150 filing fee by the ‘‘by no later than January 5 of a year deny copyright owners an adequate deadline in this notice. specified in [section 804(b)(3)(A)].’’ The royalty. For example . . . a minimum DATES: Petitions to Participate and the Judges commenced the proceeding to fee [should be set] that guarantees that filing fee are due no later than February determine the rates and terms for the a reasonable royalty rate is not 3, 2014. section 114 and 112 licenses for the

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term 2011–2015 on January 5, 2009.1 See (emphasis added). Thus, the Judges are among ‘‘willing buyers,’’ each buyer 74 FR 318. Thus, in accordance with best served if the participants, their may place a different economic value on sections 803(b)(1)(A)(i)(III) and economic witnesses, and their counsel a performance. To impose a rate that is 804(b)(3)(A) of the Copyright Act, the craft arguments in a manner that assists economically appropriate for one such Judges must commence the proceeding the Judges in identifying and applying willing buyer upon any or all other to determine the rates and terms for the the optimal economic analysis when willing buyers might not necessarily period January 1, 2016, through establishing rates and terms pursuant to satisfy the statutory requirement of December 31, 2020, by publishing in the the Act. As a former federal appellate replicating the marketplace, but rather Federal Register a notice of jurist has noted: might be inconsistent with the rate commencement by no later than January The truism that judicial analysis, economic structure of an actual market for sound 5, 2014. Today’s notice fulfills this or otherwise, takes place only in the context recordings. Thus, the Judges invite the obligation. of lawsuits between two or more parties Participants to address in their proffered Scope of Proceeding imposes a practical constraint on the judge’s evidence, testimony, and/or arguments ability to use economic analysis.... [A] whether any economic variations among In addition to all other submissions judge will, for the most part, be limited by commercial webcasters might affect the and arguments required by the Act and what the parties serve up to her. selection of an appropriate rate the applicable regulations, and in Patricia Wald, Limits on the Use of structure. addition to any other submissions or Economic Analysis in Judicial arguments that the Participants choose Decisionmaking, 50 Duke J.L. & 2. Should royalty rates embody any to make, the Judges note below certain Contemp. Prob. 225, 228 (1987). form of economic ‘‘price potential matters that the Participants Accordingly, the Judges invite discrimination’’ in order to reflect the may elect to address in this proceeding. Participants, within the written direct statutory hypothetical marketplace? The Judges are open to receiving statements, written rebuttal statements, In Web II, the Judges set forth a evidence, testimony, and argument proposed findings of fact and concise and accurate summary of regarding any reasonable rate structure conclusions of law, and through their market circumstances in which price that a Participant may elect to propose, witnesses and attorneys, as appropriate, discrimination—and therefore multiple such as, inter alia, a rate structure based to consider addressing the following prices for the same good or service— on the number of subscribers or a questions.3 will arise: percentage of webcaster revenue. This openness is consistent with the 1. What is the importance, if any, of the A segmented marketplace may have determination in Web II, 72 FR at presence of economic variations among multiple equilibrium prices because it has multiple demand curves for the same 2 buyers and sellers? 24089, in which the Judges held that, commodity relative to a single supply curve. although the record did not support a Web II contains the following . . . In other words, price differentiation or percentage-of-revenue based royalty, observation. price discrimination is a feature of such ‘‘[t]his does not mean that some In the hypothetical marketplace we attempt markets. The multiple demand curves revenue-based metric could not be to replicate, there would be significant represent distinct classes of buyers and each successfully developed as a proxy for variations, among both buyers and sellers, in demand curve exhibits a different price the usage-based metric at some time in terms of sophistication, economic resources, elasticity of demand. . . . Typically, the the future. . . .’’ The Judges make business exigencies, and myriad other submarket characterized by lesser price particular note of this holding in Web II factors. elasticity will exhibit a higher price. All the because they recognize that, as a economists who testified in this proceeding, Web II, 72 FR at 24087 (emphasis for both the Services and the copyright practical and strategic matter, added). This statement echoed the owners generally agreed with this participants in these proceedings Librarian’s finding in Webcaster I (Web description. carefully consider prior rate proceedings I) 4 that a marketplace unconstrained by as roadmaps to ascertain the structure of 72 FR at 24097 (emphasis added); see a statutory license would experience ‘‘a also Web I, 67 FR at 45258 (‘‘economic the rates they propose. range of negotiated rates. . . .’’ Web I, Pursuant to 17 U.S.C. 114(f)(2)(B), differences between . . . businesses’’ 67 FR at 45244. would cause a per-performance rate ‘‘[i]n determining . . . rates and terms If the marketplace indeed would the Copyright Royalty Judges shall base appropriate for one type of business ‘‘to establish multiple rates, the adoption of overstate the market value’’ of a their decision on . . . information a rate structure consistent with that presented by the parties. . . .’’ performance for another type of result might be more realistic than a business).5 single per-performance rate. When such 1 The Judges announced their final determination ‘‘[A] seller price discriminates by for the rates and terms for the 2011–2015 license ‘‘significant variations’’ exist, especially charging different prices to buyers when period on March 9, 2011. See 76 FR 13026. A the price difference cannot be explained participant appealed the final determination in the 3 Nothing in this section should be construed as by a cost difference in supplying the United States Court of Appeals for the District of a statement by the Judges that any evidence or Columbia Circuit (D.C. Circuit) asserting that the testimony proffered will be ultimately deemed copyrighted work.’’ Michael Meurer, Judges’ appointments violated the Appointments admissible, competent, relevant, probative, or Copyright Law and Price Clause, U.S. Const., article II, section 2, clause 2. dispositive as to any issue, or that the Judges will Discrimination, 23 Cardozo L. Rev. 55, The D.C. Circuit agreed and remanded the ultimately consider, accept, or adopt any argument 58 (2001); see also Jean Tirole, The determination to the Judges. Intercollegiate Broad. made in response to this section. Additionally, Sys. v. Copyright Royalty Bd., 684 F.3d 1332 (D.C. nothing in this section should be construed as an Theory of Industrial Organization 133– Cir. 2012). The Judges are in the midst of their de indication that the Judges will consider ultimately 34 (1988) (‘‘Price discrimination reflects novo review of the record on remand. See Order any of these issues in any determination rendered differences in the mark-up of price over Following Notice of Intention to Conduct Paper by them. Finally, by soliciting information marginal cost across sales.’’); Harold Proceeding on Remand, Docket No. 2009–1 CRB regarding these issues, the Judges are not indicating Webcasting III (Oct. 22, 2013). that they have reached any preliminary decisions as Demsetz, The Private Production of 2 Digital Performance Right in Sound Recordings to any of these issues. and Ephemeral Recordings, Final rule and order, 72 4 Determination of Reasonable Rates and Terms 5 The Judges understand the foregoing statements FR 24084 (May 1, 2007), aff’d in relevant part sub for the Digital Performance of Sound Recordings in Web I and Web II regarding price discrimination nom. Intercollegiate Broad. Sys. v. Copyright and Ephemeral Recordings, Final rule and order, 67 to explain why rates for noncommercial webcasters Royalty Bd., 574 F.3d 748 (D.C. Cir. 2009) (Web II). FR 45240 (July 8, 2002) (Web I). were lower than rates for commercial webcasters.

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Public Goods, 13 J. Law & Econ. 293, Revenue measurement; (2) revenue The Judges also seek evidence, 303–04 (1970) (‘‘There is no single price definition; and (3) auditing and testimony and argument on whether this that can satisfy all equilibrium enforcement. 72 FR at 24089–90. The risk could be mitigated by combining a requirements . . . under the condition present Judges remain concerned with percentage-of-revenue based royalty rate that differences in demand prices can be whether those potential problems would with a significant minimum fee. See identified at relatively low cost. . . . affect any potential use of a percentage- H.R. Rep. No. 105–796, at 85–86 (1998) [C]ompetitively produced public goods of-revenue based royalty rate. (Conf. Rep.) (‘‘A minimum fee should lend themselves to price Accordingly, the Judges invite the ensure that copyright owners are fairly discrimination.’’); Paul Samuelson, Participants to include, in their compensated in the event that other Aspects of Public Expenditure Theories, proffered evidence, testimony, and/or methodologies for setting rates might 40 The Rev. of Econ. & Statistics, 332, arguments, a discussion of such deny copyright owners an adequate 336 (1958) (when attempting to price potential problems and any proposed royalty. For example . . . a minimum additional copies of public goods with means to resolve such problems. fee [should be set] that guarantees that marginal costs approximating zero ‘‘the a reasonable royalty rate is not b. Is there an ‘‘intrinsic’’ value to a easy formulas of classical economics no diminished by different types of performance of a sound recording that is longer light our way.’’); see generally marketing practices or contractual omitted if a percentage of revenue William Baumol, Regulation Misled by relationships. . . . [I]f the base royalty royalty rate were to be adopted? Misread Theory 6 (AEI-Brookings Joint for a service were a percentage of Center Distinguished Lecture Award In Web II, the Judges expressed a revenues, the minimum fee might be a Monograph 2006) (‘‘[U]nder common concern that a percentage-of-revenue flat rate per year (or a flat rate per conditions, firms will adopt price based royalty rate would fail to capture subscription per year for a new discrimination as their optimal strategy the ‘‘intrinsic’’ value of a performance of subscription service’’) (emphasis added). for recoupment of common costs. . . . a sound recording. Id. The Judges in Accordingly, the Judges invite the [U]nder competitive conditions, the firm Web IV are interested in the Participants to include, in their will normally be forced to adopt Participants’ understanding of the proffered evidence, testimony, and/or discriminatory pricing wherever that is ‘‘intrinsic’’ value, if any, of a arguments, a discussion of the problem feasible. Put another way, uniform performance of a sound recording. of ‘‘disproportionality’’ between a pricing is not to be taken as the normal Accordingly, the Judges invite the royalty rate based upon a percentage of characteristic of equilibrium of the Participants to include, in their webcaster revenue and the use by competitive firm.’’) (emphasis in the proffered evidence, testimony, and/or webcasters of sound recordings, original). arguments, a discussion of their including the details identified supra. The Judges invite the Participants to understanding of the ‘‘intrinsic’’ value, include in their proffered evidence, Petitions To Participate if any, of a performance of a sound testimony, and/or arguments a recording, and how it might not be Parties with a significant interest must consideration of the potential embodied in a royalty rate calculated as file Petitions to Participate (PTP) in applicability or inapplicability of price a percentage of webcaster revenue. accordance with 37 CFR 351.1(b)(1). discrimination within the commercial PTPs must be accompanied by the $150 webcaster segment of the market as c. Would a royalty rate calculated as a filing fee in the form of check or money well. percentage of webcasters’ revenue be order payable to ‘‘Copyright Royalty ‘‘disproportionate’’ to webcasters’ use of 3. What are the potential disadvantages Board;’’ cash will not be accepted. sound recordings? of establishing a statutory royalty rate The Judges will address scheduling not based on a per performance royalty In Web II, the Judges also expressed and further procedural matters after rate? concern regarding whether a disparity receiving PTPs. Although there are possible could arise between a royalty rate Dated: December 20, 2013. advantages to the establishment of a calculated as a percentage of webcaster Suzanne M. Barnett, statutory royalty rate based upon a royalty and webcaster use of sound Chief Copyright Royalty Judge. recordings. Id. The present Judges share structure other than a per-performance [FR Doc. 2013–30917 Filed 1–2–14; 8:45 am] that concern. method, there are potential BILLING CODE 1410–72–P disadvantages as well. Accordingly, the Specifically, the Judges inquire Judges invite the Participants to include, whether ‘‘disproportionality’’ could in their proffered evidence, testimony, arise if some webcasters declined to POSTAL REGULATORY COMMISSION and/or arguments, information attempt to maximize profits, and instead attempted to maximize market share. regarding any potential disadvantages to [Docket No. CP2014–21; Order No. 1929] modifying or departing from a per- Licensors then would suffer the performance royalty rate. In response to ‘‘opportunity cost’’ of foregone New Postal Product this question, the Judges invite the revenues. Cf. William Baumol, The Free Participants to consider the following Market Innovation Machine 221 (2002) AGENCY: Postal Regulatory Commission. specific sub-issues. (licensors must consider not only the ACTION: Notice. marginal dollar cost, but also the a. Is it prohibitively difficult to identify ‘‘opportunity cost’’ of granting a SUMMARY: The Commission is noticing a webcaster revenues for the purpose of licensing to a given licensee). As noted recent Postal Service filing concerning a calculating a percentage-of-revenue by one of SoundExchange’s economic contract with Hongkong Post for the based royalty rate? experts during the proceedings in Web delivery of inbound Air CP. This notice In Web II, the Judges described the III, Dr. Janusz Ordover, both of these informs the public of the filing, invites following three areas in which potential reactions—profit maximization and public comment, and takes other problems existed in the percentage-of- market share maximization—would be administrative steps. revenue rate proposals presented by the possible outcomes. Ordover WRT at DATES: Comments are due: January 3, participants in that proceeding: (1) ¶¶ 25–26. 2014.

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ADDRESSES: Submit comments Agreement as the baseline agreement for interests of the general public in this electronically via the Commission’s purposes of determining functional proceeding. Filing Online system at http:// equivalence.4 Notice at 2. It asserts that 3. Comments are due no later than www.prc.gov. Those who cannot submit the Agreement fits within applicable January 3, 2014. comments electronically should contact Mail Classification Schedule language 4. The Secretary shall arrange for the person identified in the FOR FURTHER included in Governors’ Decision No. publication of this order in the Federal INFORMATION CONTACT section by 10–3. See id. at 3, Attachment 3. The Register. telephone for advice on filing Postal Service identifies differences By the Commission. alternatives. between the Agreement and the 2013– Shoshana M. Grove, 2014 Hongkong Post Agreement, such as FOR FURTHER INFORMATION CONTACT: Secretary. revisions to existing articles and Annex Stephen L. Sharfman, General Counsel, [FR Doc. 2013–31441 Filed 1–2–14; 8:45 am] at 202–789–6820. 1, but asserts that these differences do BILLING CODE 7710–FW–P SUPPLEMENTARY INFORMATION: not detract from a finding of functional equivalency.5 Id. at 4–5. In addition, it Table of Contents states that both agreements incorporate RAILROAD RETIREMENT BOARD I. Introduction the same cost attributes and methodology, thereby making the II. The Postal Service’s Filings Proposed Collection; Comment III. Commission Action relevant cost and market characteristics IV. Ordering Paragraphs the same. Id. at 5. Request I. Introduction III. Commission Action Summary: In accordance with the requirement of Section 3506 (c)(2)(A) of On December 26, 2013, the Postal Notice of establishment of docket. The the Paperwork Reduction Act of 1995 Service filed Notice, pursuant to 39 CFR Commission establishes Docket No. which provides opportunity for public 3015.5, that it has entered into a CP2014–21 for consideration of matters comment on new or revised data successor negotiated service agreement raised by the Notice. The Commission collections, the Railroad Retirement (Agreement) with Hong Kong’s foreign appoints Cassie D’Souza to serve as Board (RRB) will publish periodic postal operator, Hongkong Post.1 Public Representative in this docket. The Postal Service seeks to have the summaries of proposed data collections. Interested persons may submit Comments are invited on: (a) Whether inbound portion of the Agreement, comments on whether the Postal which concerns delivery of inbound Air the proposed information collection is Service’s filing in the above-captioned necessary for the proper performance of CP in the United States, included within docket is consistent with the policies of the Inbound Competitive Multi-Service the functions of the agency, including 39 U.S.C. 3632, 3633, and 3642 and the whether the information has practical Agreements with Foreign Postal requirements of 39 CFR parts 3015 and Operators 1 (MC2010–34) product on utility; (b) the accuracy of the RRB’s 3020. Comments are due no later than estimate of the burden of the collection the competitive product list. Notice at January 3, 2014. The public portions of 1, 3. of the information; (c) ways to enhance this filing can be accessed via the the quality, utility, and clarity of the II. Contents of Filing Commission’s Web site (http:// information to be collected; and (d) www.prc.gov). Information on obtaining The Postal Service’s filing consists of ways to minimize the burden related to access to sealed material appears in 39 the Notice, financial workpapers, and the collection of information on CFR part 3007. four attachments.2 Attachment 1 is a respondents, including the use of copy of the Agreement. Attachment 2 is IV. Ordering Paragraphs automated collection techniques or the certified statement required by 39 other forms of information technology. It is ordered: 1. Title and purpose of information CFR 3015.5(c)(2). Attachment 3 is a 1. The Commission establishes Docket copy of Governors’ Decision No. 10–3. collection: Application and Claim for No. CP2014–21 for consideration of Unemployment Benefits and Attachment 4 is an application for non- matters raised by the Postal Service’s public treatment of materials filed under Employment Service; OMB 3220–0022. Notice. Section 2 of the Railroad seal. 2. Pursuant to 39 U.S.C. 505, Cassie The Agreement’s intended effective Unemployment Insurance Act (RUIA), D’Souza is appointed to serve as an date is March 1, 2014. Id. at 3. The provides unemployment benefits for officer of the Commission (Public Agreement is set to expire one year after qualified railroad employees. These Representative) to represent the the effective date, subject to termination benefits are generally payable for each pursuant to contractual terms. Id. day of unemployment in excess of four The Postal Service states that the 4 The Postal Services notes that using the during a registration period (normally a predecessor Hongkong Post Agreement as the Agreement is the successor to the 2013– baseline for comparison of agreements for the period of 14 days). 2014 Hongkong Post Agreement purpose of determining functional equivalence is Section 12 of the RUIA provides that approved in Order No. 1580.3 It also consistent with the Postal Service’s proposal that the RRB establish, maintain and operate identifies the 2013–2014 Hongkong Post was submitted in its Motion for Partial free employment facilities directed Reconsideration of Order No. 1864 in Docket No. R2013–9. Notice at 2. See also Docket No. toward the reemployment of railroad 1 Notice of United States Postal Service of Filing R2013–9, Order No. 1864, Order Approving an employees. The procedures for applying Functionally Equivalent Inbound Competitive Additional Inbound Market Dominant Multi- for the unemployment benefits and Multi-Service Agreement with a Foreign Postal Service Agreement with Foreign Postal Operators 1 employment service and for registering Operator, December 26, 2013 (Notice). Negotiated Service Agreement (with Korea Post), 2 The financial workpapers and Attachments 1 October 30, 2013, at 7–8; Docket No. R2013–9, and claiming the benefits are prescribed and 3 were filed in redacted and unredacted Motion for Partial Reconsideration of Order No. in 20 CFR 325. versions. 1864, November 6, 2013. The RRB utilizes the following forms 3 Notice at 2; Docket No. CP2013–22, Order 5 See, e.g., in Article 13, revisions to procedures to collect the information necessary to Approving an Additional Inbound Competitive related to filings in the regulatory process; in Multi-Service Agreement With Foreign Operators Article 15, the Postal Service’s contact information; pay unemployment benefits. Form UI–1 Negotiated Service Agreement (with Hongkong and in Article 22, the Agreement’s effective date. (or its Internet equivalent, Form UI–1 Post), December 17, 2012 (Order No. 1580). Notice, Attachment 1 at 4, 5, 6. (Internet)), Application for

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Unemployment Benefits and The RRB also utilizes Form UI–3 (or Completion of Forms UI–1, UI–1 Employment Service, is completed by a its Internet equivalent Form UI–3 (Internet), UI–3, and UI–3 (Internet) is claimant for unemployment benefits (Internet)) Claim for Unemployment required to obtain or retain benefits. The once in a benefit year, at the time of first Benefits, for use in claiming number of responses required of each registration. Completion of Form UI–1 unemployment benefits for days of claimant varies, depending on their or UI–1 (Internet) also registers an unemployment in a particular period of unemployment. The RRB unemployment claimant for the RRB’s registration period, normally a period of proposes no changes to the forms in this employment service. 14 days. information collection.

ESTIMATE OF ANNUAL RESPONDENT BURDEN [The estimated annual respondent burden is as follows]

Annual Time Burden Form No. responses (minutes) (hours)

UI–1 ...... 6,817 10 1,136 UI–1 (Internet) ...... 3,490 10 582 UI–3 ...... 51,996 6 5,200 UI–3 (Internet) ...... 36,286 6 3,629

Total ...... 98,589 ...... 10,547

2. Title and purpose of information written accounting of benefit payments more detailed information from a collection: Representative Payee received, are prescribed in 20 CFR representative payee who fails to Monitoring; OMB 3220–0151. 266.7. The RRB utilizes the following complete and return Form G–99a or in Under Section 12 of the Railroad forms to conduct its representative situations when the returned Form G– Retirement Act (RRA), the RRB may pay payee monitoring program. 99a indicates the possible misuse of annuity benefits to a representative Form G–99a, Representative Payee funds by the representative payee. Form payee when an employee, spouse, or Report, is used to obtain information G–99c contains specific questions survivor annuitant is incompetent or a needed to determine whether the benefit concerning the representative payee’s minor. The RRB is responsible for payments certified to the representative performance and is used by the RRB to determining if direct payment to an payee have been used for the determine whether or not the annuitant or a representative payee annuitant’s current maintenance and would best serve the annuitant’s best personal needs and whether the representative payee should continue in interest. The accountability representative payee continues to be that capacity. Completion of the forms requirements authorizing the RRB to concerned with the annuitant’s welfare. in this collection is required to retain conduct periodic monitoring of RRB Form G–99c, Representative Payee benefits. The RRB proposes minor representative payees, including a Evaluation Report, is used to obtain editorial changes to both forms.

ESTIMATE OF ANNUAL RESPONDENT BURDEN [The estimated anual respondent burden is as follows]

Annual Time Burden Form No. responses (minutes) (hours)

G–99a (legal and all other, excepting parent for child) ...... 5,400 18 1,620 G–99c (Parts I and II) ...... 300 24 120 G–99c (Parts I, II, and III) ...... 120 31 62

Total ...... 5,820 ...... 1,802

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Additional Information or Comments: II. Description of the Proposal Disclosures that are permanently made To request more information or to FINRA established BrokerCheck in publicly available in BrokerCheck to obtain a copy of the information 1988 (then known as the Public include information about former collection justification, forms, and/or Disclosure Program) to provide the associated persons of a member who supporting material, contact Dana public with information on the were registered on or after August 16, 5 Hickman at (312) 751–4981 or professional background, business 1999 and who have been the subject of [email protected]. Comments practices, and conduct of FINRA an investment-related civil action regarding the information collection member firms and their associated brought by a state or foreign financial should be addressed to Charles persons. The information that FINRA regulatory authority that was dismissed Mierzwa, Railroad Retirement Board, releases to the public through pursuant to a settlement agreement, as 844 North Rush Street, Chicago, Illinois BrokerCheck is derived from the Central reported to the CRD system via a 6 60611–2092 or emailed to Registration Depository (‘‘CRD ®’’), uniform registration form. This [email protected]. Written which is the securities industry online information is currently available in comments should be received within 60 registration and licensing database. BrokerCheck for ten years from the date days of this notice. FINRA member firms, their associated an individual ceases to be associated persons and regulators report with a member. FINRA believes that Charles Mierzwa, these settled civil actions should be Chief of Information Resources Management. information to the CRD system via the uniform registration forms. By making available permanently in BrokerCheck [FR Doc. 2013–31439 Filed 1–2–14; 8:45 am] certain of this information publicly because they may involve significant BILLING CODE 7905–01–P available, BrokerCheck, among other events or considerable undertakings on things, helps investors make informed the part of the subject individual. For choices about the individuals and firms example, FINRA noted that one civil SECURITIES AND EXCHANGE with which they conduct business. action involving excessive and COMMISSION Pursuant to Rule 8312(b)(1), FINRA undisclosed markups was settled for [Release No. 34–71196; File No. SR–FINRA– releases to the public through over $200,000. As such, FINRA stated 2013–048] BrokerCheck information on current or that the proposed rule change would former members, current associated provide the public with access to such Self-Regulatory Organizations; persons, and persons who were relevant and important information Financial Industry Regulatory associated with a member within the about formerly registered persons who, Authority, Inc.; Order Approving a preceding ten years. Under Rule although no longer in the securities Proposed Rule Change To Amend 8312(c)(1), FINRA currently makes industry in a registered capacity, may FINRA Rule 8312 (FINRA BrokerCheck publicly available in BrokerCheck on a work in other investment-related Disclosure) To Expand the Categories permanent basis information about industries or may seek to attain other of Civil Judicial Disclosures former associated persons of a member positions of trust with potential Permanently Included in BrokerCheck who have not been associated with a investors and about whom investors member within the preceding ten years, may wish to learn relevant information.7 December 27, 2013. and (A) were ever the subject of a final I. Introduction regulatory action, or (B) were registered 5 The proposal will apply only to those individuals registered with FINRA on or after On November 1, 2013, the Financial on or after August 16, 1999 and were (i) August 16, 1999. FINRA stated that filings for those Industry Regulatory Authority, Inc. convicted of or pled guilty or nolo individuals whose registrations terminated prior to (‘‘FINRA’’) filed with the Securities and contendere to a crime; (ii) the subject of August 16, 1999 were not made electronically so a civil injunction in connection with BrokerCheck reports for such firms and individuals Exchange Commission (‘‘Commission’’), cannot be made in an automated fashion. pursuant to Section 19(b)(1) of the investment-related activity or a civil Furthermore, FINRA stated that data limitations Securities Exchange Act of 1934 court finding of involvement in a apply to the information available for some of those (‘‘Act’’),1 and Rule 19b–4 thereunder,2 a violation of any investment-related individuals. See Notice, supra note 3. 6 This information is currently elicited by proposed rule change to amend FINRA statute or regulation (‘‘Civil Judicial Disclosures’’); or (iii) named as a Question 14H(1)(c) on Form U4 (Uniform Rule 8312 (FINRA BrokerCheck Application for Securities Industry Registration or Disclosure) to permanently make respondent or defendant in an Transfer). publicly available in BrokerCheck investment-related arbitration or civil 7 In January 2011, Commission staff released a litigation which alleged that the person Study and Recommendations on Improved Investor information about former associated Access to Registration Information About persons of a member firm who have was involved in a sales practice violation and which resulted in an Investment Advisers and Broker-Dealers (‘‘Study’’), been the subject of an investment- in furtherance of Section 919B of the Dodd-Frank arbitration award or civil judgment related civil action brought by a state or Act. The Study is available online at http:// against the person. foreign financial regulatory authority www.sec.gov/news/studies/2011/919bstudy.pdf. The proposed rule change would The Study contains four recommendations for that has been dismissed pursuant to a amend Rule 8312(c)(1)(B)(ii) to expand improving investor access to registration settlement agreement. The proposal was information through BrokerCheck. FINRA stated the categories of Civil Judicial published for comment in the Federal that it implemented three of these 3 recommendations in May 2012, which are to (i) Register on November 20, 2013. The Student Interns, and Elissa Germaine, Supervising unify search returns for BrokerCheck and the Commission received four comments on Attorney, Pace Investor Rights Clinic, Pace Investment Adviser Public Disclosure (IAPD) the proposal.4 This order approves the University School of Law, dated December 9, 2013 database, (ii) add the ability to search BrokerCheck proposed rule change. (‘‘Pace letter’’); Jason Doss, President, Public by zip code, and (iii) increase the educational Investors Arbitration Bar Association, dated content on BrokerCheck. FINRA stated that it is December 9, 2013 (‘‘PIABA letter’’); David T. currently working on the Study’s fourth 1 15 U.S.C. 78s(b)(1). Bellaire, Executive Vice President and General recommendation, which is to analyze the feasibility 2 17 CFR 240.19b–4. Counsel, Financial Services Institute, dated and advisability of expanding information available 3 See Securities Exchange Act Release No. 70876 December 11, 2013 (‘‘FSI letter’’); and Andrea Seidt, through BrokerCheck, as well as the method and (November 14, 2013), 78 FR 69728 (November 20, North American Securities Administrators format in which BrokerCheck information is 2013) (‘‘Notice’’). Association, Inc., President and Ohio Securities displayed. FINRA stated that, in light of this 4 See letters to Elizabeth M. Murphy, Secretary, Commissioner, dated December 13, 2013 (‘‘NASAA recommendation, FINRA initiated a review of Commission, from: Sneha Parmar and Jeffrey Peters, letter’’). Continued

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III. Summary of Comments inaccurate or not accurately presented, of the Act,16 which require, among other The Commission received four he can initiate a dispute with FINRA to things, FINRA to maintain a toll-free comment letters on the proposed rule update, modify, or delete that telephone listing and a readily change.8 Three comments support the information pursuant to FINRA Rule accessible electronic or other process to proposal.9 One of these commenters 8312(e). receive and promptly respond to suggests FINRA should go further and IV. Discussion and Commission inquiries regarding registration include in BrokerCheck all information Findings information on members and their that is available on CRD reports absent associated persons. The proposed rule After carefully reviewing the a compelling reason to do otherwise.10 proposed rule change and the comment change would allow FINRA, in response The commenter suggests, for example, letters, the Commission finds that the to inquiries via BrokerCheck, to make that BrokerCheck should include proposal is consistent with the available certain information about information regarding an associated requirements of the Act and the rules persons formerly associated with person’s educational background, and regulations thereunder applicable to members who were the subject of an continuing education history, CRD filing a national securities association.14 In investment-related civil action brought history, and reasons for and comments particular, the Commission finds that by a state or foreign financial regulatory related to a person’s termination, among 11 the proposal is consistent with Section authority that has been dismissed other things. 15 One commenter states that it is 15A(b)(6) of the Act, which requires, pursuant to a settlement agreement on a concerned that the proposal may lead to among other things, that FINRA’s rules permanent basis, rather than for ten individuals uninvolved in the alleged be designed to prevent fraudulent and years from the date an individual ceases violations that were dismissed pursuant manipulative acts and practices, to association with a member. promote just and equitable principles of to a settlement agreement having a Finally, as stated in the past, the trade, to remove impediments to and permanent record on BrokerCheck when Commission believes that FINRA should perfect the mechanism of a free and no such violation actually occurred.12 continuously strive to improve For example, this commenter states that open market and a national market system, and, in general, to protect BrokerCheck, reviewing what additional the proposed rule may capture information could be disclosed, such as individuals who were named in the investors and the public interest. Specifically, the Commission believes the additional information that NASAA regulatory action but did not have the that the proposal to permanently make suggested in its comment letter, because opportunity to be dismissed from the publicly available in BrokerCheck BrokerCheck is a valuable tool for the litigation due to the settlement information about persons formerly public to use in deciding whether to agreement.13 While the Commission associated with a member who have work with a firm or an industry appreciates this commenter’s concerns, been the subject of an investment- 17 The Commission believes the Commission notes that the member. related civil action brought by a state or information that is the subject of this that this proposed rule change will foreign financial regulatory authority proposed rule change (i.e., an enhance BrokerCheck by including that was dismissed pursuant to a investment related civil action brought information that should prove useful settlement agreement may help deter by a state or foreign financial regulatory and beneficial to investors and the fraudulent and manipulative conduct authority that was dismissed pursuant general public. and enhance investor protection by to a settlement agreement) is already expanding the time frame for disclosure V. Conclusion provided via BrokerCheck for current of this important information to members as well as persons who have investors and other users of It is therefore ordered, pursuant to been associated with a member within 18 BrokerCheck. Such formerly registered Section 19(b)(2) of the Act, that the the preceding ten years, and that this persons, although no longer in the proposed rule change (SR–FINRA– proposal simply expands the disclosure securities industry in a registered 2013–048), be, and hereby is, approved. to make this information permanently capacity, may work in other investment- available. Furthermore, to the extent a For the Commission, by the Division of related industries or may seek to attain current or formerly associated person Trading and Markets, pursuant to delegated other positions of trust with potential 19 believes that the information disclosed authority. investors. The Commission believes that Lynn M. Powalski, through BrokerCheck relating to him is it is beneficial to investors and other users of BrokerCheck to have access to Deputy Secretary. BrokerCheck and issued Regulatory Notice 12–10 [FR Doc. 2013–31421 Filed 1–2–14; 8:45 am] requesting comment on ways to facilitate and this information on a permanent basis. increase investor use of BrokerCheck. See The Commission urges the public to BILLING CODE 8011–01–P Regulatory Notice 12–10 (February 2012) available utilize BrokerCheck as well as all other online at http://www.finra.org/web/groups/ sources of information, particularly the industry/@ip/@reg/@notice/documents/notices/ p125621.pdf. In addition, FINRA stated that it databases of the state regulators, as well engaged a market research consultant that as legal search engines, and records conducted focus groups and surveyed investors searches, in conducting a thorough throughout the country to obtain their opinions on search of a firm or any associated person the BrokerCheck program. FINRA stated that it filed with whom they are considering doing this proposed rule change based on this evaluation, and that it continues to consider other comments business. regarding changes to BrokerCheck that were The Commission believes that the submitted in response to Regulatory Notice 12–10. proposed rule change is also consistent 16 See Notice, supra note 3. with the provisions of Section 15A(i)(1) 15 U.S.C. 78o–3(i)(1). 8 See supra, note 4. 17 See, e.g., Securities Exchange Act Release Nos. 9 See Pace, PIABA, and NASAA letters. 59916 (May 13, 2009), 74 FR 23750 (May 20, 2009) 14 In approving this proposed rule change, the 10 and 62476 (July 8, 2010), 75 FR 41254 (July 15, See NASAA letter. Commission has considered the proposed rule’s 11 Id. at 2. impact on efficiency, competition, and capital 2010). 12 See FSI Letter. formation. See 15 U.S.C. 78c(f). 18 15 U.S.C. 78s(b)(2). 13 Id. 15 15 U.S.C. 78o–3(b)(6). 19 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE securities exchange that uses the CRD members and their associated persons COMMISSION system to register its members and their would be the same as the information associated persons (‘‘CRD Exchange’’).7 disclosed about FINRA members and [Release No. 34–71195; File No. SR–FINRA– BrokerCheck provides the public with their associated persons pursuant to 2013–047] information on the professional FINRA Rule 8312. CRD Exchange Self-Regulatory Organizations; background, business practices, and members and their associated persons Financial Industry Regulatory conduct of FINRA member firms and would be able to dispute inaccuracies in Authority, Inc.; Order Approving a their associated persons. The their BrokerCheck reports as provided Proposed Rule Change To Amend information that FINRA releases to the for in FINRA Rule 8312(e).10 public through BrokerCheck is derived FINRA Rule 8312 (FINRA BrokerCheck Summary of Comments Disclosure) To Include Information from the CRD system, the securities The Commission received two About the Member Firms and Their industry online registration and comment letters on the proposed rule Associated Persons of Any Registered licensing database. FINRA member change.11 Both comments support the National Securities Exchange That firms, their associated persons, and proposal. One commenter states ‘‘The Uses the CRD System for Registration regulators report information to the CRD significance of increasing public Purposes system via the uniform registration forms. By making certain of this customers’ awareness and access to December 27, 2013. information publicly available, background information about the BrokerCheck, among other things, helps member and/or associated person I. Introduction investors make informed choices about handling or potentially handling their On November 1, 2013, the Financial the FINRA member firms and their account cannot be understated.’’ 12 The Industry Regulatory Authority, Inc. associated persons with which they commenter suggests FINRA should (‘‘FINRA’’) filed with the Securities and conduct business. BrokerCheck allows include in BrokerCheck all information Exchange Commission (‘‘Commission’’), investors and others to obtain that is available on CRD reports from pursuant to Section 19(b)(1) of the registration information about FINRA state regulators, eliminate time Securities Exchange Act of 1934 member firms and their associated constraints for disclosure of information (‘‘Act’’),1 and Rule 19b–4 thereunder,2 a persons by telephone and the Internet.8 in BrokerCheck, and include in proposed rule change to amend FINRA The registration information currently BrokerCheck disclosures about an Rule 8312 (FINRA BrokerCheck available through BrokerCheck is associated person’s educational Disclosure) to include in BrokerCheck limited to firms that are currently or background and professional information about the members and were previously members of FINRA and designation.13 While these comments their associated persons of any the associated persons of such firms. are outside of the scope of the current registered national securities exchange BrokerCheck does not contain proposal, they are legitimate and FINRA that uses the Central Registration information regarding firms or the should consider them. ® associated persons of such firms, if the Depository (‘‘CRD ’’) for registration III. Discussion and Commission firms were only members of a registered purposes. The proposal was published Findings for comment in the Federal Register on national securities exchange (although November 20, 2013.3 The Commission such information is contained in the After carefully reviewing the received two comments on the CRD system). proposed rule change and the comment proposal.4 This order approves the The proposed rule change would letters, the Commission finds that the proposed rule change. amend FINRA Rule 8312 to include proposal is consistent with the these non-FINRA member firms and requirements of the Act and the rules II. Description of the Proposal their associated persons in BrokerCheck. and regulations thereunder applicable to 14 In 2006, Congress amended Section Specifically, the proposed rule change a national securities association. In 15A(i) of the Act 5 with the enactment would make publicly available in particular, the Commission finds that of the Military Personnel Financial BrokerCheck information about the proposal is consistent with Section 15 Services Protection Act.6 The members and their associated persons of 15A(b)(6) of the Act, which requires, amendment added a requirement that any CRD Exchange.9 The information among other things, that FINRA’s rules FINRA maintain a toll-free telephone that would be disclosed through be designed to prevent fraudulent and listing and a readily accessible BrokerCheck about CRD Exchange manipulative acts and practices, to electronic or other process to receive promote just and equitable principles of and promptly respond to inquiries 7 Section 15A(i) of the Act defines registration trade, to remove impediments to and information as ‘‘the information reported in regarding registration information on perfect the mechanism of a free and connection with the registration or licensing of open market and a national market the members and their associated brokers and dealers and their associated persons, persons of any registered national including disciplinary actions, regulatory, judicial, system, and, in general, to protect and arbitration proceedings, and other information investors and the public interest. required by law, or exchange or association rule, 1 Specifically, the Commission believes 15 U.S.C. 78s(b)(1). and the source and status of such information.’’ 2 that the proposal will enhance investor 17 CFR 240.19b-4. 8 The BrokerCheck Hotline telephone number is 3 See Securities Exchange Act Release No. 70880 (800) 289–9999. BrokerCheck is available online at 10 (November 14, 2013), 78 FR 69732 (November 20, http://www.finra.org/Investors/ToolsCalculators/ The proposed rule change also makes non- 2013) (‘‘Notice’’). BrokerCheck. substantive technical changes to FINRA Rule 8312 to reflect a change in FINRA’s style convention for 4 See letter from Jason Doss, President, Public 9 Firms and individuals that have been registered referencing the CRD system. Investors Arbitration Bar Association, to Elizabeth exclusively with a CRD Exchange will be included 11 See supra, note 4. M. Murphy, Secretary, Commission, dated in BrokerCheck only if they were registered on or 12 December 9, 2011 (‘‘PIABA letter’’) and letter from after August 16, 1999. According to FINRA, filings See PIABA letter at 1. William A. Jacobsen, Clinical Professor of Law, for those firms and individuals whose registrations 13 See PIABA letter. Cornell University Law School and Michael Baak, terminated before August 16, 1999, were not made 14 In approving this proposed rule change, the to Elizabeth M. Murphy, Secretary, Commission, electronically, so BrokerCheck reports for such Commission has considered the proposed rule’s dated December 11, 2013. firms and individuals cannot be made in an impact on efficiency, competition, and capital 5 15 U.S.C. 78o–3(i). automated fashion. See proposed Supplementary formation. See 15 U.S.C. 78c(f). 6 Public Law 109–290, 120 Stat. 1317 (2006). Material .03 to FINRA Rule 8312. 15 15 U.S.C. 78o–3(b)(6).

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protection by making available, via proposed rule change (SR–FINRA– Percent BrokerCheck, information regarding the 2013–047), be, and hereby is, approved. professional background, business For the Commission, by the Division of For Economic Injury: practices, and conduct of firms and Trading and Markets, pursuant to delegated Non-Profit Organizations associated persons that were members authority.20 Without Credit Available Elsewhere ...... 2.625 solely of a national securities exchange. Lynn M. Powalski, Making this information available via Deputy Secretary. BrokerCheck harmonizes the disclosure The number assigned to this disaster [FR Doc. 2013–31420 Filed 1–2–14; 8:45 am] for physical damage is 138396 and or across the securities industry. The BILLING CODE 8011–01–P information is relevant to investors and economic injury is 138406. members of the public who wish to (Catalog of Federal Domestic Assistance Numbers 59002 and 59008) educate themselves with respect to a SMALL BUSINESS ADMINISTRATION firm or the professional history of a current or formerly associated person of [Disaster Declaration #13839 and #13840] James E. Rivera, a CRD Exchange. Further, the public’s Associate Administrator for Disaster ability to access information regarding a Texas Disaster #TX–00418 Assistance. [FR Doc. 2013–31504 Filed 1–2–14; 8:45 am] firm or current or former associated AGENCY: U.S. Small Business person, whether the individual is or was Administration. BILLING CODE 8025–01–P associated with FINRA or with any ACTION: Notice. national securities exchange that uses CRD for registration purposes, may SUMMARY: This is a Notice of the OFFICE OF THE UNITED STATES serve to protect investors, the integrity Presidential declaration of a major TRADE REPRESENTATIVE of the marketplace, and the public disaster for Public Assistance Only for interest. The Commission urges the the State of Texas (FEMA–4159–DR), 2014 Special 301 Review: Identification public to utilize BrokerCheck as well as dated 12/20/2013. of Countries Under Section 182 of the all other sources of information, Incident: Severe Storms and Flooding. Trade Act of 1974: Request for Public particularly the databases of the state Incident Period: 10/30/2013 through Comment and Announcement of regulators, as well as legal search 10/31/2013. Public Hearing Effective Date: 12/20/2013. engines, and records searches, to AGENCY: Office of the United States conduct a thorough search of a firm or Physical Loan Application Deadline Date: 02/18/2014. Trade Representative. any associated person’s activities. Economic Injury (EIDL) Loan ACTION: Request for written submissions Furthermore, the proposed rule Application Deadline Date: 09/22/2014. from the public and announcement of change is consistent with the provisions ADDRESSES: Submit completed loan public hearing. of Section 15A(i)(1) of the Act,16 which applications to: U.S. Small Business require, among other things, that FINRA Administration, Processing and SUMMARY: Section 182 of the Trade Act maintain a toll-free telephone listing Disbursement Center, 14925 Kingsport of 1974 (Trade Act) (19 U.S.C. 2242) and a readily accessible electronic or Road, Fort Worth, TX 76155. requires the United States Trade other process to receive and promptly Representative (Trade Representative) to FOR FURTHER INFORMATION CONTACT: A. respond to inquiries regarding identify countries that deny adequate Escobar, Office of Disaster Assistance, registration information on CRD and effective protection of intellectual U.S. Small Business Administration, Exchange members and their associated property rights (IPR) or deny fair and persons. The proposed amendments 409 3rd Street SW., Suite 6050, Washington, DC 20416. equitable market access to U.S. persons require FINRA to release information who rely on intellectual property SUPPLEMENTARY INFORMATION: through BrokerCheck about CRD Notice is protection. The provisions of Section hereby given that as a result of the Exchange members and their associated 182 are commonly referred to as the President’s major disaster declaration on persons,17 harmonizing the information ‘‘Special 301’’ provisions of the Trade 12/20/2013, Private Non-Profit available about broker-dealers and their Act. The Trade Act requires the Trade organizations that provide essential associated persons across the industry. Representative to determine which, if services of governmental nature may file Finally, the Commission reiterates the any, of these countries to identify as disaster loan applications at the address need for FINRA to continuously strive Priority Foreign Countries. Acts, listed above or other locally announced to improve BrokerCheck to enhance its policies, or practices that are the basis value as a tool for the public to use in locations. The following areas have been of a country’s identification as a Priority deciding whether to work with a firm or determined to be adversely affected by Foreign Country can be subject to the a particular associated person.18 The the disaster: procedures set out in sections 301–305 suggestions for enhancement made by of the Trade Act. the commenter while outside the scope Primary Counties: In addition, the Office of the United of this proposal should be considered. Caldwell, Hays, Travis. States Trade Representative (USTR) has IV. Conclusion The Interest Rates are: created a ‘‘Priority Watch List’’ and ‘‘Watch List’’ to assist the It is therefore ordered, pursuant to Percent Administration in pursuing the goals of Section 19(b)(2) of the Act,19 that the the Special 301 provisions. Placement of For Physical Damage: a trading partner on the Priority Watch Non-Profit Organizations With 16 15 U.S.C. 78o–3(i)(1). List or Watch List indicates that Credit Available Elsewhere 2.625 17 See Section 15A(i) of the Act. Non-Profit Organizations particular problems exist in that country 18 See, e.g., Securities Exchange Act Release Nos. with respect to IPR protection, 59916 (May 13, 2009), 74 FR 23750 (May 20, 2009) Without Credit Available and 62476 (July 8, 2010), 75 FR 41254 (July 15, Elsewhere ...... 2.625 enforcement, or market access for 2010). persons that rely on intellectual 19 15 U.S.C. 78s(b)(2). 20 17 CFR 200.30–3(a)(12). property protection. Trading partners

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placed on the Priority Watch List are the at the offices of USTR, 1724 F Street will publish the annual Special 301 focus of increased bilateral attention NW., Washington, DC 20508. No later Report on or about April 30, 2014. concerning the problem areas. than Wednesday, February 19, 2014, 2. Comments From the Public USTR chairs the Special 301 USTR will confirm the date and location Subcommittee of the Trade Policy Staff of the hearing and provide the schedule a. Requirements for Written Comments Committee (Subcommittee). The at http://www.ustr.gov. To facilitate the review, written Subcommittee reviews information from Friday, March 7, 2014—Deadline for comments should be as detailed as many sources, and consults with and submitting post-hearing written possible and provide all necessary makes recommendations to the Trade comments. Interested parties may information for identifying and Representative on issues arising under provide written comments after the assessing the effect of the acts, policies, Special 301. Written submissions from hearing. To ensure consideration, and practices. USTR requests that interested persons are a key source of comments must be received no later interested parties provide specific information for the Special 301 review than Friday, March 7, 2014. Please process. In 2014, USTR again will references to laws, regulations, policy submit additional written comments statements, executive, presidential or conduct a public hearing as part of the electronically via http:// review process as well as offer the other orders, administrative, court or www.regulations.gov, docket number other determinations that should factor opportunity, as described below, for USTR–2013–0040. hearing participants to provide in the review. USTR also requests that, On or about April 30, 2014—USTR where relevant, submissions mention additional information relevant to the will publish the 2014 Special 301 review. At the conclusion of the particular regions, provinces, states, or Report within 30 days of the publication other subdivisions of a country in which process, USTR will publish the results of the National Trade Estimate (NTE) of the review in a ‘‘Special 301’’ Report. an act, policy, or practice is believed to Report. warrant special attention. Finally, USTR is hereby requesting written Procedures/Addresses: All written submissions proposing countries for submissions from the public concerning comments, notices of intent to testify at review should include data, loss foreign countries that deny adequate the public hearing, hearing statements estimates, and other information and effective protection of intellectual and post-hearing written responses must regarding the economic impact on the property rights or deny fair and be in English and submitted United States, U.S. industry and the equitable market access to U.S. persons electronically via http:// U.S. workforce caused by the denial of who rely on intellectual property www.regulations.gov, docket number adequate and effective intellectual protection. USTR requests that USTR–2013–0040. Please specify ‘‘2014 property protection. Comments that interested parties provide the Special 301 Review’’ in the ‘‘Type include quantitative loss claims should information described below in the Comment’’ field on http:// be accompanied by the methodology ‘‘Public Comments’’ section, and www.regulations.gov. identify whether a particular trading used in calculating such estimated partner should be named as a Priority FOR FURTHER INFORMATION CONTACT: losses. Susan F. Wilson, Director for Foreign Country under Section 182 of b. Filing Instructions the Trade Act or placed on the Priority Intellectual Property and Innovation, Watch List or Watch List. Foreign Office of the United States Trade Comments must be in English. All governments that have been identified Representative, at Special301@ comments should be sent electronically in previous Special 301 Reports or that ustr.eop.gov. Information on the Special via http://www.regulations.gov, docket are nominated for review in 2014 are 301 annual review is also available at number USTR–2013–0040. To submit considered interested parties, and are http://www.ustr.gov. comments to http:// invited to respond to this request for SUPPLEMENTARY INFORMATION: www.regulations.gov, locate the docket (folder) by entering the number USTR– public submissions. Interested parties, 1. Background including foreign governments, wishing 2013–0040 in the ‘‘Enter Keyword or to submit information to be considered USTR requests that interested persons ID’’ window at the http:// during the review or testify at the public identify through the process outlined in www.regulations.gov home page and hearing must adhere to the procedures this notice those countries that deny click ‘‘Search.’’ The site will provide a and deadlines set forth below. adequate and effective protection for search-results page listing all documents Dates/Deadlines: The schedule and intellectual property rights or deny fair associated with this docket. Locate the deadlines for the 2014 Special 301 and equitable market access to U.S. reference to this notice by selecting review are as follows: persons who rely on intellectual ‘‘Notice’’ under ‘‘Document Type’’ on Friday, February 7, 2014—Deadline property protection. the left side of the search-results page, for interested parties, except foreign Section 182 further requires the Trade and click on the link entitled ‘‘Comment governments, to submit written Representative, to identify any act, Now!’’. comments, notice of intent to testify at policy or practice of Canada that affects The http://www.regulations.gov site the Special 301 Public Hearing, and cultural industries, is adopted or provides the option of submitting hearing statements. expanded after December 17, 1992, and comments by filling in a ‘‘Type Friday, February 14, 2014—Deadline is actionable under Article 2106 of the comment’’ field, or by attaching a for foreign governments to submit North American Free Trade Agreement document. USTR requests that written comments, notice of intent to (NAFTA). The public is invited to comments be provided in an attached testify at the Special 301 Public Hearing, submit views relevant to this aspect of document. If a document is attached, and, although not mandatory, any the review. please type ‘‘2014 Special 301 Review’’ prepared hearing statements. Section 182 requires the Trade in the ‘‘Type Comment’’ field. Please Monday, February 24, 2014—Public Representative to identify all such acts, submit documents prepared in (or Hearing—The Special 301 policies or practices within 30 days of compatible with) Microsoft Word (.doc) Subcommittee will hold a Public the publication of the National Trade or Adobe Acrobat (.pdf) formats. If the Hearing for interested parties, including Estimate (NTE) Report. In accordance submission was prepared in a representatives of foreign governments, with this statutory requirement, USTR compatible format, please indicate the

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name of the relevant application in the business information must certify that DEPARTMENT OF TRANSPORTATION ‘‘Type comment’’ field. For further such information is business information on using the http:// confidential and would not customarily Maritime Administration www.regulations.gov Web site, please be released to the public by the [Docket No. MARAD–2013 0153] select ‘‘How to use Regulations.gov’’ on submitter. The filenames of both the bottom of any page. documents should reflect their status— Requested Administrative Waiver of 3. Public Hearing ‘‘BCI’’ for the business confidential the Coastwise Trade Laws: Vessel version and ‘‘PUBLIC’’ for the public NORTHWIND; Invitation for Public a. Notice of Public Hearing version. In the document, confidential Comments The Special 301 Subcommittee will business information must be clearly AGENCY: Maritime Administration, hold a hearing at the offices of USTR, designated as such, the submission must Department of Transportation. 1724 F Street NW., Washington, DC be marked ‘‘BUSINESS ACTION: Notice. 20508 for interested parties, including CONFIDENTIAL’’ at the top and bottom representatives of foreign governments, of the cover page and each succeeding SUMMARY: As authorized by 46 U.S.C. on February 24, 2014. The hearing will page, and the submission should 12121, the Secretary of Transportation, be open to the public. Please consult indicate, via brackets, the specific as represented by the Maritime http://www.ustr.gov to confirm the date information that is confidential. Administration (MARAD), is authorized and location of the hearing, and to Additionally, the submitter should write to grant waivers of the U.S.-build obtain copies of the hearing schedule ‘‘Business Confidential’’ in the ‘‘Type requirement of the coastwise laws under and transcript of the event. Comment’’ field. Anyone submitting a certain circumstances. A request for b. Submission of Notice of Intent To comment containing business such a waiver has been received by Testify and Hearing Statements confidential information must also MARAD. The vessel, and a brief submit, as a separate submission, a non- description of the proposed service, is Prepared oral testimony before the listed below. Special 301 Subcommittee must be business confidential version of the submission, indicating where the DATES: Submit comments on or before delivered in person, in English, and will February 3, 2014. be limited to five minutes. Subcommitte business confidential information has ADDRESSES: Comments should refer to member agencies may ask questions been redacted. The non-business confidential version will be placed in docket number MARAD–2013–0153. following the prepared statement. Written comments may be submitted by Interested parties, except foreign the docket at http://www.regulations.gov and be available for public inspection. hand or by mail to the Docket Clerk, governments, wishing to testify at the U.S. Department of Transportation, hearing must submit a ‘‘Notice of Intent 5. Inspection of Comments Docket Operations, M–30, West to Testify’’ and ‘‘Hearing Statement’’ to Building Ground Floor, Room W12–140, http://www.regulations.gov (following USTR will maintain a publicly 1200 New Jersey Avenue SE., the procedures set forth in ‘‘Filing accessible docket for the 2014 Special Washington, DC 20590. You may also Instructions’’ above). The filing deadline 301 Review. This public file will send comments electronically via the is Friday, February 7, 2014. The Notice include all non-business confidential Internet at http://www.regulations.gov. of Intent to Testify must include the comments, notices of intent to testify, All comments will become part of this name of the witness, name of the and hearing statements that USTR docket and will be available for organization (if applicable), address, receives from the public, including inspection and copying at the above telephone number, fax number, and foreign governments, in conjunction address between 10 a.m. and 5 p.m., email address. A Hearing Statement with the 2014 Special 301 Review. E.T., Monday through Friday, except must accompany the Notice of Intent to Comments will be placed in the docket federal holidays. An electronic version Testify. There is no requirement upon receipt and be open to public of this document and all documents regarding the length of the Hearing entered into this docket is available on Statement; however, the content of the inspection pursuant to 15 CFR 2006.13. Comments containing confidential the World Wide Web at http:// testimony must be relevant to the www.regulations.gov. Special 301 review. business information are exempt from All interested foreign governments public inspection in accordance with 15 FOR FURTHER INFORMATION CONTACT: that wish to testify at the hearing must CFR 2006.15. However, USTR will Linda Williams, U.S. Department of submit a ‘‘Notice of Intent to Testify’’ to require submission of non-business Transportation, Maritime http://www.regulations.gov (following confidential versions of such Administration, 1200 New Jersey the procedures set forth in ‘‘Filing documents, as described above, and will Avenue SE., Room W23–453, Instructions’’ above). The Notice of post non-business confidential versions Washington, DC 20590. Telephone 202– Intent to Testify must be filed by Friday, to the public docket. Comments may be 366–0903, Email Linda.Williams@ February 14, 2014, and include the viewed at http://www.regulations.gov by dot.gov. name of the witness, name of the entering docket number USTR–2013– SUPPLEMENTARY INFORMATION: As organization (if applicable), address, 0040 in the search field on the home described by the applicant the intended telephone number, fax number, and page. service of the vessel NORTHWIND is: email address. Although not mandatory, Intended Commercial Use Of Vessel: government witnesses may submit a Susan F. Wilson, ‘‘Sailing charters with captain and crew Hearing Statement when filing the Director for Intellectual Property and in the San Juan islands of Washington Notice of Intent to Testify. Innovation. state.’’ [FR Doc. 2013–31487 Filed 1–2–14; 8:45 am] Geographic Region: ‘‘Washington’’ 4. Business Confidential Information BILLING CODE 3290–F4–P The complete application is given in A person requesting that information DOT docket MARAD–2013–0153 at contained in a comment submitted by http://www.regulations.gov. Interested that person be treated as confidential parties may comment on the effect this

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action may have on U.S. vessel builders The Line traverses United States Postal Other interested persons may contact or businesses in the U.S. that use U.S.- Service Zip Code 54868. OEA to obtain a copy of the EA (or EIS). flag vessels. If MARAD determines, in WCL states that, based on information EAs in these abandonment proceedings accordance with 46 U.S.C. 12121 and in its possession, the Line does not normally will be made available within MARAD’s regulations at 46 CFR Part contain federally granted rights-of-way. 60 days of the filing of the petition. The 388, that the issuance of the waiver will Any documentation in WCL’s deadline for submission of comments on have an unduly adverse effect on a U.S.- possession will be made available the EA generally will be within 30 days vessel builder or a business that uses promptly to those requesting it. of its service. U.S.-flag vessels in that business, a The interest of railroad employees Board decisions and notices are waiver will not be granted. Comments will be protected by the conditions set available on our Web site at should refer to the docket number of forth in Oregon Short Line Railroad— ‘‘WWW.STB.DOT.GOV.’’ Abandonment Portion Goshen Branch this notice and the vessel name in order Decided: December 30, 2013. for MARAD to properly consider the Between Firth & Ammon, In Bingham & comments. Comments should also state Bonneville Counties, Idaho, 360 I.C.C. By the Board, Rachel D. Campbell, Director, Office of Proceedings. the commenter’s interest in the waiver 91 (1979). application, and address the waiver By issuance of this notice, the Board Derrick A. Gardner, criteria given in § 388.4 of MARAD’s is instituting an exemption proceeding Clearance Clerk. regulations at 46 CFR Part 388. pursuant to 49 U.S.C. 10502(b). A final [FR Doc. 2013–31465 Filed 1–2–14; 8:45 am] decision will be issued by April 4, 2014. BILLING CODE 4915–01–P Privacy Act Any offer of financial assistance Anyone is able to search the (OFA) under 49 CFR 1152.27(b)(2) will electronic form of all comments be due no later than 10 days after DEPARTMENT OF TRANSPORTATION received into any of our dockets by the service of a decision granting the name of the individual submitting the petition for exemption. Each OFA must Surface Transportation Board comment (or signing the comment, if be accompanied by a $1,600 filing fee. submitted on behalf of an association, See 49 CFR 1002.2(f)(25). [Docket No. AB 290 (Sub-No. 351X)] business, labor union, etc.). You may All interested persons should be Norfolk Southern Railway Company— review DOT’s complete Privacy Act aware that, following abandonment of Abandonment Exemption—in Statement in the Federal Register rail service and salvage of the Line, the Botetourt County, VA published on April 11, 2000 (Volume Line may be suitable for other public 65, Number 70; Pages 19477–78). use, including interim trail use. Any On December 16, 2013, Norfolk By Order of the Maritime Administrator. request for a public use condition under Southern Railway Company (NSR) filed Dated: December 17, 2013. 49 CFR 1152.28 or for trail use/rail with the Surface Transportation Board Julie P. Agarwal, banking under 49 CFR 1152.29 will be (Board) a petition under 49 U.S.C. 10502 Secretary, Maritime Administration. due no later than January 23, 2014. Each for exemption from the provisions of 49 trail use request must be accompanied U.S.C. 10903 to abandon approximately [FR Doc. 2013–30369 Filed 1–2–14; 8:45 am] by a $250 filing fee. See 49 CFR BILLING CODE 4910–81–P 0.71 miles of rail line, consisting of part 1002.2(f)(27). of the Cloverdale Branch and extending All filings in response to this notice from milepost C 8.19 to milepost C 8.90 DEPARTMENT OF TRANSPORTATION must refer to Docket No. AB 303 (Sub- in Troutville, Botetourt County, Va. The No. 43X) and must be sent to: (1) line traverses United States Postal Surface Transportation Board Surface Transportation Board, 395 E Service Zip Code 24175. There is one Street SW., Washington, DC 20423– [Docket No. AB 303 (Sub-No. 43X)] station on the line that will remain open 0001; and (2) Audrey L. Brodrick, to serve the remainder of the Cloverdale Wisconsin Central Ltd.—Abandonment Fletcher & Sippel LLC, 29 North Wacker Branch.1 Exemption—in Barron County, WI Drive, Suite 920, Chicago, IL 60606. NSR states that, based on information Replies to the petition are due on or in its possession, the line does not On December 16, 2013, Wisconsin before January 23, 2014. contain federally granted rights-of-way. 1 Central Ltd. (WCL) filed with the Persons seeking further information Any documentation in NSR’s possession Surface Transportation Board (Board) a concerning abandonment procedures will be made available promptly to petition under 49 U.S.C. 10502 for may contact the Board’s Office of Public those requesting it. exemption from the prior approval Assistance, Governmental Affairs and The interest of railroad employees requirements of 49 U.S.C. 10903 to Compliance at (202) 245–0238 or refer will be protected by the conditions set abandon a 0.80-mile line of railroad to the full abandonment or forth in Oregon Short Line Railroad— between mileposts 55.2 and 56.0 in Rice discontinuance regulations at 49 CFR 2 Abandonment Portion Goshen Branch Lake, Barron County, Wis. (the Line). part 1152. Questions concerning Between Firth & Ammon, in Bingham & environmental issues may be directed to Bonneville Counties, Idaho, 360 I.C.C. 1 WCL is a wholly owned indirect subsidiary of the Board’s Office of Environmental 91 (1979). Canadian National Railway Company. Analysis (OEA) at (202) 245–0305. 2 By issuing this notice, the Board is WCL states that the Line is a stub-ended line [Assistance for the hearing impaired is that begins at a connection with its mainline at instituting an exemption proceeding milepost 55.2 and ends at milepost 56.0. The track available through the Federal north of milepost 56.0 was approved for Information Relay Service (FIRS) at 1– 1 abandonment in Wisconsin Central Ltd.— 800–877–8339.] NSR states that there is one shipper on the line, Abandonment Exemption—in Douglas, Washburn, Roanoke Cement Company LLC (Roanoke). & Barron Counties, Wis., AB 303 (Sub-No. 12X) (ICC An environmental assessment (EA) (or According to NSR, Roanoke has requested served Apr. 20, 1993). According to WCL, the environmental impact statement (EIS), if abandonment to allow expansion of its facilities, abandoned line in that proceeding is now a trail, necessary) prepared by OEA will be and Roanoke will continue to be served by NSR except for a small portion immediately north of served upon all parties of record and post-abandonment. NSR seeks expedited milepost 56.0, on which abandonment was consideration in this proceeding to allow Roanoke consummated, but the track remains in place to upon any agencies or other persons who to move forward with its plans as soon as possible. allow for headroom for switching purposes. commented during its preparation. This request will be addressed in the final decision.

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pursuant to 49 U.S.C. 10502(b). A final By the Board, Rachel D. Campbell, penalty is owed to a business concern, decision will be issued by April 4, 2014. Director, Office of Proceedings. the penalty shall be paid regardless of Any offer of financial assistance Derrick Gardner, whether the business concern requested (OFA) under 49 CFR 1152.27(b)(2) will Clearance Clerk. payment of such penalty. 31 U.S.C. be due no later than 10 days after [FR Doc. 2013–31466 Filed 1–2–14; 8:45 am] 3902(c)(1). Agencies must pay the service of a decision granting the BILLING CODE 4915–01–P interest penalty calculated with the petition for exemption. Each OFA must interest rate, which is in effect at the be accompanied by a $1,600 filing fee. time the agency accrues the obligation See 49 CFR 1002.2(f)(25). DEPARTMENT OF THE TREASURY to pay a late payment interest penalty. All interested persons should be 31 U.S.C. 3902(a). ‘‘The interest penalty aware that, following abandonment of Fiscal Service shall be paid for the period beginning rail service and salvage of the line, the on the day after the required payment line may be suitable for other public Prompt Payment Interest Rate; date and ending on the date on which use, including interim trail use. Any Contract Disputes Act payment is made.’’ 31 U.S.C. 3902(b). request for a public use condition under Therefore, notice is given that the AGENCY: Bureau of the Fiscal Service, 49 CFR 1152.28 or for trail use/rail Secretary of the Treasury has Treasury. banking under 49 CFR 1152.29 will be determined that the rate of interest due no later than January 23, 2014. Each ACTION: Notice. applicable for the period beginning trail use request must be accompanied SUMMARY: January 1, 2014, and ending on June 30, For the period beginning 1 by a $250 filing fee. See 49 CFR January 1, 2014, and ending on June 30, 2014, is 2 ⁄8 per centum per annum. 1002.2(f)(27). However, NSR states that, 2014, the prompt payment interest rate because it seeks abandonment to allow Mark Reger, is 21⁄8 per centum per annum. expansion of Roanoke’s facilities, NSR Deputy Assistant Secretary for Accounting is unwilling to negotiate interim trail ADDRESSES: Comments or inquiries may Policy. use. be mailed to: Sam Doak, Reporting [FR Doc. 2013–31205 Filed 1–2–14; 8:45 am] All filings in response to this notice Team Lead Accountant, Bureau of the BILLING CODE 4810–39–M must refer to Docket No. AB 290 (Sub- Fiscal Service, Federal Borrowings No. 351X) and must be sent to: (1) Branch, Room 119, Parkersburg Surface Transportation Board, 395 E Warehouse & Operations Center Dock 1, DEPARTMENT OF VETERANS Street SW., Washington, DC 20423– 257 Bosley Industrial Park Drive, AFFAIRS 0001; and (2) Robert A. Wimbish, Baker Parkersburg, West Virginia 26101. [OMB Control No. 2900–0001] & Miller PLLC, 2401 Pennsylvania Comments or inquiries may also be emailed to [email protected]. A Avenue NW., Suite 300, Washington, Proposed Information Collection DC 20037. Replies to the petition are copy of this notice is available at http://www.treasurydirect.gov. (Veteran’s Application for due on or before January 23, 2014. Compensation and/or Pension) DATES: Persons seeking further information Effective January 1, 2014, to June Activity: Comment Request concerning abandonment procedures 30, 2014. may contact the Board’s Office of Public FOR FURTHER INFORMATION CONTACT: AGENCY: Veterans Benefits Assistance, Governmental Affairs and Adam Charlton, Manager, Fiscal Administration, Department of Veterans Compliance at (202) 245–0238 or refer Accounting Operations, Federal Affairs. to the full abandonment or Borrowings Branch, (304) 480–5248; ACTION: Notice. discontinuance regulations at 49 CFR pt. Sam Doak, Reporting Team Lead 1152. Questions concerning Accountant, Fiscal Accounting SUMMARY: The Veterans Benefits environmental issues may be directed to Operations, Federal Borrowings Branch, Administration (VBA), Department of the Board’s Office of Environmental (304) 480–5117; or Elisha S. Garvey, Veterans Affairs (VA), is announcing an Analysis (OEA) at (202) 245–0305. Attorney-Advisor, Office of the Chief opportunity for public comment on the Assistance for the hearing impaired is Counsel, (202) 504–3715. proposed collection of certain available through the Federal SUPPLEMENTARY INFORMATION: An agency information by the Agency. Under the Information Relay Service (FIRS) at 1– that has acquired property or service Paperwork Reduction Act (PRA) of 800–877–8339. from a business concern and has failed 1995, Federal agencies are required to An environmental assessment (EA) (or to pay for the complete delivery of publish notice in the Federal Register environmental impact statement (EIS), if property or service by the required concerning each proposed collection of necessary) prepared by OEA will be payment date shall pay the business information, including each revision of served upon all parties of record and concern an interest penalty. 31 U.S.C. a currently approved collection and upon any agencies or other persons who 3902(a). The Contract Disputes Act of allow 60 days for public comment in comment during its presentation. Other 1978, Sec. 12, Public Law 95–563, 92 response to the notice. This notice interested persons may contact OEA to Stat. 2389, and the Prompt Payment Act, solicits comments on information obtain a copy of the EA (or EIS). EAs in 31 U.S.C. 3902(a), provide for the needed to determine a veteran’s these abandonment proceedings calculation of interest due on claims at eligibility, dependency, and income, as normally will be made available within the rate established by the Secretary of applicable, for compensation and/or 60 days of the filing of the petition. The the Treasury. pension benefit sought. deadline for submission of comments on The Secretary of the Treasury has the DATES: Written comments and the EA generally will be within 30 days authority to specify the rate by which recommendations on the proposed of its service. the interest shall be computed for collection of information should be Board decisions and notices are interest payments under section 12 of received on or before March 4, 2014. available on our Web site at the Contract Disputes Act of 1978 and ADDRESSES: Submit written comments www.stb.dot.gov. under the Prompt Payment Act. Under on the collection of information through Decided: December 30, 2013. the Prompt Payment Act, if an interest www.Regulations.gov; or to Nancy J.

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Kessinger, Veterans Benefits c. Veterans who need VA’s assistance Federal Docket Management System Administration (20M35), Department of in obtaining non-VA medical records (FDMS) at www.Regulations.gov or to Veterans Affairs, 810 Vermont Avenue must complete VA Form 21–4142. Nancy J. Kessinger, Veterans Benefits NW., Washington, DC 20420 or email: Affected Public: Individuals or Administration (20M33), Department of [email protected]. Please refer to households. Veterans Affairs, 810 Vermont Avenue ‘‘OMB Control No. 2900–0001’’ in any NW., Washington, DC 20420 or email to Estimated Annual Burden correspondence. During the comment [email protected]. Please refer to period, comments may be viewed online a. VA Form 21–526—391,708. ‘‘OMB Control No. 2900–0215’’ in any through the Federal Docket Management b. VA Form 21–526b—50,000. correspondence. During the comment System (FDMS) at www.Regulations.gov. c. VA Form 21–4142—274. period, comments may be viewed online FOR FURTHER INFORMATION CONTACT: Estimated Average Burden per through FDMS. Nancy J. Kessinger at (202) 632–8924 or Respondent FOR FURTHER INFORMATION CONTACT: FAX (202) 632–8925. Nancy J. Kessinger at (202) 632–8924 or a. VA Form 21–526—1 hour. SUPPLEMENTARY INFORMATION: Under the FAX (202) 632–8925. b. VA Form 21–526b—15 minutes. PRA of 1995 (Pub. L. 104–13; 44 U.S.C. SUPPLEMENTARY INFORMATION: Under the 3501–3521), Federal agencies must b. VA Form 21–4142—5 minutes. PRA of 1995 (Public Law 104–13; 44 obtain approval from the Office of Frequency of Response: On occasion. U.S.C. 3501–3521), Federal agencies Management and Budget (OMB) for each Estimated Number of Respondents must obtain approval from the Office of collection of information they conduct Management and Budget (OMB) for each a. VA Form 21–526—391,708. or sponsor. This request for comment is collection of information they conduct b. VA Form 21–526b—200,000. being made pursuant to Section or sponsor. This request for comment is c. VA Form 21–4142—3,292. 3506(c)(2)(A) of the PRA. being made pursuant to Section With respect to the following Dated: December 30, 2013. 3506(c)(2)(A) of the PRA. collection of information, VBA invites By direction of the Secretary: With respect to the following comments on: (1) Whether the proposed Crystal Rennie, collection of information, VBA invites collection of information is necessary VA Clearance Officer, Department of Veterans comments on: (1) Whether the proposed for the proper performance of VBA’s Affairs. collection of information is necessary functions, including whether the [FR Doc. 2013–31451 Filed 1–2–14; 8:45 am] for the proper performance of VBA’s information will have practical utility; BILLING CODE 8320–01–P functions, including whether the (2) the accuracy of VBA’s estimate of the information will have practical utility; burden of the proposed collection of (2) the accuracy of VBA’s estimate of the information; (3) ways to enhance the DEPARTMENT OF VETERANS burden of the proposed collection of quality, utility, and clarity of the AFFAIRS information; (3) ways to enhance the information to be collected; and (4) quality, utility, and clarity of the [OMB Control No. 2900–0215] ways to minimize the burden of the information to be collected; and (4) collection of information on Proposed Information Collection ways to minimize the burden of the respondents, including through the use (Request for Information To Make collection of information on respondents, including through the use of automated collection techniques or Direct Payment to Child Reaching of automated collection techniques or the use of other forms of information Majority); Comment Request technology. the use of other forms of information AGENCY: Veterans Benefits technology. Titles Administration, Department of Veterans Title: Request for Information to Make a. Veteran’s Application for Affairs. Direct Payment to Child Reaching Majority, VA Form Letter 21–863. Compensation and/or Pension, VA Form ACTION: Notice. 21–526. OMB Control Number: 2900–0215. b. Veteran’s Supplemental Claim SUMMARY: The Veterans Benefits Type of Review: Revision of a Application, VA Form 21–526b. Administration (VBA), Department of currently approved collection. c. Authorization and Consent Release Veterans Affairs (VA), is announcing an Abstract: VA Form Letter 21–863 is Information to the Department of opportunity for public comment on the used to determine a schoolchild’s Veterans Affairs (VA), VA Form proposed collection of certain continued eligibility to death benefits 21–4142. information by the agency. Under the and eligibility to receive direct payment OMB Control Number: 2900–0001. Paperwork Reduction Act (PRA) of at the age of majority. Death pension or Type of Review: Revision of a 1995, Federal agencies are required to dependency and indemnity currently approved collection. publish notice in the Federal Register compensation is paid to an eligible Veteran’s child when there is not an Abstracts concerning each proposed collection of information, including each proposed eligible surviving spouse and the child a. Veterans complete VA Form 21–526 revision of a currently approved is between the ages of 18 and 23 is to initially apply for compensation and/ collection and allow 60 days for public attending school. Until the child reaches or pension benefits. the age of majority, payment is made to b. Veterans who previously filed a comment in response to the notice. This notice solicits comments on information a custodian or fiduciary on behalf of the claim using VA Form 21–526, and who child. An unmarried schoolchild, who wish to request an increase in a service needed to determine a schoolchild’s eligibility to VA death benefits. is not incompetent, is entitled to begin connected condition, reopen their claim receiving direct payment on the age of DATES: for a previously denied claim, and/or Written comments and majority. file a claim for a new service-connected recommendations on the proposed Affected Public: Individuals or condition must complete VA Form 21– collection of information should be households. 526b. VA Form 21–526b will be used for received on or before March 4, 2014. Estimated Annual Burden: 3 hours. supplemental disability or ancillary ADDRESSES: Submit written comments Estimated Average Burden per benefit claims. on the collection of information through Respondent: 10 minutes.

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Frequency of Response: One-time. obtain approval from the Office of ACTION: Notice. Estimated Number of Respondents: Management and Budget (OMB) for each 20. collection of information they conduct SUMMARY: The Veterans Benefits or sponsor. This request for comment is Administration (VBA), Department of Dated: December 30, 2013. Veterans Affairs (VA), is announcing an By direction of the Secretary. being made pursuant to Section 3506(c)(2)(A) of the PRA. opportunity for public comment on the Crystal Rennie, With respect to the following proposed collection of certain VA Clearance Officer, Department of Veterans collection of information, VBA invites information by the agency. Under the Affairs. comments on: (1) Whether the proposed Paperwork Reduction Act (PRA) of [FR Doc. 2013–31453 Filed 1–2–14; 8:45 am] collection of information is necessary 1995, Federal agencies are required to BILLING CODE 8320–01–P for the proper performance of VBA’s publish notice in the Federal Register functions, including whether the concerning each proposed collection of information will have practical utility; information, including each proposed DEPARTMENT OF VETERANS (2) the accuracy of VBA’s estimate of the revision of a currently approved AFFAIRS burden of the proposed collection of collection, and allow 60 days for public [OMB Control No. 2900–0404] information; (3) ways to enhance the comment in response to the notice. This quality, utility, and clarity of the notice solicits comments on information Proposed Information Collection information to be collected; and (4) needed to verify beneficiaries receiving (Veteran’s Application for Increased ways to minimize the burden of the Restored Entitlement Program for Compensation Based on collection of information on Survivors (REPS) benefits are actually in Unemployability); Comment Request respondents, including through the use enrolled in an approved school. of automated collection techniques or DATES: Written comments and AGENCY: Veterans Benefits the use of other forms of information recommendations on the proposed Administration, Department of Veterans technology. collection of information should be Affairs. Title: Veteran’s Application for received on or before March 4, 2014. ACTION: Notice. Increased Compensation Based on ADDRESSES: Submit written comments Unemployability, VA Form 21–8940. SUMMARY: The Veterans Benefits on the collection of information through OMB Control Number: 2900–0404. Federal Docket Management System Administration (VBA), Department of Type of Review: Revision of a Veterans Affairs (VA), is announcing an (FDMS) at www.Regulations.gov or to currently approved collection. Nancy J. Kessinger, Veterans Benefits opportunity for public comment on the Abstract: VA Form 21–8940 is used Administration (20M33), Department of proposed collection of certain by veterans to file a claim for increased Veterans Affairs, 810 Vermont Avenue information by the agency. Under the disability compensation based on NW., Washington, DC 20420 or email to Paperwork Reduction Act (PRA) of unemployability. Claimants are required [email protected]. Please refer to 1995, Federal agencies are required to to provide current medical, educational, ‘‘OMB Control No. 2900–0394’’ in any publish notice in the Federal Register and occupational history in order for correspondence. During the comment concerning each proposed collection of VA to determine whether he or she is period, comments may be viewed online information, including each proposed unable to secure or follow a through FDMS. revision of a currently approved substantially gainful employment due to collection, and allow 60 days for public service-connected disabilities. FOR FURTHER INFORMATION CONTACT: comment in response to the notice. This Affected Public: Individuals or Nancy J. Kessinger at (202) 632–8924 or notice solicits comments on information households. FAX (202) 632–8925. needed to apply for increased disability Estimated Annual Burden: 18,000 SUPPLEMENTARY INFORMATION: Under the compensation based on hours. PRA of 1995 (Pub. L. 104–13; 44 U.S.C. unemployability. Estimated Average Burden per 3501–3521), Federal agencies must Respondent: 45 minutes. DATES: Written comments and obtain approval from the Office of Frequency of Response: One-time. recommendations on the proposed Management and Budget (OMB) for each Estimated Number of Respondents: collection of information they conduct collection of information should be 24,000. received on or before March 4, 2014. or sponsor. This request for comment is Dated: December 30, 2013. being made pursuant to Section ADDRESSES: Submit written comments By direction of the Secretary. 3506(c)(2)(A) of the PRA. on the collection of information through With respect to the following Federal Docket Management System Crystal Rennie, VA Clearance Officer, Department of Veterans collection of information, VBA invites (FDMS) at www.Regulations.gov or to comments on: (1) Whether the proposed Nancy J. Kessinger, Veterans Benefits Affairs. [FR Doc. 2013–31455 Filed 1–2–14; 8:45 am] collection of information is necessary Administration (20M33), Department of for the proper performance of VBA’s BILLING CODE 8320–01–P Veterans Affairs, 810 Vermont Avenue functions, including whether the NW., Washington, DC 20420 or email to information will have practical utility; [email protected]. Please refer to (2) the accuracy of VBA’s estimate of the ‘‘OMB Control No. 2900–0404’’ in any DEPARTMENT OF VETERANS AFFAIRS burden of the proposed collection of correspondence. During the comment information; (3) ways to enhance the period, comments may be viewed online [OMB Control No. 2900–0394] quality, utility, and clarity of the through FDMS. Proposed Information Collection information to be collected; and (4) FOR FURTHER INFORMATION CONTACT: ways to minimize the burden of the Nancy J. Kessinger at (202) 632–8924 or (Certification of School Attendance— REPS); Comment Request collection of information on FAX (202) 632–8925. respondents, including through the use SUPPLEMENTARY INFORMATION: Under the AGENCY: Veterans Benefits of automated collection techniques or PRA of 1995 (Pub. L. 104–13; 44 U.S.C. Administration, Department of Veterans the use of other forms of information 3501–3521), Federal agencies must Affairs. technology.

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Title: Certification of School ACTION: Notice. collection of information is necessary Attendance—REPS, VA Form 21–8926. for the proper performance of VBA’s OMB Control Number: 2900–0394. SUMMARY: The Veterans Benefits functions, including whether the Type of Review: Revision of a Administration (VBA), Department of information will have practical utility; currently approved collection. Veterans Affairs (VA), is announcing an (2) the accuracy of VBA’s estimate of the Abstract: VA Form 21–8926 is used to opportunity for public comment on the burden of the proposed collection of verify beneficiaries receiving REPS proposed collection of certain information; (3) ways to enhance the benefits based on schoolchild status are information by the agency. Under the quality, utility, and clarity of the in fact enrolled full-time in an approved Paperwork Reduction Act (PRA) of information to be collected; and (4) school and is otherwise eligible for 1995, Federal agencies are required to ways to minimize the burden of the continued benefits. The program pays publish notice in the Federal Register collection of information on concerning each proposed collection of benefits to certain surviving spouses respondents, including through the use information, including each proposed and children of Veterans who died in of automated collection techniques or revision of a currently approved service prior to August 13, 1981 or who the use of other forms of information collection, and allow 60 days for public died as a result of a service-connected technology. comment in response to this notice. disability incurred or aggravated prior to This notice solicits comments on the Title: Statement of Marital August 13, 1981. Beneficiaries over age information needed to determine the Relationship, VA Form 21–4170. 18 and under age 23 must be enrolled validity of a common law marriage. OMB Control Number: 2900–0114. full–time in an approved post– Type of Review: Revision of a secondary school at the beginning of the DATES: Written comments and recommendations on the proposed currently approved collection. school year to continue receiving REPS Abstract: VA Form 21–4170 is benefits. collection of information should be received on or before March 4, 2014. completed by individuals claiming to be Affected Public: Individuals or common law widows/widowers of households. ADDRESSES: Submit written comments on the collection of information through deceased Veterans and by Veterans and Estimated Annual Burden: 300 hours. their claimed common law spouses to Estimated Average Burden per Federal Docket Management System (FDMS) at www.Regulations.gov or to establish marital status. VA uses the Respondent: 15 minutes. information collected to determine Frequency of Response: Annually. Nancy J. Kessinger, Veterans Benefits Administration (20M33), Department of whether a common law marriage was Estimated Number of Respondents: valid under the law of the place where 1,200. Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420 or email to the parties resided at the time of the Dated: December 30, 2013. [email protected]. Please refer to marriage or under the law of the place By direction of the Secretary. ‘‘OMB Control No. 2900–0114’’ in any where the parties resided when the right Crystal Rennie, correspondence. During the comment to benefits accrued. VA Clearance Officer, Department of Veterans period, comments may be viewed online Affected Public: Individuals or Affairs. through FDMS. households. [FR Doc. 2013–31454 Filed 1–2–14; 8:45 am] FOR FURTHER INFORMATION CONTACT: Estimated Annual Burden: 2,708 BILLING CODE 8320–01–P Nancy J. Kessinger at (202) 632–8924 or hours. FAX (202) 632–8925. Estimated Average Burden per SUPPLEMENTARY INFORMATION: Under the Respondent: 25 minutes. DEPARTMENT OF VETERANS PRA of 1995 (Pub. L. 104–13; 44 U.S.C. Frequency of Response: One time. AFFAIRS 3501–3521), Federal agencies must Estimated Number of Respondents: obtain approval from the Office of [OMB Control No. 2900–0114] 6,500. Management and Budget (OMB) for each Dated: December 30, 2013. collection of information they conduct Proposed Information Collection By direction of the Secretary. (Statement of Marital Relationship); or sponsor. This request for comment is Crystal Rennie, Comment Request being made pursuant to Section 3506(c)(2)(A) of the PRA. VA Clearance Officer, Department of Veterans AGENCY: Veterans Benefits With respect to the following Affairs. Administration, Department of Veterans collection of information, VBA invites [FR Doc. 2013–31452 Filed 1–2–14; 8:45 am] Affairs. comments on: (1) Whether the proposed BILLING CODE 8320–01–P

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Part II

Department of Veterans Affairs

38 CFR Parts 3 and 13 Fiduciary Activities; Proposed Rule

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DEPARTMENT OF VETERANS years of age, cannot manage their own activity at the VA Manila, Philippines AFFAIRS VA benefits. Under this program, VA Regional Office. This consolidation, oversees these vulnerable beneficiaries, which VA completed in March 2012, 38 CFR Parts 3 and 13 and appoints and oversees fiduciaries was based on the positive results of a RIN 2900–AO53 who manage these beneficiaries’ pilot project at the Western Area benefits. VA’s current statutory Fiduciary Hub in Salt Lake City, Utah. Fiduciary Activities authority for this program is in 38 Among other things, VA found that the U.S.C. chapters 55 and 61. consolidation improved the timeliness AGENCY: Department of Veterans Affairs. Under current law, ‘‘[w]here it and accuracy of fiduciary operations. ACTION: Proposed rule. appears to the Secretary that the interest Under the consolidation, authority is of the beneficiary would be served delegated to the Fiduciary Hub Manager SUMMARY: The Department of Veterans thereby, payment of benefits under any (Hub Manager) for each hub to Affairs (VA) proposes to amend its law administered by the Secretary [of administer VA’s regional fiduciary fiduciary program regulations, which Veterans Affairs] may be made directly activities. Each Hub Manager reports to govern the oversight of beneficiaries to the beneficiary or to a relative or the Director of the VA Regional Office who, because of injury, disease, the some other fiduciary for the use and where the hub is located. Accordingly, infirmities of advanced age, or minority, benefit of the beneficiary, regardless of current regulations, which refer to the are unable to manage their VA benefits, any legal disability on the part of the authority delegated to the Veterans and the appointment and oversight of beneficiary.’’ 38 U.S.C. 5502(a)(1). VA’s Service Center Manager in each regional fiduciaries for these vulnerable longstanding interpretation of this office, are out of date. beneficiaries. The proposed authority is that the Department may Finally, as we describe in greater amendments would update and establish a fiduciary program, under detail in this preamble, the U.S. Court reorganize regulations consistent with which it oversees beneficiaries who of Appeals for Veterans Claims current law, VA policies and cannot manage their own VA benefits, (Veterans Court) held in April 2011 that procedures, and VA’s reorganization of and may either pay benefits directly to VA’s fiduciary appointments may be its fiduciary activities. They would also a beneficiary under VA supervision or appealed to the Board of Veterans’ clarify the rights of beneficiaries in the to a third-party fiduciary, who may be Appeals and thereafter to the Veterans program and the roles of VA and a relative or some other individual or Court and the U.S. Court of Appeals for fiduciaries in ensuring that VA benefits entity. We interpret ‘‘regardless of legal the Federal Circuit. Prior to this are managed in the best interest of disability’’ in section 5502(a)(1) to mean holding, it was VA’s view that fiduciary beneficiaries and their dependents. that in creating the fiduciary program, appointments were, by law, committed DATES: Comments must be received by Congress intended to preempt State law to the discretion of the Secretary of VA on or before March 4, 2014. regarding guardianships and other Veterans Affairs and could not be ADDRESSES: Written comments may be matters to the extent necessary to ensure appealed. Therefore, current regulations submitted through www.regulations.gov; a national standard of practice for do not address the right to appeal a by mail or hand-delivery to Director, payment of benefits to or on behalf of fiduciary appointment or the notice and Office of Regulation Policy and VA beneficiaries who cannot manage transparency that are necessary to Management (02REG), Department of their benefits. This proposed rule would provide beneficiaries a meaningful right Veterans Affairs, 810 Vermont Avenue establish that national standard of of appeal. NW., Room 1068, Washington, DC practice and remove the distinction Also, VA’s current fiduciary 20420; or by fax to (202) 273–9026. between ‘‘Federal’’ fiduciaries and regulations tend to be general policy Comments should indicate that they are ‘‘court-appointed’’ fiduciaries. Except as statements, rather than the binding rules submitted in response to ‘‘RIN 2900– discussed below in this preamble, we for VA, beneficiaries, and fiduciaries AO53, Fiduciary Activities.’’ Copies of intend to apply this approach to all that one might expect to find in comments received will be available for fiduciary matters on the effective date of regulations. Current regulations are also public inspection in the Office of the final rule. written in archaic language. For Regulation Policy and Management, VA implemented its authority to example, current regulations use the Room 1063B, between the hours of 8 administer a fiduciary program in terms ‘‘estate,’’ ‘‘incompetent adult,’’ a.m. and 4:30 p.m., Monday through current 38 CFR part 13, most of which ‘‘payee,’’ ‘‘legal custodian,’’ ‘‘custodian- Friday (except holidays). Call (202) 461– has not been updated since as early as in-fact,’’ ‘‘court-appointed fiduciary,’’ 4902 for an appointment. (This is not a 1975. There have been several and ‘‘commission.’’ As a result, current toll-free number.) In addition during the significant changes to the program since regulations are not written in plain, comment period, comments may be the last update. First, in 2004, Congress easy-to-understand language for the viewed online through the Federal amended 38 U.S.C. chapters 55 and 61 general public. Although VA’s current fiduciary Docket Management System at http:// to add new provisions, which, among regulations are in 38 CFR part 13, there www.regulations.gov. other things, authorize VA to conduct specific investigations regarding the are regulations in 38 CFR part 3 that FOR FURTHER INFORMATION CONTACT: fitness of individuals to serve as also address fiduciary matters. See 38 Cynthia Lewis, Chief, Fiduciary Policy fiduciaries, conduct onsite reviews of CFR 3.850 through 3.857. VA generally and Procedures Staff, Department of fiduciaries who serve more than 20 promulgated these regulations in the Veterans Affairs, 810 Vermont Ave. beneficiaries, require fiduciaries to file 1960s and 1970s, and they are either NW., Washington, DC 20420; (202) 632– reports or accountings, and reissue obsolete, redundant of current part 13 8863. (This is not a toll-free number.) certain benefits that are misused by provisions, or general policy statements SUPPLEMENTARY INFORMATION: Since as fiduciaries. See 38 U.S.C. 5507–5510, that do not constitute binding rules. early as 1924, VA and its predecessor 6106–6107. VA has not implemented Accordingly, we propose to remove agencies have administered a fiduciary these changes in law in its regulations. these regulations from part 3 and program for beneficiaries who, as a Second, VA has consolidated its consolidate all rules applicable to the result of injury, disease, the infirmities fiduciary activities into six regional fiduciary program in part 13. There are of advanced age, or being less than 18 fiduciary hubs and one foreign fiduciary references to these part 3 regulations in

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38 CFR 3.401, 3.403, 3.452, 3.500, and and the beneficiary’s dependents. We only for a fee. VA’s order of preference 3.501, which generally pertain to interpret sections 5502 and 5506 to is based on the type of fiduciary effective dates. We propose to update mean that a fiduciary appointed to relationship and seeks to establish the §§ 3.403 and 3.452 consistent with our manage VA benefits on behalf of a least restrictive and most effective proposed regulations and current VA beneficiary has a financial obligation to relationship. Relatives typically have a policy and to remove the other the beneficiary and his or her one-on-one relationship with the references because they are also obsolete dependents. We intend the definition to beneficiary they serve and also serve or are not applicable to fiduciary cover any individual or entity that has without a fee. matters. There are a few references to been appointed pursuant to VA’s part 13 Restricted withdrawal agreements are current part 13 regulations in current 38 fiduciary regulations. used in some cases to protect VA benefit CFR 3.353. We propose to update As noted above in this preamble, funds under management by a fiduciary § 3.353 by replacing these references since the promulgation of VA’s current when adequate bonding is not available. with references to proposed provisions. part 13 fiduciary regulations, VA In order for a bond to be adequate, it As described in the section-by-section consolidated all of its fiduciary must be reasonably priced and easily supplementary information below, we activities, except the activities at the VA enforced by VA. In cases where the propose to rewrite all of VA’s part 13 Manila, Philippines Regional Office, beneficiary and fiduciary reside in a fiduciary regulations consistent with into regional entities called fiduciary territory of the United States or the current law, current VA policy and hubs. Within each hub, the Hub Republic of the Philippines and the procedures, and VA’s current Manager has the authority to oversee the surety company fails to perform the organizational structure. We also hub’s activities, but the Veterans Service obligation stated in the bond, it would propose to rewrite the regulations in Center Manager at the Manila Regional be difficult to commence legal action plain language that is easier for Office retains jurisdiction over fiduciary and collect the liability from the surety beneficiaries and current and proposed matters in the Philippines. Because the company. For this reason, a fiduciary in fiduciaries to understand. term Hub Manager is used throughout the Commonwealth of Puerto Rico, our proposed part 13 regulations, we Guam, or any other territory of the 13.10 Purpose and applicability of propose to define the term to mean the United States, or in the Republic of the other regulations individual who has the authority to Philippines, whose location precludes This regulation would provide general oversee the activities of a VA Fiduciary adequate bonding would be able to use notice regarding the statutory authority Hub or the Veterans Service Center a restricted withdrawal agreement in for and purpose of VA’s fiduciary Manager of the Manila Regional Office. lieu of a corporate surety bond. We program. It would also distinguish We propose to define in the fiduciary propose to define restricted withdrawal fiduciary matters from benefit claims program to mean that a beneficiary has agreement to mean a written contract and clarify that the VA regulations in 38 been rated by VA as incapable of between VA, a fiduciary, and a financial CFR part 3 are not for application in managing his or her own VA benefits as institution in which the fiduciary has fiduciary matters, unless VA has a result of injury, disease, or the VA benefit funds under management for prescribed applicability in its part 13 infirmities of advanced age, has been a beneficiary, under which certain funds fiduciary regulations. determined by a court with jurisdiction cannot be withdrawn without the as unable to manage his or her own consent of the VA Hub Manager. 13.20 Definitions financial affairs, or is less than 18 years To refer to the VA benefits that a Proposed § 13.20 would set forth of age. fiduciary manages for a beneficiary, to definitions applicable to part 13. We use the term rating authority include funds in accounts and invested The fiduciary program is responsible throughout our proposed regulations to funds, we use the term VA benefit funds for ensuring that VA benefit payments refer to the VA entity with the authority under management throughout our made directly to a beneficiary in the to determine whether a beneficiary can proposed regulations. We propose to fiduciary program or to a fiduciary on manage his or her own VA benefits. We define the term to mean the combined behalf of a beneficiary in the fiduciary propose to define the term to mean VA value of the fiduciary account or program are used to maintain the well- employees who have authority under 38 accounts managed by a fiduciary for a being of the beneficiary and the CFR 3.353 to determine whether a beneficiary and any funds invested by beneficiary’s dependents. Consistent beneficiary can manage his or her VA the fiduciary for the beneficiary, to with this responsibility, we propose to benefits. These employees generally include any interest income and return define dependent to mean the work in VA’s regional offices under the on investment derived from any beneficiary’s spouse, child, or parent direction of a Veterans Service Center account. who does not have income sufficient for Manager or in a VA Pension reasonable maintenance and who Management Center (PMC) under the 13.30 Beneficiary rights obtains support for such maintenance direction of a PMC Manager. Generally, a person to whom VA has from the beneficiary. For purposes of We propose to define relative to mean awarded monetary benefits, a this definition, we propose to define an adopted child or a person who is beneficiary, has the right to have VA spouse to mean a husband or wife related to a beneficiary by blood or pay those benefits directly to him or her. whose marriage meets the requirements marriage. We intend a broad definition However, under 38 U.S.C. 5502(a)(1), of 38 U.S.C. 103(c), including ‘‘common of this term consistent with current law VA may appoint a fiduciary on behalf of law’’ marriage and same-sex marriage, and VA policy, under which VA prefers a beneficiary when it appears that ‘‘the and use the definition of child in appointing relatives to serve as interest of the beneficiary’’ would be current 38 CFR 3.57, and the definition fiduciaries for beneficiaries. This broad served by such appointment. In fact, of parent in current 38 CFR 3.59. definition would also be consistent with section 5502(a)(1) authorizes VA to pay We propose to define fiduciary to current VA policy regarding benefits directly to a beneficiary even if mean an individual or entity that has appointment of paid fiduciaries. VA VA or a court has determined that the been appointed by VA to receive VA prefers to appoint unpaid relatives prior beneficiary is incapable of managing his benefits on behalf of a beneficiary for to considering any other individual who benefits if VA determines that direct the use and benefit of the beneficiary is willing to provide fiduciary services payment would serve the beneficiary’s

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interest. Beneficiaries also have the right Proposed paragraph (b)(3) would to manage his or her VA benefits to seek appointment of a successor prescribe that a beneficiary in the through supervised direct payment fiduciary if the current fiduciary is not fiduciary program has the right to (proposed § 13.110), or VA otherwise performing his or her responsibilities appeal to the Board of Veterans’ determines that the beneficiary no adequately. Under 38 U.S.C. 6107(a), Appeals VA’s appointment of a longer requires fiduciary services certain beneficiaries have the right to fiduciary. (proposed § 13.500). reissuance of benefits that a fiduciary Proposed paragraph (b)(4) through (6) Proposed paragraph (b)(11) would misused. Further, under Freeman v. would prescribe the beneficiary’s basic provide that a beneficiary has the right Shinseki, 24 Vet. App. 404 (2011), a right to be informed of a fiduciary’s to be represented by a VA-accredited beneficiary has a right to appeal VA’s name, telephone number, mailing attorney, claims agent, or representative fiduciary appointment decisions. In address, and email address; the right to of a VA-recognized veterans service addition, VA has established various contact his or her fiduciary and request organization. a disbursement of funds for current or beneficiary rights in its policies and 13.40 Representation of beneficiaries foreseeable needs or consideration for procedures. Current regulations do not in the fiduciary program clearly prescribe these rights. For payment of previously incurred purposes of clear notice regarding expenses or other information or Under 38 U.S.C. chapter 59, Congress beneficiary rights under current law and assistance consistent with the limited representation in the policy, we propose to add § 13.30 as responsibilities of the fiduciary preparation, presentation, and described below. We intend this prescribed in proposed § 13.140; and the prosecution of claims before VA to VA- regulation as a comprehensive list of the right to obtain from the fiduciary a copy recognized veterans service various rights addressed in more detail of the fiduciary’s VA-approved annual organizations and VA-accredited in other proposed part 13 regulations. accounting. These rights are basic to a attorneys and claims agents. See 38 In the introductory text to proposed fiduciary-beneficiary relationship and U.S.C. 5901, 5902, and 5904. VA § 13.30, we propose to state VA’s policy are necessary to define a fiduciary’s role implemented this authority in 38 CFR that, except as prescribed in the part 13 in such a relationship. They are also 14.626 through 14.637, which address fiduciary regulations, a beneficiary in necessary to clarify that VA is not the recognition and accreditation the fiduciary program has the same beneficiary’s fiduciary and is limited to procedures, standards of conduct for rights as any other VA beneficiary. In an oversight role. individuals providing representation proposed paragraph (a), we state that a Proposed paragraph (b)(7) would before VA, limitations on fees, and beneficiary generally has a right to provide notice regarding a beneficiary’s disciplinary matters. It is reasonable to manage his or her own VA benefits, right under 38 U.S.C. 6107 to have VA impose the same limitations on subject only to VA’s authority under reissue benefits misused by a fiduciary representation before VA in fiduciary section 5502(a)(1) to pay benefits under certain circumstances, and matters. directly to a beneficiary with limited VA proposed paragraph (b)(8) would We propose in § 13.40 that the supervision or to appoint a fiduciary to prescribe a beneficiary’s right to appeal provisions of 38 CFR 14.626 through receive and manage VA benefit VA’s determination regarding its own 14.629 and 14.631 through 14.637 are payments on behalf of a beneficiary. negligence in misuse and reissuance of generally applicable to representation Paragraph (b) would provide notice benefits matters. before VA in fiduciary matters. We regarding specific rights that we believe Proposed paragraph (b)(9) would would exclude the application of Congress intended to afford allow a beneficiary to make a reasonable § 14.630, which authorizes non- beneficiaries when it created the request for the appointment of a accredited representation in claims for fiduciary program. We would prescribe successor fiduciary if the current VA benefits. We intend to ensure that that, if the beneficiary is 18 years old or fiduciary receives a fee paid from the the vulnerable beneficiaries who are in older, a beneficiary in the fiduciary beneficiary’s benefits and the the fiduciary program have the program has the right to receive beneficiary is requesting an unpaid assistance of qualified accredited recurring monthly benefit payments volunteer fiduciary who has a higher representatives. We also propose to until VA has completed the process preference under proposed § 13.100(e), remove any ambiguity that might be required to appoint a fiduciary. This or if the beneficiary provides credible created by the references to ‘‘claims’’ in policy would ensure that beneficiaries information that the current fiduciary is the part 14 regulations as applied to and their dependents receive the not acting in the beneficiary’s interest or fiduciary matters, which are not claims benefits they need while VA is fulfilling is unable to effectively serve the for benefits. We would remove this its statutory obligations in the beneficiary. We propose to prescribe ambiguity by specifying in proposed appointment of a fiduciary. this right consistent with current VA paragraph (b)(1) that the terms ‘‘claim’’ Proposed paragraph (b)(2) would policy, which, in all cases, requires VA and ‘‘claimant’’ in § 14.632 include a prescribe that every beneficiary in the to consider the beneficiary’s stated fiduciary matter before VA and a fiduciary program has the right to notice preference for a fiduciary appointment. beneficiary in the fiduciary program, regarding VA’s appointment of a It would also allow a beneficiary to respectively. Regarding fees, we propose fiduciary or any other decision on a request supervised direct payments of that the provisions of 38 CFR 14.636 fiduciary matter that affects VA’s his or her VA benefits after the removal that reference past-due benefits, use the provision of benefits to the beneficiary. of a fiduciary, which would be one of amount of past-due benefits to calculate The Hub Manager would provide the rights afforded under proposed a permissible fee, or authorize the direct written notice of such decisions to the § 13.30. payment of fees by VA out of withheld beneficiary or the beneficiary’s legal Proposed paragraph (b)(10) would past-due benefits are not applicable in guardian, and the beneficiary’s prescribe that a beneficiary has the right fiduciary matters. This proposal is based accredited veterans service organization to receive his or her VA benefits directly upon the fact that fiduciary matters do representative, attorney, or claims agent. without VA supervision if removed not concern the award of past-due This notice is essential because from the fiduciary program, or receive benefits. At the time of a fiduciary beneficiaries would have the right to benefits directly with VA supervision if appointment, VA has already awarded appeal some of these determinations. the beneficiary demonstrates the ability benefits to the beneficiary, and any

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representation provided by an permanent fiduciary in time to address no option but to take appropriate accredited attorney or claims agent that need. Accordingly, we propose a independent action. would relate only to the fiduciary new regulation, § 13.50, which would 13.100 Fiduciary appointments appointment decision or decision to pay clearly prescribe VA’s authority to benefits directly with VA supervision. suspend benefit payments and take Under 38 U.S.C. 5502(a)(1), VA is authorized to appoint a fiduciary on 13.50 Suspension of benefits appropriate action on behalf of a beneficiary, provided that such action behalf of a beneficiary when VA In 38 U.S.C. 5502(a)(1), Congress serves the beneficiary’s interest. determines that ‘‘the interest of the authorized payment of benefits to a In proposed paragraph (a), we would beneficiary would be served.’’ Under fiduciary on behalf of a beneficiary if state that, notwithstanding any rights this authority, before VA decides to pay VA determines that such payment afforded to a beneficiary under benefits to a fiduciary, VA considers would serve the interest of the proposed § 13.30, the Hub Manager may whether VA benefits can be paid beneficiary. However, Congress also temporarily suspend payments of a directly to the beneficiary with recognized that VA would encounter beneficiary’s VA benefits and hold such temporary and limited VA supervision. situations in which it is necessary to benefits in the United States Treasury to VA may also appoint a temporary suspend payment of benefits to a the credit of the beneficiary, or take any fiduciary under 38 U.S.C. 5502(d) and fiduciary and take appropriate action to other action the Hub Manager deems 5507(d) if the circumstances require a ensure continuity of benefits. In section appropriate to prevent exploitation of temporary appointment. With respect to 5502(b), Congress authorized VA to the beneficiary’s VA benefits or ensure fiduciary appointments, VA must suspend payment of benefits to any that the beneficiary’s needs are being conduct the investigation prescribed by fiduciary who neglects or refuses to met. We intend that this regulation Congress in 38 U.S.C. 5507, which includes conducting a face-to-face comply with VA accounting would implement VA’s authority under requirements. interview with the proposed fiduciary to the above-referenced statutes to suspend In section 5502(d), Congress also the extent practicable. benefit payments and act in the authorized VA to pay benefits to certain VA implemented its authority under other individuals in any case in which beneficiary’s interest in the rare case section 5502 in current 38 CFR 13.55. VA suspends benefit payments to a where independent VA action is While § 13.55 authorizes the Veterans fiduciary. In such cases, Congress necessary. However, we would limit the Service Center Manager to select and prescribed that benefits not paid to Hub Manager’s discretion to use this appoint the individual or entity best those individuals may be ‘‘held in the regulation as prescribed in paragraphs suited to receive VA benefits in a Treasury to the credit of such (a)(1) and (2). fiduciary capacity on behalf of a beneficiary’’ and authorized Based upon VA’s experience in beneficiary, it does not fully implement disbursement of such held funds ‘‘under administering the program, we have section 5502. Specifically, it does not the order and in the discretion of the determined that there are generally two prescribe the obligations in initial Secretary for the benefit of such situations in which VA action under appointments, to include VA’s order of beneficiary or the beneficiary’s this proposed regulation would be preference that must be considered in dependents.’’ 38 U.S.C. 5502(d). necessary. First, in some cases, a selecting a fiduciary to ensure that the Congress prescribed similar authority in beneficiary or the beneficiary’s appropriate fiduciary is appointed for a 38 U.S.C. 5504 regarding administration accredited representative, attorney, or beneficiary. Further, the current of trust funds. That statute, which claims agent may withhold cooperation regulation was promulgated in 1975, generally pertains to the personal funds in the fiduciary appointment process long before Congress added section 5507 of patients and other trust funds and thus risk suspension of benefits. In regarding the investigation required to established by VA, authorizes the these instances, VA has an obligation to appoint a fiduciary. Also, the current transfer of such funds into ‘‘deposit ensure that the beneficiary’s or the regulation does not provide notice of fund accounts with the United States beneficiary’s dependents’ needs are current VA policy and procedures. Treasury’’ and provides that ‘‘such being met, to include payment of We therefore propose a new § 13.100, balances and deposits shall thereupon recurring bills, such as mortgages. which would prescribe the Hub be available for disbursement for Second, VA occasionally removes a Manager’s obligations in the properly authorized purposes.’’ fiduciary for one of the reasons appointment of a fiduciary. This VA implemented these provisions in prescribed in proposed § 13.500(b), such proposed regulation would also various regulations, all of which as fiduciary misuse of benefits, and is prescribe the order of preference the interpret VA’s authority as allowing unable to appoint a successor fiduciary Hub Manager must consider when suspension of benefit payments and before the beneficiary has an immediate appointing a fiduciary, the legal appropriate VA action to ensure need for disbursement of funds. Under requirements regarding investigation continuity of benefits for VA’s most these two situations only, proposed and qualification of a fiduciary, rules vulnerable beneficiaries. See current 38 paragraph (b) would authorize the VA governing expedited and temporary CFR 13.61 (payments to chief officers of Regional Office Director who has fiduciary appointments, and rules institutions), 13.72 (release of funds jurisdiction over the fiduciary hub or governing disclosure of information by from personal funds of patients), and regional office involved to order fiduciaries to the beneficiaries they 13.73 (transfer of funds from funds due disbursement of funds in the serve. This proposed regulation is incompetent beneficiaries). We interpret beneficiary’s and the beneficiary’s necessary to fully inform beneficiaries VA’s current statutory authority and dependents’ interests. and fiduciaries of VA’s interpretation of VA’s current regulations as authorizing In light of the temporary fiduciary current law and the procedures for suspension of benefit payments and appointment authority in proposed appointing fiduciaries. appropriate action by VA to ensure § 13.100(h) and the removal and In proposed paragraph (a), we would continuity of benefit payments if a withdrawal provisions in proposed authorize the Hub Manager to appoint a beneficiary has an immediate need for §§ 13.500 and 13.510, we anticipate that fiduciary for beneficiaries in the disbursement of funds and it is not this proposed regulation would be fiduciary program. Paragraph (a) would possible to appoint a temporary or reserved for rare cases in which VA has generally require appointment of a

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fiduciary for beneficiaries who are the 5502(a)(1) by requiring the Hub Manager trust department of a bank that provides subject of a VA rating or court order to consider, based upon the field fiduciary services. We interpret the regarding inability to manage financial examination, whether the beneficiary is specific investigation requirements in affairs and for beneficiaries who are able to manage his or her VA benefits section 5507, such as the criminal under 18 years of age. Proposed with limited and temporary supervision history and credit check, as applying paragraph (b) would prescribe the by VA. See proposed 38 CFR 13.110 only to individuals. We would also exceptions to the authority granted regarding supervised direct payment. delegate to the Hub Manager the under proposed paragraph (a). We Proposed paragraph (d) would also authority to again conduct all or part of would clarify that VA will not appoint require the Hub Manager to consider the investigation prescribed in fiduciaries for (1) beneficiaries who whether the beneficiary’s circumstances paragraph (f) after the initial qualify under proposed § 13.110 for require appointment of a temporary appointment of the fiduciary. We supervised direct payment or (2) fiduciary under proposed paragraph (h). interpret the authority delegated by beneficiaries who (i) have not reached Finally, proposed paragraph (d) would Congress in section 5507 as including age 18 but (ii) serve in the military, were require the Hub Manager to consider the the authority to monitor fiduciaries’ discharged from military service, or number of beneficiaries the proposed qualifications to ensure that they remain qualify for VA survivors’ benefits as a fiduciary already serves and whether fit for service and that there is no surviving spouse, and (iii) have not been the fiduciary would be able to meet the current bar to service under proposed rated by VA as unable to manage VA responsibilities of a fiduciary prescribed § 13.130. benefits and have not been determined in proposed 38 CFR 13.140 in all Proposed paragraph (g) would by a court to be unable to manage appointments, if the Hub Manager implement section 5507(c) and would financial affairs. The provisions of appointed the fiduciary. We intend that prescribe the requirements for expedited proposed paragraphs (i), (ii) and (iii) the Hub Manager would limit the appointments under section 5502(a)(1). restate or clarify current provisions. We number of beneficiaries a fiduciary may We would restate the provisions of do not intend a substantive change. reasonably serve. section 5507(c) and authorize the Hub Current 38 CFR 3.855 prescribes that In proposed paragraph (e), we would Manager to waive the face-to-face VA will continue benefit payments prescribe the order of preference the interview, criminal background check, directly to a beneficiary pending Hub Manager must consider in and credit report requirements for a appointment of a fiduciary. VA has appointing a fiduciary. We interpret proposed fiduciary who is (1) the parent interpreted this provision to mean that section 5502(a) to authorize a paid (natural, adopted, or step-parent) of a beneficiaries are entitled to direct fiduciary only if VA cannot appoint a minor beneficiary; or (2) the spouse of payment of recurring monthly benefits relative or other fiduciary who would be a beneficiary; or the proposed fiduciary while VA processes a fiduciary willing to serve without a fee. We is being considered to manage annual appointment. However, VA withholds therefore propose the order of VA benefits that do not exceed $3,600, any retroactive benefit payment until a preference in proposed paragraphs (e)(1) as adjusted pursuant to 38 U.S.C. 5312. fiduciary has been appointed and, if through (10), beginning with the Proposed paragraph (h) would applicable, the fiduciary has obtained a beneficiary’s preference and progressing implement section 5507(d) and would surety bond. This long-standing policy to the most restrictive and least prescribe the circumstances under protects any large, one-time benefit desirable options. Consistent with our which a temporary fiduciary may be payment that the beneficiary may need interpretation of current law and VA appointed. In accordance with the for future care and services and that VA policy, VA will consider appointment of provisions of section 5507(d), the period would not be able to reissue under 38 paid fiduciaries, including fiduciaries for which a Hub Manager could appoint U.S.C. 6107 if it were made directly to who are also appointed by a court, only a temporary fiduciary would not exceed the beneficiary prior to a fiduciary when no other appropriate person or 120 days, and a temporary fiduciary appointment. We propose to remove entity is willing to serve without a fee. may be appointed if a beneficiary is current § 3.855 and replace it with VA does not favor diverting VA benefits appealing a VA rating that the proposed paragraph (c), in which we to individuals or entities who will profit beneficiary cannot manage his or her would provide clear notice that the Hub from beneficiaries’ disabilities. own VA benefits. Also consistent with Manager will withhold such payments Proposed paragraph (f) would 5502(d), we propose to authorize until a fiduciary has been appointed. implement 38 U.S.C. 5507 and would appointment of a temporary fiduciary Proposed paragraph (d) would prescribe the investigation VA must when VA has removed a fiduciary for prescribe the obligations of the Hub conduct of a prospective fiduciary to the reasons prescribed in proposed Manager in initially appointing a receive benefits payments for a § 13.500, cannot expedite the fiduciary to act on behalf of a beneficiary under section 5502(a)(1). We appointment of a successor fiduciary, beneficiary. We would essentially would generally restate the provisions and the beneficiary has an immediate restate the statutory language and in section 5507 but propose to require need for fiduciary services. Consistent require every effort to appoint a that the Hub Manager must obtain and with VA’s authority under section 5502 fiduciary that would best serve the review a credit report on the proposed to act in the interest of beneficiaries, we interest of a beneficiary. In achieving fiduciary that was issued by a credit also propose to authorize a temporary this objective, we propose, consistent reporting agency no more than 30 days fiduciary appointment in any other case with section 5507 and current VA prior to the date of the proposed in which the Hub Manager determines practice, to require a field examination appointment. We intend that that it is necessary to protect a prior to appointing a fiduciary, which appointment of fiduciaries would be beneficiary’s assets. would include a ‘‘face-to-face’’ meeting based upon the best available and most In proposed paragraph (h)(2), to with the beneficiary at the beneficiary’s relevant information. We would also ensure that an entity or individual who residence to the extent practicable, and require that a proposed fiduciary must serves as a temporary fiduciary meets the investigation of the proposed provide proof of identity and the qualification requirements under fiduciary prescribed in proposed relationship to the beneficiary, but not section 5507, we would limit paragraph (f). Proposed paragraph (d) require an investigation of a proposed appointment of temporary fiduciaries to would also implement section fiduciary that is an entity, such as the individuals and entities that already

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meet the qualification criteria for bases for a VA decision regarding a determines the [beneficiary] is able to appointment and are performing fiduciary matter, we propose to require manage’’ is not a clear substantive rule. satisfactorily as a fiduciary for at least a proposed fiduciary who is an Therefore, we propose a new § 13.110, one other VA beneficiary for whom the individual to provide the Hub Manager which would clearly prescribe the roles fiduciary has submitted an annual a written authorization for VA to of both VA and the beneficiary during accounting that VA has approved. This disclose to the beneficiary information the supervised direct payment period, provision would ensure that VA regarding any fiduciary matter that may with the objective of having the expeditiously appoints a qualified be appealed described in proposed beneficiary independently managing his fiduciary under these rare paragraph (i)(1). The Hub Manager or her benefits without VA supervision circumstances who can temporarily would provide the proposed fiduciary at a later date, and without having a meet the beneficiary’s immediate needs. notice regarding the purpose of the fiduciary appointed. Proposed paragraph (i) would require authorization and the potential use of In proposed paragraph (a), we would every proposed fiduciary who is an disclosed information by the beneficiary authorize the Hub Manager to pay individual to provide the Hub Manager in seeking review of VA decisions. benefits directly to an adult beneficiary. a written authorization for VA to Under proposed paragraph (i)(3), the Consistent with current VA policy and disclose information about the proposed Hub Manager would terminate section 5502(a), the Hub Manager would fiduciary to the beneficiary. Any consideration of a proposed fiduciary if determine, based upon a field individual who refuses to provide the the individual refuses to provide the examination, whether the beneficiary authorization would not be eligible to required authorization. can manage his or her VA benefits with serve as a fiduciary for a beneficiary. limited and temporary VA supervision. See proposed paragraph (c) of § 13.130 13.110 Supervised direct payment A beneficiary would also be allowed to regarding bars to serving as a fiduciary. In 38 U.S.C. 5502(a)(1), Congress request supervised direct payment of his Under Freeman v. Shinseki, a authorized VA to pay benefits directly or her VA benefits following the beneficiary has a right to appeal VA’s to a beneficiary, regardless of any legal removal of a fiduciary as prescribed in fiduciary appointment decisions. As disability on the beneficiary’s part, if proposed § 13.500. We would prescribe described below in this preamble, we VA determines that direct payment to the types of information that the Hub would extend a beneficiary’s right to that beneficiary will serve his or her Manager would consider in determining appeal to certain other VA decisions interest. Congress did not address the whether a beneficiary can manage his or made in the fiduciary program. See scope of direct payment to a beneficiary her VA benefits with limited and proposed 38 CFR 13.600 regarding who was initially rated as being unable temporary supervision. Such appeals. These decisions must provide to manage his or her VA benefits, but information would include the the beneficiary the bases for VA’s later, through supervised direct beneficiary’s awareness of his or her decision, to include any information payment, demonstrated the ability to financial obligations and ability to meet regarding the disqualification of the independently manage those benefits. those obligations through appropriate proposed fiduciary. For example, during VA implemented its authority under fund management, while still the course of the investigation required section 5502(a)(1) in current 38 CFR conserving excess funds. The Hub by section 5507, VA might discover that 13.56 regarding supervised direct Manager would have authority to the proposed fiduciary has a payment. Under § 13.56, VA may pay consider any other information relevant disqualifying criminal conviction or a benefits directly to a beneficiary rated as to the beneficiary’s ability to manage his poor credit history. Without the being unable to manage his or her VA or her VA benefits. authorization required in proposed benefits ‘‘in such amount as [VA] Proposed paragraph (b) would § 13.100(i), application of the Privacy determines the [beneficiary] is able to prescribe the limited and temporary Act might prevent VA from providing manage with continuing supervision by supervision provided by VA to a the beneficiary meaningful notice [VA], provided a fiduciary is not beneficiary who the Hub Manager regarding the bases for VA’s otherwise required.’’ If the amount paid determines is eligible for supervised appointment of a fiduciary other than under direct supervision is less than the direct pay. This supervision would the one with a criminal history or poor full benefit entitlement, such partial consist of budgeting assistance and credit history. payment cannot exceed 1 year for a assistance in creating a fund usage The same concern exists during VA’s beneficiary who is successfully report, with the intent being that processing of an appeal to the Board of managing his or her financial affairs. supervised direct payment would Veterans’ Appeals. Under 38 U.S.C. We have determined that current include instruction and monitoring 7105(d), upon receipt of a notice of § 13.56 does not fully implement section components. Finally, the supervision disagreement regarding a fiduciary 5502(a)(1) or current VA policy prescribed by proposed § 13.110(b) appointment decision, VA must issue a regarding supervised direct payment to would include periodic reviews of the statement of the case summarizing the beneficiaries in the fiduciary program. beneficiary’s fund usage reports by pertinent evidence, citing the pertinent We note that while the current fiduciary hub personnel. We have laws and regulations, and discussing regulation allows direct payment of determined that this limited supervision how the law and regulations affect VA’s benefits, it is unclear as to how such would strike the proper balance decision. The purpose of this statement payments will be accomplished while between VA supervision and is to assist the beneficiary in making a VA provides continued supervision. independent fund management by the decision regarding appeal and preparing The current regulation is silent as to beneficiary. the appeal for review by the Board of what continued supervision entails or Current § 13.56 does not address Veterans’ Appeals. The statement might whether such supervision must whether a beneficiary who has been be viewed as inadequate for the purpose continue despite evidence that the rated as being unable to manage his or it serves if VA cannot fully discuss the beneficiary can actually manage his or her VA benefits may nonetheless bases for its decision. her VA benefits. Furthermore, current establish such ability through Accordingly, to ensure the language in the regulation which supervised direct payment. We propose transparency that beneficiaries need to provides that VA may pay the to address this gap in proposed perfect an appeal or understand the beneficiary ‘‘in such amount as [VA] paragraph (c), which would require the

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Hub Manager to reassess the 6107. Congress did not specifically serve as fiduciary for that beneficiary,’’ beneficiary’s ability at or before the end address how VA should conduct the which we interpret to mean that of the first 12-month period of various activities required for proper Congress intended that VA would supervised direct pay. Such administration of the fiduciary program. conduct any necessary investigations, reassessment would be based upon the However, in 38 U.S.C. 5711(a), Congress visits, or other inquiries to confirm the results of a field examination, the authorized VA to, among other things, qualifications of any person seeking to factors in proposed paragraph (a), and ‘‘[m]ake investigations and examine provide fiduciary services for a VA the results of the limited supervision witnesses upon any matter within the beneficiary prior to appointment. prescribed in proposed paragraph (b). If jurisdiction of the Department.’’ Paragraph (b) would list the scope of a the Hub Manager determines that the Current 38 CFR 13.2(a) regarding the field examiner’s duties under current beneficiary has demonstrated the ability authority to conduct field examinations VA policies and procedures. In listing to manage his or her own VA benefits restates the authority granted by the scope of these duties, we do not without further supervision, the Hub Congress in section 5711(a). Current intend a substantive change and instead Manager would be required to report paragraph (b) then prescribes the scope intend to clarify the purpose of field that determination to the rating of field examinations in very general examinations and the authority of field authority for application of 38 CFR terms. It states that field examinations examiners who conduct them. 3.353(b)(3) regarding reevaluation of include but are not limited to matters Proposed paragraph (c) would provide ability to manage VA benefits and related to administration of estates and the reasons for which a Hub Manager § 3.353(d) regarding the presumption of the well-being of beneficiaries. Certain may order a field examination. ability to manage VA benefits without field examination provisions are in VA’s Consistent with the primary purposes restriction. The Hub Manager would 38 CFR part 3 adjudication regulations, for field examinations, which are to have authority to extend supervised rather than in the current part 13 ensure the well-being of beneficiaries direct payment for an additional period fiduciary regulations where the reader and protect a beneficiary’s VA benefit up to 12 months but would otherwise be might expect to find them. Specifically, funds through the oversight of required to appoint a fiduciary for any upon a rating that a beneficiary cannot beneficiaries in the program and the beneficiary who does not demonstrate manage his or her VA benefits, current appointment and oversight of the requisite ability to manage one’s 38 CFR 3.353(b)(2) authorizes the fiduciaries, the Hub Manager would own VA benefits. The decision as to Service Center Manager to ‘‘develop have authority to order a field whether to extend supervised direct information as to the beneficiary’s examination at any time for those payment for not longer than one social, economic and industrial purposes. Again, VA does not intend additional 12-month period or appoint a adjustment’’ and appoint a fiduciary. any substantive change in proposing to fiduciary would be based on a field We have determined that current expressly prescribe the circumstances examination and factors such as § 13.2 lacks clarity regarding the under which VA would conduct a field whether the beneficiary is aware of his purpose and scope of field examinations examination. Our intent is to clarify or her monthly income and fixed in the fiduciary program. VA current practice and provide clear monthly expenses and has the ability to promulgated the current regulation notice regarding our field examination allocate appropriate funds, pay monthly before the enactment of sections 5507, activities in the fiduciary program. 5508, 6106, and 6107, and thus it does bills in a timely manner, and conserve 13.130 Bars to serving as a fiduciary excess funds. not reflect current law and VA policy. In our view, proposed § 13.110 would Accordingly, we propose to replace In establishing the fiduciary program, be a significant reform which would current § 13.2 with proposed § 13.120 as Congress intended that VA would take allow beneficiaries who were initially described below. appropriate action to ensure that only rated as being unable to manage their In proposed paragraph (a), we would qualified individuals and entities VA benefits to achieve the same level of define ‘‘field examination’’ and provide fiduciary services for financial independence as other authorize the Hub Manager with beneficiaries. In 38 U.S.C. 5502(a)(1), beneficiaries with similar disabilities. jurisdiction over a fiduciary matter to Congress authorized payment of benefits order a field examination in connection to a fiduciary on behalf of a beneficiary 13.120 Field examinations with that matter. The term ‘‘field if VA determines that such payment Under 38 U.S.C. 5502(a), VA may pay examination’’ would describe the broad would serve the interest of the benefits directly to a beneficiary who scope of duties performed by VA’s beneficiary. In section 5502(b), Congress has been rated by VA as being unable current field examiners, who generally authorized VA to appear in court to manage his or her VA benefits or may live near the beneficiaries they serve regarding a fiduciary if the fiduciary ‘‘is pay benefits to a fiduciary on behalf of and are responsible for checking not properly executing or has not such a beneficiary, when VA determines beneficiary needs, beneficiary well- properly executed the duties of the trust that doing so would serve the being, and fiduciary qualifications and of such fiduciary’’ and suspend beneficiary’s interest. With respect to performance. In this regard, field payments to any fiduciary who fails to fiduciary appointments, VA must examinations are a critical component properly submit an accounting to VA. conduct the investigation prescribed by of the fiduciary program, under which Finally, under 38 U.S.C. 5507, VA must Congress in 38 U.S.C. 5507 and VA oversees vulnerable beneficiaries conduct an investigation regarding a thereafter conduct sufficient oversight to and appoints and oversees fiduciaries proposed fiduciary before appointing determine whether fiduciaries are for those beneficiaries. the individual to serve as a fiduciary. properly providing services for Proposed paragraph (b) would Among other things, this investigation beneficiaries. Such oversight may prescribe the scope of field must include an inquiry regarding the include the periodic onsite reviews of examinations. As noted above, under proposed fiduciary’s criminal and credit certain fiduciaries under the authority current § 3.353(b)(2), assessment of the history. 38 U.S.C. 5507(a)(1)(C) and (b). granted in 38 U.S.C. 5508 or the beneficiary is one component of a field Appointment of a fiduciary must be monitoring or investigation regarding examination. Further, section 5507(a)(1) based, in addition to that investigation, misappropriation or misuse of benefits prescribes ‘‘an inquiry or investigation on ‘‘adequate evidence that certification required by 38 U.S.C. 6101, 6106, and by [VA] of the fitness of that person to of that person as fiduciary for that

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beneficiary is in the interest of such abuse or neglect of another person, Paragraph (b)(3) would bar appointment beneficiary.’’ 38 U.S.C. 5507(a)(2). We would be a permanent bar to serving as or continuation of service if a court with interpret these provisions to mean that a fiduciary. Under section 5507(b), jurisdiction has adjudicated the certain individuals should not be Congress authorized VA to appoint a individual as being unable to manage considered qualified for purposes of convicted felon ‘‘only if [VA] finds that his or her own financial affairs. Finally, acting as a fiduciary for a beneficiary. the person is an appropriate person to paragraph (b)(4) would bar appointment Although VA’s current regulations act as fiduciary for the beneficiary or continuation of service if the prescribe the appointment of a fiduciary concerned under the circumstances.’’ proposed fiduciary is incarcerated in a if VA determines that such appointment This proposed rule is not inconsistent Federal, State, local, or other penal is in the interest of the beneficiary, they with that limitation on VA’s institution or correctional facility, do not contain any provisions appointment authority. sentenced to home confinement, establishing clear qualification In section 5502, Congress authorized released from incarceration to a half- standards for proposed or currently VA to appoint a fiduciary for a way house, or on house arrest or in serving fiduciaries. Specifically, VA beneficiary only if it appears to VA that custody in any facility awaiting trial on does not currently have a regulation that it would serve the beneficiary’s interest. criminal charges. Such incarceration or lists the circumstances under which VA We have determined that there is no custody would make the proposed would not consider an individual or circumstance under which it would fiduciary effectively unavailable for entity for appointment or continuation serve a vulnerable beneficiary’s interest purposes of fulfilling the obligations of of service. We have determined that to have VA benefits managed by a felon a fiduciary. such a regulation is necessary to ensure convicted for one of the offenses listed Proposed paragraph (b)(5) would bar consistency in the more than 30,000 in proposed paragraph (a)(2)(ii). To do appointment or continuation of service initial fiduciary appointments that VA otherwise would call into question the as a fiduciary if the individual has conducts annually and to ensure that integrity of the fiduciary program. felony criminal charges pending. VA’s fiduciary personnel appoint only Accordingly, we propose to authorize Although a fiduciary or proposed the best qualified individuals or entities the Hub Manager to appoint a person fiduciary who has been charged with a to manage the funds of VA’s most who has been convicted of a felony felony might ultimately be acquitted or vulnerable beneficiaries. Further, it is offense other than the proscribed found not guilty and at that time qualify VA’s obligation in its oversight role to offenses listed under paragraph (a)(2)(ii) for appointment, we have determined remove any fiduciary who no longer only if the Hub Manager determines that that it would be inconsistent with our meets the requirements for there is no other person or entity willing obligation to protect vulnerable appointment. Without a clear standard and qualified to serve, there is no risk beneficiaries in the fiduciary program to regarding the circumstances that would to the beneficiary, and such allow such individuals to provide bar appointment or continuation of appointment is in the beneficiary’s fiduciary services to beneficiaries while service, we could not consistently interest. the charges are pending. Also, a person conduct oversight and beneficiaries and Proposed paragraph (b) would who is on trial for a felony offense or fiduciaries would not have adequate prescribe other bars to an individual who is preparing for such a trial would notice of VA’s interpretation of serving as a fiduciary. Paragraph (b)(1) not, in our view, be able to properly governing law. Accordingly, we propose would bar appointment or continuation attend to the needs of VA beneficiaries. to add a new § 13.130 regarding bars to as a fiduciary, if the individual being However, upon request of a beneficiary, serving as a fiduciary. considered refuses or neglects to we would remove the bar and consider Proposed paragraph (a)(1) would bar authorize VA to disclose information the individual for appointment if he or the appointment or further service of regarding the individual to the she is acquitted or found not guilty of any person or entity that misused or beneficiary the individual wishes to the charges. We propose in paragraph misappropriated VA benefits while serve. Under Freeman v. Shinseki, a (b)(6) that being under 18 years of age serving as a beneficiary’s fiduciary. beneficiary has a right to appeal VA’s bars being appointed as a fiduciary Paragraph (a) would continue current fiduciary appointment decisions. In because it would be unreasonable to VA policy, under which VA does not these proposed regulations, we propose appoint as a fiduciary a person who is reappoint any individual or entity that to acknowledge the right to appeal deemed unable to manage his or her has misused or misappropriated certain other VA decisions made in the own VA benefits. Last, we propose in beneficiary funds. We interpret VA’s fiduciary program. See proposed 38 CFR paragraph (b)(7) that any knowing authority under 38 U.S.C. chapters 55 13.600 regarding appeals. We described violation or refusal to comply with the and 61 as establishing an obligation to our basis for requiring each proposed regulations governing service as a eliminate as much as possible the risk fiduciary to provide VA an fiduciary would also be a bar. of exploitation of beneficiary funds. We authorization for VA disclosure of could not meet this obligation if we information to the beneficiary in the 13.140 Responsibilities of fiduciaries reappointed or continued the service of supplementary information for Sections 5502 and 5507 require VA to a person who has engaged in such proposed § 13.100(i). consider whether payment of benefits to exploitation. Proposed paragraphs (b)(2) through a fiduciary is in a beneficiary’s interest. Proposed paragraph (a)(2)(i) would (4) would bar appointment or We interpret this authority as prescribe the general rule that a felony continuation of service as a fiduciary if authorizing VA to remove any fiduciary conviction is a bar to appointment or the individual does not have the current who is not meeting the fiduciary’s continuation of service as a fiduciary for capacity to provide fiduciary services responsibilities to a beneficiary and thus the 10-year period following the for a beneficiary. Paragraph (b)(2) would not acting in the beneficiary’s interest. conviction, provided that the conviction bar appointment or continuation of However, current regulations do not is not for one of the offenses listed in service of any individual who is unable clearly prescribe those responsibilities. proposed paragraph (a)(2)(ii). A felony to manage his or her own Federal or Current 38 CFR 13.100(a) regarding conviction for one of the offenses in State benefits and is in a Federal or supervision of VA-appointed fiduciaries paragraph (a)(2)(ii), which generally State agency’s fiduciary or authorizes VA to require an accounting concern fraud, financial crimes, or the representative payment program. from, or terminate the appointment of,

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a VA-appointed fiduciary when the Furthermore, under 38 U.S.C. maintain separate accounts, determine Veterans Service Center Manager 5502(a)(1), Congress authorized and pay just debts, provide the ‘‘deems it necessary for the protection of payments of VA benefits to a fiduciary beneficiary information regarding VA the beneficiary’s interests.’’ However, it on behalf of a beneficiary if it appears benefit funds under management, is unclear when such action might be to VA that such payment would serve protect funds from the claims of necessary, and there is no notice to the interest of the beneficiary. Under creditors, and provide beneficiaries a fiduciaries or beneficiaries regarding this authority, it is VA’s obligation to copy of any VA-approved annual VA’s expectations. Current paragraph oversee the fiduciaries it appoints to accounting. In particular, proposed (b) authorizes any necessary informal manage VA benefit funds on behalf of paragraph (b)(8) would prescribe the action regarding court-appointed beneficiaries. Although Congress did requirements for a fiduciary’s best- fiduciaries to ensure that ‘‘benefits are not expressly prescribe in section 5502 interest determination regarding VA prudently administered and adequately protection of beneficiaries’ private benefit funds under management. We protected.’’ Current paragraphs (c) information, such protection is inherent would prescribe that beneficiaries in the regarding unsatisfactory conditions and in the obligation of a fiduciary to act in fiduciary program are entitled to the (d) regarding misappropriation, good faith and in the interest of the same standard of living as a beneficiary embezzlement, or violation of Federal beneficiary. We have determined that it with comparable resources who is not in statutes generally track the language of would be inconsistent with a fiduciary’s the program, and that the fiduciary sections 5502(b) and 6101 and authorize position of trust to permit the fiduciary program is not for the purpose of suspension of benefits and referral to to use inadequate information preserving funds ‘‘for the beneficiary’s the VA Regional Counsel if the fiduciary protection measures. The fiduciary’s heirs or disbursing funds according to has performed inadequately. These failure to protect the information would the fiduciary’s own beliefs, values, provisions do not prescribe any put the beneficiary at risk of identity preferences, and interests.’’ We intend meaningful standards, which might theft, misappropriation of funds, or that these provisions will have a instruct fiduciaries and beneficiaries other harm. Accordingly, we propose to positive effect on the well-being of regarding VA’s expectations or the prescribe in paragraph (a)(2) the beneficiaries in the program by grounds for further VA action to minimum requirements for protection of proscribing unreasonable conservation suspend payment of benefits, remove beneficiaries’ private information. In of funds. the fiduciary, or appoint a successor proposing to prescribe these Proposed paragraph (c) would fiduciary. Nor do they establish binding requirements, we do not intend to prescribe fiduciaries’ non-financial obligations that have the force and effect impose onerous security requirements responsibilities. These responsibilities of law for VA, beneficiaries, or upon fiduciaries, most of whom are generally concern a fiduciary’s fiduciaries. Accordingly, we propose to beneficiaries’ family members. Rather, obligation to monitor the beneficiary’s clearly prescribe the responsibilities of we intend that fiduciaries will take the well-being and report any concerns to VA-appointed fiduciaries in a new reasonable precautions that every appropriate authorities, including any § 13.140 as described below. person should take when maintaining legal guardian for the beneficiary. It his or her private information in paper would also reinforce VA’s view that a In proposed paragraph (a), we would or electronic records to prevent identity fiduciary must maintain regular contact prescribe the core requirements for all theft and unauthorized access. In with a beneficiary and be responsive to fiduciaries, which are to monitor the proposing these requirements, we do beneficiary requests. Without such well-being of the beneficiaries they not intend to supersede State law or contact, a fiduciary could not serve and to disburse funds according to other professional industry standards, reasonably determine whether a beneficiary needs. It is our intent to under which a fiduciary may have beneficiary’s needs are being met by the change the culture in the fiduciary additional requirements that exceed the fiduciary’s disbursement of funds. program to ensure that it is the fiduciary minimum standard proposed by VA. Proposed paragraph (d) would that determines the beneficiary’s needs Consistent with VA’s oversight of prescribe fiduciaries’ responsibilities to and whether disbursement of funds to beneficiaries obligation under 38 U.S.C. VA under its oversight function. This address those needs is in the 5502(a)(1), paragraph (a)(2) would paragraph would generally prescribe beneficiary’s interest. VA is not the require a fiduciary, if VA removes the fiduciary compliance with VA’s part 13 fiduciary for the beneficiary and must fiduciary under § 13.500 or the fiduciary fiduciary regulations, such as the defer to the fiduciary consistent with withdraws under § 13.510, to keep all proposed accounting and face-to-face VA regulations. However, we also records relating to the management of interview requirements. It would also intend to change the culture in the the beneficiary’s VA benefit funds for 2 require fiduciaries to keep VA apprised program to the extent that fiduciaries years after the date of removal or of any change in the beneficiary’s are unnecessarily conserving withdrawal. VA needs this requirement circumstances which might adversely beneficiaries’ funds. We are concerned to facilitate any inquiry regarding a impact the beneficiary’s well-being. VA that some elderly beneficiaries are dying fiduciary’s past services and the proper needs this information for purposes of with a large amount of funds under management of funds and to effectively coordinating a proper response to the management by a fiduciary that could oversee beneficiaries if a fiduciary is beneficiary’s benefit or other needs, to have been used during the beneficiary’s removed or withdraws. include referral to the Veterans Health life to improve his or her standard of In proposed paragraph (b), we would Administration or other public or living. To address this concern, we prescribe the fiduciary’s financial private agencies for delivery of services. propose to prescribe in paragraph (a) responsibilities. This paragraph that a fiduciary must disburse or generally references the requirements of 13.200 Fiduciary accounts otherwise manage funds according to other regulations in part 13 to provide In section 5502(a)(1), Congress the best interests of the beneficiary and clear notice to fiduciaries regarding authorized VA to pay benefits to a VA- the beneficiary’s dependents and ‘‘in their financial obligations. Fiduciaries appointed fiduciary for the use and light of the beneficiary’s unique would be required to use funds in the benefit of the beneficiary, and in section circumstances, needs, desires, beliefs, interest of beneficiaries and their 5509(a), Congress authorized VA to and values.’’ dependents, protect funds from loss, require fiduciaries to file reports or

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accountings regarding the management VA’s experience in administering the remove current §§ 13.103 and 13.106 of funds by the fiduciary on behalf of program indicates that the burden of and replace them with a new § 13.210 the beneficiary. Under 38 U.S.C. 5711, establishing separate accounts would as described below. VA has authority to require the outweigh by far the risk of fund Proposed paragraph (a) would production of any documentation or exploitation. prescribe the general rule that a other evidence and to conduct 13.210 Fiduciary investments fiduciary must conserve or invest any investigations relating to any matter funds under management that the under VA’s jurisdiction. However, In 38 U.S.C. 5502(a), Congress beneficiary or the beneficiary’s Congress has not prescribed the types of authorized VA to pay benefits to a dependents do not immediately need for accounts that VA-appointed fiduciaries fiduciary on behalf of a beneficiary if it maintenance, reasonably foreseeable must establish for purposes of managing appears to VA that it would serve the expenses, or reasonable improvements beneficiary funds and complying with beneficiary’s interest. However, in the beneficiary’s and the beneficiary’s annual accounting requirements. Congress did not prescribe how dependents’ standard of living. We Although current regulations fiduciaries should manage beneficiary would clarify that the limited purpose prescribe the payment of benefits to funds. VA filled this gap in the of conservation of beneficiary funds is certain individuals or entities on behalf legislation in current 38 CFR 13.103 to provide the fiduciary the means to of a beneficiary who cannot manage his regarding investments by ‘‘Federal’’ address unforeseen circumstances or or her VA benefits and address certain fiduciaries and current 38 CFR 13.106 plan for future care needs in light of the fund-management matters, no current regarding investments by ‘‘court- beneficiary’s circumstances and regulation prescribes the requirements appointed’’ fiduciaries. Current disabilities. We would prohibit the for fiduciary accounts. We propose to § 13.103(a) prescribes the types of conservation of funds based upon the prescribe those requirements in § 13.200 investments that fiduciaries may use, interests of the beneficiary’s heirs or specifically United States savings bonds as described below. according to the fiduciary’s own belief, or interest or dividend-paying accounts Proposed paragraph (a) would require values, preferences, and interests. Our in State or Federally-insured a fiduciary to establish a separate intent in proposing these rules is to Federally-insured account, if VA benefit institutions. Paragraph (a) also change the culture in the fiduciary funds under management qualify for prescribes exceptions for fiduciaries program, to the extent it still exists, such deposit insurance, in a Federally- who are spouses or chief officers of under which a fiduciary may insured financial institution for each institutions. Current paragraph (b) accumulate an extraordinary amount of beneficiary whom the fiduciary serves. prescribes specific ‘‘registration’’ funds in a beneficiary’s account which However, it would not prohibit requirements for authorized the beneficiary is not able to use in his establishment of multiple accounts for investments, to include the beneficiary’s or her lifetime. Under current VA the same beneficiary if the fiduciary name and Social Security number, the policy, the purpose of the fiduciary deems it necessary for proper fiduciary’s name, and specific language program is to provide beneficiaries and management of beneficiary funds. It regarding ‘‘custodianship by designation would prohibit the commingling of of the Department of Veterans Affairs.’’ their dependents the best possible beneficiary funds with the fiduciary’s or Paragraph (c) authorizes fiduciaries to standard of living that funds under any other beneficiary’s funds at any purchase pre-need burial plans. management will reasonably allow. A time, prescribe direct deposit of VA Current § 13.106 provides a general beneficiary in the fiduciary program benefits, and prescribe a standard for policy statement regarding prudent should be allowed the same standard of identifying ownership of the account investment by fiduciaries. It also states living as a beneficiary with comparable and the fiduciary’s relationship with the that it is the Veterans Service Center resources who is not in the fiduciary beneficiary. We intend that these Manager’s responsibility to review and program. Finally, we note that the account-establishment requirements determine the legality of investments by fiduciary program is not an estate will assist VA in overseeing fiduciaries, court-appointed fiduciaries, and planning program for a beneficiary’s specifically with respect to auditing prescribes referral to the VA Regional heirs. We propose to expressly prohibit fiduciary accountings under proposed Counsel for action regarding the management of funds for that § 13.280, and make it harder for investments that appear to be purpose. fiduciaries to conceal the misuse of inconsistent with VA policy. Proposed paragraph (b) would restate benefits in pooled accounts or through As noted in this preamble, we without substantive change the transfer of beneficiary funds between propose to discontinue the distinction provisions of current regulations accounts. between ‘‘Federal’’ fiduciaries and requiring prudent investment and Proposed paragraph (b) would exempt ‘‘court-appointed’’ fiduciaries, and generally limiting investments to VA-appointed spouses, State or local instead refer only to ‘‘fiduciary’’ or Federally-insured interest or dividend- Government entities, institutions in ‘‘fiduciaries’’ in VA’s part 13 fiduciary paying accounts. It would also restate which beneficiaries receive care or that regulations. It is VA’s long-standing the current ‘‘registration’’ requirements. have custody of beneficiaries, nursing interpretation of current law and its However, in administering the program, homes, and a trust company or a bank practice to appoint and conduct we have learned that some institutions with trust powers organized under the oversight regarding all individuals and will not permit the establishment of laws of the United States or a state from entities who provide fiduciary services accounts using the exact language this separate account requirement for beneficiaries. Therefore, the prescribed in current § 13.103. prescribed in proposed paragraph (a). proposed rules would be uniform for all Accordingly, we propose to prescribe Regarding spouses, it is VA’s policy to fiduciaries appointed by VA to manage only that the account must be clearly minimize the Government’s intrusion VA benefit payments on behalf of a titled in the beneficiary’s and fiduciary’s into the marital relationship and avoid beneficiary. We intend to apply this names and identify the fiduciary dictating requirements for property that approach to our regulation regarding relationship. is jointly owned by a beneficiary and fiduciary investments effective with Proposed paragraph (c) would restate spouse. The listed organizations would investments acquired after the effective without substantive change the be exempt from the requirement because date of the final rule. We propose to exceptions in current regulations for

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fiduciaries who are spouses or chief determine whether a fee is necessary in amount authorized by the Hub Manager officers of institutions. a particular case. Consistent with that does not exceed 4 percent of the current VA policy, the Hub Manager beneficiary’s monthly VA benefits. 13.220 Fiduciary fees would appoint a paid fiduciary as a last Upon authorization, the fiduciary would In 38 U.S.C. 5502(a)(2), in cases in resort and only if the Hub Manager have permission to deduct the fee from which VA determines that a determines that such appointment the beneficiary’s account for each month commission is necessary to obtain a would serve the beneficiary’s interest in which the fiduciary is eligible for a fiduciary in the best interests of a and that no other person or entity is fee under paragraph (b)(2). As a general beneficiary, Congress authorized ‘‘a qualified and willing to serve without a rule, eligibility would exist in each reasonable commission for fiduciary fee. Consistent with section 5502(a)(2) month in which the fiduciary receives a services rendered’’ to be paid from the as interpreted by current § 13.64, benefit payment on behalf of the beneficiary’s VA funds, but such proposed paragraph (a) would prohibit beneficiary and provides fiduciary commissions for any year may not fees for dependents or relatives of the services. exceed 4 percent of the beneficiary’s beneficiary, or any other person who Proposed paragraph (b)(3) would monetary VA benefits paid to the will receive any other compensation of prescribe limitations on the fiduciary during the year. VA any kind for providing fiduciary computation of fees. In proposed implemented this authority in current services for the beneficiary. We do not paragraph (b)(3)(i), we would bar the 38 CFR 13.64 regarding fiduciary intend a substantive change in computation of a fee upon one-time, commissions. Section 13.64 authorizes paragraph (a) but note that the current retroactive, or lump-sum benefit the Veterans Service Center Manager to regulation is unclear to the extent that payments. As described above, this rule determine when it is necessary to it refers to ‘‘close’’ relatives. We propose is consistent with the plain language of authorize a commission, tracks the to clarify that the bar applies to the section 5502(a)(2), which authorizes VA language of section 5502(a)(2) regarding beneficiary’s ‘‘relatives’’ and define the to allow a reasonable fee for ‘‘fiduciary the maximum commission that may be term in proposed § 13.20. services rendered.’’ Allowing fees on deducted from a beneficiary’s estate, Proposed paragraph (b) would these types of payments would amount and requires the Veterans Service Center prescribe the limitations applicable to to paying a fiduciary for services the Manager to furnish appropriate notice to fiduciary fees. We interpret ‘‘a fiduciary did not provide to the beneficiaries regarding such deductions. reasonable commission [not to exceed 4 beneficiary. It also prohibits commissions for percent of monetary benefits] for Proposed paragraph (b)(3)(ii) would beneficiaries’ dependents or other close fiduciary services rendered’’ in section prohibit computing a fee upon any relatives of beneficiaries acting as 5502(a)(2) to mean that Congress funds conserved by the fiduciary in the fiduciary. intended the 4-percent ceiling to permit beneficiary’s account under proposed We have determined that § 13.64 is a moderate fee to be paid on a periodic § 13.200 or invested by the fiduciary inconsistent with current VA policy and basis from an ongoing award and that under proposed § 13.210, to include any does not provide clear rules regarding the fee would bear a relation to the interest income and return on the circumstances under which VA may amount of benefits being received on an investment derived from any account. authorize a fiduciary commission or the ongoing basis. To read the statute Any funds conserved do not constitute limitations on such commissions. In otherwise would permit a fiduciary to a running monthly benefit award upon particular, the current rule does not receive a windfall fee in a particular address whether a commission may be year that bears no relation to what the which a fiduciary may calculate a fee. computed based upon retroactive, lump- fiduciary could receive in other years or As noted above, we interpret section sum, or other one-time benefit payments what other fiduciaries are receiving for 5502(a)(2) to mean that the total fee to fiduciaries. Nor does it address providing comparable services to other payable to a fiduciary for all fiduciary computation based upon surplus funds beneficiaries. Further, a fee computed services rendered, including the maintained by the fiduciary in the on the basis of a retroactive award management of conserved funds, is a beneficiary’s account or funds would bear little relation to the percentage of the monthly benefit transferred to the fiduciary by a ‘‘services rendered’’ by the fiduciary, payments made. predecessor fiduciary for the which would generally be the same In proposed paragraph (b)(3)(iii) we beneficiary. Finally, the current rule from year to year, regardless of whether would prohibit computing a fee upon does not address the circumstances the beneficiary happened to receive a any funds transferred to the fiduciary by under which there would be a bar to lump-sum payment in a particular year. a prior fiduciary. Again, consistent with deducting a commission for a given We also note that VA generally awards section 5502(a)(2), this would ensure month. Accordingly, we propose to entitlement to retroactive benefits to a that fiduciaries are allowed fees from replace current § 13.64 with proposed beneficiary before the appointment of a beneficiary accounts only for fiduciary § 13.220 as described below. fiduciary, but pays the retroactive services rendered. We propose to discontinue use of the benefits following the appointment of a Proposed paragraph (b)(4)(i) would term ‘‘commission’’ in VA’s part 13 fiduciary. Allowing a fiduciary to restate and implement 38 U.S.C. 6106, fiduciary regulations and instead use deduct up to 4 percent of such an award which prohibits a fiduciary from the term ‘‘fee’’ or ‘‘fees’’ when referring simply because the funds are transferred collecting a fee for any month for which to the payment made from a to the fiduciary and deposited in a VA or a court with jurisdiction beneficiary’s VA funds to a fiduciary for fiduciary account would amount to determines that the fiduciary misused fiduciary services. This is not a unjust enrichment of the fiduciary at the benefits. The statute also authorizes VA substantive change; it is for the limited beneficiary’s expense and with no to treat any fees collected by a fiduciary purpose of simplifying our regulations fiduciary services rendered by the during a month in which VA or a court through the use of common terms and fiduciary. finds that the fiduciary misused benefits plain language. Consistent with our interpretation of as being misused benefits. In addition, In proposed paragraph (a), we would section 5502(a)(2), proposed paragraph we propose to prohibit fees for any authorize the Hub Manager with (b)(1) would define ‘‘reasonable month in which VA or a court with jurisdiction over the appointment to monthly fee’’ to mean a monetary jurisdiction determines that a fiduciary

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has misappropriated benefits, as defined retroactive benefits to a beneficiary is generally inconsistent with VA policy in 38 U.S.C. 6101. before the appointment of a fiduciary regarding the role of VA and fiduciaries Proposed paragraph (b)(4)(ii) would but withholds payment until the in the fiduciary program. In our view, it clarify that the Hub Manager may appointment is complete and the is the fiduciary’s obligation to make retroactively authorize a fee for a month fiduciary obtains a surety bond. It best-interest determinations regarding in which the beneficiary did not receive would prohibit the payment of any beneficiary funds under management. a benefit payment if VA later issues a retroactive, one-time, or other pending The use of a restricted withdrawal payment for that month and the lump-sum benefit amount to the agreement may improperly insert VA fiduciary continued to provide fiduciary fiduciary on behalf of the beneficiary into matters reserved for fiduciaries. services. Consistent with the provisions until the fiduciary has furnished the Nevertheless, we have determined to of this proposed regulation on payment prescribed bond. Our intent is to require use restricted withdrawal agreements of fees to fiduciaries, paragraph (b)(4)(ii) certain fiduciaries who manage for fiduciaries in locations where would ensure that fiduciaries are paid accumulated funds to obtain additional obtaining an adequate surety bond is not for the services they provide to protection of those funds on behalf of practicable. Under proposed paragraph beneficiaries during a temporary their beneficiaries before receiving large, (c), the Hub Manager would have suspension of benefits. lump-sum benefit payments. While it discretion to waive the bond 13.230 Protection of beneficiary funds would be impossible to determine the requirement and enter into a restricted exact amount of accumulated benefits at withdrawal agreement regarding Under 38 U.S.C. 5507(a)(3), ‘‘[a]ny which a beneficiary might be accumulated funds in cases where the certification of a person for payment of significantly more at risk of fund location of the fiduciary precludes benefits of a beneficiary to that person exploitation by a fiduciary, we propose obtaining adequate bonding. Currently, as such beneficiary’s fiduciary . . . shall to use $25,000 as the threshold because, adequate bonding may not be available be made on the basis of,’’ among other based upon our experience in in Puerto Rico, other territories of the things, ‘‘the furnishing of any bond that administering the program, we have United States, and the Philippines. may be required by [VA].’’ Section determined that the cost of obtaining a Under proposed paragraph (c)(2), the 5507(a)(3) essentially codified a VA bond for smaller amounts of Hub Manager would be authorized to preexisting regulation regarding surety accumulated funds under management require a bond at any time, without bonds, current 38 CFR 13.105. would outweigh any benefit to the regard to the amount of funds under Current § 13.105 authorizes the beneficiary. For the same reasons, management, if the Hub Manager Veterans Service Center Manager to proposed paragraph (b) would apply determines that special circumstances require a fiduciary to furnish a surety this rule to a fiduciary who is not indicate that obtaining a bond would be bond in an amount sufficient to protect initially required to obtain a bond but in the beneficiary’s interest. Among the interest of the beneficiary. It also later accumulates funds on behalf of a other things, such circumstances would authorizes the Veterans Service Center beneficiary that exceed the $25,000 include a marginal credit report Manager to require an ‘‘agreement in threshold. regarding the fiduciary or a fiduciary’s lieu of a surety bond or additional Proposed paragraph (c) would misdemeanor criminal conviction for surety bond’’ in cases where the prescribe several exceptions to the any criminal offense listed in proposed fiduciary has deposited beneficiary general rule regarding surety bonds in § 13.130(a)(2)(ii) regarding bars to funds in an account with a State- or proposed paragraphs (a) and (b). We serving as a fiduciary. Federally-insured institution. Finally, it propose to limit these exceptions Proposed paragraph (d) would authorizes the Veterans Service Center because a proposed fiduciary’s ability to prescribe the requirements for a bond. Manager to take necessary action to obtain a surety bond is an important, This paragraph would generally restate protect beneficiary funds when a surety additional screening tool for VA. If a and clarify the provisions of current company ceases to do business in a proposed fiduciary cannot obtain a bond § 13.105 without substantive change but State, to include referring matters to the based upon a bonding company’s would add a new rule regarding VA Regional Counsel with jurisdiction. assessment of risk, VA should weigh adjustment of bonds. We propose to We have determined that current that information in deciding whether to require the fiduciary to adjust the bond § 13.105 uses unclear terminology and is continue the appointment or appoint a to account for significant changes in inconsistent with current VA policy. successor fiduciary. First, we would not amount of funds managed to ensure Further, we note that Veterans Service require a surety bond from a VA- adequate protection of funds under Center Managers have discretion to appointed trust company or bank that management and in some cases to save require a bond under the current has adequate protection of funds under the beneficiary the cost of unnecessary regulation, but there are no criteria to management such as an umbrella bond fund protection. The fiduciary would be guide them in exercising that discretion. or insurance required under Federal or required to make such an adjustment Finally, current § 13.105 is silent state law. Second, consistent with VA’s any time the funds under management regarding who must bear the expense of long-standing policy of requiring less increase or decrease by 20 percent or obtaining a bond for fund protection intrusive oversight of spouse fiduciaries, more. We propose 20 percent because purposes. Accordingly, we propose to we would not require spouses to obtain our experience in administering the replace current § 13.105 with proposed a surety bond. program indicates that a smaller § 13.230 as described below. It has been VA’s practice to fluctuation in funds under management Proposed paragraph (a) would state occasionally allow a fiduciary, generally might require frequent adjustments with the general rule that a fiduciary must a family member or other close only minimal added protection or cost within 60 days of appointment furnish acquaintance of the beneficiary, to enter savings for beneficiaries. to the fiduciary hub a surety bond into a restricted withdrawal agreement Proposed paragraph (e) would require conditioned upon faithful discharge of with the beneficiary and VA regarding that the fiduciary must submit proof of all of the responsibilities of a fiduciary accumulated funds under management adequate bonding with each annual if the VA benefit funds that are due and in lieu of obtaining a surety bond. accounting and at any other time the to be paid will exceed $25,000. We note However, we have determined that the Hub Manager requests proof. This that VA generally awards entitlement to use of restricted withdrawal agreements requirement, which is not in the current

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regulation, would facilitate VA’s not authorize calculation of a fee based The current regulation prescribes one oversight regarding the fund protection upon a retroactive, lump-sum, or other exception for VA education benefits, requirements prescribed in proposed one-time payment of benefits to the which the fiduciary may disburse § 13.230. beneficiary. Under these circumstances, without regard to the ability of Proposed paragraph (f) would provide a fiduciary might be required to incur responsible persons to provide for the notice regarding joint and several significant out-of-pocket expenses to minor’s needs. liability of sureties and fiduciaries for provide fiduciary services. We propose to replace current any misappropriation or misuse of As a general rule, bonding companies § 13.101 with proposed § 13.240 without beneficiary funds by fiduciaries, and charge approximately $100 annually for making any substantive change. We that VA may collect on the bond every $10,000 under management by a would make only minor plain language regardless of any prior VA reissuance of fiduciary. This means that the annual changes and reorganize the regulation benefits under proposed § 13.410. These out-of-pocket expense for a volunteer text. provisions are consistent with current family member fiduciary who manages 13.250 Funds of deceased policy and the protection generally $100,000 in accumulated VA funds for beneficiaries afforded by surety bonds. However, we a beneficiary would be $1,000 if VA propose to expressly state the policy determined that the fiduciary must pay Under 38 U.S.C. 5502(e), ‘‘[a]ny funds and scope of bond protection in our for the bond. In a paid fiduciary case, in the hands of a fiduciary . . . derived regulations for purposes of notice. assume that the beneficiary has from benefits payable under laws Under 38 U.S.C. 5507(a)(3), VA’s $100,000 in accumulated VA benefit administered by [VA], which under the certification of a prospective fiduciary funds under management for the law of the State wherein the beneficiary as a fiduciary ‘‘shall be made on the beneficiary and receives a $1,500 had last legal residence would escheat basis of . . . the furnishing of any bond monthly VA benefit payment. The to the State, shall escheat to the United that may be required by the Secretary.’’ fiduciary’s maximum monthly 4-percent States and shall be returned by such Congress did not address whether the fee would be $60 or $720 annually, fiduciary.’’ In section 5502(e), Congress beneficiary or the fiduciary must pay for while the fiduciary would incur a also authorized fiduciaries to deduct the bond. However, we interpret the $1,000 annual surety bond expense. In from the funds under management the requirement to mean that the this case, the fiduciary will incur a loss cost of determining whether such certification of any person as a fiduciary of $280 per year. Therefore, it would not escheat to the State would occur under must be based in part upon the be reasonable for VA to require the State law. proposed fiduciary’s ability to qualify fiduciary to bear the cost of a surety VA implemented this authority in for and purchase a bond. In this regard, bond, which would essentially current 38 CFR 13.110(a), which restates the requirement is a screening tool for eliminate any incentive for serving the provisions of section 5502(e). VA to use in confirming an appointment vulnerable veterans and their survivors. Current paragraph (b) requires decision before releasing a lump-sum, For the above reasons, it is VA’s long- fiduciaries to account for and turn over retroactive payment to a fiduciary. If a standing policy to require fiduciaries to to VA the personal property owned by fiduciary cannot obtain a bond because purchase a surety bond and permit them a veteran who dies intestate and without the bonding company considers the risk to use beneficiary funds to pay the heirs while receiving care in a VA of fund exploitation too high, VA expense. Given the nature of the facility. Current paragraph (c) requires should not appoint the prospective fiduciary program and the statutory the submission of a report to the VA fiduciary and appoint an individual or context in which Congress enacted Regional Counsel with jurisdiction if a entity who can obtain the necessary section 5507, we believe that Congress fiduciary refuses to comply with the fund protection. Proposed paragraph (g) intended a continuation of this policy. requirements of § 13.110. would clarify that the fiduciary may In addition, we note that deducting We have determined that current deduct the cost of a surety bond from bond expenses from beneficiary funds § 13.110 does not provide clear rules for the VA benefit funds under management would be consistent with the protection fiduciaries to close out the accounts of by the fiduciary for the beneficiary. of funds in guardianships under State deceased beneficiaries. It does not Regarding payment from beneficiary and uniform laws. See, e.g., Fla. Stat. provide time limits for the return of funds, we have determined that § 744.641 (2012); Ga. Code Ann. § 29–7– funds to VA or prescribe final requiring fiduciaries to bear the cost of 15 (2012); Mo. Rev. Stat. § 475.100 accounting rules, and clarity is needed a surety bond would create a (2012); N.J. Stat. Ann. § 3B:13–17 regarding the property in the possession disincentive for both volunteer and paid (2012); N.C. Gen. Stat. § 34–12 (2012); of a fiduciary that must be returned to fiduciaries, and would significantly Wis. Stat. § 54.852 (2012); Unif. VA. Accordingly, we propose to remove impair VA’s ability to find qualified Guardianship and Protective current § 13.110 and replace it with fiduciaries for the beneficiaries who Proceedings Act § 416 cmt. (1997); Unif. proposed § 13.250 as described below. need them. Approximately 90,000 of the Veterans’ Guardianship Act § 35.78 Section 5502(e) is applicable to current 95,000 fiduciaries in VA’s (1937). ‘‘funds in the hands of’’ a fiduciary program have a one-on-one relationship which are ‘‘derived from [VA] benefits.’’ with the beneficiary. Most of these 13.240 Funds of beneficiaries less We interpret this language in section fiduciaries are family members, friends, than 18 years old 5502(e) to mean VA benefit funds under and other individuals who have Under 38 U.S.C. 5502(a)(1), VA has management by the fiduciary for the expressed a willingness to serve an authority to pay benefits to a fiduciary beneficiary, as defined in proposed individual beneficiary without charge. on behalf of a beneficiary who is a § 13.20, on the date of the beneficiary’s Even in paid fiduciary cases, which minor. VA implemented this authority death. In proposed paragraph (a), we currently comprise less than 10 percent in current 38 CFR 13.101, which would essentially restate section 5502(e) of all beneficiaries in the program, generally prescribes that such payments and require the return of VA benefit Congress has limited fiduciary fees to 4 should be used for the minor’s benefit funds under management by a fiduciary percent or less of the beneficiary’s and only to the extent that the person to VA when a beneficiary for whom the annual benefit payments, and under or persons responsible for the minor’s fiduciary provides fiduciary services current VA policy a Hub Manager may needs are unable to provide for them. dies without a valid will and without

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heirs if such funds would escheat to the such that the VA benefit funds under which restates the generally applicable State under State law. For purposes of management by the fiduciary will not be statutory provisions, advises fiduciaries plain language, we replace the word forfeited to a State, the fiduciary must to invoke the exemptions where ‘‘escheat’’ with ‘‘be forfeited.’’ hold the funds in trust for the applicable, and prescribes referral to the Proposed paragraph (b) would beneficiary’s estate. In these cases, the VA Regional Counsel if a fiduciary does prescribe the circumstances under fiduciary’s responsibilities to the not properly invoke them. We propose which a fiduciary must submit a final deceased beneficiary’s estate are defined to restate the current regulation without accounting to VA. We propose to by applicable State law. substantive change in proposed require a final accounting in cases § 13.270. where the fiduciary determines that the 13.260 Personal funds of patients VA benefit funds under management by Under 38 U.S.C. 5502(d), Congress 13.280 Accountings the fiduciary would be forfeited to a prescribed the procedure for VA Under 38 U.S.C. 5509(a), VA has State and thus must be returned to VA distribution of funds held in trust for a authority to require fiduciaries to file under proposed paragraph (a). In this veteran in a personal funds of patients accountings regarding funds under situation, VA needs to confirm that the account at a VA facility upon the management. Such accounting may fiduciary properly managed funds after veteran’s death. Congress decided that include disclosure of ‘‘any additional the beneficiary’s death and returned all VA should not pay such funds to the financial information concerning the funds under management to the deceased veteran’s personal beneficiary (except for information that Government. We also propose to require representative, but should instead pay is not available to the fiduciary).’’ 38 a final accounting in any case in which them to certain individuals in the order U.S.C. 5502(b). Under 38 U.S.C. 6101(b), the fiduciary was required to submit an of preference prescribed by Congress. the willful neglect or refusal to file annual accounting under proposed These are the ‘‘surviving spouse, the proper accountings ‘‘shall be taken to be § 13.280 prior to the beneficiary’s death children (without regard to age or sufficient evidence prima facie of . . . regardless of whether funds under marital status) in equal parts, and the embezzlement or misappropriation.’’ management would be forfeited to a dependent parents of such veteran, in VA implemented the authority to State. This final accounting is necessary equal parts.’’ Congress further require submission of accountings in for purposes of VA’s oversight of prescribed that any balance remaining current 38 CFR 13.102, 13.104 and fiduciaries, to include detecting misuse in the account after VA’s attempt to 13.107. Current § 13.102(a) requires the of benefits. distribute it according to the statute fiduciaries of certain veterans to provide Under section 5502(e), the fiduciary must be deposited to the credit of the VA an accounting when requested. for a deceased beneficiary may deduct applicable VA appropriation, except Current § 13.104 requires fiduciaries ‘‘legal expenses of any administration that VA has authority to reimburse a who are also court-appointed to arrange necessary to determine that an escheat person who bore the expenses of last for the provision to VA of copies of their is in order.’’ Proposed paragraph (c) sickness or burial of the veteran for such State-court-prescribed accountings. It would restate this provision and clarify expenses. Any disbursement of funds also exempts, in the Veterans Service that the fiduciary may deduct a according to the priority established by Center Manager’s discretion, fiduciaries reasonable fee or pay a reasonable Congress or for expenses related to the and beneficiaries who permanently charge from the beneficiary’s account to veteran’s last sickness or burial must be reside in a jurisdiction other than the cover the expense of determining based upon a claim filed with VA United States, the Commonwealth of whether forfeiture to a State would within 5 years after the veteran’s death. Puerto Rico, or the Republic of the occur. We recognize that a fiduciary This 5-year limitation period may be Philippines, if the fiduciary may have the authority under State law tolled based upon an eligible person appointment occurred in the foreign or pursuant to State licensure to make being under legal disability at the time jurisdiction. Current § 13.107 requires this decision without referring the of the veteran’s death. the chief officer of a non-Federal matter. However, upon the death of the VA’s current part 13 fiduciary institution appointed as fiduciary for a beneficiary, a paid fiduciary’s authority regulations do not address the beneficiary to render to VA an to collect a fee for fiduciary services distribution of funds under section accounting if the Service Center under proposed § 13.220 expires. In 5502(d). However, we propose to restate Manager requests one. such cases, we interpret section 5502(e) the statutory requirements in proposed We have determined that §§ 13.102, as authorizing the fiduciary to deduct a § 13.260 without substantive change but 13.104, and 13.107 do not provide clear reasonable fee for separate services reorganized to make them easier to read rules for fiduciaries and do not reflect associated with determining whether and understand. current VA policy and procedures. forfeiture would occur. We also Furthermore, section 6101 regarding interpret section 5502(e) as authorizing 13.270 Creditors’ claims willful neglect or refusal to file the fiduciary to incur a reasonable third- Under 38 U.S.C. 5301(a)(1), VA accountings has not been implemented party fee for determining whether benefits generally cannot be assigned in VA’s part 13 fiduciary regulations. forfeiture would occur, and to pay that and are exempt from taxation and the Therefore, to provide clear, expense from the deceased beneficiary’s claims of creditors. They are also not comprehensive notice regarding VA’s account. For purposes of paragraph (c), ‘‘liable to attachment, levy, or seizure by accounting policy and procedures and we propose to define ‘‘reasonable fee,’’ or under any legal or equitable process interpretation of current law, we whether charged by the fiduciary or a whatever, either before or after receipt propose to combine the fiduciary third party, as an amount customarily by the beneficiary.’’ The exemptions in accounting requirements into one charged by persons authorized to do section 5301 do not apply to debts owed proposed rule, § 13.280, as described such work, such as attorneys or other to the United States arising in a VA below. professionals, in the State where the benefits program or to the use of In proposed paragraph (a), we would deceased beneficiary resided. benefits for the repayment of loans prescribe the general rule for Proposed paragraph (d) would clarify made to beneficiaries. accountings, under which each that in all cases in which the deceased VA provides fiduciaries notice of fiduciary who meets any of the criteria beneficiary has a valid will or heirs, these exemptions in current § 13.111, in paragraphs (a)(1) through (3) would

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be required to provide VA an annual period prescribed by the Hub Manager. beneficiaries. The plain language of accounting regarding funds under Consistent with current VA policy, section 5508, ‘‘[i]n addition to such management for a beneficiary. Under proposed paragraph (d) would prescribe other reviews of fiduciaries as the current policy, VA does not require an exceptions to the general accounting Secretary may otherwise conduct,’’ accounting from every fiduciary. This rules. First, no spouse would be indicates that VA may conduct onsite policy recognizes the nature of the VA required to submit an annual reviews of fiduciaries as necessary to fiduciary program, in which most accounting. It is VA’s long-standing ensure the well-being of beneficiaries or fiduciaries are volunteer family policy to avoid undue intrusion in the prevent exploitation of beneficiary members or friends who have a one-on- relationship between a beneficiary and funds. one relationship with the beneficiary, the beneficiary’s spouse. We propose to VA implemented section 5508 based and that in many cases such fiduciaries continue that policy. Second, we would upon the statutory requirements but has manage only small benefit amounts or not require the chief officer of a Federal since determined that regulations are disburse all the beneficiary’s monthly institution to account because such necessary to remove ambiguity benefits for the beneficiary’s care. officers generally do not disburse funds, regarding the $50,000 threshold for Further, the submission and auditing of disburse only small fund amounts for mandatory onsite reviews, provide VA’s accountings in every case in which a the beneficiary’s personal use, or interpretation of current law, and beneficiary has a family member disburse funds according to the prescribe the scope of onsite reviews. fiduciary would be unduly intrusive if discretion delegated to the Secretary of Accordingly, we propose to add a new VA knows that there is very little risk Veterans Affairs by law. Third, we § 13.300 regarding onsite reviews as of exploitation of funds. Current policy would not require an accounting from described below. also recognizes, based upon VA’s the chief officer of a non-VA institution Proposed paragraph (a) would require experience in administering the when the cost of the monthly care and the Hub Manager to conduct periodic, program, that the burden of preparing, maintenance of the beneficiary in the scheduled onsite reviews of certain submitting, and auditing accountings institution exceeds the beneficiary’s fiduciaries. Proposed paragraph (a) outweighs any oversight benefit for monthly benefit and the beneficiary’s would prescribe routine, periodic onsite many beneficiaries and VA. funds under management by the reviews for all fiduciaries that meet the Accordingly, we propose to continue to fiduciary do not exceed $10,000. requirements of section 5508 as generally require accountings only Finally, we would restate the provisions interpreted by VA in this proposed rule. when the amount of VA benefit funds of current § 13.104, which exempt Although section 5508 refers to a under management by the fiduciary certain foreign fiduciaries, without ‘‘fiduciary serving in that capacity with exceeds $10,000, the fiduciary receives substantive change. respect to more than 20 beneficiaries,’’ a fee deducted from the beneficiary’s Proposed paragraph (e) would we propose to require a periodic onsite account under proposed § 13.220, or the implement section 6101(b), under review if a ‘‘fiduciary serves 20 or more beneficiary is being paid monthly which the willful neglect or refusal to beneficiaries.’’ This difference from the benefits in an amount equal to or greater comply with the accounting statutory reference is authorized by than the rate for service-connected requirements prescribed by VA is prima disability rated totally disabling. Under facie evidence of embezzlement or section 5508’s reference to ‘‘such other this policy, VA currently audits more misappropriation of benefits. We reviews of fiduciaries as the Secretary than 30,000 accountings each year. propose to restate the statutory may otherwise conduct.’’ We interpret Proposed paragraph (b) would define provision and provide notice that such ‘‘total annual amount of such benefits accounting to mean the fiduciary’s evidence is grounds for starting a VA exceeds $50,000’’ to mean the total written report of his or her management misuse investigation under proposed amount of recurring monthly VA of the beneficiary’s income and § 13.400. benefits paid to the fiduciary for all of accumulated funds. We would further the beneficiaries served by the fiduciary 13.300 Onsite reviews prescribe that an accounting pertains to during a year. To read the statute all activity in the beneficiary’s accounts, Under 38 U.S.C. 5508, VA must otherwise might result in VA providing regardless of the source of income. conduct periodic onsite reviews of any onsite reviews of fiduciaries based While VA’s authority is limited to fiduciary who is located in the United solely on a beneficiary’s receipt of a appointing fiduciaries for purposes of States and serving more than 20 retroactive, lump-sum, or one-time managing VA benefits, for accounting beneficiaries and who has total VA benefit payment. In our view, Congress purposes, Congress has authorized VA funds under management for intended that VA would conduct onsite to request information regarding all beneficiaries in excess of $50,000, as reviews of fiduciaries who manage activity in a beneficiary’s account. It adjusted under 38 U.S.C. 5312. The recurring monthly benefit payments that would be very difficult to detect misuse purpose of section 5508 is to create a exceed the statutory threshold during a of benefits, if VA were required to limit mechanism by which the Secretary can given year. We would not prescribe in its audit to activity related only to fulfill his statutory oversight the regulation the applicable monetary income and expenditures actually responsibility. Section 5312 prescribes threshold for periodic onsite reviews, derived from VA benefits. Instead, an increase in the payment rates and which, based upon the application of consistent with our authority and dollar limitations applicable to certain section 5312, would soon be out of date current practice, we would prescribe the need-based VA benefits whenever there and require amendment. The current scope of an accounting, including a is an increase in benefit amounts threshold for periodic onsite reviews is beginning and ending inventory or payable under title II of the Social available on VA’s Web site at http:// account balance, in proposed Security Act. In section 5508, Congress www.benefits.va.gov/fiduciary/ paragraphs (b)(1) through (6). also authorized VA to conduct onsite fiduciary.asp. Proposed paragraph (a)(3) In proposed paragraph (c) we would reviews of fiduciaries under other would prescribe procedures for prescribe the procedures for submitting circumstances as VA deems appropriate, providing the fiduciary notice of the an annual accounting. As a general rule, regardless of the number of beneficiaries date for which VA has scheduled a accountings would be due not later than served by the fiduciary or the amount of periodic onsite review and the 30 days after the end of the accounting funds under management for documents that VA will inspect.

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Although Congress required Security Administration’s manner of than the use and benefit of the ‘‘periodic’’ onsite reviews in section conducting onsite reviews, would beneficiary or the beneficiary’s 5508, it did not specify the length of the accomplish Congress’s intent that VA dependents. Section 6106(c) authorizes period. However, we interpret section enhance its oversight of certain VA to prescribe the meaning of ‘‘use and 5508 to mean that Congress intended a fiduciaries. Specifically, reviewing benefit’’ in regulations. In 38 U.S.C. regular schedule of reviews, such that records and conducting interviews with 6107, Congress authorized VA to reissue each fiduciary that meets the the beneficiary and third parties (to certain benefits to a beneficiary based requirements for the reviews receives a determine, among other things, accurate upon a determination that the visit from VA auditors according to the record keeping, reliable reporting, beneficiary’s fiduciary misused benefits. schedule. Based upon our experience in compliance with laws and regulations, VA implemented the misuse administering the program and and whether the beneficiary needs are provisions of section 6106 based upon conducting such reviews in conjunction met) are common oversight measures for the statutory language and does not with other oversight activities, we ensuring that fiduciaries are currently have a regulation that propose to require a periodic onsite satisfactorily performing their duties prescribes binding rules for VA, review of every fiduciary that meets the and beneficiaries are protected from beneficiaries, and fiduciaries. Consistent requirements of paragraph (a)(1) misuse of their benefits by fiduciaries. with current law and VA policy, we triennially. We have determined that Accordingly, we propose to prescribe a propose to implement section 6106 in a this schedule is feasible with current face-to-face meeting with the fiduciary, new § 13.400 as described below. resources and is a reasonable review of records, and interviews of Proposed paragraph (a) would restate interpretation of Congress’s intent that other persons as determined necessary the statutory definition of misuse and we enhance oversight of certain by the Hub Manager. define ‘‘use and benefit’’ as ‘‘any fiduciaries who serve multiple Proposed paragraph (c) would also expenditure reasonably intended for the beneficiaries. prescribe the procedures for notifying care, support, or maintenance of the Consistent with our interpretation of fiduciaries of deficiencies. We would beneficiary or the beneficiary’s section 5508, proposed paragraph (b) require the Hub Manager to provide the dependents.’’ This definition would be would authorize the Hub Manager to fiduciary a report regarding onsite consistent with current VA policy and conduct unscheduled onsite reviews, review findings, including any would facilitate VA’s identification of without regard to the number of deficiencies or request for additional possible misuse. Furthermore, this beneficiaries served by the fiduciary or information, not later than 30 days after definition would prevent a fiduciary the amount of funds under management completing the review. Unless the from being held liable for misuse of by the fiduciary, if the circumstances fiduciary establishes good cause for an benefits if an expenditure resulted in meet any one of the criteria in proposed extension, the fiduciary would be economic loss, but at the time of paragraphs (b)(1) through (4). Such required to respond with information expenditure, it appeared to be unscheduled onsite reviews are regarding correction of the deficiencies reasonably intended for the care, necessary to immediately respond to or provide requested information not support, or maintenance of the information indicating that the well- later than 30 days after the date the Hub beneficiary or the beneficiary’s being of a beneficiary may be in Manager mailed VA’s report. Paragraph dependents. In using the word jeopardy or that exploitation of (c) would also require the Hub Manager ‘‘support,’’ we intend to authorize the beneficiary funds has occurred or may to remove a fiduciary who does not fiduciary to take any steps the fiduciary occur. Accordingly, we propose to cooperate in the onsite review process, deems necessary, given the beneficiary’s authorize such unscheduled reviews if is unable to produce required VA benefit funds under management by VA receives from any source credible documents during the onsite review, the fiduciary and the beneficiary’s information that a fiduciary has misused fails to respond to a VA request for circumstances, to improve the or is misusing VA benefits, the fiduciary additional information or beneficiary’s and the beneficiary’s has failed to file a required accounting recommendation for corrective action, dependents’ standard of living. A not later than 120 days after the end of or is found during an onsite review to fiduciary’s efforts to ensure that a the accounting period, VA receives have misused benefits. beneficiary in the fiduciary program has credible information that the fiduciary These provisions are necessary to the same standard of living as a is not adequately performing the ensure that fiduciaries have notice of beneficiary who is not in the program responsibilities of a fiduciary under VA’s policies and procedures regarding and has comparable resources would proposed § 13.140, or the Hub Manager onsite reviews, and to establish binding not be misuse of benefits. determines that an unscheduled onsite rules for VA personnel and fiduciaries. Proposed paragraph (b) would review is necessary to ensure that the We also intend that they will promote prescribe the procedures for misuse fiduciary is acting in the interest of the consistency and predictability in VA’s determinations by VA and authorize the beneficiary or beneficiaries the fiduciary oversight activities. Hub Manager to make such serves. determinations. The Hub Manager Proposed paragraph (c) would 13.400 Misuse of benefits would be authorized to start a misuse prescribe the procedures for conducting Under 38 U.S.C. 6106(a), a fiduciary investigation based upon receipt of onsite reviews, to include the scope of may not collect a fee for providing credible information from any source. such reviews. Although VA has internal fiduciary services for a beneficiary for The results of the investigation and the guidelines and policies regarding the any month for which VA or a court Hub Manager’s determination would be scope of onsite reviews, we have finds that the fiduciary misused the issued in a decision that meets the determined that general rules regarding beneficiary’s benefits. Under section requirements in proposed paragraph (b). these reviews should be promulgated in 6106(b), misuse of benefits by a We propose to standardize the regulations for purposes of enforcing fiduciary occurs in any case in which requirements for such determinations to compliance, limiting VA discretion, and the fiduciary receives payment of VA ensure consistency and predictability providing legal notice. We have benefits for the ‘‘use and benefit’’ of a for fiduciaries and beneficiaries. determined that industry standards and beneficiary and uses such payment, or In proposed paragraph (c), we would other agencies’ practices, such as Social any part of the payment, for a use other prescribe specific notice procedures for

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misuse determinations by the Hub was negligent for purposes of reissuance VA’s current practice in proposed Manager. This notice is necessary of benefits. Proposed paragraph (c) paragraph (e), under which the Regional because we have decided to continue would require notice of the Hub Office Director reports final misuse the practice of allowing fiduciaries and Manager’s misuse determination to the determinations, whether made by the beneficiaries to request reconsideration Director for this purpose. Hub Manager or the Director upon of misuse determinations, and we Proposed paragraph (d) would reconsideration, to the VA Office of provide the right to appeal misuse prescribe the procedure for Inspector General not later than 30 days determinations. See proposed 38 CFR reconsideration of the Hub Manager’s after a final determination for evaluation 13.600. We propose that beneficiaries misuse determination. While there is no by the Inspector General for further and fiduciaries may both request right to act as a fiduciary for a action notwithstanding the 30-day reconsideration of initial misuse beneficiary and VA’s misuse notice requirement. We also note that determinations, but these requests are determinations are not appealable by VA must occasionally withhold taking intended for different reasons. the fiduciary, we continue to believe action regarding misuse and reissuance Beneficiaries may request that a reconsideration procedure of benefits while the Office of Inspector reconsideration because they may have ensures that VA has all of the General completes an investigation or information to support an initial finding information necessary to make the best while a matter is being prosecuted. of misuse or a finding of additional possible decisions regarding misuse of However, VA has a legal obligation to misuse. Depending upon the number of benefits. Accordingly, we propose to reissue misused benefits in certain cases beneficiaries that the fiduciary serves or allow fiduciaries and beneficiaries, and must act promptly in restoring any VA negligence in appointing and using the procedure prescribed in benefits to beneficiaries upon the monitoring the fiduciary, such a proposed paragraph (d), to seek completion of an Inspector General beneficiary might be entitled to reconsideration of a Hub Manager’s evaluation or a prosecution. reissuance of benefits. On the other misuse determination. To obtain Accordingly, proposed paragraph (e) hand, fiduciaries may seek reconsideration of a Hub Manager’s would also require the Office of reconsideration after receiving notice misuse determination, the fiduciary or Inspector General to advise the Director regarding the initial misuse decision the beneficiary would have to file a of the Pension and Fiduciary Service of because the determination may result in written request for reconsideration, not any final decision regarding prosecution a bar to future service, be the basis for later than 30 days after the date on of a fiduciary who misused VA benefits the creation of a debt to the which the Hub Manager provides notice and any final judgment of a court in Government, or be the subject of a of his or her misuse decision under such a prosecution not later than 30 criminal proceeding. We propose to paragraph (c). Reconsideration of a days after the decision or judgment. continue this current policy to ensure misuse decision would be delegated to 13.410 Reissuance and recoupment of that we have sound reasons for the VA Regional Office Director who has misused benefits removing a fiduciary from service for jurisdiction over the fiduciary hub and other beneficiaries. Such removals are would be based upon a review of Under 38 U.S.C. 6107(a) through (c), disruptive for beneficiaries in the information of record as of the date of VA has authority to reissue misused program and redirect limited fiduciary the Hub Manager’s decision and any benefits when VA is negligent in program recourses to successor new information submitted with the administering aspects of the fiduciary appointments. We would not afford a written reconsideration request. For program or, without regard to fiduciary the right to appeal a misuse purposes of consistency in decision- negligence, when the fiduciary is an determination. making, proposed paragraph (d) would entity who provides fiduciary services In spite of section 5507(d)’s reference also prescribe the requirements for the for one or more beneficiaries or an to the appeal of a misuse determination Regional Office Director’s decision and individual who provides fiduciary by a fiduciary and the appointment of require the same notice as prescribed for services for 10 or more beneficiaries. a temporary fiduciary during this the initial misuse determination. Section 6107(d) requires VA to make a period, we do not interpret section It is current VA policy to seek the ‘‘good faith effort to obtain recoupment’’ 5507(d) as expressing Congress’ intent prosecution of fiduciaries who misuse from fiduciaries who misuse benefits. to authorize a right of appeal for VA benefits. Prosecution is a deterrent VA implemented its authority under fiduciaries. In fact, in a compromise for acting fiduciaries and may provide a section 6107 based upon the statutory agreement regarding the predecessor basis for a restitution order that will provisions and does not currently have bill, the Committees intentionally return misused benefits to the a regulation governing reissuance of omitted a provision that would have beneficiary. In proposed 13.400, we benefits. However, the statute does not granted a right of appeal to fiduciaries would provide a cross reference to 38 prescribe the procedures that VA is to accused of misuse. The Committees CFR 1.204, which requires VA use in reissuance cases, the scope of concluded that they needed to ‘‘assess employees to immediately refer to the VA’s negligence determinations, or the further the appropriateness of requiring VA Office of Inspector General possible extent to which VA is to seek a fiduciary accused of misuse by the criminal matters involving felonies, i.e., recoupment of benefits from certain Secretary to appeal such a finding in the serious crimes, to include theft of fiduciaries. Accordingly, we propose to appeals venue established for Government funds in excess of $1,000. implement section 6107 in proposed adjudicating veterans’ entitlement This regulation requires VA § 13.410 as described below. claims.’’ Thus, in our view, any management officials to immediately Proposed paragraph (a) restates ‘‘appeal’’ that a fiduciary might have report certain criminal matters to the section 6107(b) without substantive pending regarding a misuse matter Inspector General. Thus, in the fiduciary change as the general rule in reissuance would likely be in a criminal misuse context, § 1.204 requires the Hub cases. Under this rule, which would be proceeding. Manager to report information regarding administered at the local level by the In addition, in proposed § 13.410, we suspected misuse of beneficiary funds to VA Regional Office Director who has would delegate to the Director of VA’s the Office of Inspector General long jurisdiction over the fiduciary hub in Pension and Fiduciary Service the before the notice prescribed in which the misuse case arose, VA would authority for determining whether VA paragraph (e). We also propose to codify reissue benefits if the fiduciary is an

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individual who served 10 or more did not address how VA would Center Manager may remove a fiduciary beneficiaries during any month in accomplish such recoupment of and appoint a successor fiduciary when which the misuse occurred, or is a benefits. We do not interpret section it is in the beneficiary’s interest. Current corporation or other entity serving one 6107(d) as limiting VA’s authority under § 13.100(b) distinguishes fiduciaries or more beneficiaries. Consistent with 38 U.S.C. chapters 55 and 61 to who are also appointed by the court by section 6107(c) and VA’s policy generally make a good faith effort to requiring that the Service Center requiring removal of fiduciaries who recoup benefits in all cases of misuse, Manager will ‘‘take such informal action misuse benefits, we would clarify in particularly in cases where VA is not as may be necessary’’ to meet the needs proposed paragraph (a) that the Regional authorized to reissue benefits. of the beneficiary. Office Director will reissue benefits in Accordingly, the introductory text in We have determined that current the amount equal to the amount of proposed paragraph (c) would prescribe § 13.100 does not provide clear notice funds misused to the beneficiary’s the general rule that VA will make a regarding all of the circumstances under successor fiduciary. good faith effort to recoup benefits from which VA will remove a fiduciary. Proposed paragraph (b) implements the fiduciary in every misuse case. In Further, as noted in this preamble, VA the provisions of section 6107(a) proposed paragraph (c)(1), we would appoints and oversees all fiduciaries, regarding reissuance of benefits based define ‘‘good faith effort’’ to mean that regardless of whether the fiduciary is upon a determination that VA the Hub Manager will attempt to recoup also appointed by a court. In attempting negligence resulted in misuse of benefits from the surety company if a to distinguish between ‘‘Federal’’ benefits. The proposed rule is intended bond was in place. If a bond was not in fiduciaries and VA-appointed to make clear that the relevant statutory place, the Hub Manager will request the fiduciaries who are also appointed by a and regulatory provisions are applicable creation of a debt to the United States court, the current regulations needlessly in cases of misuse by an individual in the amount of any misused benefits, add complexity and ambiguity for users. fiduciary who has funds under and coordinate further recoupment or As noted above in this preamble, we management for fewer than 10 debt collection action with the propose to generally refer to beneficiaries during any month in appropriate Federal and State agencies. ‘‘fiduciaries’’ and apply our proposed which misuse occurred. One of the Consistent with VA’s current policy of rules uniformly to all fiduciaries. For criteria in section 6107(a) for reissuance removing fiduciaries who misuse these reasons, we propose to remove of benefits based upon a negligence benefits, proposed paragraph (c)(2) current § 13.100 and replace it with determination is that ‘‘actual [VA] would prescribe repayment of any proposed § 13.500 as described below. negligence is shown.’’ We interpret this recovered benefits to the beneficiary’s In proposed § 13.500(a), we would provision to mean that Congress did not successor fiduciary after deducting any authorize the Hub Manager to remove a intend to limit the criteria for reissuance amount reissued under proposed fiduciary. The regulation would then be of benefits based upon negligence to the paragraph (a) or (b). organized to provide notice regarding circumstances in section 6107(a)(2)(A) Proposed paragraph (d) would the reasons for removal that may be and (B) regarding review of accountings prescribe written notice to the attributed to the beneficiary or the and misuse allegations. Rather, Congress beneficiary or the beneficiary’s legal fiduciary, followed by applicable intended to authorize VA to reissue guardian, and the beneficiary’s removal procedures. We do not intend benefits in any case in which VA accredited representative, attorney, or any substantive change by listing in one negligence proximately caused misuse. claims agent regarding any matter section the reasons and procedures for We propose to define ‘‘actual governed by proposed § 13.410. removal. Our intent is to provide negligence’’ using a common legal Although VA does not have authority beneficiaries and fiduciaries notice definition of ‘‘negligence’’ and prescribe to reissue benefits to all beneficiaries regarding the grounds for removal and the criteria for making such a who are victims of misuse, we intend references to the regulations that determination. that proposed § 13.410 would contain substantive provisions or We have determined that VA should implement the broadest possible additional procedures. not prescribe local administration of interpretation of current law, such that Proposed paragraph (a)(1), regarding reissuance of benefits under section every beneficiary who qualifies has the beneficiary reasons for removal, would 6107(a). Program integrity requires that benefit of reissuance or recoupment authorize removal if the beneficiary is someone other than the Regional Office procedures. subsequently rated as being able to Director or Hub Manager determine manage his or her own VA benefits, 13.500 Removal of fiduciaries whether VA’s field fiduciary personnel requests appointment of a successor were negligent in administering the Under 38 U.S.C. 5502(a)(1), when a fiduciary, requests supervised direct program. Accordingly, in proposed fiduciary is acting in such a number of payment of his or her VA benefits under paragraph (b), we would require the cases that the fiduciary is not able to proposed § 13.110, or dies while Hub Manager to refer all final misuse properly perform the responsibilities of receiving fiduciary services. determinations that meet the criteria in a fiduciary for each beneficiary, VA may Proposed paragraph (a)(2), regarding section 6107(a) to the Director of the ‘‘refuse to make future payments in such fiduciary reasons for removal, would Pension and Fiduciary Service for a cases.’’ Also, under section 5502(b), VA authorize removal when further service negligence determination. The Regional may suspend payments to any fiduciary is barred or the fiduciary is not Office Director would be required to who does not comply with VA’s adequately performing the reissue benefits if the Pension and accounting requirements or ‘‘who shall responsibilities of a fiduciary. These Fiduciary Service Director determines neglect or refuse to administer the estate reasons, listed under proposed that VA negligence caused the misuse. according to law.’’ Congress otherwise paragraph (a)(2)(i) through (viii) Proposed paragraph (c) would delegated authority to VA to determine include, among other things, the implement section 6107(d), which the circumstances under which it would fiduciary’s failure to follow accounting requires VA to ‘‘make a good faith effort be appropriate to remove a fiduciary. requirements, misuse of benefits, failure to obtain recoupment’’ of misused VA implemented this authority in to obtain a surety bond, or inability to benefits from the fiduciary in any case current 38 CFR 13.100, which generally continue the management of beneficiary in which VA reissues benefits. Congress prescribes that the Veterans Service funds.

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Current § 13.100 does not prescribe beneficiary’s funds to a successor member fiduciary who serves only one the procedures for removal of a fiduciary. The Hub Manager would beneficiary and who will be replaced by fiduciary. This has led to inconsistency provide such notice after having another family member. We would in the manner in which VA ensures that arranged for transfer of VA benefit funds prescribe criteria for the Hub Manager to beneficiary needs are being met during under management by the fiduciary and use in determining the extent to which the removal of a fiduciary and the establishment of recurring payments the processing of a withdrawal request appointment of a successor fiduciary. to a successor fiduciary. While we must be expedited, including the To ensure consistency in VA’s removal recognize that there is no right to act as fiduciary’s stated reasons for the actions and continuity of service for a fiduciary for a beneficiary and that VA withdrawal request, the number of beneficiaries, proposed paragraph (b)(1) cannot force an individual or entity to beneficiaries affected, the relationship would require the Hub Manager to provide fiduciary services, VA has between the fiduciary and the affected provide the fiduciary and the authority under our interpretation of beneficiary or beneficiaries, and beneficiary written notice of the current law to require individuals and whether expedited withdrawal is removal and to instruct the fiduciary entities that choose to provide fiduciary necessary to protect the interests of the regarding the fiduciary’s responsibilities services to continue those services until beneficiary or beneficiaries. prior to transfer of funds to a successor. VA appoints a successor. An alternative Proposed paragraph (c) would require In proposed paragraph (b)(2), we would interpretation, under which a fiduciary the Hub Manager to provide the require the fiduciary to continue as may withdraw at any time and without beneficiary or beneficiary’s legal fiduciary for the beneficiary until the regard to VA’s appointment of a guardian, and the beneficiary’s Hub Manager instructs the fiduciary to successor, would be unreasonable accredited representative, attorney, or transfer funds to the successor fiduciary. because it would jeopardize the well- claims agent written notice of the Finally, we would generally require the being of the beneficiaries whom withdrawal request and the procedures removed fiduciary to submit a final Congress sought to protect when it for appointment of a successor accounting to the fiduciary hub not later created the fiduciary program. fiduciary. than 30 days after the date on which the Nonetheless, we recognize that there 13.600 Appeals fiduciary transferred funds to the may be circumstances under which a successor. fiduciary would need to withdraw as In Freeman v. Shinseki, the Veterans We intend that the provisions of quickly as possible. We therefore Court held that a beneficiary may appeal proposed § 13.500 would provide clear propose to establish a withdrawal VA’s fiduciary appointment decisions to notice regarding the grounds for procedure that requires the Hub the Board of Veterans’ Appeals (Board) removal and the procedures for Manager to expeditiously process a and, consequently, to the Veterans Court transitioning to a successor fiduciary. withdrawal request. and the U.S. Court of Appeals for the Proposed paragraph (b) would Federal Circuit. Although a fiduciary 13.510 Fiduciary Withdrawals prescribe the applicable withdrawal appointment decision is not a decision In administering the fiduciary procedure. We would require the on a claim for benefits, the Veterans program, we have encountered cases in fiduciary to provide the Hub Manager Court concluded that a fiduciary which a fiduciary chooses to withdraw written notice of the fiduciary’s intent to appointment decision is made under a from service for a beneficiary and withdraw as fiduciary for a beneficiary. law that affects the provision of benefits, discontinues such service with very To facilitate the appointment of a which places it within the Board’s little notice to VA or the beneficiary. In successor and ensure continuity of jurisdiction. these circumstances, VA may be unable service for the beneficiary, we would Prior to the Veterans Court’s decision, to expeditiously appoint a successor require the fiduciary to describe the VA’s longstanding interpretation of the fiduciary and arrange for transfer of reasons for withdrawal and to continue law was that fiduciary appointments are accumulated funds, which could harm service until the Hub Manager arranges committed to the Secretary of Veterans the beneficiary to the extent that a for transfer of services to a successor Affairs’ discretion by law and could not fiduciary is not available to meet fiduciary. Not later than 30 days after be appealed. VA policy recognized that immediate needs or ensure payment of transferring the beneficiary’s funds to beneficiaries rated by VA as being recurring bills. While Congress gave VA the successor, the former fiduciary unable to manage their own VA benefits broad authority to appoint and remove would be required to submit a final had already been afforded the right of fiduciaries, it did not address whether a accounting to the fiduciary hub. The 30- appeal regarding that rating. It also fiduciary may withdraw from service for day requirement is consistent with the recognized that affording an additional a beneficiary at any time without regard current practice for submission of right of appeal regarding the individual to the impact on the beneficiary. Current annual accountings and would ensure or entity best suited to handle financial VA regulations also do not address the the timely transfer of funds to the matters for the beneficiary would be circumstances under which a fiduciary successor fiduciary for the benefit of a inconsistent with the fact that the may withdraw from service or the beneficiary whose basic needs may beneficiary had already been found procedures for such withdrawal. We depend on the services of a fiduciary. incapable of managing financial matters. interpret VA’s authority under 38 U.S.C. To protect the interests of fiduciaries Accordingly, VA did not promulgate chapters 55 and 61 as also authorizing seeking to withdraw, proposed regulations regarding appeals in VA to establish withdrawal procedures paragraph (b)(2) would require the Hub fiduciary appointments prior to the for fiduciaries to ensure continuity of Manager to make a reasonable effort Freeman decision. We propose to service. Accordingly, we propose to add under the circumstances to expedite the implement the court’s decision in a new § 13.510 as described below. appointment of a successor fiduciary. In § 13.600 regarding appeals as described Proposed paragraph (a) would our view, this ‘‘under the below. prescribe the general rule that a circumstances’’ determination would The introductory text to proposed fiduciary may not voluntarily withdraw require a case-by-case analysis. For § 13.600 would prescribe the general from service for a beneficiary until the example, a corporate fiduciary that rule that fiduciary matters are fiduciary receives notice from the Hub serves many beneficiaries might not be committed to the Secretary of Veterans Manager regarding transfer of the able to withdraw as quickly as a family Affairs’ discretion by law and cannot be

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appealed to the Board or any court. under 38 CFR 19.9 for any action deadline for the public to comment on Consistent with VA’s interpretation of necessary for an appellate decision or the proposed rule. VA requests the Freeman decision, the exceptions to the issuance of a supplemental comments by the public on proposed this general rule would be prescribed in statement of the case under 38 CFR collections of information in— proposed paragraph (a). 19.31(b)(2), (b)(3), or (c). • Evaluating whether the proposed Although the court’s holding in Paperwork Reduction Act collections of information are necessary Freeman was limited to fiduciary for the proper performance of the appointments under section 5502, we This proposed rule contains functions of VA, including whether the interpret it to mean that there is a right provisions constituting collection of information will have practical utility; to appeal any fiduciary decision that is information under the provisions of the • Evaluating the accuracy of VA’s made under a law that affects the Paperwork Reduction Act of 1995 (44 estimate of the burden of the proposed provision of benefits to veterans or to U.S.C. 3501–3521), at 38 CFR 13.30, collections of information, including the the dependents or survivors of veterans. 13.140, 13.230, 13.280 and 13.600. validity of the methodology and Accordingly, we propose to extend this The information collection assumptions used; right to removal decisions. We also requirements for §§ 13.280 and 13.600 • Enhancing the quality, usefulness, propose to permit appeals of VA’s are currently approved by the Office of and clarity of the information to be reissuance-of-benefits decisions under Management and Budget (OMB) and collected; and proposed § 13.410. Thus, any decision have been assigned OMB Control Nos. • Minimizing the burden of the that VA will not reissue benefits, 2900–0017 and 2900–0085. The collections of information on those who regardless of the bases for that decision, proposed rule at §§ 13.30, 13.140, and are to respond, including through the could be appealed by the beneficiary to 13.230 contains collections of use of appropriate automated electronic, the Board. However, a finding of misuse information that require approval by mechanical, or other technological OMB. The collection required by is a prerequisite to reissuance of benefits collection techniques or other form of § 13.30, while implicit in the plan of under proposed § 13.410, and a finding information technology, e.g., permitting collection approved by OMB control that VA negligence caused fiduciary electronic submission of responses. number 2900–0017, would now become misuse of benefits is an additional The collection of information an explicit requirement under the prerequisite for reissuance of benefits contained in 38 CFR 13.30, 13.140, and proposed rule. Accordingly, under 44 under proposed § 13.410(b). For these 13.230 is described immediately U.S.C. 3507(d), VA has submitted a reasons, proposed paragraphs (a)(1) following this paragraph, under their copy of this rulemaking to OMB for through (5) would list the various respective titles. review. OMB assigns a control number appointment, removal, misuse, and Title: Beneficiary rights. for each collection of information it negligence decisions that may be Summary of collection of information: appealed by beneficiaries in the approves. VA may not conduct or sponsor, and a person is not required to Under proposed 38 CFR 13.30(b)(6), a fiduciary program. beneficiary has the right to obtain from Proposed paragraph (b)(1) would respond to, a collection of information his or her fiduciary a copy of the prescribe that VA decisions regarding unless it displays a currently valid OMB fiduciary’s VA-approved annual fiduciary matters are final, subject only control number. If OMB does not accounting. Although the collection to the beneficiary’s right of appeal as approve the collection of information as requirement of the annual accounting further prescribed in section 13.600. We requested, VA will immediately remove itself is already authorized under OMB would also prescribe that the record the provisions containing a collection of Control No. 2900–0017, the proposed regarding these final decisions will information or take such other action as rule would make explicit the fiduciary’s close on the date the decision is made. is directed by OMB. As noted in this preamble, decisions on Comments on the collections of duty to provide a copy of such fiduciary matters are not decisions on information contained in this proposed accounting to the beneficiary upon claims for benefits and would not be rule should be submitted to the Office request. A fiduciary could provide this afforded the same procedures as of Management and Budget, Attention: copy to the beneficiary by mail, email, prescribed by VA for benefit claims Desk Officer for the Department of or in person. The required form is under 38 CFR part 3. We intend that Veterans Affairs, Office of Information authorized under OMB Control No. appeals in fiduciary matters would be and Regulatory Affairs, Washington, DC 2900–0017. processed expeditiously to avoid 20503, with copies sent by mail or hand Description of the need for delaying VA’s effort to resolve the delivery to: Director, Office of information and proposed use of beneficiary’s disagreement with an Regulation Policy and Management information: This information is needed appointment or issue a statement of the (02REG), Department of Veterans for purposes of keeping the beneficiary case or certify an appeal to the Board. Affairs, 810 Vermont Ave, NW., Room informed as to the status of his or her Except as prescribed in proposed 1068, Washington, DC 20420; fax to VA benefit funds under management. paragraph (b)(1), VA’s appeal (202) 273–9026 (this is not a toll-free Description of likely respondents: regulations in 38 CFR parts 19 and 20 number); or email comments through Fiduciaries appointed by VA to manage would be applicable to the appeals www.Regulations.gov. Comments VA benefit payments on behalf of a authorized in this regulation. We would should indicate that they are submitted beneficiary. provide notice regarding the in response to ‘‘RIN 2900–AO53.’’ Estimated number of respondents per applicability of these provisions in OMB is required to make a decision year: 33,000. proposed paragraph (b)(2). Although we concerning the collections of Estimated frequency of responses: would close the record regarding information contained in this proposed Once per year. appealable decisions under paragraph rule between 30 and 60 days after Estimated total annual reporting and (b)(1), we would clarify that such action publication of this document in the recordkeeping burden: 5,550 additional would not limit the Board’s authority to Federal Register. Therefore, a comment hours. remand a matter to the Hub Manager, to OMB is best assured of having its full Title: Responsibilities of fiduciaries. Regional Office Director, or Director of effect if OMB receives it within 30 days Summary of collection of information: the Pension and Fiduciary Service of publication. This does not affect the Under proposed 38 CFR 13.140, a

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fiduciary is required to keep VA VA generally appoints individual family (adjusted annually for inflation) in any apprised of any change in the members, friends, or caretakers, who one year. This proposed rule would beneficiary’s circumstances which provide fiduciary services for have no such effect on State, local, or might adversely impact the beneficiary’s beneficiaries. Further, only a small tribal governments, or on the private well-being. A fiduciary could report any portion of the business of entities that sector. change telephonically or in writing. No provide fiduciary services concerns VA Catalog of Federal Domestic Assistance form is required for the submission of beneficiaries. Therefore, pursuant to 5 this information. U.S.C. 605(b), this proposed rule is The Catalog of Federal Domestic Description of the need for exempt from the initial and final Assistance program number and title for information and proposed use of regulatory flexibility analysis this proposed rule are as follows: information: This information is needed requirements of sections 603 and 604. 64.104, Pension for Non-Service- for purposes of coordinating a proper Executive Orders 12866 and 13563 Connected Disability for Veterans; response to the beneficiary’s benefit or 64.105, Pension to Veterans Surviving other needs, to include referral to the Executive Orders 12866 and 13563 Spouses, and Children; 64.109, Veterans Veterans Health Administration or other direct agencies to assess the costs and Compensation for Service-Connected public or private agencies for delivery of benefits of available regulatory Disability; and 64.110, Veterans services. alternatives and, when regulation is Dependency and Indemnity Description of likely respondents: necessary, to select regulatory Compensation for Service-Connected Fiduciaries appointed by VA to manage approaches that maximize net benefits Death. VA benefit payments on behalf of a (including potential economic, beneficiary. environmental, public health and safety Signing Authority Estimated number of respondents per effects, and other advantages; The Secretary of Veterans Affairs, or year: 37,500. distributive impacts; and equity). designee, approved this document and Estimated frequency of responses: Executive Order 13563 (Improving authorized the undersigned to sign and Once per year. Regulation and Regulatory Review) submit the document to the Office of the Estimated total annual reporting and emphasizes the importance of Federal Register for publication recordkeeping burden: 1,875 additional quantifying both costs and benefits, electronically as an official document of hours. reducing costs, harmonizing rules, and the Department of Veterans Affairs. Jose Title: Protection of beneficiary funds. promoting flexibility. Executive Order D. Riojas, Interim Chief of Staff, Summary of collection of information: 12866 (Regulatory Planning and Department of Veterans Affairs, Under proposed 38 CFR 13.230, a Review) defines a ‘‘significant approved this document on May 20, fiduciary is required to submit proof of regulatory action,’’ which requires 2013 for publication. adequate bonding with each annual review by the Office of Management and accounting and at any other time the Budget (OMB), as ‘‘any regulatory action List of Subjects Hub Manager requests such proof. The that is likely to result in a rule that may: 38 CFR part 3 proof could be a copy of the bond (1) Have an annual effect on the certificate or the contractual agreement economy of $100 million or more or Administrative practice and between the fiduciary and the bonding adversely affect in a material way the procedure, Claims, Disability benefits, company. No form is required. economy, a sector of the economy, Health care, Pensions, Radioactive Description of the need for productivity, competition, jobs, the materials, Veterans, and Vietnam. information and proposed use of environment, public health or safety, or 38 CFR part 13 information: The information is needed State, local, or tribal governments or to facilitate VA’s oversight regarding the communities; (2) Create a serious Surety bonds, Trusts and trustees, and funds under management protection inconsistency or otherwise interfere Veterans. requirements prescribed in proposed with an action taken or planned by Dated: December 12, 2013. § 13.230. another agency; (3) Materially alter the Robert C. McFetridge, Description of likely respondents: budgetary impact of entitlements, Director, Office of Regulation Policy and Certain fiduciaries appointed by VA grants, user fees, or loan programs or the Management, Office of the General Counsel, who manage VA benefit funds in excess rights and obligations of recipients Department of Veterans Affairs. of $25,000. thereof; or (4) Raise novel legal or policy For the reasons stated in the Estimated number of respondents per issues arising out of legal mandates, the preamble, VA proposes to amend 38 year: 10,000. President’s priorities, or the principles CFR parts 3 and 13 to read as follows: Estimated frequency of responses: set forth in this Executive Order. Once per year. The economic, interagency, PART 3—ADJUDICATION Estimated total annual reporting and budgetary, legal, and policy recordkeeping burden: 167 additional implications of this proposed rule have Subpart A—Pension, Compensation, hours. been examined and it has been and Dependency and Indemnity determined to be a significant regulatory Compensation Regulatory Flexibility Act action under Executive Order 12866. The Secretary hereby certifies that ■ 1. The authority citation for part 3, this proposed rule would not have a Unfunded Mandates subpart A continues to read as follows: significant economic impact on a The Unfunded Mandates Reform Act Authority: 38 U.S.C. 501(a), unless substantial number of small entities as of 1995 requires, at 2 U.S.C. 1532, that otherwise noted. they are defined in the Regulatory agencies prepare an assessment of Flexibility Act, 5 U.S.C. 601–612. The anticipated costs and benefits before § 3.353 [Amended] proposed rule would primarily affect issuing any rule that may result in ■ 2. Amend § 3.353 by: individual beneficiaries and fiduciaries. expenditure by State, local, or tribal ■ a. In paragraph (b)(1), removing It would not cause a significant governments, in the aggregate, or by the ‘‘§ 13.56’’ and adding, in its place, economic impact on fiduciaries since private sector, of $100 million or more ‘‘§ 13.110’’.

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■ b. In paragraph (b)(2), removing 13.600 Appeals. (iii) Is less than 18 years of age. ‘‘§ 13.55’’, ‘‘§ 13.56’’, and ‘‘§ 13.57’’ and Authority: 38 U.S.C. 501, 5502, 5506– Rating authority means VA employees adding, in each place, ‘‘§ 13.100’’. 5510, 6101, 6106–6108, and as noted in who have authority under § 3.353 of this specific sections. chapter to determine whether a § 3.401 [Amended] beneficiary can manage his or her VA ■ 3. Amend § 3.401 by removing and § 13.10 Purpose and applicability of other benefits. reserving paragraph (d). regulations. Relative means a person who is an ■ 4. In § 3.403, revise the paragraph (a) Purpose. The regulations in this adopted child or is related to a heading for paragraph (a)(2) to read as part implement the Department of beneficiary by blood or marriage. follows: Veterans Affairs (VA) fiduciary program, Restricted withdrawal agreement which is authorized by 38 U.S.C. means a written contract between VA, a § 3.403 Children. chapters 55 and 61. The purpose of the fiduciary, and a financial institution in (a) * * * fiduciary program is to protect certain which the fiduciary has VA benefit (2) Majority (§ 13.100). *** VA beneficiaries who, as a result of funds under management for a * * * * * injury, disease, or infirmities of beneficiary, under which certain funds ■ 5. In § 3.452, revise the CROSS advanced age, or by reason of being less cannot be withdrawn without the REFERENCES immediately after than 18 years of age, cannot manage consent of the Hub Manager. paragraph (d) to read as follows: their VA benefits. Under this program, Spouse means a husband or wife VA oversees these vulnerable whose marriage, including ‘‘common § 3.452 Situations when benefits may be apportioned. beneficiaries to ensure their well-being, law’’ marriage and same-sex marriage, and appoints and oversees fiduciaries meets the requirements of 38 U.S.C. * * * * * who manage these beneficiaries’ § 103(c). CROSS REFERENCES: Disappearance benefits. VA benefit funds under management of veteran. See § 3.656. Reduction (b) Applicability of other regulations. means the combined value of the VA because of hospitalization. See 3.551. Fiduciary matters arise after VA has funds maintained in a fiduciary account Penal institutions. See § 3.666. determined that a beneficiary is entitled or accounts managed by a fiduciary for § 3.500 [Amended] to benefits, and decisions on fiduciary a beneficiary under § 13.200 and any VA ■ 6. In § 3.500, remove and reserve matters are not decisions on claims for funds invested by the fiduciary for the paragraphs (l) and (m). VA benefits. Accordingly, VA’s beneficiary under § 13.210, to include regulations governing the adjudication any interest income and return on § 3. 501 [Amended] of claims for benefits, see 38 CFR part investment derived from any account. ■ 7. In § 3.501, remove and reserve 3, do not apply to fiduciary matters (Authority: 38 U.S.C. 501) paragraph (j) and remove paragraph (n). unless VA has prescribed applicability §§ 3.850 through 3.857 [Removed] in this part. § 13.30 Beneficiary rights. ■ 8. Remove §§ 3.850 through 3.857 and (Authority: 38 U.S.C. 501) Except as prescribed in this part, a the undesignated center heading beneficiary in the fiduciary program is ‘‘INCOMPETENTS, GUARDIANSHIP § 13.20 Definitions. entitled to the same rights afforded any AND INSTITUTIONAL AWARDS’’ The following definitions apply to other VA beneficiary. immediately preceding § 3.850. this part: (a) General policy. Generally, a ■ 9. Part 13 is revised to read as follows: Dependent means a beneficiary’s beneficiary has the right to manage his spouse as defined by this section, a or her own VA benefits. However, due PART 13—FIDUCIARY ACTIVITIES beneficiary’s child as defined by § 3.57 to a beneficiary’s injury, disease, or of this chapter, or a beneficiary’s parent infirmities of advanced age or by reason Sec. of being less than 18 years of age, VA 13.10 Purpose and applicability of other as defined by § 3.59 of this chapter, who regulations. does not have an income sufficient for may determine that the beneficiary is 13.20 Definitions. reasonable maintenance and who unable to manage his or her benefits 13.30 Beneficiary rights. obtains support for such maintenance without VA supervision or the 13.40 Representation of beneficiaries in the from the beneficiary. assistance of a fiduciary. Or a court with fiduciary program. Fiduciary means an individual or jurisdiction might determine that a 13.50 Suspension of benefits. entity appointed by VA to receive VA beneficiary is unable to manage his or 13.100 Fiduciary appointments. benefits on behalf of a beneficiary for her financial affairs. Under any of these 13.110 Supervised direct payment. the use and benefit of the beneficiary circumstances, VA will apply the 13.120 Field examinations. and the beneficiary’s dependents. provisions of this part to ensure that VA 13.130 Bars to serving as a fiduciary. 13.140 Responsibilities of fiduciaries. Hub Manager means the individual benefits are being used to maintain the 13.200 Fiduciary accounts. who has authority to oversee the well-being of the beneficiary and the 13.210 Fiduciary investments. activities of a VA Fiduciary Hub or the beneficiary’s dependents. 13.220 Fiduciary fees. Veterans Service Center Manager of the (b) Specific rights. The rights of 13.230 Protection of beneficiary funds. VA Manila Regional Office. beneficiaries in the fiduciary program 13.240 Funds of beneficiaries less than 18 In the fiduciary program means, with include, but are not limited to, the right years old. respect to a beneficiary, that the to: 13.250 Funds of deceased beneficiaries. beneficiary: (1) Receive direct payment of 13.260 Personal funds of patients. (i) Has been rated by VA as incapable recurring monthly benefits until VA 13.270 Creditors’ claims. of managing his or her own VA benefits appoints a fiduciary if the beneficiary is 13.280 Accountings. as a result of injury, disease, or the 13.300 Onsite reviews. 18 years of age or older; 13.400 Misuse of benefits. infirmities of advanced age; (2) Receive notice regarding VA’s 13.410 Reissuance and recoupment of (ii) Has been determined by a court appointment of a fiduciary or any other misused benefits. with jurisdiction as being unable to decision on a fiduciary matter that 13.500 Removal of fiduciaries. manage his or her own financial affairs; affects VA’s provision of benefits to the 13.510 Fiduciary withdrawals. or beneficiary;

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(3) Appeal to the Board of Veterans’ manage his or her own benefits with prejudicial to the fair and orderly Appeals VA’s appointment of a limited and temporary VA supervision; conduct of administrative proceedings fiduciary; and before VA. (4) Be informed of the fiduciary’s (11) Be represented by a VA- (3) The Hub Manager will submit a name, telephone number, mailing accredited attorney, claims agent, or written report regarding an alleged address, and email address; representative of a VA-recognized violation of the standards of conduct (5) Contact his or her fiduciary and veterans service organization. This prescribed in this section to the VA request a disbursement of funds for includes the right to have a Assistant General Counsel who current or foreseeable needs or representative present during a field administers the accreditation program consideration for payment of previously examination and the right to be for a determination regarding further incurred expenses, account balance represented in the appeal of a fiduciary action, including suspension or information, or other information or matter under § 13.600. cancellation of accreditation under assistance consistent with the (Authority: 38 U.S.C. 501) § 14.633 of this chapter, and notification responsibilities of the fiduciary to any agency, court, or bar to which the prescribed in § 13.140; § 13.40 Representation of beneficiaries in attorney, agent, or representative is (6) Obtain from his or her fiduciary a the fiduciary program. admitted to practice. copy of the fiduciary’s VA-approved The provisions of 38 CFR 14.626 (c) Fees. Except as prescribed in annual accounting; through 14.629 and 14.631 through paragraphs (c)(1)(i) through (iii) of this (7) Have VA reissue benefits misused 14.637 regarding accreditation and section, an accredited attorney or claims by a fiduciary if VA is negligent in representation of VA claimants and agent may charge a reasonable fixed or appointing or overseeing the fiduciary beneficiaries in proceedings before VA hourly fee for representation services or if the fiduciary who misused the are applicable to representation of provided to a beneficiary in a fiduciary benefits meets the criteria prescribed in beneficiaries before VA in fiduciary matter, provided that the fee meets the § 13.410; matters governed by this part. requirements of § 14.636 of this chapter. (8) Appeal to the Board of Veterans’ (a) Accreditation. Only VA-accredited (1) The following provisions of Appeals VA’s determination regarding attorneys, claims agents, and accredited § 14.636 of this chapter do not apply in its own negligence in misuse and representatives of VA-recognized fiduciary matters: reissuance of benefits matters; veterans service organizations who have (i) Fees under § 14.636(e) of this (9) Submit to VA a reasonable request complied with the power-of-attorney chapter, to the extent that the regulation for appointment of a successor requirements in § 14.631 of this chapter authorizes a fee based on a percentage fiduciary. For purposes of this may represent beneficiaries before VA of benefits recovered; paragraph, reasonable request means a in fiduciary matters. (ii) The presumptions prescribed by good faith effort to seek replacement of (b) Standards of conduct. Accredited § 14.636(f) of this chapter based upon a a fiduciary, if: individuals who represent beneficiaries percentage of a past-due benefit amount. (i) The beneficiary’s current fiduciary in fiduciary matters must comply with In fiduciary matters, the reasonableness receives a fee deducted from the the general and specific standards of of a fixed or hourly-rate fee will be beneficiary’s account under § 13.220 conduct prescribed in § 14.632(a) determined based upon application of and the beneficiary requests an unpaid through (c) of this chapter, and the reasonableness factors prescribed in volunteer fiduciary who ranks higher in attorneys must also comply with the § 14.636(e); and the order of preference under standards prescribed in § 14.632(d). For (iii) Direct payment of fees by VA out § 13.100(e); purposes of this section: of past-due benefits under § 14.636(g)(2) (ii) The beneficiary requests removal (1) A fiduciary matter is not a claim and (h) of this chapter. of his or her fiduciary under for VA benefits. However, the term (2) An accredited attorney or claims § 13.500(a)(1)(iii) and supervised direct claimant in § 14.632 of this chapter agent who wishes to charge a fee for payment of benefits under § 13.110; or includes VA beneficiaries who are in representing a beneficiary in a fiduciary (iii) The beneficiary provides credible the fiduciary program, and the term matter must comply with the fee information that the current fiduciary is claim in § 14.632 includes a fiduciary agreement filing requirement prescribed not acting in the beneficiary’s interest or matter that is pending before VA. in § 14.636(g)(3) of this chapter. is unable to effectively serve the (2) The provisions of § 14.632(c)(7) (3) VA, the beneficiary, or the beneficiary due to a personality conflict through (9) of this chapter mean that an beneficiary’s fiduciary may challenge or disagreement and VA is not able to accredited individual representing a the reasonableness of a fee charged by obtain resolution; beneficiary in a fiduciary matter may an accredited attorney or claims agent (10)(i) Be removed from the fiduciary not: using the procedures prescribed in program and receive direct payment of (i) Delay or refuse to cooperate in the § 14.636(i) of this chapter. benefits without VA supervision processing of a fiduciary appointment or (Authority: 38 U.S.C. 501, chapter 59) provided that the beneficiary: any other fiduciary matter, including (A) Is rated by VA as able to manage but not limited to a field examination § 13.50 Suspension of benefits. his or her own benefits; or prescribed by § 13.120 and the (a) Notwithstanding the beneficiary (B) Is determined by a court with investigation of a proposed fiduciary rights prescribed in § 13.30, the Hub jurisdiction as able to manage his or her prescribed by § 13.100; Manager will temporarily suspend financial affairs; or (ii) Mislead, threaten, coerce, or payment of benefits and hold such (C) Attains the age of 18 years; deceive a beneficiary in the fiduciary benefits in the U.S. Treasury to the (ii) Have a fiduciary removed and program or a proposed or current credit of the beneficiary or take other receive direct payment of benefits with fiduciary regarding payment of benefits action that the Hub Manager deems VA supervision as prescribed in or the rights of beneficiaries in the appropriate to prevent exploitation of § 13.110 regarding supervised direct fiduciary program; or VA benefit funds or to ensure that the payment and § 13.500 regarding removal (iii) Engage in, or counsel or advise a beneficiary’s needs are being met, if: of fiduciaries generally, provided that beneficiary or proposed or current (1) The beneficiary or the the beneficiary establishes the ability to fiduciary to engage in, acts or behavior beneficiary’s attorney, claims agent, or

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representative withholds cooperation in paragraph (f) of this section. The Hub regarding the proposed fiduciary’s any of the appointment and oversight Manager will also consider whether: qualifications. procedures prescribed in this part; or (1) VA benefits can be paid directly to (1) The investigation will include: (2) VA removes the beneficiary’s the beneficiary with limited and (i) To the extent practicable, a face-to- fiduciary for any reason prescribed in temporary supervision by VA, as face interview of the proposed fiduciary; § 13.500(b) and is unable to appoint a prescribed in § 13.110; (ii) A review of a credit report on the successor fiduciary before the (2) The circumstances require proposed fiduciary issued by a credit beneficiary has an immediate need for appointment of a temporary fiduciary reporting agency no more than 30 days disbursement of funds. under paragraph (h) of this section; and prior to the date of the proposed (b) All or any part of the funds held (3) The proposed fiduciary is appointment; in the U.S. Treasury to the beneficiary’s complying with the responsibilities of a (iii) A criminal background check to credit under paragraph (a) of this fiduciary prescribed in § 13.140 with determine whether the proposed section will be disbursed under the respect to all beneficiaries in the fiduciary has been convicted of any order and in the discretion of the VA fiduciary program currently being offense which would be a bar to serving Regional Office Director who has served by the proposed fiduciary and as a fiduciary under § 13.130 or which jurisdiction over the fiduciary hub or whether the proposed fiduciary can the Hub Manager may consider and regional office for the benefit of the handle an additional appointment weigh under the totality of the beneficiary or the beneficiary’s without degrading service for any other circumstances regarding the proposed dependents. beneficiary. fiduciary’s qualifications; (iv) Obtaining proof of the proposed (Authority: 38 U.S.C. 501, 512, 5502, 5504) (e) Order of preference in appointing a fiduciary. The Hub Manager will fiduciary’s identity and relationship to § 13.100 Fiduciary appointments. consider individuals and entities for the beneficiary, if any; and (a) Authority. Except as prescribed in appointment in the following order of (v) A determination regarding the paragraph (b) of this section, the Hub preference, provided that the proposed need for surety bond under § 13.230 and Manager will appoint a fiduciary for a fiduciary is qualified and willing to the proposed fiduciary’s ability to beneficiary who: serve and the appointment would serve obtain such a bond. (2) The Hub Manager may, at any time (1) Has been rated by VA as being the beneficiary’s interest: after the initial appointment of the unable to manage his or her VA benefits, (1) The preference stated by the fiduciary for a beneficiary, repeat all or (2) Has been determined by a court beneficiary in the fiduciary program, if part of the investigation prescribed by with jurisdiction as being unable to the beneficiary has the capacity to state paragraph (f)(1) of this section to ensure manage his or her financial affairs, or such a preference. If the beneficiary has that the fiduciary continues to meet the (3) Has not reached age 18. a legal guardian appointed to handle the qualifications for service and there is no (b) Exceptions. The Hub Manager will beneficiary’s affairs, the Hub Manager current bar to service under § 13.130. will presume that the beneficiary does not appoint a fiduciary for a beneficiary (3) VA will not conduct the not have the capacity to state a who: investigation prescribed by paragraph (f) preference and will consider (1) Is eligible for supervised direct of this section if the proposed fiduciary individuals and entities in the order of payment under § 13.110, or is an entity, such as the trust preference prescribed in paragraphs (2) Is not a beneficiary described in department of a bank that provides (e)(2) through (10) of this section; paragraph (a)(1) or (a)(2) of this section fiduciary services. and has not reached age 18, and (2) The beneficiary’s spouse; (g) Expedited appointment. The Hub (i) Is serving in the Armed Forces of (3) A relative who has care or custody Manager may waive the requirements of the United States, of the beneficiary or his or her funds; paragraphs (f)(1)(i) through (iii) of this (ii) Has been discharged from service (4) Any other relative of the section and expedite the appointment of in the Armed Forces of the United beneficiary; a proposed fiduciary if the Hub Manager States, or (5) Any friend, acquaintance, or other determines that an expedited (iii) Qualifies for survivors’ benefits as person who is willing to serve as appointment would be in the a surviving spouse. fiduciary for the beneficiary without a beneficiary’s interest and: (c) Retroactive benefit payments. The fee; (1) The proposed fiduciary is: Hub Manager will withhold any (6) The chief officer of a public or (i) The beneficiary’s parent (natural, retroactive, one-time, or other lump-sum private institution in which the adopted, or step-parent) and the benefit payment awarded to a beneficiary receives care or which has beneficiary is less than 18 years old, or beneficiary described in paragraph (a) of custody of the beneficiary; (ii) The beneficiary’s spouse; or this section until the Hub Manager has (7) The bonded officer of an Indian (2) The annual amount of VA benefits appointed a fiduciary for the beneficiary reservation, if applicable; the proposed fiduciary would manage and, if applicable, the fiduciary has (8) An individual or entity who has for the beneficiary does not exceed the obtained a surety bond under § 13.230. been appointed by a court with amount specified in 38 U.S.C. (d) Initial appointment. In appointing jurisdiction to handle the beneficiary’s 5507(c)(2)(D), as adjusted by VA a fiduciary, the Hub Manager will make affairs; pursuant to 38 U.S.C. 5312. every effort to appoint the person, (9) An individual or entity who is not (h) Temporary fiduciary agency, organization, or institution that willing to serve without a fee; or appointments. (1) The Hub Manager will best serve the interest of the (10) A temporary fiduciary, if may appoint a temporary fiduciary for a beneficiary. The Hub Manager will necessary. period not to exceed 120 days in any of consider the results of a field (f) Investigation of a proposed the following circumstances: examination, which will include a face- fiduciary. Except as prescribed in (i) The beneficiary is appealing a VA to-face meeting with the beneficiary and paragraph (f)(3) of this section, before rating that the beneficiary cannot the beneficiary’s dependents at their appointing a fiduciary for a beneficiary manage his or her own VA benefits; residence when practicable, and will in the fiduciary program, the Hub (ii) VA has removed a fiduciary for conduct the investigation prescribed in Manager will conduct an investigation cause under § 13.500 and cannot

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expedite the appointment of a successor determination, the Hub Manager will might assist the beneficiary in fiduciary, and the beneficiary has an consider: developing the ability to manage his or immediate need for fiduciary services; (1) Whether the beneficiary is aware her own VA benefits. At the conclusion or of his or her monthly income; of the additional period of supervised (iii) The Hub Manager determines that (2) Whether the beneficiary is aware direct payment, the Hub Manager will the beneficiary has an immediate need of his or her fixed monthly expenses conduct the reassessment prescribed by for fiduciary services and it would not such as rent, mortgage, utilities, paragraph (c) of this section and either be in the beneficiary’s or the clothing, food, and medical bills; recommend reevaluation under beneficiary’s dependents’ interest to pay (3) The beneficiary’s ability to: paragraph (c)(1) of this section or benefits to the beneficiary until a (i) Allocate appropriate funds to fixed appoint a fiduciary under paragraph fiduciary is appointed. monthly expenses and discretionary (c)(2)(i) of this section. items; (2) Any temporary fiduciary (Authority: 38 U.S.C. 501, 5502) appointed under this paragraph (h) must (ii) Pay monthly bills in a timely be: manner; and § 13.120 Field examinations. (i) An individual or entity that has (iii) Conserve excess funds; and (a) Authority. The Hub Manager will already been subject to the procedures (4) Any other information that order a field examination regarding for appointment in paragraphs (d) and demonstrates the beneficiary’s actual fiduciary matters within the Hub (f) of this section, and ability to manage his or her VA benefits Manager’s jurisdiction for any of the (ii) Performing satisfactorily as a with limited VA supervision. reasons prescribed in paragraph (c) of fiduciary for at least one other VA (b) Supervision. The limited and this section. For purposes of this beneficiary for whom the fiduciary has temporary supervision of beneficiaries section, field examination means the submitted an annual accounting that VA receiving direct payment under inquiry, investigation, or monitoring has approved. paragraph (a) of this section will consist activity conducted by designated of: (i) Authorization for disclosure of fiduciary hub or other qualified VA (1) Assistance in the development of information. The Hub Manager will: personnel who are authorized to: a budget regarding the beneficiary’s (1) Obtain from every proposed (1) Interview beneficiaries, income and expenses, dependents, and other interested fiduciary who is an individual a written (2) Assistance with creating a fund persons regarding fiduciary matters; authorization for VA to disclose to the usage report to aid the beneficiary in beneficiary information regarding any (2) Interview proposed fiduciaries and tracking his or her income and current fiduciaries regarding their fiduciary matter that may be appealed expenses, and under § 13.600, including but not qualifications, performance, or (3) Periodic reviews of the compliance with VA regulations; limited to the fiduciary’s qualifications beneficiary’s fund usage report, as for appointment under § 13.100 or (3) Conduct investigations and required by the Hub Manager. examine witnesses regarding any misuse of benefits under § 13.400. Such (c) Reassessment. The Hub Manager disclosures may occur in VA’s fiduciary matter; will reassess the beneficiary’s ability to (4) Take affidavits; correspondence with the beneficiary, in manage his or her VA benefits at or a VA fiduciary appointment or misuse (5) Administer oaths and affirmations; before the end of the first 12-month (6) Certify copies of public or private of benefits decision, in a statement of period of supervision. Based upon a documents; and the case for purposes of appeal under field examination, an evaluation of the (7) Aid claimants and beneficiaries in § 13.600, or upon request by the factors listed in paragraph (a) of this the preparation of claims for VA beneficiary, the beneficiary’s guardian, section, and the results of the benefits or other fiduciary or claim- or the beneficiary’s accredited attorney, supervision prescribed in paragraph (b) related material. claims agent, or representative; of this section, the Hub Manager will (b) Scope of field examinations. Field (2) Notify the proposed fiduciary that determine whether the beneficiary can examinations may include, but are not the disclosed information may be used manage his or her benefits without VA limited to: by the beneficiary in appealing a VA supervision. (1) Assessing a beneficiary’s and the appointment or misuse decision to the (1) If the beneficiary demonstrates the beneficiary’s dependents’ welfare and Board of Veterans’ Appeals under ability to manage his or her VA benefits physical and mental well-being, § 13.600; and without supervision, the Hub Manager environmental and social conditions, (3) Terminate consideration of a will prepare a report that summarizes and overall financial situation, based proposed fiduciary if the individual the findings and refer the matter with a upon visiting the beneficiary’s current refuses to provide the authorization recommendation and supporting residence and conducting a face-to-face prescribed in paragraph (i)(1) of this evidence to the rating authority for interview of the beneficiary and the section. Such refusal is a bar to serving application of § 3.353(b)(3) of this beneficiary’s dependents, when as a fiduciary for a beneficiary under chapter regarding reevaluation of ability practicable; § 13.130(b). to manage VA benefits and § 3.353(d) of (2) Assessing the beneficiary’s ability (Authority: 38 U.S.C. 501, 5502, 5506, 5507) this chapter regarding the presumption to manage his or her own VA benefits of ability to manage VA benefits without with only limited VA supervision (see § 13.110 Supervised direct payment. restriction. § 13.110 regarding supervised direct (a) Authority. The Hub Manager may (2) If the beneficiary does not payment); authorize the payment of VA benefits demonstrate the ability to manage his or (3) Collecting and reviewing financial directly to an adult beneficiary in the her VA benefits without VA documentation, including income and fiduciary program 18 years of age or supervision, the Hub Manager will: expenditure information; older if the Hub Manager determines, (i) Appoint a fiduciary, or (4) Providing any necessary assistance based upon a field examination, that the (ii) Continue supervised direct to the beneficiary with issues affecting beneficiary can manage his or her VA payment for not longer than one current or additional VA benefits, benefits with limited and temporary VA additional 12-month period based upon claims, and non-VA matters that may supervision. In making this evidence that additional supervision affect or conflict with VA benefits;

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(5) Making appropriate referrals in (H) The abuse of or neglect of another access to or use of the beneficiary’s cases of actual or suspected physical or person, or private information that may result in mental abuse, neglect, or other harm to (I) Any other financial crime; substantial harm or inconvenience to a beneficiary; (iii) There is no other person or entity the beneficiary; and (6) Investigating, when necessary, who is willing and qualified to serve; (B) Private information means a allegations that a beneficiary’s fiduciary and beneficiary’s first name and last name or has engaged in misconduct or misused (iv) The Hub Manager determines that first initial and last name in VA benefits to include but not limited the nature of the conviction is such that combination with any one or more of to allegations regarding: appointment of the individual poses no the following data elements that relate (i) Theft or misappropriation of funds, risk to the beneficiary and is in the to such beneficiary: VA claim number, (ii) Failure to comply with the beneficiary’s interest; Social Security number, date of birth, responsibilities of a fiduciary as (b) An individual may not serve as a address, driver’s license number or prescribed in § 13.140, fiduciary for a VA beneficiary if the State-issued identification card number, (iii) Other allegations of inappropriate individual: or financial account number or credit fund management by a fiduciary, and (1) Refuses or neglects to provide the card or debit card number, with or (iv) Other special circumstances authorization for VA disclosure of without any required security code, which require a visit with or onsite information prescribed in § 13.100(i); access code, personal identification review of the fiduciary, such as a change (2) Is unable to manage his or her own number, or password, that would permit in an award of benefits or benefit status, Federal or State benefits and is in a access to the beneficiary’s account. or non-fiduciary program matters. Federal or State agency’s fiduciary, (ii) At a minimum, fiduciaries must (c) Reasons for conducting field representative payment, or similar place reasonable restrictions upon examinations. A Hub Manager will program; access to paper records containing the order a field examination to: (3) Has been adjudicated by a court beneficiary’s private information, (1) Determine whether benefits should with jurisdiction as being unable to including storage of such records in be paid directly to a beneficiary under manage his or her own financial affairs; locked facilities, storage areas, or § 13.110 or to a fiduciary appointed for (4) Is incarcerated in a Federal, State, containers. the beneficiary under § 13.100; local, or other penal institution or (iii) For electronic records containing (2) Determine whether benefit correctional facility, sentenced to home the beneficiary’s private information, payments should continue to be made confinement, released from the fiduciary must: directly to a beneficiary under § 13.110 incarceration to a half-way house, or on (A) Use unique identifications and or to a fiduciary on behalf of a house arrest or in custody in any facility passwords, which are not vendor- beneficiary; or awaiting trial on pending criminal supplied default identifications and (3) Ensure the well-being of a charges; passwords, for computer, network, or beneficiary in the fiduciary program or (5) Has felony charges pending; online site access that are reasonably to protect a beneficiary’s VA benefit (6) Is under 18 years of age; or designed to maintain the security of the funds. (7) Knowingly violates or refuses to beneficiary’s information and the comply with the regulations in this part. fiduciary’s financial transactions; (Authority: U.S.C. 501, 512, 5502, 5506, (B) Control access to data security 5507, 5711) (Authority: 38 U.S.C. 501, 5502, 5506, 5507, 6101, 6106.) passwords to ensure that such § 13.130 Bars to serving as a fiduciary. passwords are kept in a location and (a) An individual or entity may not § 13.140 Responsibilities of fiduciaries. format that do not compromise the serve as a fiduciary for a VA beneficiary Any individual or entity appointed by security of the beneficiary’s private if the individual or entity: VA as a fiduciary to receive VA benefit information; and (1) Misused or misappropriated a payments on behalf of a beneficiary in (C) For records containing private beneficiary’s VA benefits while serving the fiduciary program must fulfill information on a computer system that as the beneficiary’s fiduciary; certain responsibilities associated with is connected to the Internet, keep (2) Has been convicted of a felony the services of a fiduciary. These reasonably up-to-date firewall and virus offense. For purposes of this paragraph, responsibilities include: protection and operating system felony offense means a criminal offense (a) General. (1) Fiduciaries appointed security patches to maintain the for which the minimum period of by VA to manage the VA funds of a integrity of the beneficiary’s private imprisonment is 1 year or more, beneficiary are also responsible for information and prevent unauthorized regardless of the actual sentence monitoring the beneficiary’s well-being disclosure. For purposes of this section, imposed or the actual time served. and using available funds to ensure that a system is reasonably updated if the However, such conviction is not a bar to the beneficiary’s needs are met. In all fiduciary installs software updates serving as a fiduciary for a beneficiary cases, the fiduciary must disburse or immediately upon release by the if all of the following conditions are otherwise manage funds according to original equipment or software met: the best interests of the beneficiary and manufacturer, uses internet browser (i) The conviction occurred more than the beneficiary’s dependents and in security settings suitable for 10 years preceding the proposed date of light of the beneficiary’s unique transmission of private information, and appointment; circumstances, needs, desires, beliefs, maintains password-protected wireless (ii) The conviction did not involve and values. connections or other networks; any of the following offenses: (2) The fiduciary must take all (iv) The fiduciary must keep all paper (A) Fraud, reasonable precautions to protect the and electronic records relating to the (B) Theft, beneficiary’s private information fiduciary’s management of VA benefit (C) Bribery, contained in the fiduciary’s paper and funds for the beneficiary for the (D) Embezzlement, electronic records. duration of service as fiduciary for the (E) Identity theft, (i) For purposes of this section: beneficiary and for a minimum of 2 (F) Money laundering, (A) Reasonable precautions means years from the date that VA removes the (G) Forgery, protecting against any unauthorized fiduciary under § 13.500 or from the

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date that the fiduciary withdraws as (3) Correcting any discord or beneficiary’s funds, either upon or after fiduciary for the beneficiary under uncomfortable living or other situations receipt. The account must be: § 13.510. when possible; (1) Established for direct deposit of (b) Financial responsibilities. The (4) Acknowledging and addressing VA benefits, fiduciary’s primary financial any complaints or concerns of the (2) Established in a Federally-insured responsibilities include, but are not beneficiary to the best of the fiduciary’s financial institution, and in Federally- limited to: ability; insured accounts when funds qualify for (1) The use of the beneficiary’s VA (5) Reporting to the appropriate such deposit insurance, and benefit funds under management only authorities, including any legal (3) Titled in the beneficiary’s and for the care, support, education, health, guardian, any type of known or fiduciary’s names and note the existence and welfare of the beneficiary and his or suspected abuse of the beneficiary; of the fiduciary relationship. her dependents. Except as authorized (6) Maintaining contact with the (b) Exceptions. The general rule under § 13.220 regarding fiduciary fees, beneficiary for purposes of assessing the prescribed in paragraph (a) of this a fiduciary may not derive a personal beneficiary’s capabilities, limitations, section regarding establishment and financial benefit from management or needs, and opportunities; and maintenance of separate accounts does use of the beneficiary’s funds; (7) Being responsive to the beneficiary not apply to the following fiduciaries: (1) The beneficiary’s spouse, (2) Protection of the beneficiary’s VA and ensuring the beneficiary and his or (2) State or local Government entities, benefits from loss or diversion; her legal guardian have the fiduciary’s current contact information. (3) Institutions, such as public or (3) Except as prescribed in § 13.200 private medical care facilities, nursing regarding fiduciary accounts, (d) The fiduciary’s responsibilities to VA. Any fiduciary who has VA benefit homes, or other residential care maintenance of separate financial facilities, when an annual accounting is accounts to prevent commingling of the funds under management on behalf of a beneficiary in the fiduciary program not required. See § 13.280 regarding beneficiary’s funds with the fiduciary’s accounting requirements, or own funds or the funds of any other must: (1) If the fiduciary is also appointed (4) A trust company or a bank with beneficiary for whom the fiduciary has by a court, annually provide to the trust powers organized under the laws funds under management; fiduciary hub with jurisdiction a of the United States or a state. (4) Determination of the beneficiary’s certified copy of the accounting just debts. For purposes of this section, (Authority: U.S.C. 501, 5502, 5509, 5711) provided to the court or facilitate the just debts means the beneficiary’s hub’s receipt of such an accounting; § 13.210 Fiduciary investments. legitimate, legally enforceable debts; (2) Notify the fiduciary hub regarding (a) General. A fiduciary must (5) Timely payment of the any change in the beneficiary’s conserve or invest any VA benefits that beneficiary’s just debts, provided that circumstances, to include the the fiduciary receives on behalf of a the fiduciary has VA benefit funds beneficiary’s relocation, the beneficiary, whether such benefits are in under management for the beneficiary to beneficiary’s serious illness, or any the form of recurring monthly payments cover such debts; other significant change in the or a one-time payment, if the beneficiary (6) Providing the beneficiary with beneficiary’s circumstances which or the beneficiary’s dependents do not information regarding VA benefit funds might adversely impact the beneficiary’s need the benefits for current under management for the beneficiary, well-being; maintenance, reasonably foreseeable including fund usage, upon request; (3) Provide documentation or expenses, or reasonable improvements (7) Providing the beneficiary with a verification of any records concerning in the beneficiary’s and the beneficiary’s copy of the annual accounting approved the beneficiary or matters relating to the dependents’ standard of living. by VA under § 13.280; fiduciary’s responsibilities within 30 Conservation of beneficiary funds is for (8) Ensuring that any best-interest days of a VA request, unless otherwise the purpose of addressing unforeseen determination regarding the use of directed by the Hub Manager; circumstances or planning for future funds is consistent with VA policy, (4) When necessary, appear before VA care needs given the beneficiary’s which recognizes that beneficiaries in for face-to-face meetings; and disabilities, circumstances, and the fiduciary program are entitled to the (5) Comply with the policies and eligibility for care furnished by the same standard of living as any other procedures prescribed in this part. Government at Government expense. beneficiary with the same or similar (Authority: 38 U.S.C. 501, 512, 5502, 5507, Fiduciaries will not conserve VA benefit financial resources, and that the 5509, 5711) funds under management for a fiduciary program is not for the purpose beneficiary based upon the interests of of preserving funds for the beneficiary’s § 13.200 Fiduciary accounts. the beneficiary’s heirs or according to heirs or disbursing funds according to Except as prescribed in paragraph (b) the fiduciary’s own beliefs, values, the fiduciary’s own beliefs, values, of this section, any fiduciary appointed preferences, and interests. preferences, and interests; and by VA to receive payments on behalf of (b) Types of investments. An (9) Protecting the beneficiary’s funds a beneficiary must deposit the investment must be prudent and in the from the claims of creditors as described beneficiary’s VA benefits in a fiduciary best interest of the beneficiary. in § 13.270 of this section. account that meets the requirements Authorized investments include United (c) Non-financial responsibilities. The prescribed in paragraph (a) of this States savings bonds or interest or fiduciary’s primary non-financial section. dividend-paying accounts insured responsibilities include, but are not (a) Separate accounts. Except as under Federal law. Any such limited to: prescribed in paragraph (b) of this investment must be clearly titled in the (1) Contacting social workers or section, a fiduciary must establish and beneficiary’s and fiduciary’s names and mental health professionals regarding maintain a separate financial institution identify the fiduciary relationship. the beneficiary, when necessary; account(s) for each VA beneficiary that (c) Exceptions. The general rules (2) To the extent possible, ensuring the fiduciary serves. The fiduciary must regarding investment of VA benefits do the beneficiary receives appropriate not commingle a beneficiary’s funds not apply to the following fiduciaries: medical care; with the fiduciary’s funds or any other (1) The beneficiary’s spouse, and

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(2) The chief officer of an institution (i) VA or a court with jurisdiction (2) The Hub Manager may, at any in which the beneficiary is being determines that the fiduciary misused or time, require the fiduciary to obtain a furnished hospital treatment or misappropriated benefits, or bond described in paragraph (a) of this institutional, nursing, or domiciliary (ii) The beneficiary does not receive a section and meeting the requirements of care. VA benefits paid to the chief VA benefit payment. However, the Hub paragraph (d) of this section, without officer may not be invested. Manager may authorize a fee for a regard to the amount of VA benefit month in which the beneficiary did not (Authority: 38 U.S.C. 501, 5502) funds under management by the receive a benefit payment if VA later fiduciary for the beneficiary, if special § 13.220 Fiduciary fees. issues benefits for that month and the circumstances indicate that obtaining a (a) Authority. The Hub Manager with fiduciary: bond would be in the beneficiary’s jurisdiction over a fiduciary (A) Receives VA approval to collect a interest. Such special circumstances appointment may determine whether a fee for the month for which payment may include but are not limited to: fee is necessary to obtain the services of was made, (i) A marginal credit report for the (B) Provided fiduciary services during a fiduciary. A fee is necessary only if no fiduciary; or the month for which payment was other person or entity is qualified and (ii) A fiduciary’s misdemeanor made, and willing to serve without a fee and the criminal conviction either before or after (C) Was the beneficiary’s fiduciary appointment for any offense listed in beneficiary’s interests would be served when VA made the retroactive payment. by the appointment of a qualified paid § 13.130(a)(2)(ii); fiduciary. The Hub Manager will not (Authority: 38 U.S.C. 501, 5502, 6101, 6106) (d) Bond requirements. A bond authorize a fee if the fiduciary: furnished by a fiduciary under § 13.230 Protection of beneficiary funds. paragraph (a) or (b) of this section must (1) Is a spouse, dependent, or other (a) General. Except as prescribed in relative of the beneficiary; or meet the following requirements: paragraph (c) of this section, within 60 (1) The bond must be a corporate (2) Will receive any other form of days of appointment, the fiduciary must surety bond in an amount sufficient to payment in connection with providing furnish to the fiduciary hub with cover the value of the VA benefit funds fiduciary services for the beneficiary. jurisdiction a corporate surety bond that under management by the fiduciary for (b) Limitation on fees. The Hub is conditioned upon faithful discharge the beneficiary. Manager will authorize a fiduciary to of all of the responsibilities of a (2) After furnishing the prescribed whom a fee is payable under paragraph fiduciary prescribed in § 13.140 and bond to the fiduciary hub, the fiduciary (a) of this section to deduct from the meets the requirements of paragraph (d) must: beneficiary’s account a reasonable of this section, if the VA benefit funds (i) Adjust the bond amount to account monthly fee for fiduciary services that are due and to be paid for the for any increase or decrease of more rendered. beneficiary will exceed $25,000 at the than 20 percent in the VA benefit funds (1) For purposes of this section, time of appointment. The Hub Manager under management by the fiduciary for reasonable monthly fee means a will not authorize the release of a the beneficiary, and monetary amount that is authorized by retroactive, one-time, or other pending (ii) Furnish proof of the adjustment to the Hub Manager and does not exceed lump-sum benefit payment to the the fiduciary hub not later than 60 days 4 percent of the monthly VA benefit fiduciary until the fiduciary has after a change in circumstance described paid to the fiduciary on behalf of the furnished the bond prescribed by this in paragraph (d)(2)(i) of this section. beneficiary for a month in which the section. (3) The bond furnished by the fiduciary is eligible under paragraph (b) Accumulated funds. The fiduciary must also: (b)(2) of this section to collect a fee. provisions of paragraph (a) of this (i) Identify the fiduciary, the (2) A monthly fee may be collected for section which require a fiduciary to beneficiary, and the bonding company; any month during which the fiduciary: furnish a surety bond apply in any case and (i) Provides fiduciary services on in which the accumulation over time of (ii) Contain a statement that the bond behalf of the beneficiary, VA benefit funds under management by is payable to the Secretary of Veterans (ii) Receives a recurring VA benefit a fiduciary for a beneficiary exceeds Affairs. payment for the beneficiary, and $25,000. Except as prescribed in (e) Periodic proof of bond. A fiduciary (iii) Is authorized by the Hub Manager paragraph (c) of this section, within 60 must furnish proof of adequate bonding: to receive a fee for fiduciary services. days of accumulated funds exceeding (1) With each annual accounting the prescribed threshold, the fiduciary prescribed by § 13.280, and (3) Fees may not be computed based (2) At any other time the Hub upon: will furnish to the fiduciary hub a bond that meets the requirements of Manager with jurisdiction requests (i) Any one-time, retroactive, or lump- paragraph (d) of this section. proof. sum payment made to the fiduciary on (c) Exceptions. (1) The provisions of (f) Liability. (1) Except as otherwise behalf of the beneficiary; paragraphs (a) and (b) of this section do provided by the terms of the bond, the (ii) Any funds conserved by the not apply to: surety and the fiduciary guaranteed by fiduciary for the beneficiary in the (i) A fiduciary that is a trust company the surety are jointly and severally beneficiary’s account under § 13.200 or or a bank with trust powers organized liable for any misappropriation or invested by the fiduciary for the under the laws of the United States or misuse of VA benefits by the fiduciary. beneficiary under § 13.210, to include a State; (2) VA may collect on the bond any interest income and return on (ii) A fiduciary who is the regardless of any prior reissuance of investment derived from any account; or beneficiary’s spouse; or benefits by VA under § 13.410 and until (iii) Any funds transferred to the (iii) A fiduciary in the Commonwealth liability under the terms of the bond is fiduciary by a prior fiduciary for the of Puerto Rico, Guam, or another exhausted. beneficiary, or from the personal funds territory of the United States, or in the (g) Bond expenses. (1) Authority. The of patients or any other source. Republic of the Philippines, who has fiduciary may deduct from the (4) The Hub Manager will not entered into a restricted withdrawal beneficiary’s account any expense authorize a fee for any month for which: agreement in lieu of a surety bond. related to obtaining, maintaining, or

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adjusting a bond prescribed by this other professionals authorized to do beneficiary, from the claims of creditors section. such work in the State where the and taxation. The fiduciary should (2) Notice. The Hub Manager will deceased beneficiary had his or her invoke this defense in applicable provide the beneficiary written notice permanent place of residence. circumstances. If the fiduciary does not regarding any bond furnished at the (d) Estate matters. Upon the death of do so, the Hub Manager may refer the beneficiary’s expense under paragraph a beneficiary who has a valid will or matter to the Regional Counsel for (a), (b), or (c)(2) of this section or heirs, the fiduciary must hold the evaluation and appropriate legal action. adjusted under paragraph (d)(2) of this remaining funds under management in (Authority: 38 U.S.C. 501, 512, 5301) section. trust for the deceased beneficiary’s (Authority: 38 U.S.C. 501, 5502, 5507) estate until the will is probated or heirs § 13.280 Accountings. are ascertained, and disburse the funds (a) General. Except as prescribed in § 13.240 Funds of beneficiaries less than according to applicable State law. paragraph (d) of this section, a fiduciary 18 years old. (Authority: U.S.C. 501, 5502) for a beneficiary must submit to the (a) General. Except as prescribed in fiduciary hub with jurisdiction an paragraph (b) of this section, a fiduciary § 13.260 Personal funds of patients. annual accounting regarding the VA who receives VA benefits on behalf of (a) Distribution of funds. Benefits benefit funds under management by the a beneficiary who is less than 18 years deposited by VA in the personal funds fiduciary for the beneficiary if: old may use the benefits only for the use of patients account for a veteran who (1) The amount of VA benefit funds and benefit of that beneficiary and only was rated by VA as being unable to under management for the beneficiary if the fiduciary first determines that the manage his or her VA benefits and who exceeds $10,000; person or persons who have custody of died leaving an account balance are (2) The fiduciary deducts a fee the beneficiary and are responsible for payable to an eligible person. For authorized under § 13.220 from the the beneficiary’s needs are unable to purposes of this section, eligible person beneficiary’s account; or provide for those needs. means an individual living at the time (3) The beneficiary is being paid VA (b) Education benefits. A fiduciary compensation benefits at a total who receives VA education benefits on the account balance is distributed in the following order of preference: disability rating (100 percent), whether behalf of a beneficiary who is less than schedular, extra-schedular, or based on 18 years old may use the benefits for the (1) The deceased veteran’s spouse, as defined by § 3.1000(d)(1) of this chapter; individual unemployability. beneficiary’s education regardless of the (b) Scope of accounting. For purposes ability of the person or persons who (2) The veteran’s children (in equal shares), as defined by § 3.57 of this of this section, accounting means the have custody of the beneficiary to pay fiduciary’s written report regarding the for the beneficiary’s education. chapter, but without regard to age or marital status; or income and funds under management (Authority: 38 U.S.C. 501, 5502) (3) The veteran’s dependent parents by the fiduciary for the beneficiary during the accounting period prescribed § 13.250 Funds of deceased beneficiaries. (in equal shares) or surviving parent, as defined by § 3.59 of this chapter, by the Hub Manager. The accounting (a) General. When a beneficiary who prescribed by this section pertains to all has a fiduciary dies without leaving a provided that the parents were or parent was dependent within the meaning of activity in the beneficiary’s accounts, valid will and without heirs, all VA regardless of the source of funds benefit funds under management by the § 3.250 of this chapter on the date of the veteran’s death. maintained in those accounts. An fiduciary for the deceased beneficiary accounting consists of: on the date of death, less any (4) Any balance remaining in the personal funds of patients account (1) A beginning inventory or account deductions authorized by paragraph (c) balance, of this section, must be returned to VA which cannot be distributed in accordance with paragraphs (a)(1) (2) An itemization of income, if such funds would be forfeited to a (3) An itemization of expenses, through (3) of this section will be used State. (4) An ending inventory or account by VA to reimburse anyone who bore (b) Accountings. Upon the death of a balance, beneficiary described in paragraph (a) the expense of the veteran’s last (5) Copies of financial institution for whom the fiduciary must return to sickness or the veteran’s burial or will documents reflecting receipts, VA all benefit funds under management, be deposited to the credit of the expenditures, and beginning and ending less any deductions authorized under applicable current VA appropriation. balances, and paragraph (c) of this section, or upon the (b) Application. A person who seeks (6) Receipts, when required by the death of any beneficiary for whom a distribution of a deceased veteran’s Hub Manager. fiduciary was required to submit an funds from the personal funds of (c) Submission requirements. annual accounting to VA under patients account under paragraph (a) of Fiduciaries must submit annual § 13.280, the fiduciary must submit a this section must file an application accountings to the fiduciary hub as final accounting to the fiduciary hub with VA not later than 5 years after the follows: with jurisdiction within 90 days of the veteran’s death. If any person who seeks (1) The fiduciary must submit beneficiary’s death. such distribution is under a legal accountings on the appropriate VA form (c) Expenses. The fiduciary may disability that prevents him or her from not later than 30 days after the end of deduct a reasonable fee from the filing an application at the time of the the accounting period prescribed by the deceased beneficiary’s account for veteran’s death, the 5-year period will Hub Manager. purposes of determining whether the run from the date of termination or (2) The fiduciary must submit a beneficiary’s funds under management removal of the legal disability. corrected or supplemental accounting would be forfeited to a State under State (Authority: 38 U.S.C. 501, 5502) not later than 14 days after the date of law or whether the deceased beneficiary VA notice of an accounting discrepancy. left a valid will or is survived by heirs. § 13.270 Creditors’ claims. (d) Exceptions. The provisions of this For the purpose of this section, Under 38 U.S.C. 5301(a)(1), VA section that generally require the reasonable fee means an amount benefit payments are exempt, both submission of an annual accounting do customarily charged by attorneys or before and after receipt by the not apply to a fiduciary who is:

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(1) The beneficiary’s spouse; interest of VA beneficiaries and meeting (i) Refuses to cooperate with VA (2) A chief officer of a Federal the responsibilities of fiduciaries during a periodic or unscheduled onsite institution; prescribed in § 13.140. review, (3) A chief officer of a non-VA facility (b) Unscheduled onsite reviews. The (ii) Is unable to produce necessary receiving benefits for a beneficiary Hub Manager may conduct unscheduled records, institutionalized in the facility and: onsite reviews of any fiduciary, (iii) Fails to respond to a VA request (i) The beneficiary’s monthly care, regardless of the number of beneficiaries for additional information or maintenance, and personal use expenses served by the fiduciary or the total recommendation for corrective action, equal or exceed the amount of the amount of VA benefit funds under or beneficiary’s monthly VA benefit; and management by the fiduciary, if: (iv) Is found during an onsite review (ii) The amount of VA benefit funds (1) VA receives from any source to have misused VA benefits. under management by the fiduciary credible information that the fiduciary (Authority: 38 U.S.C. 501, 5508) does not exceed $10,000; or has misused or is misusing VA benefits; (4) A fiduciary who receives benefits § 13.400 Misuse of benefits. (2) The fiduciary’s annual accounting on behalf of a beneficiary, both of whom (a) Definition of misuse. Misuse of is seriously delinquent. For purposes of permanently reside outside of the benefits by a fiduciary occurs in any this section, seriously delinquent means United States, the Commonwealth of case in which the fiduciary receives the fiduciary failed to submit the Puerto Rico, or the Republic of the payment of benefits for the use and required accounting not later than 120 Philippines, and the fiduciary was benefit of a beneficiary and the days after the ending date of the annual appointed in such jurisdiction. beneficiary’s dependents, if any, and accounting period; (e) Failure to comply with accounting uses any part of such payment for a use requirements. The Hub Manager will (3) VA receives from any source other than the use and benefit of the treat any willful neglect or refusal to file credible information that the fiduciary beneficiary or the beneficiary’s proper accountings as prima facie is not adequately performing the dependents. For the purpose of this evidence of embezzlement or responsibilities of a fiduciary prescribed section, use and benefit means any misappropriation of VA benefits. Such in § 13.140; or expenditure reasonably intended for the evidence is grounds for starting a (4) The Hub Manager determines that care, support, or maintenance of the misuse investigation under § 13.400. an unscheduled onsite review is beneficiary or the beneficiary’s (Authority: 38 U.S.C. 501, 5502, 5509, 6101) necessary to ensure that the fiduciary is dependents. Such expenditures may acting in the interest of the beneficiary include the fiduciary’s efforts to (The Office of Management and Budget has or beneficiaries served by the fiduciary. approved the information collection improve the beneficiary’s standard of requirements in this part under control (c) Procedures. (1) Onsite reviews will living under rules prescribed in this number 2900–0017) consist of the following: part. (i) A face-to-face meeting with the (b) Misuse determinations. Upon § 13.300 Onsite reviews. fiduciary. In the case of a fiduciary that receipt of credible information from any (a) Periodic onsite reviews. (1) The is an entity, the face-to-face meeting will source regarding possible misuse of VA Hub Manager will conduct a periodic, be with a representative of the entity; benefits by a fiduciary, the Hub Manager scheduled, onsite review of any (ii) A review of all relevant records will investigate the matter and issue a fiduciary in the United States, whether maintained by the fiduciary, including misuse determination in writing. This the fiduciary is an individual or an but not limited to case files, bank decision will: entity, if: statements, accountings, ledgers, check (1) Identify the beneficiary, (i) The fiduciary serves 20 or more registers, receipts, bills, and any other (2) Identify the fiduciary, beneficiaries, and items necessary to determine whether (3) State whether the fiduciary is an (ii) The total annual amount of the fiduciary has been acting in the individual fiduciary serving 10 or more recurring VA benefits paid to the interest of VA beneficiaries; and beneficiaries or a corporation or other fiduciary for such beneficiaries exceeds (iii) Interviews of beneficiaries, the entity serving one or more beneficiaries, the threshold established in 38 U.S.C. fiduciary’s employees, and other (4) Identify the source of the 5508 as adjusted by VA under 38 U.S.C. individuals as determined necessary by information, (5) Describe in detail the facts found 5312. the Hub Manager. (2) The Hub Manager must complete as a result of the investigation, at least one periodic onsite review (2) Not later than 30 days after (6) State the reasons for the Hub triennially if the fiduciary meets the completing a periodic or unscheduled Manager’s determination regarding requirements of paragraph (a)(1) of this onsite review, the Hub Manager will whether the fiduciary misused any part section. provide the fiduciary a written report of of the beneficiary’s benefit paid to the (3) VA will provide the fiduciary with VA’s findings, recommendations for fiduciary, and written notice of the periodic onsite correction of deficiencies, requests for (7) If the Hub Manager determines review at least 30 days before the additional information, and notice of that the fiduciary did misuse any part of scheduled review date. The notice will: VA’s intent regarding further action. the beneficiary’s benefit, identify the (i) Inform the fiduciary of the pending (3) Unless good cause for an extension months in which such misuse occurred. review and the fiduciary’s obligation is shown, not later than 30 days after the (c) Notice. The Hub Manager will under this part to cooperate in the date that VA mails the report prescribed provide written notice of the misuse onsite review process, and by paragraph (d)(2) of this section, the determination prescribed in paragraph (ii) Request that the fiduciary make fiduciary must submit to the fiduciary (b) of this section, including a copy of available for review all relevant records, hub a response to any VA request for the Hub Manager’s written decision, an including but not limited to case files, additional information or explanation regarding the bank statements, accountings, ledgers, recommendation for corrective action. reconsideration procedure prescribed in check registers, receipts, bills, and any (4) The Hub Manager will remove the paragraph (d) of this section, and the other items necessary to determine that fiduciary for all VA beneficiaries whom beneficiary’s right to appeal under the fiduciary has been acting in the best the fiduciary serves if the fiduciary: § 13.600, to:

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(1) The fiduciary; beneficiary’s accredited representative, of the Pension and Fiduciary Service (2) The beneficiary or the attorney, or claims agent; and determines that VA negligence caused beneficiary’s legal guardian, and the (iii) The Director of the Pension and the misuse. The Pension and Fiduciary beneficiary’s accredited representative, Fiduciary Service. Service Director’s negligence attorney, or claims agents; and (e) Reporting of misuse. Except as determination will be based upon a (3) The Director of the Pension and prescribed in § 1.204 of this chapter, review of the VA information of record Fiduciary Service. which requires VA management as of the date of the Hub Manager’s or (d) Finality and reconsideration of officials to promptly report possible Regional Office Director’s misuse misuse determinations. (1) The Hub criminal matters involving felonies to determination. For purposes of this Manager’s misuse determination is a the VA Office of Inspector General, section, VA negligence causes misuse final decision, unless: reporting of misuse cases will occur as when: (i) The Hub Manager receives a follows: (1) Not later than 30 days after (1) The Hub Manager failed to written request for reconsideration from a final determination is made under properly investigate or monitor the the fiduciary or the beneficiary not later paragraph (d) of this section that a fiduciary; than 30 days after the date that the Hub fiduciary has misused VA benefits, the (2) The Hub Manager failed to review Manager mailed notice of his or her Director of the VA Regional Office who the fiduciary’s accounting not later than misuse determination; or has jurisdiction over the fiduciary hub 60 days after the date on which the (ii) The Hub Manager receives a will notify the VA Office of Inspector accounting was scheduled for review. notice of disagreement from the General for purposes of any further The date that an accounting is beneficiary not later than 1 year after the action that the Inspector General deems scheduled for review is the date the date that the Hub Manager mailed appropriate under separate authority. fiduciary hub receives the accounting; notice of his or her misuse (2) For purposes of application of (3) The Hub Manager did not determination. § 13.410 regarding reissuance and investigate an allegation of misuse not (2) The fiduciary or the beneficiary recoupment of benefits, the Office of later than 60 days after the date that the may submit additional information Inspector General will advise the fiduciary hub received the allegation; or pertinent to reconsideration of the Director of the Pension and Fiduciary (4) Actual negligence is shown. For misuse determination and not Service of any final decision regarding purposes of this section, actual previously considered by the Hub prosecution of a fiduciary who misused negligence means the Hub Manager’s Manager, provided that the additional VA benefits and any final judgment of failure to exercise toward a beneficiary information is submitted with the a court in such a prosecution not later in the fiduciary program the care which written reconsideration request. than 30 days after the decision is made a reasonable or prudent person would (3) The Hub Manager will close the or judgment is entered. exercise in the circumstances, or the record regarding reconsideration at the Hub Manager’s taking action that a end of the 30-day period described in (Authority: 38 U.S.C. 501, 5502, 6106) reasonable or prudent person would not paragraph (d)(1)(i) of this section and § 13.410 Reissuance and recoupment of take. The Regional Office Director shall furnish a timely request submitted by misused benefits. reissue benefits based on actual the fiduciary or the beneficiary, (a) General. (1) If the Hub Manager or negligence if the Director of the Pension including any new information, to the the Regional Office Director upon Director of the VA Regional Office with and Fiduciary Service determines that: reconsideration determines that a (i) The Hub Manager owed a duty to jurisdiction over the fiduciary hub for a fiduciary described in paragraph (a)(2) the beneficiary under this part, final decision. of this section misused any part of a (ii) The Hub Manager’s action or (4) In making the misuse beneficiary’s benefit paid to the failure to act was negligent, and determination on reconsideration, the fiduciary, the Regional Office Director (iii) The Hub Manager’s negligence Regional Office Director’s decision will will reissue benefits to the beneficiary’s proximately caused the misuse of be based upon a review of the successor fiduciary in an amount equal benefits by the fiduciary. For purposes information of record as of the date of to the amount of funds misused. of this section, proximate cause means the Hub Manager’s misuse (2) This paragraph (a) applies to a that the misuse would not have determination and any new information fiduciary that is: occurred but for the Hub Manager’s submitted with the request. The (i) An individual who served 10 or negligence. decision will: more beneficiaries during any month in (c) Recoupment of misused benefits. (i) Identify the beneficiary, (ii) Identify the fiduciary, which misuse occurred; or In all cases in which the Hub Manager (iii) Identify the Hub Manager’s prior (ii) A corporation or other entity or Regional Office Director upon decision, serving one or more beneficiaries. reconsideration determines that a (iv) Describe in detail the facts found (b) Negligence. In any case in which fiduciary misused benefits, VA will as a result of the Director’s review of the the Hub Manager or the Regional Office make a good faith effort to recoup the Hub Manager’s decision and any new Director upon reconsideration total amount of misused benefits from information submitted with the determines that an individual fiduciary the fiduciary. reconsideration request, and who served fewer than 10 beneficiaries (1) For purposes of this section, good (v) State the reasons for the Director’s during any month in which misuse faith effort means that the Hub Manager final decision, which may affirm, occurred misused a beneficiary’s funds will: modify, or overturn the Hub Manager’s under management by the fiduciary, the (i) Recover any misused benefits from decision. Hub Manager will refer the matter to the the surety company, if a surety bond (5) The Hub Manager will provide Director, Pension and Fiduciary Service, was in place under § 13.230 regarding written notice of the Regional Office for a determination of whether VA protection of beneficiary funds; or Director’s final decision on negligence caused the misuse. The (ii) In cases in which no surety bond reconsideration to: Regional Office Director will reissue was in place and the fiduciary does not (i) The fiduciary, benefits to the beneficiary’s successor repay all misused benefits within the (ii) The beneficiary or the fiduciary in an amount equal to the time prescribed by the Hub Manager in beneficiary’s legal guardian, and the amount of funds misused if the Director consultation with the fiduciary:

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(A) Request the creation of a debt to enter into a restricted withdrawal (b)(1)(i) of this section, the Hub Manager the United States in the amount of any agreement; will make a reasonable effort under the misused benefits that remain unpaid; (vii) The fiduciary no longer meets the circumstances to expedite the and requirements for appointment under appointment of a successor fiduciary. In (B) Coordinate further recoupment § 13.100; or determining the extent to which the action, including collection of any debt (viii) The fiduciary is unable or fiduciary hub must expedite a request to owed by the fiduciary to the United unwilling to manage the beneficiary’s withdraw, the Hub Manager will States as a result of the misuse, with the benefit payments, accounts, or consider: appropriate Federal and State agencies. investments. (i) The reasons for the withdrawal (2) VA will pay benefits recouped (b) Procedures. (1) If the Hub Manager request provided under paragraph under paragraph (c) of this section to the determines that it is necessary to (b)(1)(ii) of this section; beneficiary’s successor fiduciary after remove a fiduciary and appoint a (ii) The number of beneficiaries deducting any amount reissued under successor fiduciary, the Hub Manager affected; paragraph (a) or (b) of this section. will: (iii) The relationship between the (d) Notice. The Hub Manager, or in (i) Provide the fiduciary and the affected beneficiary or beneficiaries and the case of a negligence determination, beneficiary written notice of the the fiduciary; and the Director of the Pension and removal; and (iv) Whether expedited withdrawal is Fiduciary Service, will provide the (ii) Instruct the fiduciary regarding the necessary to protect the interests of the beneficiary or the beneficiary’s legal fiduciary’s responsibilities prior to beneficiary or beneficiaries. guardian, and the beneficiary’s transfer of funds to a successor fiduciary (c) Notice. If a fiduciary requests to accredited representative, attorney, or or as otherwise prescribed by the Hub withdraw from service for a beneficiary, claims agent written notice of any Manager. the Hub Manager will provide the decision regarding reissuance or (2) The fiduciary must: beneficiary or the beneficiary’s legal (i) Continue as fiduciary for the recoupment of benefits under this guardian, and the beneficiary’s beneficiary until the Hub Manager section. accredited representative, attorney, or provides the fiduciary with the name claims agent written notice of the (Authority: 38 U.S.C. 501, 6106, 6107) and address of the successor fiduciary withdrawal request and the procedures § 13.500 Removal of fiduciaries. and instructions regarding the transfer for appointment of a successor of funds to the successor fiduciary; and fiduciary. (a) The Hub Manager may remove a (ii) Not later than 30 days after (Authority: 38 U.S.C. 501, 5502) fiduciary if the Hub Manager determines transferring funds to the successor that fiduciary services are no longer fiduciary or as otherwise instructed by § 13.600 Appeals. required for a beneficiary or removal is the Hub Manager, provide the fiduciary Except as prescribed in paragraph (a) in the beneficiary’s interest. Reasons for hub a final accounting. of this section, VA decisions regarding removal include, but are not limited to: fiduciary matters are committed to the (1) Beneficiary reasons. (i) A VA (Authority: 38 U.S.C. 501, 5502, 5507, 6106) Secretary of Veterans Affairs’ discretion rating authority determines that the § 13.510 Fiduciary withdrawals. by law, as delegated to subordinate beneficiary can manage his or her own (a) General. A fiduciary may not officials under this part, and cannot be VA benefits without VA supervision or withdraw as fiduciary for a beneficiary appealed to the Board of Veterans’ appointment of a fiduciary; until the fiduciary receives notice from Appeals or any court. (ii) The beneficiary requests the Hub Manager regarding transfer of (a) Appealable decisions. A appointment of a successor fiduciary the beneficiary’s funds to a successor beneficiary may appeal to the Board of under § 13.100; fiduciary. Veterans’ Appeals the following (iii) The beneficiary requests (b) Voluntary withdrawal. (1) Subject decisions: supervised direct payment of benefits to the limitation prescribed in paragraph (1) The Hub Manager’s appointment under proposed § 13.110; or (a) of this section, a fiduciary who has of a fiduciary under § 13.100; (iv) The beneficiary dies. VA benefit funds under management for (2) The Hub Manager’s removal of a (2) Fiduciary reasons. (i) The a beneficiary may withdraw from the fiduciary under § 13.500; fiduciary’s further service is barred fiduciary relationship with the (3) The Hub Manager’s misuse under § 13.130; beneficiary at any time if the fiduciary: determination under § 13.400; (ii) The fiduciary fails to maintain his (i) Provides the fiduciary hub with (4) The VA Regional Office Director’s or her qualifications or does not jurisdiction written notice of the final decision upon reconsideration of a adequately perform the responsibilities fiduciary’s intent to withdraw as misuse determination under § 13.400(d); of a fiduciary prescribed in § 13.140; fiduciary for the beneficiary; and (iii) The fiduciary fails to timely (ii) Describes the reasons for (5) The Director of the Pension and submit a complete accounting as withdrawal; Fiduciary Service’s negligence prescribed in § 13.280; (iii) Continues as fiduciary for the determination for purposes of (iv) VA or a court with jurisdiction beneficiary until the Hub Manager reissuance of benefits under § 13.410. determines that the fiduciary misused or provides the fiduciary with the name (b) Procedures. (1) VA decisions misappropriated VA benefits; and address of the successor fiduciary regarding fiduciary matters are final, (v) The fiduciary fails to respond to a and instructions regarding the transfer subject only to the right of appeal VA request for information not later of funds to the successor fiduciary; and prescribed in this section. VA will close than 30 days after such request is made, (iv) Not later than 30 days after the record regarding these decisions on unless the Hub Manager grants an transferring funds to the successor the date the decision is made. extension based upon good cause shown fiduciary or as otherwise instructed by (2) Except for the closure of the record by the fiduciary; the Hub Manager, provides the fiduciary prescribed in paragraph (b)(1) of this (vi) The fiduciary is unable or hub with jurisdiction a final accounting. section, the initiation and processing of unwilling to provide the surety bond (2) Upon receipt of the notice of intent appeals under this section are governed prescribed by § 13.230 or, if applicable, to withdraw prescribed in paragraph by parts 19 and 20 of this chapter.

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Nothing in this section will be appellate decision or the Hub Manager’s (The Office of Management and Budget construed to limit the Board’s authority or Director’s ability to issue a has approved the information collection to remand a matter to the Hub Manager supplemental statement of the case requirements in this part under control or the Director of the Pension and under 38 CFR 19.31(b)(2), (b)(3), or (c). number 2900–0085) Fiduciary Service under 38 CFR 19.9 for (Authority: 38 U.S.C. 501) [FR Doc. 2013–29970 Filed 1–2–14; 8:45 am] any action that is essential for a proper BILLING CODE 8320–01–P

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Part III

Department of Commerce

National Oceanic and Atmospheric Administration Takes of Marine Mammals Incidental to Specified Activities; Low-Energy Marine Geophysical Survey in the Dumont d’Urville Sea Off the Coast of East Antarctica, January to March 2013; Notice

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DEPARTMENT OF COMMERCE accessible. Do not submit confidential Section 101(a)(5)(D) of the MMPA business information or otherwise established an expedited process by National Oceanic and Atmospheric sensitive or protected information. which citizens of the United States can Administration A copy of the application containing apply for an authorization to RIN 0648–XC779 a list of the references used in this incidentally take small numbers of document may be obtained by writing to marine mammals by harassment. Takes of Marine Mammals Incidental to the above address, telephoning the Section 101(a)(5)(D) of the MMPA Specified Activities; Low-Energy contact listed here (see FOR FURTHER establishes a 45-day time limit for Marine Geophysical Survey in the INFORMATION CONTACT) or visiting the NMFS’s review of an application Dumont d’Urville Sea Off the Coast of internet at: http://www.nmfs.noaa.gov/ followed by a 30-day public notice and East Antarctica, January to March 2013 pr/permits/incidental.htm#applications. comment period on any proposed NSF and ASC have provided a ‘‘Draft authorizations for the incidental AGENCY: National Marine Fisheries Initial Environmental Evaluation/ harassment of small numbers of marine Service (NMFS), National Oceanic and Environmental Assessment to Conduct a mammals. Within 45 days of the close Atmospheric Administration (NOAA), Marine-Based Studies of the Totten of the public comment period, NMFS Commerce. Glacier System and Marine Record of must either issue or deny the ACTION: Notice; proposed Incidental Cryosphere—Ocean Dynamics’’ (IEE/ authorization. Harassment Authorization; request for EA), prepared by AECOM, on behalf of Except with respect to certain comments. NSF and ASC, which is also available at activities not pertinent here, the MMPA the same Internet address. Documents defines ‘‘harassment’’ as: Any act of SUMMARY: NMFS has received an cited in this notice may be viewed, by pursuit, torment, or annoyance which (i) application from the National Science appointment, during regular business has the potential to injure a marine Foundation (NSF) Division of Polar hours, at the aforementioned address. mammal or marine mammal stock in the Programs, and Antarctic Support wild [Level A harassment]; or (ii) has FOR FURTHER INFORMATION CONTACT: Contract (ASC) on behalf of five the potential to disturb a marine Howard Goldstein or Jolie Harrison, research institutions: Colgate mammal or marine mammal stock in the Office of Protected Resources, NMFS, University, Columbia University, Texas wild by causing disruption of behavioral 301–427–8401. A&M Research Foundation, University patterns, including, but not limited to, of South Florida, and University of SUPPLEMENTARY INFORMATION: migration, breathing, nursing, breeding, Texas at Austin, for an Incidental Background feeding, or sheltering [Level B Harassment Authorization (IHA) to take harassment]. marine mammals, by harassment, Section 101(a)(5)(D) of the MMPA, as Summary of Request incidental to conducting a low-energy amended (16 U.S.C. 1371 (a)(5)(D)), marine geophysical (seismic) survey in directs the Secretary of Commerce On July 3, 2013, NMFS received an the Dumont d’Urville Sea off the coast (Secretary) to authorize, upon request, application from the NSF and ASC of East Antarctica, January to March the incidental, but not intentional, requesting that NMFS issue an IHA for 2014. Pursuant to the Marine Mammal taking of small numbers of marine the take, by Level B harassment only, of Protection Act (MMPA), NMFS is mammals of a species or population small numbers of marine mammals requesting comments on its proposal to stock, by United States citizens who incidental to conducting a low-energy issue an IHA to NSF to incidentally engage in a specified activity (other than marine seismic survey in International harass, by Level B harassment only, 14 commercial fishing) within a specified Waters (i.e., high seas) and in the species of marine mammals during the geographical region if certain findings Southern Ocean off the coast of East specified activity. are made and, if the taking is limited to Antarctica during January to March harassment, a notice of a proposed 2014. We received an addendum to the DATES: Comments and information must authorization is provided to the public application from the NSF and ASC on be received no later than February 3, for review. December 18, 2013 which reflected 2014. Authorization for the incidental updates to incidental take requests for ADDRESSES: Comments on the taking of small numbers of marine marine mammals related to icebreaking application should be addressed to mammals shall be granted if NMFS activities. P. Michael Payne, Chief, Permits and finds that the taking will have a The research would be conducted by Conservation Division, Office of negligible impact on the species or five research institutions: Colgate Protected Resources, National Marine stock(s), and will not have an University, Columbia University, Texas Fisheries Service, 1315 East-West unmitigable adverse impact on the A&M Research Foundation, University Highway, Silver Spring, MD 20910. The availability of the species or stock(s) for of South Florida, and University of mailbox address for providing email subsistence uses (where relevant). The Texas at Austin. The NSF and ASC comments is [email protected]. authorization must set forth the plans to use one source vessel, the R/ NMFS is not responsible for email permissible methods of taking, other VIB Nathaniel B. Palmer (Palmer), and comments sent to addresses other than means of effecting the least practicable a seismic airgun array to collect seismic the one provided here. Comments sent adverse impact on the species or stock data in the Southern Ocean. The vessel via email, including all attachments, and its habitat, and requirements would be operated by ASC, which must not exceed a 10-megabyte file size. pertaining to the mitigation, monitoring operates the United States Antarctic All comments received are a part of and reporting of such takings. NMFS Program under contract to the NSF. In the public record and will generally be has defined ‘‘negligible impact’’ in 50 support of the United States Antarctic posted to http://www.nmfs.noaa.gov/pr/ CFR 216.103 as ‘‘. . . an impact Program, the NSF and ASC plans to use permits/incidental.htm#applications resulting from the specified activity that conventional low-energy, seismic without change. All Personal Identifying cannot be reasonably expected to, and is methodology to perform marine-based Information (for example, name, not reasonably likely to, adversely affect studies in the Dumont d’Urville Sea to address, etc.) voluntarily submitted by the species or stock through effects on include evaluation of geophysical and the commenter may be publicly annual rates of recruitment or survival.’’ physical oceanographic features in two

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areas along the coast of East Antarctica recovery of short-term (in place for studies near the Antarctic Peninsula, (see Figures 1, 2, and 3 of the IHA approximately one month) and long- and ongoing development of ice sheet application). The primary area proposed term (in place for approximately one and other ocean models. It would for the study is the Totten Glacier year) instrumentation moorings, CTD facilitate learning at sea and ashore by system (preferred study area) including equipment casts, and the use of students, help to fill important spatial the Moscow University Ice Shelf along transducer-based ADCP instruments. and temporal gaps in a sparsely sampled the Sabrina Coast, and a secondary area, Sea ice conditions will dictate areas region of coastal Antarctica, and the Mertz Glacier and Cook Ice Shelf, where the ship and airguns can operate. communicate its findings via along the Oates Coast. In addition to the Due to dynamic ice conditions, which publications and outreach. Obtaining proposed operations of the seismic cannot be predicted on a local scale, it records of currents and oceanographic airgun array and hydrophone streamer, is not possible to develop tracklines a properties in this region are consistent NSF and ASC intend to operate a single- priori. The seismic survey would be with the objectives of the Southern beam echosounder, multi-beam conducted in one or both of the two Ocean Observing System for climate echosounder, acoustic Doppler current study areas depending on the sea ice change. The work would enhance profiler (ADCP), and sub-bottom profiler conditions; however, the preferred general understanding of air-sea-ice continuously throughout the survey. study area is the Totten Glacier region interactions, ocean circulation, ice shelf Acoustic stimuli (i.e., increased (see Figure 2 of the IHA application). sensitivity to climate change, and the underwater sound) generated during the Water depths in the survey area range present and future roles of East operation of the seismic airgun array from 100 to 1,000 meters (m) (328.1 to Antarctic Ice Sheet on sea level. and from icebreaking activities may 3,280.1 feet [ft]), and possibly exceeding The Principal Investigators are Dr. have the potential to cause a behavioral 1,000 m in some areas. The seismic Amy Leventer of Colgate University, Dr. disturbance for marine mammals in the surveys are scheduled to occur for a Donald Blankenship and Dr. Sean survey area. This is the principal means total of less than or equal to 300 hours Gulick of the University of Texas at of marine mammal taking associated at one or both of the two study areas for Austin, Dr. Eugene Domack of the with these activities, and NSF and ASC approximately 45 operational days in University of South Florida, Mr. Bruce has requested an authorization to take January to March 2014. The operation Huber of Columbia University, and Dr. 14 species of marine mammals by Level hours and survey length would include Alejandro Orsi of Texas A&M Research B harassment. Take is not expected to equipment testing, ramp-up, line Foundation. result from the use of the single-beam changes, and repeat coverage. The long The procedures to be used for the echosounder, multi-beam echosounder, transit time between port and the study surveys would be similar to those used ADCP, acoustic locator, and sub-bottom site constrains how long the ship can be during previous low-energy seismic profiler, as the brief exposure of marine in the study area and effectively limits surveys by NSF and would use mammals to one pulse, or small the maximum amount of time the conventional seismic methodology. The numbers of signals, in this particular airguns can operate. Some minor proposed survey will involve one source case is not likely to result in the deviation from these dates would be vessel, the R/V Nathaniel B. Palmer harassment of marine mammals. Also, possible, depending on logistics and (Palmer). NSF and ASC will deploy two NMFS does not expect take to result weather. (each with a discharge volume of 45 from collision with the source vessel The proposed survey of Totten Glacier cubic inch [in3] with a total volume of because it is a single vessel moving at and Moscow University Ice Shelf along 90 in3 or each with a discharge volume a relatively slow, constant cruise speed the Sabrina Coast continental shelf is of 105 in3 with a total volume of 210 of 5 knots [kts]; 9.3 kilometers per hour designed to address several critical in3) Sercel Generator Injector (GI) airgun [km/hr]; 5.8 miles per hour [mph]) questions. The Totten Glacier system, array as an energy source at a tow depth during seismic acquisition within the which drains one-eighth of the East of up to 3 m (9.8 ft) below the surface survey, for a relatively short period of Antarctic Ice Sheet and contains more (more information on the airguns can be time (approximately 45 operational ice volume than the entire West found in Appendix B of the IHA days). It is likely that any marine Antarctic Ice Sheet, remains the single application). The receiving system will mammal would be able to avoid the largest and least understood glacial consist of one 100 m (328.1 ft) long, 24- vessel. system which possesses a potentially channel, solid-state hydrophone unsteady dynamic. If it were to melt, streamer towed behind the vessel. As Description of the Proposed Specified sea-level would rise by more than 5 m the GI airguns are towed along the Activity (16.4 ft) worldwide. The proposed survey lines, the hydrophone streamer NSF and ASC propose to conduct a marine studies would help to will receive the returning acoustic low-energy seismic survey in the understand both the dynamics and the signals and transfer the data to the Dumont d’Urville Sea in the Southern controls of the Totten Glacier system, onboard processing system. All planned Ocean off the coast of East Antarctica and to resolve ambiguity in large ice seismic data acquisition activities will from January to March 2014. In addition mass dynamic behavior. This research be conducted by technicians provided to the low-energy seismic survey, would be accomplished via the by NSF and ASC with onboard scientific activities would include collection of glaciological, geological, assistance by the scientists who have conducting a bathymetric profile survey and physical oceanographic data. In proposed the study. The vessel will be of the seafloor using transducer based order to place the modern system, as self-contained, and the crew will live instruments such as a multi-beam well as more recent changes to the aboard the vessel for the entire cruise. echosounder and sub-bottom profiler; system, into a longer-term perspective, The planned seismic survey (e.g., conducting magnetometry and imaging researchers would collect and interpret equipment testing, start-up, line surveys using an underwater camera marine geologic, geochemical, and changes, repeat coverage of any areas, assembly; collecting sediment cores and geophysical records of the longer term and equipment recovery) will consist of dredge sampling; and collecting water behavior and response of this system. approximately 2,800 kilometer (km) samples and conductivity (salinity), The proposed research would (1,511.9 nautical miles [nmi]) of transect temperature, depth (CTD) and current complement fieldwork studying other lines (including turns) in the survey data through the deployment and Antarctic ice shelves oceanographic area in the Dumont d’Urville Sea of the

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Southern Ocean (see Figures 1, 2, and 3 the Palmer continuously throughout the where initial data quality is sub- of the IHA application). In addition to cruise between the first and last survey standard. In NSF and ASC’s estimated the operation of the airgun array, a sites. There will be additional seismic take calculations, 25% has been added single-beam and multi-beam operations associated with equipment for those additional operations. echosounder, ADCP, and a sub-bottom testing, ramp-up, and possible line profiler will also likely be operated from changes or repeat coverage of any areas

TABLE 1—PROPOSED LOW-ENERGY SEISMIC SURVEY ACTIVITIES IN THE DUMONT D’URVILLE SEA OFF THE COAST OF EAST ANTARCTICA

Survey length Cumulative Time between airgun shots Streamer length (km) duration Airgun array total volume (distance) (m) (hr) 1

2,800 (1,511.9 nmi) ...... ≤300 2 × 45 in3 (2 × 737 cm3) or 5 seconds (12.5 m or 41 ft) ... 100 (328.1 ft). 2 × 105 in3 (2 × 1,720 cm3) 1 Airgun operations are planned for no more than 16 continuous hours at a time.

Vessel Specifications on the Palmer. Observing stations will chamber (G): 45 in3 and 105 in3 for each The Palmer, a research vessel owned be at the bridge level with PSO’s eye airgun array. Each airgun would be by Edison Chouest Offshore, Inc. and level approximately 16.5 m (54.1 ft) initially configured to a displacement above sea level with an approximately volume of 45 in3 for the generator and operated by NSF and ACS (under a ° long-term charter with Edison Chouest 270 view around the vessel, and an injector. The generator chamber of each Offshore, Inc.), will tow the two GI aloft observation tower that is GI airgun in the primary source, the one airgun array, as well as the hydrophone approximately 24.4 m (80.1 ft) above sea responsible for introducing the sound level that is protected from the weather pulse into the ocean, is 45 in3. The streamer. When the Palmer is towing the ° airgun array and the relatively short and has an approximately 360 view injector chamber injects air into the hydrophone streamer, the turning rate of around the vessel. More details of the previously-generated bubble to maintain the vessel while the gear is deployed is Palmer can be found in the IHA its shape, and does not introduce more much higher than the limit of 5 degrees application and online at: http:// sound into the water. The airguns per a minute for a seismic vessel towing www.nsf.gov/geo/plr/support/ would fire the compressed air volume in a streamer of more typical length (much nathpalm.jsp and http://www.usap.gov/ unison in a harmonic mode. In greater than 1 km [0.5 nmi]), which is vesselScienceAndOperations/ harmonic mode, the injector volume is approximately 20 degrees. Thus, the contentHandler.cfm?id=1561. designed to destructively interfere with maneuverability of the vessel is not Acoustic Source Specifications the reverberations of the generator limited much during operations with (source component). Firing the airguns the streamer. Seismic Airguns in harmonic mode maximizes resolution The U.S.-flagged vessel has a length of The Palmer will deploy an airgun in the data and minimizes any excess 94 m (308.5 ft); a beam of 18.3 m (60 ft); array, consisting of two 45 in3 or two noise in the water column or data a maximum draft of 6.8 m (22.5 ft); and 105 in3 GI airguns as the primary energy caused by the reverberations (or bubble a gross tonnage of 6,174. The ship is source and a 100 m streamer containing pulses). The two GI airguns will be powered by four Caterpillar 3608 diesel hydrophones. The airgun array will spaced approximately 3 or 6 m (9.8 or engines (3,300 brake horsepower [hp] at have a supply firing pressure of 2,000 19.7 ft) apart, side-by-side, between 15 900 rotations per minute [rpm]) and a pounds per square inch (psi) and 2,200 and 40 m (49.2 and 131.2 ft) behind the 1,400 hp flush-mounted, water jet psi when at high pressure stand-by (i.e., Palmer, at a depth of up to 3 m during azimuthing bowthruster. Electrical shut-down). The regulator is adjusted to the surveys. If needed to improve power is provided by four Catepillar ensure that the maximum pressure to penetration of the strata, the two airguns 3512, 1,050 kiloWatt (kW) diesel the GI airguns is 2,000 psi, but there are may be reconfigured to a displacement generators. The Palmer’s operation times when the GI airguns may be volume of 105 in3 each and would still speed during seismic acquisition is operated at pressures as low as 1,750 to be considered a low-energy acoustic typically approximately 9.3 km/hr (5 1,800 psi Seismic pulses for the GI source as defined in the NSF/USGS kts) (varying between 7.4 to 11.1 km/hr airguns will be emitted at intervals of PEIS. Therefore, there are three possible [4 to 6 kts]). When not towing seismic approximately 5 seconds. At speeds of two airgun array configurations: Two survey gear, the Palmer typically cruises approximately 9.3 km/hr, the shot 45/45 in3 airguns separated by 3 m, two at 18.7 km/hr (10.1 kts) and has a intervals correspond to spacing of 45/45 in3 airguns separated by 6 m, and maximum speed of 26.9 km/hr (14.5 approximately will be 12.5 m (41 ft) two 105/105 in3 airguns separated by 3 kts). The Palmer has an operating range during the study. There would be m. The two 45/45 in3 airguns separated of approximately 27,780 km (15,000 approximately 720 shots per hour. by 3 m layout is preferred, the two 45/ nmi) (the distance the vessel can travel During firing, a brief (approximately 45 in3 separated by 6 m layout would without refueling), which is 0.03 second) pulse sound is emitted; the be used in the event the middle of the approximately 70 to 75 days. The vessel airguns will be silent during the three 45/45 in3 airgun fails, and the two can accommodate 37 scientists and 22 intervening periods. The dominant 105/105 in3 airguns separated by 3 m crew members. frequency components range from two would be used only if additional The vessel also has two locations as to 188 Hertz (Hz). penetration is needed. To summarize, likely observation stations from which The GI airguns would be used in two strings of GI airguns would be Protected Species Observers (PSO) will harmonic mode, that is, the volume of available: (1) Three 45/45 in3 airguns on watch for marine mammals before and the injector chamber (I) of each GI a single string where one of these is during the proposed airgun operations airgun is equal to that of its generator used as a ‘‘hot spare’’ in the event of

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failure of one of the other two airguns, monitored, as well as conditions that same total amount of sound as is these three GI airguns are separated by could limit visibility. If situations are emitted by the combined GI airguns. 3 m; and (2) two 105/105 in3 airguns on encountered which pose a risk to the The actual received level at any location a second string without a ‘‘hot spare.’’ equipment, impede data collection, or in the water near the GI airguns will not The total effective volume will be 90 or require the vessel to stop forward exceed the source level of the strongest 210 in3. The two strings would be progress, the seismic survey equipment individual source. In this case, that will spaced 14 m (45.9 ft) apart, on either would be shut-down and retrieved until be about 224.6 dB re 1 mPam peak, or side of the midline of the vessel, conditions improve. In general, the 229.8 dB re 1 mPam peak-to-peak for the however, only one string at a time hydrophone streamer and sources could two 45 in3 airgun array, and 228.2 dB would be used. be retrieved in less than 30 minutes. re 1 mPam peak or 233.5 dB re 1 mPam The Nucleus modeling software used 3 Metrics Used in This Document peak-to-peak for the two 105 in airgun at Lamont-Doherty Earth Observatory of array. However, the difference between Columbia University (L–DEO) does not This section includes a brief rms and peak or peak-to-peak values for include GI airguns as part of its airgun explanation of the sound measurements a given pulse depends on the frequency library, however signatures and frequently used in the discussions of content and duration of the pulse, mitigation models have been obtained acoustic effects in this document. Sound among other factors. Actual levels for two 45 in3 G airguns at 2 m tow pressure is the sound force per unit experienced by any organism more than depth and two 105 in3 G airguns at 3 m area, and is usually measured in 1 m from either GI airgun will be tow depth that are close micropascals (mPa), where 1 pascal (Pa) significantly lower. 3 is the pressure resulting from a force of approximations. For the two 45 in Accordingly, Lamont-Doherty Earth one newton exerted over an area of one airgun array, the source output Observatory of Columbia University (L– m square meter. Sound pressure level (downward) is 230.6 dB re: 1 Pam for DEO) has predicted and modeled the m (SPL) is expressed as the ratio of a 0-to-peak and 235.9 dB re: 1 Pam for received sound levels in relation to 3 measured sound pressure and a peak-to-peak. For the two 105 in airgun distance and direction from the two GI array, the source output (downward) is reference level. The commonly used airgun array. A detailed description of 234.4 dB re: 1 mPam 0-to-peak and 239.8 reference pressure level in underwater L–DEO’s modeling for this survey’s dB re: 1 mPam for peak-to-peak. These acoustics is 1 mPa, and the units for marine seismic source arrays for numbers were determined using the SPLs are dB re: 1 mPa. SPL (in decibels protected species mitigation is provided aforementioned G-airgun approximation [dB]) = 20 log (pressure/reference in the NSF/USGS PEIS. These are the to the GI airgun and using signatures pressure). nominal source levels applicable to filtered with DFS V out-256 Hz 72 dB/ SPL is an instantaneous measurement downward propagation. The NSF/USGS octave. The dominant frequency range and can be expressed as the peak, the PEIS discusses the characteristics of the would be 20 to 160 Hz for a pair of GI peak-to-peak (p-p), or the root mean airgun pulses. NMFS refers the airguns towed at 3 m depth and 35 to square (rms). Root mean square, which 230 Hz for a pair of GI airguns towed at is the square root of the arithmetic reviewers to those documents for 2 m depth. average of the squared instantaneous additional information. During the low-energy seismic survey, pressure values, is typically used in Predicted Sound Levels for the Airguns the vessel would attempt to maintain a discussions of the effects of sounds on constant cruise speed of approximately vertebrates and all references to SPL in To determine exclusion zones for the 5 knots. The airguns would operate this document refer to the root mean airgun array to be used in the continuously for no more than 16 hours square unless otherwise noted. SPL does intermediate and deep water of the Gulf at a time and duration of continuous not take the duration of a sound into of Mexico (GOM), received sound levels operation is dependent on ice account. have been modeled by L–DEO for a concentration. The cumulative duration number of airgun configurations, Characteristics of the Airgun Pulses 3 3 of the airgun operations will not exceed including two 45 in and two 105 in G 200 hrs. The relatively short, 24-channel Airguns function by venting high- airguns, in relation to distance and hydrophone streamer would provide pressure air into the water which creates direction from the airguns (see Figure 2 operational flexibility to allow the an air bubble. The pressure signature of and 3 in Attachment B of the IHA seismic survey to proceed along the an individual airgun consists of a sharp application). The model does not allow designated cruise track with minimal rise and then fall in pressure, followed for bottom interactions, and is most interruption due to variable sea ice by several positive and negative directly applicable to deep water. conditions. The design of the seismic pressure excursions caused by the Because the model results are for G equipment is to achieve high-resolution oscillation of the resulting air bubble. airguns, which have more energy than images of the glacial marine sequence The oscillation of the air bubble GI airguns of the same size, those stratigraphy with the ability to correlate transmits sounds downward through the distances overestimate (by to the ultra-high frequency sub-bottom seafloor and the amount of sound approximately 10%) the distances for profiling data and provide cross- transmitted in the near horizontal the two 45 in3 GI airguns and two 105 sectional views to pair with the seafloor directions is reduced. However, the in3 GI airguns, respectively. Although bathymetry. The cruise path would be airgun array also emits sounds that the distances are overestimated, no designated once in the study area and travel horizontally toward non-target adjustments for this have been made to would take care to avoid heavy ice areas. the radii distances in Table 2 (below). conditions such as icebergs or dense The nominal downward-directed Based on the modeling, estimates of the areas of pack ice that could potentially source levels of the airgun arrays used maximum distances from the GI airguns damage the airguns or streamer and by NSF and ASC on the Palmer do not where sound levels of 190, 180, and 160 minimize proximity to potential marine represent actual sound levels that can be dB re 1 mPa (rms) are predicted to be receptors. measured at any location in the water. received in shallow, intermediate, and Weather conditions that could affect Rather, they represent the level that deep water are shown in Table 2 (see the movement of sea ice and hinder the would be found 1 m (3.3 ft) from a Table 1 of Attachment B of the IHA hydrophone streamer would be closely hypothetical point source emitting the application).

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Empirical data concerning the 190, the buffer and exclusion zones Table 2 summarizes the predicted 180, and 160 dB (rms) distances were predicted by L–DEO’s model for the distances at which sound levels (160, acquired for various airgun arrays based proposed GI airgun operations in deep 180, and 190 dB [rms]) are expected to on measurements during the acoustic water, although they are likely be received from the two airgun array verification studies conducted by L– conservative given the empirical results (45 in3 or 105 in3) operating in shallow DEO in the northern GOM in 2003 for the other arrays. Using the L–DEO (less than 100 m [328 ft]), intermediate (Tolstoy et al., 2004) and 2007 to 2008 model, Table 2 (below) shows the (100 to 1,000 m [328 to 3,280 ft]), and (Tolstoy et al., 2009; Diebold et al., distances at which three rms sound deep water (greater than 1,000 m [3,280 2010). Results of the 18 and 36 airgun levels are expected to be received from ft]) depths. array are not relevant for the two GI the two GI airguns. The 180 and 190 dB airguns to be used in the proposed Table 2— Predicted and modeled (two re 1 mPam (rms) distances are the safety 3 3 survey. The empirical data for the 6, 10, 45 in and two 105 in GI airgun array) criteria for potential Level A harassment 12, and 20 airgun arrays indicate that, distances to which sound levels ≥190, for deep water, the L–DEO model tends as specified by NMFS (2000) and are 180 and 160 dB re: 1 mPa (rms) could to overestimate the received sound applicable to cetaceans and pinnipeds, be received in shallow, intermediate, levels at a given distance (Tolstoy et al., respectively. If marine mammals are and deep water during the proposed 2004). Measurements were not made for detected within or about to enter the low-energy seismic survey in the the two GI airgun array in deep water; appropriate exclusion zone, the airguns Dumont d’Urville Sea of the Southern however, NSF and ASC proposes to use will be shut-down immediately. Ocean, January to March 2014.

Predicted RMS radii distances Tow depth Water depth (m) for 2 GI airgun array Source and total volume (m) (m) 160 dB 180 dB 190 dB

Two GI Airguns (45 in3) ...... 3 Shallow (<100)...... 1,176 ...... 296 ...... 147. (3,858.3 ft) ...... (971.1 ft) ...... (482.3 ft). Two GI Airguns (45 in3) ...... 3 Intermediate (100 to 1,000) ...... 600 ...... 100 ...... 15. (1,968.5 ft) ...... (328ft) ...... (49.2 ft). Two GI Airguns (45 in3) ...... 3 Deep (≤1,000) ...... 400 ...... 100 ...... 10. (1,312.3 ft) ...... (328 ft) ...... (32.8 ft). Two GI Airguns (105 in3) ...... 3 Shallow (<100)...... 1,970 ...... 511 ...... 294. (6,463.3 ft) ...... (1,676.5 ft) ...... (964.6 ft). Two GI Airguns (105 in3) ...... 3 Intermediate (100 to 1,000) ...... 1,005 ...... 100 ...... 30. (3,297.2 ft) ...... (98.4 ft). Two GI Airguns (105 in3) ...... 3 Deep (>1,000)...... 670 ...... 100 ...... 20. (2,198.2 ft) ...... (65.6 ft).

NMFS expects that acoustic stimuli is operated at 12 kHz for bottom- level at the source of 223.6 dB re 1mPa resulting from the proposed operation of tracking purposes or at 3.5 kHz in the (rms). Sound energy from the ADCP is the two GI airgun array has the potential sub-bottom profiling mode. The sonar emitted as a 30° conically-shaped beam. to harass marine mammals. NMFS does emits energy in a 30° beam from the Acoustic Doppler Current Profiler not expect that the movement of the bottom of the ship. (ADCP Ocean Surveyor OS–38)—The Palmer, during the conduct of the low- Single-Beam Echosounder (Bathy characteristics of this backup hull- energy seismic survey, has the potential 2000)—The hull-mounted sonar mounted ADCP unit are similar to the to harass marine mammals because of characteristics of the Bathy 2000 are Teledyne VM–150 and would be the relatively slow operation speed of similar to the Knudsen 3260. Only one continuously operated. the vessel (approximately 5 kts; 9.3 km/ hull-mounted echosounder can be Acoustic Locator (Pinger)—An hr; 5.8 mph) during seismic acquisition. operated a time, and this source would acoustic locator (i.e., pinger) would be be operated instead of the Knudsen Bathymetric Survey deployed when using the Smith- 3260 only if needed (i.e., only one McIntyre grab sampler and multi-corer Along with the low-energy airgun would be in continuous operation (Mega-corer) to enable these devices to operations, other additional geophysical during the cruise). be located in the event they become measurements would be made using Multi-Beam Sonar (Simrad EM120)— detached from their lines. A pinger swath bathymetry, backscatter sonar The hull-mounted multi-beam sonar typically operates at a frequency of 12 imagery, high-resolution sub-bottom would be operated continuously during kHz, generates a 5 ms pulse per second, profiling (‘‘CHIRP’’), imaging, and the cruise. This instrument operates at and has an acoustical output of 162 dB magnetometer instruments. In addition, a frequency of 12 kHz, has an estimated re 1mPa (rms). A maximum total of 30 several other transducer-based maximum source energy level of 242 dB samples would be obtained using these instruments onboard the vessel would re 1mPa (rms), and emits a very narrow devices and require approximately one be operated continuously during the (<2°) beam fore to aft and 150° in cross- hour per sample; therefore, the pinger cruise for operational and navigational track. The multi-beam system emits a would operate for a total of 30 hours. purposes. Operating characteristics for series of nine consecutive 15 ms pulses. Passive Instruments—During the the instruments to be used are described Acoustic Doppler Current Profiler seismic survey in the Dumont d’Urville below. (ADCP Teledyne RDI VM–150)—The Sea, a precession magnetometer and Single-Beam Echosounder (Knudsen hull-mounted ADCP would be operated Air-Sea gravity meter would be 3260)—The hull-mounted CHIRP sonar continuously throughout the cruise. The deployed. In addition, numerous would be operated continuously during ADCP operates at a frequency of 150 (approximately 24) expendable all phases of the cruise. This instrument kHz with an estimated acoustic output bathythermograph (XBTs) probes would

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also be released (and none would be to protect vulnerable marine ecosystems Observations of the thermal structure recovered) over the course of the cruise (VME), which include seamounts, along other portions of the cruise track to obtain temperature data necessary to hydrothermal vents, cold water corals, would be made using an underway CTD calculate sound velocity profiles used and sponge fields. The conservation system and XBTs while the seafloor is by the multi-beam sonar. measure 22–07 includes mitigation and swath-mapped. The number and spacing of stations would be adjusted Core and Dredge Sampling reporting requirements if VME are encountered. The science team would according to ocean features discovered The primary sampling goals involve follow these requirements (see through multi-beam swath mapping and the acquisition of marine sediment cores Attachment C of the IHA application) if the sea ice conditions. If portions of the of various lengths up to 25 m (82 ft). It VME’s are encountered while sampling study area are inaccessible to the NBP, is anticipated that up to 65 sediment the sea bottom. a contingency sampling focused on the cores and grab samples and 12 rock In addition, a camera and towed video inflows of MDCW would be pursued in dredge samples would be collected as system would be deployed at up to 25 adjacent shelf troughs. summarized in Table 3 (Table 3 of the sites. This device would lightly touch It is noted that underway ADCP on IHA application). Each core or grab the seafloor to establish a baseline and the Palmer can, under ideal conditions, sample would require approximately rise to an optimum elevation to obtain obtain profiles of ocean currents to one hour per sample. All cores and the desired images. depths greater than 800 m (2,624.7 ft). dredges would be deployed using a steel On continental shelves where depths cable/winch system. Water Sampling and Current may be less than the range of the ADCP, Approximately 75 m2 (807.3 ft2) of Measurements the underway profiles cannot resolve seafloor would be disturbed by each of High-resolution conductivity, depth, the deepest 15% of the water column four deployments of the dredge at three and temperature (CTD) measurements due to side lobe reflections from the different sites (resulting in a total of 900 would be collected to characterize the bottom which contaminate the water m2 [9,687.5 ft2] of affected seafloor for summer regional water mass column Doppler returns. For a depth of the project). The selection of the bottom stratification and circulation, and the 800 m, expected in the MCDW, currents sampling locations and sampling in the lower 120 m (393.7 ft) could not method would be based on observations meridional exchange of waters between the oceanic and shelf regimes. These be measured by the ship ADCP; of the seafloor, subsurface reflectivity, therefore, the lowered ADCP can sediment type, and accessibility due to physical measurements would involve approximately SeaBird CTD system provide accurate current profiles to ice and weather conditions. Bottom within a few meters of the bottom and sampling in the Mertz Glacier area casts including the use of a lowered ADCP (LADCP). provide complete coverage of the would be limited to strategically velocity field at each CTD station. selected locations including possible re- The LADCP would consist of two sampling at a previous core site. Teledyne RDI Workhorse Monitor Instrumentation Moorings ADCPs mounted on the CTD/rosette Four instrumented moorings would TABLE 3—PROPOSED CORING AND frame and one oriented upward and the be deployed during the proposed cruise DREDGING ACTIVITIES IN THE DU- other downward. The LADCP and frame to measure current, temperature, and would be raised and lowered by cable MONT D’URVILLE SEA salinity (conductivity) continuously. and winch. The LADCPs would operate Two of the moorings would be deployed at a frequency of 307.2 kHz, with an for approximately one month (short- Sampling device Number of deployments estimated output acoustic pressure term moorings) and two moorings along each 4 beams of 216.3 dB re 1mPa would be deployed for approximately Smith-MycIntyre grab sampler 10 to 15. at 1 m. The beams are angled at 20 one year (long-term moorings). The two Multi-corer (Mega-corer) ...... 10 to 15. degrees from the centerline of the ADCP short-term moorings and one long-term Kasten corer (regular or 20 to 25. head, with a beam angle of 4 degrees for jumbo). mooring would include ADCP paired Jumbo piston corer ...... 8 to 10. the individual beams. Typical pulse with CTD recorders, and additional Box cage dredge ...... 10 to 12. duration is 5.7 ms, with a typical intermediate T (i.e., temperature) repetition rate of 1.75 s. The upward recorders. The characteristics of the Limited sampling of rock material and downward-looking ADCPs are ADCP units deployed on the moorings would be conducted using a dredge that operated in master-salve mode so that are similar to the Teledyne VM–150; the would be towed along the seafloor for only one head pings at a time. The moored ADCPs operate at frequencies of short distances (approximately 50 m LADCP would be operated 75 kHz (one unit) and 300 kHz (two [164 ft]) to collect samples of bedrock approximately one hour at every CTD/ units). The fourth mooring would be and ice rafted debris. The available rosette station (maximum of 100 equipped with sediment traps, a CTD dredges, which have openings of 0.5 to stations) for a total of 100 hours of recorder and intermediate T recorders, 1.5 m (1.6 to 4.9 ft), would be deployed operation. and be deployed for approximately one on rocky substrates. The locations of the These instruments would be used to year (long-term mooring). The two long- proposed dredge sites are limited to the profile the full water column for term moorings would be retrieved inner shelf (southern) perimeter of three temperature, salinity (conductivity), approximately one year later by a U.S. areas: The Mertz Trough and two dissolved oxygen and currents at a Arctic Program (USAP) vessel or regions along the Sabrina Coast. Final series of transects in the study area. collaborators from other countries. selection of dredge sites will include Discrete water samples would be Subject to sea ice conditions, these review to ensure that the seamounts or collected for salinity and dissolved moorings would preferably be placed in corals in the area are avoided (AOA, oxygen to monitor CTD/rosette front of Totten Glacier, but otherwise as 2011). performance, and for oxygen isotopes to close as possible inside adjacent cross- The Commission for the Conservation assess meltwater content. Water samples shelf troughs. If access to the inner shelf of Antarctic Marine Living Resources would also be collected for development is not allowed by sea ice conditions we (CCAMLR) has adopted conservation and interpretation of marine sediment would attempt mooring deployments measures (i.e., 22–06, 22–07, and 22–09) proxies using Niskin bottles. within the outer shelf close to the

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troughs mouth, where the Totten Glacier Antarctic waters (i.e., along the George conducted by the Palmer are not is more directly connected to inflows V and Oates Coast of East Antarctica, available; therefore, data for noise from the oceanic domain offshore. The >65° South, between 140° and 165° generating from an icebreaking vessel two long-term moorings would be East). While breaking ice, the noise from such as the U.S. Coast Guard Cutter deployed within 16 km of each other. the ship, including impact with ice, (USCGC) Healy will be used as a proxy. The short-term moorings would be engine noise, and propeller cavitation, It is noted that the Palmer is a smaller within a few kilometers of each other will exceed 120 dB (rms) continuously. vessel and has less icebreaking and no farther than 32 km (17.3 nmi) If icebreaking does occur in Antarctic capability than the U.S. Coast Guard’s from the long-term moorings. All waters, NMFS, NSF and ASC expect it other polar icebreakers, being only will occur during transit and non- instruments would be kept at depths capable of breaking ice up to 1 m thick below 250 m (820.2 ft) to minimize seismic operations to gain access to at speeds of 3 kts (5.6 km/hr or 3 nmi). damage or loss by icebergs. coring, dredging, or other sampling The moorings would temporarily locations and not during seismic airgun Therefore, the sound levels that may be attached to anchors and be recovered operations. The research activities and generated by the Palmer are expected to using acoustic release mechanisms. The associated contingencies are designed to be lower than the conservative levels mooring recovery process would be avoid areas of heavy sea ice condition. estimated and measured for the Healy. similar regardless of mooring type or The buffer zone (160 dB [rms]) for the Researchers will work to minimize time when they would be retrieved. Locating marine mammal Level B harassment spent breaking ice as science operations the moorings and releasing the moorings threshold during the proposed activities are more difficult to conduct in icy from the steel railroad wheel anchors is greater than the calculated radius conditions since the ice noise degrades (which would not be recovered) would during icebreaking. Therefore, if the the quality of the seismic and ADCP be accomplished by transmitting sound Palmer breaks ice during seismic data and time spent breaking ice takes over a period of several seconds. This is operations within the Antarctic waters away from time supporting scientific done with an acoustic deck command (within the Dumont d’Urville Sea or research. Logistically, if the vessel were unit that sends a sequence of coded other areas of the Southern Ocean), the in heavy ice conditions, researchers pulses to the receiving units, the more conservative and larger radius would not tow the airgun array and acoustic releases, connected to the (i.e., that for seismic operations) will be streamer, as this would likely damage mooring anchors. The acoustic releases used and supercede the buffer zone for equipment and generate noisy data. It is response to acknowledge the receipt of icebreaking. possible that the seismic survey can be commands from the deck unit is by In 2008, acousticians from Scripps performed in low ice conditions if the transmitting a short sequence of pulses Institution of Oceanography Marine Palmer could generate an open path back. Both of the acoustic units Physical Laboratory and University of (onboard deck unit and moored New Hampshire Center for Coastal and behind the vessel. releases) operate at frequencies between Ocean Mapping conducted Because the Palmer is not rated to approximately 7 and 15 kHz. The beam measurements of SPLs of the Healy break multi-year ice routinely, pattern is approximately icebreaking under various conditions operations generally avoid transiting omnidirectional. The acoustic source (Roth and Schmidt, 2010). The results through older ice (i.e., 2 years or older, level is less than 192 dB re 1mPa at indicated that the highest mean SPL thicker than 1 m). If sea ice is 1 m. (185 dB) was measured at survey speeds encountered during the cruise, it is In addition to the U.S. moorings of 4 to 4.5 kts in conditions of 5/10 ice anticipated the Palmer will proceed described above, three new moorings and greater. Mean SPL under conditions primarily through one year sea ice, and would be deployed on behalf of where the ship was breaking heavy ice possibly some new, very thin ice, and Australia’s national science agency the by backing and ramming was actually would follow leads wherever possible. Commonwealth of Scientific and lower (180 dB). In addition, when Satellite imagery from the Totten region Industrial Research Organisation backing and ramming, the vessel is documents that sea ice is at its (CSIRO) Physical Oceanography group essentially stationary, so the ensonified minimum extent during the month of in the Totten Glacier region by the area is limited for a short period (on the project team. These moorings would be order of minutes to tens of minutes) to February. The most recent image for the retrieved approximately one year later the immediate vicinity of the vessel region, from November 21, 2013, shows by collaborators from other countries. until the ship breaks free and once again that the sea ice is currently breaking up, Also, during this cruise, three CSIRO makes headway. with a significant coastal lead of open moorings that were deployed over a year The 120 dB received sound level water. Based on a maximum sea ice ago in the western outlet of the Mertz- radius around the Healy while extent of 250 km (135 nmi) and Ninnis Trough would be recovered. The icebreaking was estimated by estimating that NSF and ASC will recovery process and acoustic sources researchers (USGS, 2010). Using a transit to the innermost shelf and back described above for the U.S. moorings spherical spreading model, a source into open water twice, a round trip would be used for recovery of the level of 185 dB decays to 120 dB in transit in each of the potential work CSIRO moorings. about 1,750 m (5,741.5 ft). This model regions, NSF and ASC estimate that the is corroborated by Roth and Schmidt Icebreaking Palmer will actively break ice up to a (2010). Therefore, as the ship travels distance of 1,000 km (540 nmi). Based Icebreaking is considered by NMFS to through the ice, a watch 3,500 m on a ship’s speed of 5 kts under be a continuous sound and NMFS (11,482.9 ft) wide would be subject to moderate ice conditions, this distance estimates that harassment occurs when sound levels greater than or equal to 120 represents approximately 108 hrs of marine mammals are exposed to dB. This results in potential exposure of icebreaking operations. It is noted that continuous sounds at a received sound 3,500 km2 (1,020.4 nmi2) to sounds typical transit through areas primarily level of 120 dB SPL or above. Potential greater than or equal to 120 dB from open water and containing brash ice or takes of marine mammals may ensue icebreaking. from icebreaking activity in which the Data characterizing the sound levels pancake ice will not be considered Palmer is expected to engage in generated by icebreaking activities icebreaking.

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Dates, Duration, and Specified ASC estimate that the Palmer will gazella). Many of these pinniped species Geographic Region actively break ice up to a distance of breed on either the pack ice or sub- The proposed project and survey sites 1,000 km (540 nmi). Based on a ship’s Antarctic islands. Since the southern are located in selected regions of the speed of 5 kts under moderate ice elephant seal and Antarctic fur seal Dumont d’Urville Sea in the Southern conditions, this distance represents haul-outs and rookeries are located on Ocean off the coast of East Antarctica approximately 108 hrs of icebreaking sub-Antarctic islands and prefer and focus on the Totten Glacier and operations. beaches, they are more common north of Moscow University Ice Shelf, located on The Palmer is expected to depart from the seasonally shifting pack ice found in the Sabrina Coast, from greater than Hobart, Tasmania on approximately the proposed study area; therefore, these approximately 64° South and between January 29, 2014 and arrive at Hobart, two species have not been considered Tasmania on approximately March 16, approximately 95 to 135° East (see further. Marine mammal species listed 2014. Research operations would be Figure 2 of the IHA application), and the as endangered under the U.S. over a span of 45-days, including to and Mertz Glacier and Cook Ice Shelf Endangered Species Act of 1973 (ESA; from port. Ice-free or very low systems located on the George V and 16 U.S.C. 1531 et seq.), includes the concentrations of sea ice are required in Oates Coast, from greater than southern right (Eubalaena australis), order to collect high quality seismic approximately 65° South and between humpback (Megaptera novaeangliae), data and not impede passage of the approximately 140 to 165° East in sei (Balaenoptera borealis), fin vessel between sampling locations. This (Balaenoptera physalus), blue International Waters. The proposed requirement restricts the cruise to (Balaenoptera musculus), and sperm study sites are characterized by heavy operating in mid to late austral summer (Physeter macrocephalus) whale. Of ice cover, with a seasonal break-up in when the ice concentrations are those endangered species, the the ice that structures biological typically the lowest. Some minor humpback, sei, fin, blue, and sperm patterns. The proposed studies would deviation from this schedule is possible, whale are likely to be encountered in occur in both areas, or entirely in one depending on logistics and weather (i.e., the proposed survey area. or the other, depending on ice the cruise may depart earlier or be Various national Antarctic research conditions. Figure 3 of the IHA extended due to poor weather; there programs along the coast of East application illustrates the limited could be additional days of seismic Antarctica have conducted scientific detailed bathymetry of the two study operations if collected data are deemed cruises that included data on marine areas. Ice conditions encountered to be of substandard quality). mammal sightings. These observations during the previous surveys in the were made primarily between 30° East Description of the Marine Mammals in region limited the area where and 170° East and north to 60° South. the Area of the Proposed Specified bathymetric data could be collected. The reported cetacean sightings are Activity Water depths in the survey area range summarized in Tables 5 to 7 of the IHA from approximately 100 to 1,000 m, and The marine mammals that generally application. For pinnipeds, observations possibly exceeding 1,000 m in some occur in the proposed action area belong made during a scientific cruise over a areas. There is limited information on to three taxonomic groups: Mysticetes 13-day period in East Antarctica are the depths in the study area and (baleen whales), odontocetes (toothed summarized in Table 8 of the IHA therefore more detailed information on whales), and pinnipeds (seals and sea application. These observations were bathymetry is not available. Figures 2 lions). The marine mammal species that made below 60° South and between and 3 of the IHA application illustrate potentially occur within the Southern 110° East to 165° East and include the limited available detailed Ocean in proximity to the proposed sightings of individual animals in the bathymetry of the two proposed study action area in the Dumont d’Urville Sea water as well as individuals that were areas due to ice conditions encountered include 28 species of cetaceans and 6 hauled-out (i.e., resting on the surface of during previous surveys in the region. species of pinnipeds. the sea ice). The proposed seismic survey would be The Dumont d’Urville Sea may be a Records from the International within an area of approximately 5,628 feeding ground for many of these marine Whaling Commission’s Southern Ocean km2 (1,640.9 nmi2). This estimate is mammals. Many of the species that may Whale and Ecosystem Research (IWC– based on the maximum number of be potentially present in the study area SOWER) circumpolar cruises were also kilometers for the seismic survey (2,800 seasonally migrate to higher latitudes considered. In addition to the 14 species km) times the predicted rms radii (m) along the east coast of Antarctica. In known to occur in the Dumont d’Urville based on modeling and empirical general, most species (except for the Sea of the Southern Ocean, there are 18 measurements (assuming 100% use of killer whale) migrate north in the cetacean species with ranges that are the two 105 in3 GI airguns in 100 to middle of the austral winter and return known to occur in the sub-Antarctic 1,000 m water depths) which was to Antarctica in the early austral waters of the study area which may also calculated to be 1,005 m (3,297.2 ft). summer. Some species, particularly feed and/or migrate to the Southern The icebreaking will occur, as Antarctic minke (Balaenoptera Ocean during the austral summer, these necessary, between approximately 66 to bonaerensis) and killer whales (Orcinus include the southern right, pygmy right 70° South and between 140 to 165° East. orca), are expected to be present in (Caperea marginata), Bryde’s The total distance in the region of the higher concentrations along the ice edge (Balaenoptera brydei), dwarf minke vessel will travel include the proposed (SCAR, 2002). The 6 species of (Balaenoptera acutorostrata spp.), seismic survey and transit to dredging pinnipeds that are found in the pygmy blue (Balaenoptera musculus or sampling locations and will represent Southern Ocean and which may be brevicauda), pygmy dwarf sperm whale approximately 5,600 km (3,023.8 nmi). present in the proposed study area (Kogia breviceps), Arnoux’s beaked Based on a maximum sea ice extent of include the crabeater (Lebodon (Berardius arnuxii), Blainville’s beaked 250 km (135 nmi) and estimating that carcinophagus), leopard (Hydrurga whale (Mesoplodon densirostris), NSF and ASC will transit to the leptonyx), Wedell (Leptonychotes Cuvier’s beaked (Ziphius cavirostris), innermost shelf and back into open weddellii), Ross (Ommatophoca rossii), Shepherd’s beaked (Tasmacetus water twice, a round trip transit in each southern elephant (Mirounga leonina), shepherdi), Southern bottlenose of the potential work regions, NSF and and Antarctic fur seal (Arctocephalus (Hyperoodon planifrons), Andrew’s

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beaked (Mesoplodon bowdoini), Dusky (Lagenorhynchus obscurus), and Table 4 (below) presents information on Hector’s beaked (Mesoplodon hectori), bottlenose dolphin (Tursiops truncatus). the abundance, distribution, population Gray’s beaked (Mesoplodon grayi), However, these species have not been status, conservation status, and strap-toothed beaked (Mesoplodon sighted and are not expected to occur population trend of the species of layardii), spade-toothed beaked where the proposed activities would marine mammals that may occur in the (Mesoplodon traversii), southern right take place. These species are not proposed study area during February to whale dolphin (Lissodelphis peronii), considered further in this document. March 2014.

TABLE 4—THE HABITAT, REGIONAL ABUNDANCE, AND CONSERVATION STATUS OF MARINE MAMMALS THAT MAY OCCUR INORNEAR THE PROPOSED LOW-ENERGY SEISMIC SURVEY AREA IN THE ANTARCTIC AREA OF THE SOUTHERN OCEAN [See text and Tables 4 in NSF and ASC’s application for further details]

Species Habitat Population estimate ESA 1 MMPA 2 Population trend

Mysticetes: Southern right whale Coastal, pelagic ...... 8,000 3 to 15,000 4 ...... EN ...... D ...... Increasing. (Eubalaena australis). Pygmy right whale Coastal, pelagic ...... NA ...... NL ...... NC ...... NA. (Caperea marginata). Humpback whale Pelagic, nearshore waters, 35,000 to 40,000 3—World- EN ...... D ...... Increasing. (Megaptera and banks. wide. novaeangliae). 9,484 5—Scotia Sea and Antarctica Peninsula. Dwarf minke whale Pelagic and coastal ...... NA ...... NL ...... NC ...... NA. (Balaenoptera acutorostrata sub-spe- cies). Antarctic minke whale Pelagic, ice floes ...... Several 100,000 3—World- NL ...... NC ...... Stable. (Balaenoptera wide. bonaerensis). 18,125 5—Scotia Sea and Antarctica Peninsula. Bryde’s whale Pelagic and coastal ...... NA ...... NL ...... NC ...... NA. (Balaenoptera brydei). Sei whale (Balaenoptera Primarily offshore, pelagic .... 80,000 3—Worldwide ...... EN ...... D ...... NA. borealis). Fin whale (Balaenoptera Continental slope, pelagic .... 140,000 3—Worldwide ...... EN ...... D ...... NA. physalus). 4,672 5—Scotia Sea and Antarctica Peninsula. Blue whale Pelagic, shelf, coastal ...... 8,000 to 9,000 3—Worldwide EN ...... D ...... NA. (Balaenoptera 1,700 6—Southern Ocean .... musculus). Odontocetes: Sperm whale (Physeter Pelagic, deep sea ...... 360,000 3—Worldwide ...... EN ...... D ...... NA. macrocephalus). 9,500 3—Antarctic ...... Pygmy sperm whale Pelagic, slope ...... NA ...... NL ...... NC ...... NA. (Kogia breviceps). Arnoux’s beaked whale Pelagic ...... NA ...... NL ...... NC ...... NA. (Berardius arnuxii). Blainville’s beaked Pelagic ...... NA ...... NL ...... NC ...... NA. whale (Mesoplodon densirostris). Cuvier’s beaked whale Pelagic ...... NA ...... NL ...... NC ...... NA. (Ziphius cavirostris). Shepherd’s beaked Pelagic ...... NA ...... NL ...... NC ...... NA. whale (Tasmacetus shepherdi). Southern bottlenose Pelagic ...... 500,000 3—South of Ant- NL ...... NC ...... NA. whale (Hyperoodon arctic Convergence. planifrons). Andrew’s beaked whale Pelagic ...... NA ...... NL ...... NC ...... NA. (Mesoplodon bowdoini). Hector’s beaked whale Pelagic ...... NA ...... NL ...... NC ...... NA. (Mesoplodon hectori). Gray’s beaked whale Pelagic ...... NA ...... NL ...... NC ...... NA. (Mesoplodon grayi). Strap-toothed beaked Pelagic ...... NA ...... NL ...... NC ...... NA. whale (Mesoplodon layardii). Spade-toothed beaked Pelagic ...... NA ...... NL ...... NC ...... NA. whale (Mesoplodon traversii).

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TABLE 4—THE HABITAT, REGIONAL ABUNDANCE, AND CONSERVATION STATUS OF MARINE MAMMALS THAT MAY OCCUR INORNEAR THE PROPOSED LOW-ENERGY SEISMIC SURVEY AREA IN THE ANTARCTIC AREA OF THE SOUTHERN OCEAN—Continued [See text and Tables 4 in NSF and ASC’s application for further details]

Species Habitat Population estimate ESA 1 MMPA 2 Population trend

Killer whale (Orcinus Pelagic, shelf, coastal, pack 80,000 3—South of Antarctic NL ...... NC ...... NA. orca). ice. Convergence. 25,000 7—Southern Ocean .. Long-finned pilot whale Pelagic, shelf, coastal ...... 200,000 38—South of Ant- NL ...... NC ...... NA. (Globicephala melas). arctic Convergence. Bottlenose dolphin Offshore, inshore, coastal, >625,500 3—Worldwide ...... NL ...... NC ...... NA. (Tursiops truncatus). estuaries. Southern right whale Pelagic ...... NA ...... NL ...... NC ...... NA. dolphin (Lissodelphis peronii). Dusky dolphin Coastal, continental shelf NA ...... NL ...... NC ...... NA. (Lagenorhynchus and slope. obscurus). Hourglass dolphin Pelatic, ice edge ...... 144,000 3 ...... NL ...... NC ...... NA. (Lagenorhynchus cruciger). Spectacled porpoise Coastal, pelagic ...... NA ...... NL ...... NC ...... NA. (Phocoena dioptrica). Pinnipeds: Crabeater seal (Lobodon Coastal, pack ice ...... 5,000,000 to 15,000,000 39 .. NL ...... NC ...... Increasing. carcinophaga). Leopard seal (Hydrurga Pack ice, sub-Antarctic is- 220,000 to 440,000 310 ...... NL ...... NC ...... NA. leptonyx). lands. Ross seal Pack ice, smooth ice floes, 130,000 3 ...... NL ...... NC ...... NA. (Ommatophoca rossii). pelagic. Wedell seal Fast ice, pack ice, sub-Ant- 500,000 to 1,000,000 311 ..... NL ...... NC ...... NA. (Leptonychotes arctic islands. weddellii). Southern elephant seal Coastal, pelagic, sub-Ant- 640,000 12 to 650,000 3 ...... NL ...... NC ...... Decreasing, increasing or (Mirounga leonina). arctic waters. stable depending on breeding population. Antarctic fur seal Shelf, rocky habitats ...... 1,600,000 13 to 3,000,000 3 .. NL ...... NC ...... Increasing. (Arctocephalus gazella). NA = Not available or not assessed. 1 U.S. Endangered Species Act: EN = Endangered, T = Threatened, DL = Delisted, NL = Not listed. 2 U.S. Marine Mammal Protection Act: D = Depleted, S = Strategic, NC = Not Classified. 3 Jefferson et al., 2008. 4 Kenney, 2009. 5 Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) survey area (Reilly et al., 2004). 6 Sears and Perrin, 2009. 7 Ford, 2009. 8 Olson, 2009. 9 Bengston, 2009. 10 Rogers, 2009. 11 Thomas and Terhune, 2009. 12 Hindell and Perrin, 2009. 13 Arnould, 2009.

Refer to sections 3 and 4 of NSF and Potential Effects on Marine Mammals Permanent hearing impairment, in the ASC’s IHA application for detailed unlikely event that it occurred, would information regarding the abundance Acoustic stimuli generated by the constitute injury, but temporary and distribution, population status, and operation of the airguns, which threshold shift (TTS) is not an injury life history and behavior of these other introduce sound into the marine (Southall et al., 2007). Although the environment, may have the potential to marine mammal species and their possibility cannot be entirely excluded, cause Level B harassment of marine occurrence in the proposed project area. it is unlikely that the proposed project mammals in the proposed survey area. The IHA application also presents how would result in any cases of temporary The effects of sounds from airgun NSF and ASC calculated the estimated operations might include one or more of or permanent hearing impairment, or densities for the marine mammals in the the following: Tolerance, masking of any significant non-auditory physical or proposed survey area. NMFS has natural sounds, behavioral disturbance, physiological effects. Based on the reviewed these data and determined temporary or permanent hearing available data and studies described them to be the best available scientific impairment, or non-auditory physical or here, some behavioral disturbance is information for the purposes of the physiological effects (Richardson et al., expected. A more comprehensive proposed IHA. 1995; Gordon et al., 2004; Nowacek et review of these issues can be found in al., 2007; Southall et al., 2007). the ‘‘Programmatic Environmental

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Impact Statement/Overseas frequencies that overlap most, if not all, higher frequencies than are the Environmental Impact Statement frequencies produced by odontocetes. dominant components of airgun sounds, prepared for Marine Seismic Research While it is assumed that mysticetes can thus limiting the potential for masking. that is funded by the National Science detect acoustic impulses from airguns Pinnipeds have the most sensitive Foundation and conducted by the U.S. and vessel sounds (Richardson et al., hearing and/or produce most of their Geological Survey’’ (NSF/USGS, 2011). 1995a), sub-bottom profilers, pingers, sounds in frequencies higher than the dominant components of airgun sound, Tolerance and most of the multi-beam echosounders would likely be but there is some overlap in the Richardson et al. (1995) defines detectable by some mysticetes based on frequencies of the airgun pulses and the tolerance as the occurrence of marine presumed mysticete hearing sensitivity. calls. However, the intermittent nature mammals in areas where they are Odontocetes are presumably more of airgun pules presumably reduces the exposed to human activities or man- sensitive to mid to high frequencies potential for masking. made noise. In many cases, tolerance produced by the mulit-beam Marine mammals are thought to be develops by the animal habituating to echosounders, sub-bottom profilers, and able to compensate for masking by the stimulus (i.e., the gradual waning of pingers than to the dominant low adjusting their acoustic behavior responses to a repeated or ongoing frequencies produced by the airguns through shifting call frequencies, stimulus) (Richardson, et al., 1995; and vessel. A more comprehensive increasing call volume, and increasing Thorpe, 1963), but because of ecological review of the relevant background vocalization rates. For example blue or physiological requirements, many information for odontocetes appears in whales are found to increase call rates marine animals may need to remain in Section 3.6.4.3, Section 3.7.4.3 and when exposed to noise from seismic areas where they are exposed to chronic Appendix E of the NSF/USGS PEIS surveys in the St. Lawrence Estuary stimuli (Richardson, et al., 1995). (2011). (Dilorio and Clark, 2009). The North Numerous studies have shown that Atlantic right whales (Eubalaena pulsed sounds from airguns are often Masking effects of pulsed sounds glacialis) exposed to high shipping readily detectable in the water at (even from large arrays of airguns) on noise increased call frequency (Parks et distances of many kilometers. Several marine mammal calls and other natural al., 2007), while some humpback studies have shown that marine sounds are expected to be limited. whales respond to low-frequency active mammals at distances more than a few Because of the intermittent nature and sonar playbacks by increasing song kilometers from operating seismic low duty cycle of seismic airgun pulses, length (Miller et al., 2000). In general, vessels often show no apparent animals can emit and receive sounds in NMFS expects the masking effects of response. That is often true even in the relatively quiet intervals between seismic pulses to be minor, given the cases when the pulsed sounds must be pulses. However, in some situations, normally intermittent nature of seismic readily audible to the animals based on reverberation occurs for much or the pulses. measured received levels and the entire interval between pulses (e.g., Behavioral Disturbance hearing sensitivity of the marine Simard et al., 2005; Clark and Gagnon, mammal group. Although various 2006) which could mask calls. Some Marine mammals may behaviorally baleen whales and toothed whales, and baleen and toothed whales are known to react to sound when exposed to (less frequently) pinnipeds have been continue calling in the presence of anthropogenic noise. Disturbance shown to react behaviorally to airgun seismic pulses, and their calls can includes a variety of effects, including pulses under some conditions, at other usually be heard between the seismic subtle to conspicuous changes in times marine mammals of all three types pulses (e.g., Richardson et al., 1986; behavior, movement, and displacement. have shown no overt reactions. The McDonald et al., 1995; Greene et al., Reactions to sound, if any, depend on relative responsiveness of baleen and 1999; Nieukirk et al., 2004; Smultea et species, state of maturity, experience, toothed whales are quite variable. al., 2004; Holst et al., 2005a,b, 2006; and current activity, reproductive state, time Dunn and Hernandez, 2009). However, of day, and many other factors Masking Clark and Gagnon (2006) reported that (Richardson et al., 1995; Wartzok et al., The term masking refers to the fin whales in the North Atlantic Ocean 2004; Southall et al., 2007; Weilgart, inability of a subject to recognize the went silent for an extended period 2007). These behavioral reactions are occurrence of an acoustic stimulus as a starting soon after the onset of a seismic often shown as: Changing durations of result of the interference of another survey in the area. Similarly, there has surfacing and dives, number of blows acoustic stimulus (Clark et al., 2009). been one report that sperm whales per surfacing, or moving direction and/ Introduced underwater sound may, ceased calling when exposed to pulses or speed; reduced/increased vocal through masking, reduce the effective from a very distant seismic ship (Bowles activities; changing/cessation of certain communication distance of a marine et al., 1994). However, more recent behavioral activities (such as socializing mammal species if the frequency of the studies found that they continued or feeding); visible startle response or source is close to that used as a signal calling in the presence of seismic pulses aggressive behavior (such as tail/fluke by the marine mammal, and if the (Madsen et al., 2002; Tyack et al., 2003; slapping or jaw clapping); avoidance of anthropogenic sound is present for a Smultea et al., 2004; Holst et al., 2006; areas where noise sources are located; significant fraction of the time and Jochens et al., 2008). Dilorio and and/or flight responses (e.g., pinnipeds (Richardson et al., 1995). Clark (2009) found evidence of flushing into the water from haul-outs The airguns for the proposed low- increased calling by blue whales during or rookeries). If a marine mammal does energy seismic survey have dominant operations by a lower-energy seismic react briefly to an underwater sound by frequency components of 2 to 188 Hz. source (i.e., sparker). Dolphins and changing its behavior or moving a small This frequency range fully overlaps the porpoises commonly are heard calling distance, the impacts of the change are lower part of the frequency range of while airguns are operating (e.g., unlikely to be significant to the odontocete calls and/or functional Gordon et al., 2004; Smultea et al., 2004; individual, let alone the stock or hearing (full range about 150 Hz to 180 Holst et al., 2005a, b; and Potter et al., population. However, if a sound source kHz). Airguns also produce a small 2007). The sounds important to small displaces marine mammals from an portion of their sound at mid and high odontocetes are predominantly at much important feeding or breeding area for a

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prolonged period, impacts on Studies of gray, bowhead, and Northwest Atlantic showed that sighting individuals and populations could be humpback whales have shown that rates of humpback whales were significant (e.g., Lusseau and Bejder, seismic pulses with received levels of significantly greater during non-seismic 2007; Weilgart, 2007). 160 to 170 dB re 1 mPa (rms) seem to periods compared with periods when a The biological significance of many of cause obvious avoidance behavior in a full array was operating (Moulton and these behavioral disturbances is difficult substantial fraction of the animals Holst, 2010). In addition, humpback to predict, especially if the detected exposed (Malme et al., 1986, 1988; whales were more likely to swim away disturbances appear minor. However, Richardson et al., 1995). In many areas, and less likely to swim towards a vessel the consequences of behavioral seismic pulses from large arrays of during seismic vs. non-seismic periods modification could be expected to be airguns diminish to those levels at (Moulton and Holst, 2010). biologically significant if the change distances ranging from 4 to 15 km (2.2 Humpback whales on their summer affects growth, survival, and/or to 8.1 nmi) from the source. A feeding grounds in southeast Alaska did reproduction. Some of these significant substantial proportion of the baleen not exhibit persistent avoidance when behavioral modifications include: whales within those distances may exposed to seismic pulses from a 1.64– • Change in diving/surfacing patterns show avoidance or other strong L (100 in3) airgun (Malme et al., 1985). (such as those thought to be causing behavioral reactions to the airgun array. Some humpbacks seemed ‘‘startled’’ at beaked whale stranding due to exposure Subtle behavioral changes sometimes received levels of 150 to 169 dB re 1 to military mid-frequency tactical become evident at somewhat lower mPa. Malme et al. (1985) concluded that sonar); received levels, and studies have shown there was no clear evidence of • Habitat abandonment due to loss of that some species of baleen whales, avoidance, despite the possibility of desirable acoustic environment; and notably bowhead, gray, and humpback subtle effects, at received levels up to • Cessation of feeding or social whales, at times, show strong avoidance 172 dB re 1 mPa (rms). However, interaction. at received levels lower than 160 to 170 Moulton and Holst (2010) reported that The onset of behavioral disturbance dB re 1 mPa (rms). humpback whales monitored during from anthropogenic noise depends on Researchers have studied the seismic surveys in the Northwest both external factors (characteristics of responses of humpback whales to Atlantic had lower sighting rates and noise sources and their paths) and the seismic surveys during migration, were most often seen swimming away receiving animals (hearing, motivation, feeding during the summer months, from the vessel during seismic periods experience, demography) and is also breeding while offshore from Angola, compared with periods when airguns difficult to predict (Richardson et al., and wintering offshore from Brazil. were silent. 1995; Southall et al., 2007). Given the McCauley et al. (1998, 2000a) studied Studies have suggested that South many uncertainties in predicting the the responses of humpback whales off Atlantic humpback whales wintering off quantity and types of impacts of noise western Australia to a full-scale seismic Brazil may be displaced or even strand on marine mammals, it is common survey with a 16 airgun array (2,678 in3) upon exposure to seismic surveys (Engel practice to estimate how many and to a single airgun (20 in3) with et al., 2004). The evidence for this was mammals would be present within a source level of 227 dB re 1 mPa (p-p). In circumstantial and subject to alternative particular distance of industrial the 1998 study, they documented that explanations (IAGC, 2004). Also, the activities and/or exposed to a particular avoidance reactions began at 5 to 8 km evidence was not consistent with level of sound. In most cases, this (2.7 to 4.3 nmi) from the array, and that subsequent results from the same area of approach likely overestimates the those reactions kept most pods Brazil (Parente et al., 2006), or with numbers of marine mammals that would approximately 3 to 4 km (1.6 to 2.2 nmi) direct studies of humpbacks exposed to be affected in some biologically- from the operating seismic boat. In the seismic surveys in other areas and important manner. 2000 study, they noted localized seasons. After allowance for data from Baleen Whales—Baleen whales displacement during migration of 4 to 5 subsequent years, there was ‘‘no generally tend to avoid operating km (2.2 to 2.7 nmi) by traveling pods observable direct correlation’’ between airguns, but avoidance radii are quite and 7 to 12 km (3.8 to 6.5 nmi) by more strandings and seismic surveys (IWC, variable (reviewed in Richardson et al., sensitive resting pods of cow-calf pairs. 2007: 236). 1995; Gordon et al., 2004). Whales are Avoidance distances with respect to the Reactions of migrating and feeding often reported to show no overt single airgun were smaller but (but not wintering) gray whales to reactions to pulses from large arrays of consistent with the results from the full seismic surveys have been studied. airguns at distances beyond a few array in terms of the received sound Malme et al. (1986, 1988) studied the kilometers, even though the airgun levels. The mean received level for responses of feeding eastern Pacific gray pulses remain well above ambient noise initial avoidance of an approaching whales to pulses from a single 100 in3 levels out to much longer distances. airgun was 140 dB re 1 mPa (rms) for airgun off St. Lawrence Island in the However, baleen whales exposed to humpback pods containing females, and northern Bering Sea. They estimated, strong noise pulses from airguns often at the mean closest point of approach based on small sample sizes, that 50 react by deviating from their normal distance the received level was 143 dB percent of feeding gray whales stopped migration route and/or interrupting re 1 mPa (rms). The initial avoidance feeding at an average received pressure their feeding and moving away. In the response generally occurred at distances level of 173 dB re 1 mPa on an cases of migrating gray (Eschrichtius of 5 to 8 km (2.7 to 4.3 nmi) from the (approximate) rms basis, and that 10 robustus) and bowhead (Balaena airgun array and 2 km (1.1 nmi) from percent of feeding whales interrupted mysticetus) whales, the observed the single airgun. However, some feeding at received levels of 163 dB re changes in behavior appeared to be of individual humpback whales, especially 1 mPa (rms). Those findings were little or no biological consequence to the males, approached within distances of generally consistent with the results of animals (Richardson, et al., 1995). They 100 to 400 m (328 to 1,312 ft), where the experiments conducted on larger simply avoided the sound source by maximum received level was 179 dB re numbers of gray whales that were displacing their migration route to 1 mPa (rms). migrating along the California coast varying degrees, but within the natural Data collected by observers during (Malme et al., 1984; Malme and Miles, boundaries of the migration corridors. several seismic surveys in the 1985), and western Pacific gray whales

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feeding off Sakhalin Island, Russia years, despite intermittent seismic cases, the avoidance radii for delphinids (Wursig et al., 1999; Gailey et al., 2007; exploration (and much ship traffic) in appear to be small, on the order of one Johnson et al., 2007; Yazvenko et al., that area for decades (Appendix A in km or less, and some individuals show 2007a, b), along with data on gray Malme et al., 1984; Richardson et al., no apparent avoidance. Captive whales off British Columbia (Bain and 1995; Allen and Angliss, 2010). The bottlenose dolphins and beluga whales Williams, 2006). western Pacific gray whale population (Delphinapterus leucas) exhibited Various species of Balaenoptera (blue, did not seem affected by a seismic changes in behavior when exposed to sei, fin, and minke whales) have survey in its feeding ground during a strong pulsed sounds similar in occasionally been seen in areas previous year (Johnson et al., 2007). duration to those typically used in ensonified by airgun pulses (Stone, Similarly, bowhead whales have seismic surveys (Finneran et al., 2000, 2003; MacLean and Haley, 2004; Stone continued to travel to the eastern 2002, 2005). However, the animals and Tasker, 2006), and calls from blue Beaufort Sea each summer, and their tolerated high received levels of sound and fin whales have been localized in numbers have increased notably, before exhibiting aversive behaviors. areas with airgun operations (e.g., despite seismic exploration in their Results of porpoises depend on McDonald et al., 1995; Dunn and summer and autumn range for many species. The limited available data Hernandez, 2009; Castellote et al., years (Richardson et al., 1987; Allen and suggest that harbor porpoises (Phocoena 2010). Sightings by observers on seismic Angliss, 2010). The history of phocoena) show stronger avoidance of vessels off the United Kingdom from coexistence between seismic surveys seismic operations than do Dall’s 1997 to 2000 suggest that, during times and baleen whales suggests that brief porpoises (Phocoenoides dalli) (Stone, of good sightability, sighting rates for exposures to sound pulses from any 2003; MacLean and Koski, 2005; Bain mysticetes (mainly fin and sei whales) single seismic survey are unlikely to and Williams, 2006; Stone and Tasker, were similar when large arrays of result in prolonged effects. 2006). Dall’s porpoises seem relatively airguns were shooting versus silent Toothed Whales—Little systematic tolerant of airgun operations (MacLean (Stone, 2003; Stone and Tasker, 2006). information is available about reactions and Koski, 2005; Bain and Williams, However, these whales tended to exhibit of toothed whales to noise pulses. Few 2006), although they too have been localized avoidance, remaining studies similar to the more extensive observed to avoid large arrays of significantly further (on average) from baleen whale/seismic pulse work operating airguns (Calambokidis and the airgun array during seismic summarized above have been reported Osmek, 1998; Bain and Williams, 2006). operations compared with non-seismic for toothed whales. However, there are This apparent difference in periods (Stone and Tasker, 2006). recent systematic studies on sperm responsiveness of these two porpoise Castellote et al. (2010) reported that whales (e.g., Gordon et al., 2006; species is consistent with their relative singing fin whales in the Mediterranean Madsen et al., 2006; Winsor and Mate, responsiveness to boat traffic and some moved away from an operating airgun 2006; Jochens et al., 2008; Miller et al., other acoustic sources (Richardson et array. 2009). There is an increasing amount of al., 1995; Southall et al., 2007). Ship-based monitoring studies of information about responses of various Most studies of sperm whales exposed baleen whales (including blue, fin, sei, odontocetes to seismic surveys based on to airgun sounds indicate that the sperm minke, and humpback whales) in the monitoring studies (e.g., Stone, 2003; whale shows considerable tolerance of Northwest Atlantic found that overall, Smultea et al., 2004; Moulton and airgun pulses (e.g., Stone, 2003; this group had lower sighting rates Miller, 2005; Bain and Williams, 2006; Moulton et al., 2005, 2006a; Stone and during seismic vs. non-seismic periods Holst et al., 2006; Stone and Tasker, Tasker, 2006; Weir, 2008). In most cases (Moulton and Holst, 2010). Baleen 2006; Potter et al., 2007; Hauser et al., the whales do not show strong whales as a group were also seen 2008; Holst and Smultea, 2008; Weir, avoidance, and they continue to call. significantly farther from the vessel 2008; Barkaszi et al., 2009; Richardson However, controlled exposure during seismic compared with non- et al., 2009; Moulton and Holst, 2010). experiments in the Gulf of Mexico seismic periods, and they were more Seismic operators and PSOs on indicate that foraging behavior was often seen to be swimming away from seismic vessels regularly see dolphins altered upon exposure to airgun sound the operating seismic vessel (Moulton and other small toothed whales near (Jochens et al., 2008; Miller et al., 2009; and Holst, 2010). Blue and minke operating airgun arrays, but in general Tyack, 2009). There are almost no whales were initially sighted there is a tendency for most delphinids specific data on the behavioral reactions significantly farther from the vessel to show some avoidance of operating of beaked whales to seismic surveys. during seismic operations compared to seismic vessels (e.g., Goold, 1996a,b,c; However, some northern bottlenose non-seismic periods; the same trend was Calambokidis and Osmek, 1998; Stone, whales (Hyperoodon ampullatus) observed for fin whales (Moulton and 2003; Moulton and Miller, 2005; Holst remained in the general area and Holst, 2010). Minke whales were most et al., 2006; Stone and Tasker, 2006; continued to produce high-frequency often observed to be swimming away Weir, 2008; Richardson et al., 2009; clicks when exposed to sound pulses from the vessel when seismic operations Barkaszi et al., 2009; Moulton and from distant seismic surveys (Gosselin were underway (Moulton and Holst, Holst, 2010). Some dolphins seem to be and Lawson, 2004; Laurinolli and 2010). attracted to the seismic vessel and Cochrane, 2005; Simard et al., 2005). Data on short-term reactions by floats, and some ride the bow wave of Most beaked whales tend to avoid cetaceans to impulsive noises are not the seismic vessel even when large approaching vessels of other types (e.g., necessarily indicative of long-term or arrays of airguns are firing (e.g., Wursig et al., 1998). They may also dive biologically significant effects. It is not Moulton and Miller, 2005). Nonetheless, for an extended period when known whether impulsive sounds affect small toothed whales more often tend to approached by a vessel (e.g., Kasuya, reproductive rate or distribution and head away, or to maintain a somewhat 1986), although it is uncertain how habitat use in subsequent days or years. greater distance from the vessel, when a much longer such dives may be as However, gray whales have continued to large array of airguns is operating than compared to dives by undisturbed migrate annually along the west coast of when it is silent (e.g., Stone and Tasker, beaked whales, which also are often North America with substantial 2006; Weir, 2008; Barry et al., 2010; quite long (Baird et al., 2006; Tyack et increases in the population over recent Moulton and Holst, 2010). In most al., 2006). Based on a single observation,

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Aguilar-Soto et al. (2006) suggested that airgun array passed by (e.g., Harris et al., sequences of airgun pulses during foraging efficiency of Cuvier’s beaked 2001; Moulton and Lawson, 2002; realistic field conditions. whales may be reduced by close Miller et al., 2005.). Ringed seal (Pusa Temporary Threshold Shift—TTS is approach of vessels. In any event, it is hispida) sightings averaged somewhat the mildest form of hearing impairment likely that most beaked whales would farther away from the seismic vessel that can occur during exposure to a also show strong avoidance of an when the airguns were operating than strong sound (Kryter, 1985). While approaching seismic vessel, although when they were not, but the difference experiencing TTS, the hearing threshold this has not been documented was small (Moulton and Lawson, 2002). rises and a sound must be stronger in explicitly. In fact, Moulton and Holst Similarly, in Puget Sound, sighting order to be heard. At least in terrestrial (2010) reported 15 sightings of beaked distances for harbor seals (Phoca mammals, TTS can last from minutes or whales during seismic studies in the vitulina) and California sea lions hours to (in cases of strong TTS) days. Northwest Atlantic; seven of those (Zalophus californianus) tended to be For sound exposures at or somewhat sightings were made at times when at larger when airguns were operating above the TTS threshold, hearing least one airgun was operating. There (Calambokidis and Osmek, 1998). sensitivity in both terrestrial and marine was little evidence to indicate that Previous telemetry work suggests that mammals recovers rapidly after beaked whale behavior was affected by avoidance and other behavioral exposure to the noise ends. Few data on airgun operations; sighting rates and reactions may be stronger than evident sound levels and durations necessary to distances were similar during seismic to date from visual studies (Thompson elicit mild TTS have been obtained for and non-seismic periods (Moulton and et al., 1998). marine mammals, and none of the Holst, 2010). During seismic exploration off Nova published data concern TTS elicited by There are increasing indications that Scotia, gray seals (Halichoerus grypus) exposure to multiple pulses of sound. some beaked whales tend to strand exposed to noise from airguns and Available data on TTS in marine when naval exercises involving mid- linear explosive charges did not react mammals are summarized in Southall et al. (2007). Table 2 (above) presents the frequency sonar operation are ongoing strongly (J. Parsons in Greene et al., nearby (e.g., Simmonds and Lopez- estimated distances from the Palmer’s 1985). Pinnipeds in both water and air, Jurado, 1991; Frantzis, 1998; NOAA and airguns at which the received energy sometimes tolerate strong noise pulses USN, 2001; Jepson et al., 2003; level (per pulse, flat-weighted) would be from non-explosive and explosive Hildebrand, 2005; Barlow and Gisiner, expected to be greater than or equal to scaring devices, especially if attracted to 2006; see also the ‘‘Stranding and 180 and 190 dB re 1 mPa (rms). the area for feeding and reproduction Mortality’’ section in this notice). These To avoid the potential for injury, (Mate and Harvey, 1987; Reeves et al., strandings are apparently a disturbance NMFS (1995, 2000) concluded that 1996). Thus pinnipeds are expected to response, although auditory or other cetaceans and pinnipeds should not be be rather tolerant of, or habituate to, injuries or other physiological effects exposed to pulsed underwater noise at repeated underwater sounds from may also be involved. Whether beaked received levels exceeding 180 and 190 whales would ever react similarly to distant seismic sources, at least when dB re 1 mPa (rms). NMFS believes that seismic surveys is unknown. Seismic the animals are strongly attracted to the to avoid the potential for Level A survey sounds are quite different from area. harassment, cetaceans and pinnipeds those of the sonar in operation during Hearing Impairment and Other Physical should not be exposed to pulsed the above-cited incidents. Effects underwater noise at received levels Odontocete reactions to large arrays of exceeding 180 and 190 dB re 1 mPa airguns are variable and, at least for Exposure to high intensity sound for (rms), respectively. The established 180 delphinids, seem to be confined to a a sufficient duration may result in and 190 dB (rms) criteria are not smaller radius than has been observed auditory effects such as a noise-induced considered to be the levels above which for the more responsive of some threshold shift—an increase in the TTS might occur. Rather, they are the mysticetes. However, other data suggest auditory threshold after exposure to received levels above which, in the view that some odontocete species, including noise (Finneran, Carder, Schlundt, and of a panel of bioacoustics specialists harbor porpoises, may be more Ridgway, 2005). Factors that influence convened by NMFS before TTS responsive than might be expected the amount of threshold shift include measurements for marine mammals given their poor low-frequency hearing. the amplitude, duration, frequency started to become available, one could Reactions at longer distances may be content, temporal pattern, and energy not be certain that there would be no particularly likely when sound distribution of noise exposure. The injurious effects, auditory or otherwise, propagation conditions are conducive to magnitude of hearing threshold shift to marine mammals. NMFS also transmission of the higher frequency normally decreases over time following assumes that cetaceans and pinnipeds components of airgun sound to the cessation of the noise exposure. The exposed to levels exceeding 160 dB re animals’ location (DeRuiter et al., 2006; amount of threshold shift just after 1 mPa (rms) may experience Level B Goold and Coates, 2006; Tyack et al., exposure is called the initial threshold harassment. 2006; Potter et al., 2007). shift. If the threshold shift eventually For toothed whales, researchers have Pinnipeds—Pinnipeds are not likely returns to zero (i.e., the threshold derived TTS information for to show a strong avoidance reaction to returns to the pre-exposure value), it is odontocetes from studies on the the airgun array. Visual monitoring from called temporary threshold shift (TTS) bottlenose dolphin and beluga. The seismic vessels has shown only slight (if (Southall et al., 2007). Researchers have experiments show that exposure to a any) avoidance of airguns by pinnipeds, studied TTS in certain captive single impulse at a received level of 207 and only slight (if any) changes in odontocetes and pinnipeds exposed to kPa (or 30 psi, p-p), which is equivalent behavior. In the Beaufort Sea, some strong sounds (reviewed in Southall et to 228 dB re 1 Pa (p-p), resulted in a 7 ringed seals avoided an area of 100 m al., 2007). However, there has been no and 6 dB TTS in the beluga whale at 0.4 to (at most) a few hundred meters specific documentation of TTS let alone and 30 kHz, respectively. Thresholds around seismic vessels, but many seals permanent hearing damage, i.e., returned to within 2 dB of the pre- remained within 100 to 200 m (328 to permanent threshold shift (PTS), in free- exposure level within 4 minutes of the 656 ft) of the trackline as the operating ranging marine mammals exposed to exposure (Finneran et al., 2002). For the

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one harbor porpoise tested, the received TTS, there has been further speculation sustained concurrently or in series. level of airgun sound that elicited onset about the possibility that some However, the cause or causes of most of TTS was lower (Lucke et al., 2009). individuals occurring very close to strandings are unknown (Geraci et al., If these results from a single animal are airguns might incur PTS (e.g., 1976; Eaton, 1979; Odell et al., 1980; representative, it is inappropriate to Richardson et al., 1995, p. 372ff; Best, 1982). Numerous studies suggest assume that onset of TTS occurs at Gedamke et al., 2008). Single or that the physiology, behavior, habitat similar received levels in all occasional occurrences of mild TTS are relationships, age, or condition of odontocetes (cf. Southall et al., 2007). not indicative of permanent auditory cetaceans may cause them to strand or Some cetaceans apparently can incur damage, but repeated or (in some cases) might pre-dispose them to strand when TTS at considerably lower sound single exposures to a level well above exposed to another phenomenon. These exposures than are necessary to elicit that causing TTS onset might elicit PTS. suggestions are consistent with the TTS in the beluga or bottlenose dolphin. Relationships between TTS and PTS conclusions of numerous other studies For baleen whales, there are no data, thresholds have not been studied in that have demonstrated that direct or indirect, on levels or properties marine mammals but are assumed to be combinations of dissimilar stressors of sound that are required to induce similar to those in humans and other commonly combine to kill an animal or TTS. The frequencies to which baleen terrestrial mammals (Southall et al., dramatically reduce its fitness, even whales are most sensitive are assumed 2007). PTS might occur at a received though one exposure without the other to be lower than those to which sound level at least several dBs above does not produce the same result odontocetes are most sensitive, and that inducing mild TTS if the animal (Chroussos, 2000; Creel, 2005; DeVries natural background noise levels at those were exposed to strong sound pulses et al., 2003; Fair and Becker, 2000; Foley low frequencies tend to be higher. As a with rapid rise times. Based on data et al., 2001; Moberg, 2000; Relyea, result, auditory thresholds of baleen from terrestrial mammals, a 2005a, 2005b; Romero, 2004; Sih et al., whales within their frequency band of precautionary assumption is that the 2004). best hearing are believed to be higher PTS threshold for impulse sounds (such Strandings Associated With Military (less sensitive) than are those of as airgun pulses as received close to the Active Sonar—Several sources have odontocetes at their best frequencies source) is at least 6 dB higher than the published lists of mass stranding events (Clark and Ellison, 2004). From this, it TTS threshold on a peak-pressure basis, of cetaceans in an attempt to identify is suspected that received levels causing and probably greater than 6 dB (Southall relationships between those stranding TTS onset may also be higher in baleen et al., 2007). events and military active sonar whales than those of odontocetes Given the higher level of sound (Hildebrand, 2004; IWC, 2005; Taylor et (Southall et al., 2007). necessary to cause PTS as compared al., 2004). For example, based on a In pinnipeds, researchers have not with TTS, it is considerably less likely review of stranding records between measured TTS thresholds associated that PTS would occur. Baleen whales 1960 and 1995, the International with exposure to brief pulses (single or generally avoid the immediate area Whaling Commission (2005) identified multiple) of underwater sound. Initial around operating seismic vessels, as do ten mass stranding events and evidence from more prolonged (non- some other marine mammals. concluded that, out of eight stranding pulse) exposures suggested that some Stranding and Mortality—When a events reported from the mid-1980s to pinnipeds (harbor seals in particular) living or dead marine mammal swims or the summer of 2003, seven had been incur TTS at somewhat lower received floats onto shore and becomes coincident with the use of mid- levels than do small odontocetes ‘‘beached’’ or incapable of returning to frequency active sonar and most exposed for similar durations (Kastak et sea, the event is termed a ‘‘stranding’’ involved beaked whales. al., 1999, 2005; Ketten et al., 2001). The (Geraci et al., 1999; Perrin and Geraci, Over the past 12 years, there have TTS threshold for pulsed sounds has 2002; Geraci and Lounsbury, 2005; been five stranding events coincident been indirectly extimated as being an NMFS, 2007). The legal definition for a with military mid-frequency active SEL of approximately 171 dB re 1 mPa2·s stranding under the MMPA is that ‘‘(A) sonar use in which exposure to sonar is (Southall et al., 2007) which would be a marine mammal is dead and is (i) on believed to have been a contributing equivalent to a single pulse with a a beach or shore of the United States; or factor to strandings: Greece (1996); the received level of approximately 181 to (ii) in waters under the jurisdiction of Bahamas (2000); Madeira (2000); Canary 186 dB re 1 mPa (rms), or a series of the United States (including any Islands (2002); and Spain (2006). Refer pulses for which the highest rms values navigable waters); or (B) a marine to Cox et al. (2006) for a summary of are a few dB lower. Corresponding mammal is alive and is (i) on a beach common features shared by the values for California sea lions and or shore of the United States and is strandings events in Greece (1996), northern elephant seals (Mirounga unable to return to the water; (ii) on a Bahamas (2000), Madeira (2000), and angustirostris) are likely to be higher beach or shore of the United States and, Canary Islands (2002); and Fernandez et (Kastak et al., 2005). although able to return to the water is al., (2005) for an additional summary of Permanent Threshold Shift—When in need of apparent medical attention; the Canary Islands 2002 stranding event. PTS occurs, there is physical damage to or (iii) in the waters under the Potential for Stranding From Seismic the sound receptors in the ear. In severe jurisdiction of the United States Surveys—Marine mammals close to cases, there can be total or partial (including any navigable waters), but is underwater detonations of high deafness, whereas in other cases, the unable to return to its natural habitat explosives can be killed or severely animal has an impaired ability to hear under its own power or without injured, and the auditory organs are sounds in specific frequency ranges assistance.’’ especially susceptible to injury (Ketten (Kryter, 1985). There is no specific Marine mammals are known to strand et al., 1993; Ketten, 1995). However, evidence that exposure to pulses of for a variety of reasons, such as explosives are no longer used in marine airgun sound can cause PTS in any infectious agents, biotoxicosis, waters for commercial seismic surveys marine mammal, even with large arrays starvation, fishery interaction, ship or (with rare exceptions) for seismic of airguns. However, given the strike, unusual oceanographic or research. These methods have been possibility that mammals close to an weather events, sound exposure, or replaced entirely by airguns or related airgun array might incur at least mild combinations of these stressors non-explosive pulse generators. Airgun

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pulses are less energetic and have mammals will result from military sonar surveys disrupt diving patterns of deep- slower rise times, and there is no and seismic surveys. However, evidence diving species, this might perhaps result specific evidence that they can cause that sonar signals can, in special in bubble formation and a form of the serious injury, death, or stranding even circumstances, lead (at least indirectly) bends, as speculated to occur in beaked in the case of large airgun arrays. to physical damage and mortality (e.g., whales exposed to sonar. However, However, the association of strandings Balcomb and Claridge, 2001; NOAA and there is no specific evidence of this of beaked whales with naval exercises USN, 2001; Jepson et al., 2003; upon exposure to airgun pulses. involving mid-frequency active sonar Ferna´ndez et al., 2004, 2005; In general, very little is known about (non-pulse sound) and, in one case, the Hildebrand 2005; Cox et al., 2006) the potential for seismic survey sounds co-occurrence of an L–DEO seismic suggests that caution is warranted when (or other types of strong underwater survey (Malakoff, 2002; Cox et al., dealing with exposure of marine sounds) to cause non-auditory physical 2006), has raised the possibility that mammals to any high-intensity sound. effects in marine mammals. Such beaked whales exposed to strong There is no conclusive evidence of effects, if they occur at all, would ‘‘pulsed’’ sounds could also be cetacean strandings or deaths at sea as presumably be limited to short distances susceptible to injury and/or behavioral a result of exposure to seismic surveys, and to activities that extend over a reactions that can lead to stranding (e.g., but a few cases of strandings in the prolonged period. The available data do Hildebrand, 2005; Southall et al., 2007). general area where a seismic survey was not allow identification of a specific Specific sound-related processes that ongoing have led to speculation exposure level above which non- lead to strandings and mortality are not concerning a possible link between auditory effects can be expected well documented, but may include: seismic surveys and strandings. (Southall et al., 2007), or any (1) Swimming in avoidance of a Suggestions that there was a link meaningful quantitative predictions of sound into shallow water; between seismic surveys and strandings the numbers (if any) of marine mammals (2) A change in behavior (such as a of humpback whales in Brazil (Engel et that might be affected in those ways. change in diving behavior) that might al., 2004) were not well founded (IAGC, Marine mammals that show behavioral contribute to tissue damage, gas bubble 2004; IWC, 2007). In September 2002, avoidance of seismic vessels, including formation, hypoxia, cardiac arrhythmia, there was a stranding of two Cuvier’s most baleen whales, some odontocetes, hypertensive hemorrhage or other forms beaked whales in the Gulf of California, and some pinnipeds, are especially of trauma; Mexico, when the L–DEO vessel R/V unlikely to incur non-auditory physical (3) A physiological change such as a Maurice Ewing was operating a 20 effects. vestibular response leading to a airgun (8,490 in3) array in the general behavioral change or stress-induced area. The link between the stranding Potential Effects of Other Acoustic hemorrhagic diathesis, leading in turn and the seismic surveys was Devices and Sources to tissue damage; and inconclusive and not based on any Multibeam Echosounder (4) Tissue damage directly from sound physical evidence (Hogarth, 2002; exposure, such as through acoustically- Yoder, 2002). Nonetheless, the Gulf of NSF and ASC will operate the Simrad mediated bubble formation and growth California incident plus the beaked EM120 multibeam echosounder from or acoustic resonance of tissues. whale strandings near naval exercises the source vessel during the planned Some of these mechanisms are involving use of mid-frequency sonar study. Sounds from the multibeam unlikely to apply in the case of impulse suggests a need for caution in echosounder are very short pulses, sounds. However, there are indications conducting seismic surveys in areas occurring for 15 ms, depending on water that gas-bubble disease (analogous to occupied by beaked whales until more depth. Most of the energy in the sound ‘‘the bends’’), induced in supersaturated is known about effects of seismic pulses emitted by the multibeam tissue by a behavioral response to surveys on those species (Hildebrand, echosounder is at frequencies near 12 acoustic exposure, could be a pathologic 2005). No injuries of beaked whales are kHz, and the maximum source level is mechanism for the strandings and anticipated during the proposed study 242 dB re 1 mPa (rms). The beam is ° mortality of some deep-diving cetaceans because of: narrow (1 to 2 ) in fore-aft extent and exposed to sonar. The evidence for this (1) The high likelihood that any wide (150°) in the cross-track extent. remains circumstantial and associated beaked whales nearby would avoid the Each ping consists of nine (in water with exposure to naval mid-frequency approaching vessel before being greater than 1,000 m deep) consecutive sonar, not seismic surveys (Cox et al., exposed to high sound levels, and successive fan-shaped transmissions 2006; Southall et al., 2007). (2) Differences between the sound (segments) at different cross-track Seismic pulses and mid-frequency sources operated by L–DEO and those angles. Any given mammal at depth sonar signals are quite different, and involved in the naval exercises near the trackline would be in the main some mechanisms by which sonar associated with strandings. beam for only one or two of the nine sounds have been hypothesized to affect Non-auditory Physiological Effects— segments. Also, marine mammals that beaked whales are unlikely to apply to Non-auditory physiological effects or encounter the Simrad EM120 are airgun pulses. Sounds produced by injuries that theoretically might occur in unlikely to be subjected to repeated airgun arrays are broadband impulses marine mammals exposed to strong pulses because of the narrow fore-aft with most of the energy below one kHz. underwater sound include stress, width of the beam and will receive only Typical military mid-frequency sonar neurological effects, bubble formation, limited amounts of pulse energy emits non-impulse sounds at resonance, and other types of organ or because of the short pulses. Animals frequencies of 2 to 10 kHz, generally tissue damage (Cox et al., 2006; Southall close to the ship (where the beam is with a relatively narrow bandwidth at et al., 2007). Studies examining such narrowest) are especially unlikely to be any one time. A further difference effects are limited. However, resonance ensonified for more than one 15 ms between seismic surveys and naval effects (Gentry, 2002) and direct noise- pulse (or two pulses if in the overlap exercises is that naval exercises can induced bubble formations (Crum et al., area). Similarly, Kremser et al. (2005) involve sound sources on more than one 2005) are implausible in the case of noted that the probability of a cetacean vessel. Thus, it is not appropriate to exposure to an impulsive broadband swimming through the area of exposure expect that the same to marine source like an airgun array. If seismic when a multibeam echosounder emits a

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pulse is small. The animal would have behavior when exposed to 1 second because of the short pulses. Animals to pass the transducer at close range and tonal signals at frequencies similar to close to the ship (where the beam is be swimming at speeds similar to the those that will be emitted by the narrowest) are especially unlikely to be vessel in order to receive the multiple multibeam echosounder used by NSF ensonified for more than one 15 ms pulses that might result in sufficient and ASC, and to shorter broadband pulse (or two pulses if in the overlap exposure to cause TTS. pulsed signals. Behavioral changes area). Similarly, Kremser et al. (2005) Navy sonars that have been linked to typically involved what appeared to be noted that the probability of a cetacean avoidance reactions and stranding of deliberate attempts to avoid the sound swimming through the area of exposure cetaceans: (1) Generally have longer exposure (Schlundt et al., 2000; when a multibeam echosounder emits a pulse duration than the Simrad EM120; Finneran et al., 2002; Finneran and pulse is small. The animal would have and (2) are often directed close to Schlundt, 2004). The relevance of those to pass the transducer at close range and horizontally, as well as omnidirectional, data to free-ranging odontocetes is be swimming at speeds similar to the versus more downward and narrowly uncertain, and in any case, the test vessel in order to receive the multiple for the multibeam echosounder. The sounds were quite different in duration pulses that might result in sufficient area of possible influence of the as compared with those from a exposure to cause TTS. multibeam echosounder is much multibeam echosounder. Navy sonars that have been linked to smaller—a narrow band below the Hearing Impairment and Other avoidance reactions and stranding of source vessel. Also, the duration of Physical Effects—Given several cetaceans: (1) Generally have longer exposure for a given marine mammal stranding events that have been pulse duration than the Simrad EM120; can be much longer for naval sonar. associated with the operation of naval and (2) are often directed close to During NSF and ASC’s operations, the sonar in specific circumstances, there is horizontally versus more downward for individual pulses will be very short, and concern that mid-frequency sonar the echosounder. The area of possible a given mammal would not receive sounds can cause serious impacts to influence of the single-beam many of the downward-directed pulses marine mammals (see above). However, echosounder is much smaller—a narrow as the vessel passes by. Possible effects the multibeam echosounder proposed band below the source vessel. Also, the of a multibeam echosounder on marine for use by NSF and ASC is quite duration of exposure for a given marine mammals are described below. different than sonar used for Navy mammal can be much longer for naval Masking—Marine mammal operations. Pulse duration of the sonar. During NSF and ASC’s communications will not be masked multibeam echosounder is very short operations, the individual pulses will be appreciably by the multibeam relative to the naval sonar. Also, at any very short, and a given mammal would echosounder signals given the low duty given location, an individual marine not receive many of the downward- cycle of the echosounder and the brief mammal would be in the beam of the directed pulses as the vessel passes by. period when an individual mammal is multibeam echosounder for much less Possible effects of a single-beam likely to be within its beam. time given the generally downward echosounder on marine mammals are Furthermore, in the case of baleen orientation of the beam and its narrow described below. whales, the multibeam echosounder fore-aft beamwidth; Navy sonar often Masking—Marine mammal signals (12 kHz) do not overlap with the uses near-horizontally-directed sound. communications will not be masked predominant frequencies in the calls, Those factors would all reduce the appreciably by the single-beam which would avoid any significant sound energy received from the echosounder signals given the low duty masking. multibeam echosounder rather cycle of the echosounder and the brief Behavioral Responses—Behavioral drastically relative to that from naval period when an individual mammal is reactions of free-ranging marine sonar. likely to be within its beam. mammals to sonars, echosounders, and NMFS believes that the brief exposure Furthermore, in the case of baleen other sound sources appear to vary by of marine mammals to one pulse, or whales, the single-beam echosounder species and circumstance. Observed small numbers of signals, from the signals (12 or 3.5 kHz) do not overlap reactions have included silencing and multi-beam echosounder in this with the predominant frequencies in the dispersal by sperm whales (Watkins et particular case is not likely to result in calls, which would avoid any significant al., 1985), increased vocalizations and the harassment of marine mammals. masking. no dispersal by pilot whales (Rendell Behavioral Responses—Behavioral and Gordon, 1999), and the previously- Single-Beam Echosounder reactions of free-ranging marine mentioned beachings by beaked whales. NSF and ASC will operate the mammals to sonars, echosounders, and During exposure to a 21 to 25 kHz Knudsen 3260 and Bathy 2000 single- other sound sources appear to vary by ‘‘whale-finding’’ sonar with a source beam echosounders from the source species and circumstance. Observed level of 215 dB re 1 mPa, gray whales vessel during the planned study. reactions have included silencing and reacted by orienting slightly away from Sounds from the single-beam dispersal by sperm whales (Watkins et the source and being deflected from echosounder are very short pulses, al., 1985), increased vocalizations and their course by approximately 200 m depending on water depth. Most of the no dispersal by pilot whales (Rendell (656.2 ft) (Frankel, 2005). When a 38 energy in the sound pulses emitted by and Gordon, 1999), and the previously- kHz echosounder and a 150 kHz the singlebeam echosounder is at mentioned beachings by beaked whales. acoustic Doppler current profiler were frequencies near 12 kHz for bottom- During exposure to a 21 to 25 kHz transmitting during studies in the tracking purposes or at 3.5 kHz in the ‘‘whale-finding’’ sonar with a source Eastern Tropical Pacific, baleen whales sub-bottom profiling mode. The sonar level of 215 dB re 1 mPa, gray whales showed no significant responses, while emits energy in a 30° beam from the reacted by orienting slightly away from spotted and spinner dolphins were bottom of the ship. Marine mammals the source and being deflected from detected slightly more often and beaked that encounter the Simrad EM120 are their course by approximately 200 m whales less often during visual surveys unlikely to be subjected to repeated (656.2 ft) (Frankel, 2005). When a 38 (Gerrodette and Pettis, 2005). pulses because of the narrow fore–aft kHz echosounder and a 150 kHz ADCP Captive bottlenose dolphins and a width of the beam and will receive only were transmitting during studies in the beluga whale exhibited changes in limited amounts of pulse energy Eastern Tropical Pacific, baleen whales

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showed no significant responses, while because of the short pulses. Animals whales less often during visual surveys spotted and spinner dolphins were close to the ship (where the beam is (Gerrodette and Pettis, 2005). detected slightly more often and beaked narrowest) are especially unlikely to be Captive bottlenose dolphins and a whales less often during visual surveys ensonified for more than one 15 ms beluga whale exhibited changes in (Gerrodette and Pettis, 2005). pulse (or two pulses if in the overlap behavior when exposed to 1 second Captive bottlenose dolphins and a area). Similarly, Kremser et al. (2005) tonal signals at frequencies similar to beluga whale exhibited changes in noted that the probability of a cetacean those that will be emitted by the behavior when exposed to 1 second swimming through the area of exposure multibeam echosounder used by NSF tonal signals at frequencies similar to when the ADCPs emits a pulse is small. and ASC, and to shorter broadband those that will be emitted by the single- The animal would have to pass the pulsed signals. Behavioral changes beam echosounder used by NSF and transducer at close range and be typically involved what appeared to be ASC, and to shorter broadband pulsed swimming at speeds similar to the deliberate attempts to avoid the sound signals. Behavioral changes typically vessel in order to receive the multiple exposure (Schlundt et al., 2000; involved what appeared to be deliberate pulses that might result in sufficient Finneran et al., 2002; Finneran and attempts to avoid the sound exposure exposure to cause TTS. Schlundt, 2004). The relevance of those (Schlundt et al., 2000; Finneran et al., Navy sonars that have been linked to data to free-ranging odontocetes is 2002; Finneran and Schlundt, 2004). avoidance reactions and stranding of uncertain, and in any case, the test The relevance of those data to free- cetaceans: (1) Generally have longer sounds were quite different in duration ranging odontocetes is uncertain, and in pulse duration than the ADCPs; and (2) as compared with those from a any case, the test sounds were quite are often directed close to horizontally multibeam echosounder. different in duration as compared with versus more downward for the ADCPs. Hearing Impairment and Other those from a single-beam echosounder. The area of possible influence of the Physical Effects—Given recent stranding Hearing Impairment and Other multibeam echosounder is much events that have been associated with Physical Effects—Given recent stranding smaller—a narrow band below the the operation of naval sonar, there is events that have been associated with source vessel. Also, the duration of concern that mid-frequency sonar the operation of naval sonar, there is exposure for a given marine mammal sounds can cause serious impacts to concern that mid-frequency sonar can be much longer for naval sonar. marine mammals (see above). However, sounds can cause serious impacts to During NSF and ASC’s operations, the the multibeam echosounder proposed marine mammals (see above). However, individual pulses will be very short, and for use by NSF and ASC is quite the single-beam echosounder proposed a given mammal would not receive different than sonar used for Navy for use by NSF and ASC is quite many of the downward-directed pulses operations. Pulse duration of the ADCP different than sonar used for Navy as the vessel passes by. Possible effects is very short relative to the naval sonar. operations. Pulse duration of the single- of the ADCPs on marine mammals are Also, at any given location, an beam echosounder is very short relative described below. individual marine mammal would be in to the naval sonar. Also, at any given Masking—Marine mammal the beam of the multibeam echosounder location, an individual marine mammal communications will not be masked for much less time given the generally would be in the beam of the single-beam appreciably by the ADCP signals given downward orientation of the beam and echosounder for much less time given the low duty cycle of the ADCPs and the its narrow fore-aft beamwidth; Navy the generally downward orientation of brief period when an individual sonar often uses near-horizontally- the beam and its narrow fore-aft mammal is likely to be within its beam. directed sound. Those factors would all beamwidth; Navy sonar often uses near- Furthermore, in the case of baleen reduce the sound energy received from horizontally-directed sound. Those whales, the ADCP signals (150 kHz) do the multibeam echosounder rather factors would all reduce the sound not overlap with the predominant drastically relative to that from naval energy received from the single-beam frequencies in the calls, which would sonar. echosounder rather drastically relative avoid any significant masking. NMFS believes that the brief exposure to that from naval sonar. Behavioral Responses—Behavioral of marine mammals to one pulse, or NMFS believes that the brief exposure reactions of free-ranging marine small numbers of signals, from the of marine mammals to one pulse, or mammals to sonars, echosounders, and multi-beam echosounder in this small numbers of signals, from the other sound sources appear to vary by particular case is not likely to result in single-beam echosounder in this species and circumstance. Observed the harassment of marine mammals. particular case is not likely to result in reactions have included silencing and Acoustic Locator the harassment of marine mammals. dispersal by sperm whales (Watkins et al., 1985), increased vocalizations and NSF and ASC will operate the Acoustic Doppler Current Profilers no dispersal by pilot whales (Rendell acoustic locator from the source vessel NSF and ASC will operate the ADCP and Gordon, 1999), and the previously- during the planned study during Teledyne RDI VM–150 and ADCP Ocean mentioned beachings by beaked whales. sampling. Sounds from the locator are Surveyor OS–38 from the source vessel During exposure to a 21 to 25 kHz very short pulses, occurring for 5 ms. during the planned study. Most of the ‘‘whale-finding’’ sonar with a source Most of the energy in the sound pulses energy in the sound pulses emitted by level of 215 dB re 1 mPa, gray whales emitted by the acoustic locator is at the ADCPs operate at frequencies near reacted by orienting slightly away from frequencies near 12 kHz, and the 150 kHz, and the maximum source level the source and being deflected from maximum source level is 162 dB re 1 is 223.6 dB re 1 mPa (rms). Sound energy their course by approximately 200 m mPa (rms). Animals close to the ship from the ADCP is emitted as a 30° (656.2 ft) (Frankel, 2005). When a 38 (where the beam is narrowest) are conically-shaped beam. Marine kHz echosounder and a 150 kHz ADCP especially unlikely to be ensonified for mammals that encounter the ADCPs are were transmitting during studies in the more than one 5 ms pulse (or two pulses unlikely to be subjected to repeated Eastern Tropical Pacific, baleen whales if in the overlap area). Similarly, pulses because of the narrow fore–aft showed no significant responses, while Kremser et al. (2005) noted that the width of the beam and will receive only spotted and spinner dolphins were probability of a cetacean swimming limited amounts of pulse energy detected slightly more often and beaked through the area of exposure when a

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multibeam echosounder emits a pulse is as a result of coring, dredging, and stationary vessels, the sounds often small. The animal would have to pass sediment sampling (NSF/USGS PEIS, seem to be ignored. Some whales the transducer at close range and be 2011). NMFS believes that the brief approach the sources of these sounds. swimming at speeds similar to the exposure of marine mammals to noise When vessels approach whales slowly vessel in order to receive the multiple created from the mechanical action of and non-aggressively, whales often pulses that might result in sufficient the devices for core and dredge exhibit slow and inconspicuous exposure to cause TTS. sampling is not likely to result in the avoidance maneuvers. In response to Masking—Marine mammal harassment of marine mammals. strong or rapidly changing vessel noise, communications will not be masked baleen whales often interrupt their Vessel Movement and Collisions appreciably by the acoustic locator normal behavior and swim rapidly signals given the low duty cycle and the Vessel movement in the vicinity of away. Avoidance is especially strong low source level. Furthermore, in the marine mammals has the potential to when a boat heads directly toward the case of baleen whales, the acoustic result in either a behavioral response or whale.’’ locator signals (12 kHz) do not overlap a direct physical interaction. Both Behavioral responses to stimuli are with the predominant frequencies in the scenarios are discussed below in this complex and influenced to varying calls, which would avoid any significant section. degrees by a number of factors, such as masking. Behavioral Responses to Vessel species, behavioral contexts, Behavioral Responses—Behavioral Movement—There are limited data geographical regions, source reactions of free-ranging marine concerning marine mammal behavioral characteristics (moving or stationary, mammals to sonars, echosounders, and responses to vessel traffic and vessel speed, direction, etc.), prior experience other sound sources appear to vary by noise, and a lack of consensus among of the animal and physical status of the species and circumstance. Observed scientists with respect to what these animal. For example, studies have reactions have included silencing and responses mean or whether they result shown that beluga whales’ reaction dispersal by sperm whales (Watkins et in short-term or long-term adverse varied when exposed to vessel noise al., 1985), increased vocalizations and effects. In those cases where there is a and traffic. In some cases, beluga whales no dispersal by pilot whales (Rendell busy shipping lane or where there is a exhibited rapid swimming from ice- and Gordon, 1999), and the previously- large amount of vessel traffic, marine breaking vessels up to 80 km (43.2 nmi) mentioned beachings by beaked whales. mammals (especially low frequency away and showed changes in surfacing, During exposure to a 21 to 25 kHz specialists) may experience acoustic breathing, diving, and group ‘‘whale-finding’’ sonar with a source masking (Hildebrand, 2005) if they are composition in the Canadian high level of 215 dB re 1 mPa, gray whales present in the area (e.g., killer whales in Arctic where vessel traffic is rare (Finley reacted by orienting slightly away from Puget Sound; Foote et al., 2004; Holt et et al., 1990). In other cases, beluga the source and being deflected from al., 2008). In cases where vessels whales were more tolerant of vessels, their course by approximately 200 m actively approach marine mammals but responded differentially to certain (656.2 ft) (Frankel, 2005). When a 38 (e.g., whale watching or dolphin vessels and operating characteristics by kHz echosounder and a 150 kHz ADCP watching boats), scientists have reducing their calling rates (especially were transmitting during studies in the documented that animals exhibit altered older animals) in the St. Lawrence River Eastern Tropical Pacific, baleen whales behavior such as increased swimming where vessel traffic is common (Blane showed no significant responses, while speed, erratic movement, and active and Jaakson, 1994). In Bristol Bay, spotted and spinner dolphins were avoidance behavior (Bursk, 1983; Alaska, beluga whales continued to feed detected slightly more often and beaked Acevedo, 1991; Baker and MacGibbon, when surrounded by fishing vessels and whales less often during visual surveys 1991; Trites and Bain, 2000; Williams et resisted dispersal even when (Gerrodette and Pettis, 2005). al., 2002; Constantine et al., 2003), purposefully harassed (Fish and Vania, NMFS believes that the brief exposure reduced blow interval (Ritcher et al., 1971). of marine mammals to one pulse, or 2003), disruption of normal social In reviewing more than 25 years of small numbers of signals, from the behaviors (Lusseau, 2003, 2006), and the whale observation data, Watkins (1986) acoustic locator is not likely to result in shift of behavioral activities which may concluded that whale reactions to vessel the harassment of marine mammals. increase energetic costs (Constantine et traffic were ‘‘modified by their previous al., 2003, 2004). A detailed review of experience and current activity: Core and Dredge Sampling marine mammal reactions to ships and habituation often occurred rapidly, During coring and dredging, the noise boats is available in Richardson et al., attention to other stimuli or created by the mechanical action of the (1995). For each of the marine mammal preoccupation with other activities devices on the seafloor is expected to be taxonomy groups, Richardson et al., sometimes overcame their interest or perceived by nearby fish and other (1995) provides the following wariness of stimuli.’’ Watkins noticed marine organisms and deter them from assessment regarding reactions to vessel that over the years of exposure to ships swimming toward the source. Coring traffic: in the Cape Cod area, minke whales and dredging activities would be highly Toothed whales—‘‘In summary, changed from frequent positive interest localized and short-term in duration and toothed whales sometimes show no (e.g., approaching vessels) to generally would not be expected to significantly avoidance reaction to vessels, or even uninterested reactions; fin whales interfere with marine mammal behavior. approach them. However, avoidance can changed from mostly negative (e.g., The potential direct effects include occur, especially in response to vessels avoidance) to uninterested reactions; fin temporary localized disturbance or of types used to chase or hunt the whales changed from mostly negative displacement from associated sounds animals. This may cause temporary (e.g., avoidance) to uninterested and/or physical movement/actions of displacement, but we know of no clear reactions; right whales apparently the operations. Additionally, the evidence that toothed whales have continued the same variety of responses potential indirect effects may consist of abandoned significant parts of their (negative, uninterested, and positive very localized and transitory/short-term range because of vessel traffic.’’ responses) with little change; and disturbance of bottom habitat and Baleen whales—‘‘When baleen whales humpbacks dramatically changed from associated prey in shallow-water areas receive low-level sounds from distant or mixed responses that were often

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negative to reactions that were often between the occurrence of a whale Icebreaking Activities strongly positive. Watkins (1986) strike and the speed of the vessel Icebreakers produce more noise while summarized that ‘‘whales near shore, involved in the collision. The authors breaking ice than ships of comparable even in regions with low vessel traffic, concluded that most deaths occurred size due, primarily, to the sounds of generally have become less wary of when a vessel was traveling in excess of propeller cavitating (Richardson et al., boats and their noises, and they have 13 kts (24.1 km/hr, 14.9 mph). 1995). Multi-year ice, which is expected NSF and ASC’s proposed operation of appeared to be less easily disturbed than to be encountered in the proposed one source vessel for the proposed low- previously. In particular locations with survey area. Icebreakers commonly back energy seismic survey is relatively small intense shipping and repeated and ram into heavy ice until losing in scale compared to the number of approaches by boats (such as the whale- momentum to make way. The highest commercial ships transiting at higher watching areas of Stellwagen Bank), noise levels usually occur while backing speeds in the same areas on an annual more and more whales had positive full astern in preparation to ram forward basis. The probability of vessel and reactions to familiar vessels, and they through the ice. Overall the noise also occasionally approached other marine mammal interactions occurring generated by an icebreaker pushing ice boats and yachts in the same ways.’’ during the proposed low-energy seismic was 10 to 15 dB greater than the noise Although the radiated sound from the survey is unlikely due to the Palmer’s Palmer will be audible to marine slow operational speed, which is produced by the ship underway in open mammals over a large distance, it is typically 5 kts. Outside of seismic water (Richardson et al., 1995). In unlikely that marine mammals will operations, the Palmer’s cruising speed general, the Antarctic and Southern respond behaviorally (in a manner that would be approximately 10.1 to 14.5 Ocean is a noisy environment. Calving NMFS would consider harassment kts, which is generally below the speed and grounding icebergs as well as the under the MMPA) to low-level distant at which studies have noted reported break-up of ice sheets, can produce a shipping noise as the animals in the increases of marine mammal injury or large amount of underwater noise. Little area are likely to be habituated to such death (Laist et al., 2001). information is available about the noises (Nowacek et al., 2004). In light of As a final point, the Palmer has a increased sound levels due to these facts, NMFS does not expect the number of other advantages for avoiding icebreaking. Palmer’s movements to result in Level B ship strikes as compared to most Cetaceans—Few studies have been harassment. commercial merchant vessels, including conducted to evaluate the potential Vessel Strike—Ship strikes of the following: the Palmer’s bridge and interference of icebreaking noise with cetaceans can cause major wounds, aloft observation tower offers good marine mammal vocalizations. Erbe and which may lead to the death of the visibility to visually monitor for marine Farmer (1998) measured masked hearing animal. An animal at the surface could mammal presence; PSOs posted during thresholds of a captive beluga whale. be struck directly by a vessel, a operations scan the ocean for marine They reported that the recording of a surfacing animal could hit the bottom of mammals and must report visual alerts CCG ship, Henry Larsen, ramming ice in a vessel, or an animal just below the of marine mammal presence to crew; the Beaufort Sea, masked recordings of surface could be cut by a vessel’s and the PSOs receive extensive training beluga vocalizations at a noise to signal propeller. The severity of injuries that covers the fundamentals of visual pressure ratio of 18 dB, when the noise typically depends on the size and speed observing for marine mammals and pressure level was eight times as high as of the vessel (Knowlton and Kraus, information about marine mammals and the call pressure. Erbe and Farmer 2001; Laist et al., 2001; Vanderlaan and their identification at sea. (2000) also predicted when icebreaker Taggart, 2007). noise would affect beluga whales The most vulnerable marine mammals Entanglement through software that combined a sound are those that spend extended periods of Entanglement can occur if wildlife propagation model and beluga whale time at the surface in order to restore becomes immobilized in survey lines, impact threshold models. They again oxygen levels within their tissues after cables, nets, or other equipment that is used the data from the recording of the deep dives (e.g., the sperm whale). In moving through the water column. The Henry Larsen in the Beaufort Sea and addition, some baleen whales, such as proposed low-energy seismic survey predicted that masking of beluga whale the North Atlantic right whale, seem would require towing approximately a vocalizations could extend between 40 generally unresponsive to vessel sound, single 100 m cable streamer. This large and 71 km (21.6 and 38.3 nmi) near the making them more susceptible to vessel of an array carries the risk of surface. Lesage et al. (1999) report that collisions (Nowacek et al., 2004). These entanglement for marine mammals. beluga whales changed their call type species are primarily large, slow moving Wildlife, especially slow moving and call frequency when exposed to whales. Smaller marine mammals (e.g., individuals, such as large whales, have boat noise. It is possible that the whales bottlenose dolphin) move quickly a low probability of becoming entangled adapt to the ambient noise levels and through the water column and are often due to slow speed of the survey vessel are able to communicate despite the seen riding the bow wave of large ships. and onboard monitoring efforts. In May sound. Given the documented reaction Marine mammal responses to vessels 2011, there was one recorded of belugas to ships and icebreakers it is may include avoidance and changes in entanglement of an olive ridley sea highly unlikely that beluga whales dive pattern (NRC, 2003). turtle (Lepidochelys olivacea) in the R/ would remain in the proximity of An examination of all known ship V Marcus G. Langseth’s barovanes after vessels where vocalizations would be strikes from all shipping sources the conclusion of a seismic survey off masked. (civilian and military) indicates vessel Costa Rica. There have been cases of Beluga whales have been documented speed is a principal factor in whether a baleen whales, mostly gray whales swimming rapidly away from ships and vessel strike results in death (Knowlton (Heyning, 1990), becoming entangled in icebreakers in the Canadian high Arctic and Kraus, 2001; Laist et al., 2001; fishing lines. The probability for when a ship approaches to within 35 to Jensen and Silber, 2003; Vanderlaan and entanglement of marine mammals is 50 km (18.9 to 27 nmi), and they may Taggart, 2007). In assessing records in considered not significant because of travel up to 80 km (43.2 nmi) from the which vessel speed was known, Laist et the vessel speed and the monitoring vessel’s track (Richardson et al., 1995). al. (2001) found a direct relationship efforts onboard the survey vessel. It is expected that belugas avoid

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icebreakers as soon as they detect the practicable adverse impact on affected requires that seals be able to adapt to ships (Cosens and Dueck, 1993). marine mammal species and stocks. changes in sea, ice, and snow However, the reactions of beluga whales conditions, and they therefore create Anticipated Effects on Marine Mammal to ships vary greatly and some animals new breathing holes and lairs Habitat may become habituated to high levels of throughout the winter and spring ambient noise (Erbe and Darmber, The proposed seismic survey is not (Hammill and Smith, 1989). In addition, 2000). anticipated to have any permanent seals often use open leads and cracks in There is little information about the impact on habitats used by the marine the ice to surface and breathe (Smith effects of icebreaking ships on baleen mammals in the proposed survey area, and Stirling, 1975). Disturbance of the whales. Migrating bowhead whales including the food sources they use (i.e. ice will occur in a very small area appeared to avoid an area around a drill fish and invertebrates). Additionally, no relative to the Southern Ocean ice-pack site by greater than 25 km (13.5 mi) physical damage to any habitat is and no significant impact on marine where an icebreaker was working in the anticipated as a result of conducting mammals is anticipated by icebreaking Beaufort Sea. There was intensive airgun operations during the proposed during the proposed low-energy seismic icebreaking daily in support of the low-energy seismic survey. While it is survey. The next section discusses the drilling activities (Brewer et al., 1993). anticipated that the specified activity potential impacts of anthropogenic Migrating bowheads also avoided a may result in marine mammals avoiding sound sources on common marine nearby drill site at the same time of year certain areas due to temporary mammal prey in the proposed survey where little icebreaking was being ensonification, this impact to habitat is area (i.e., fish and invertebrates). temporary and was considered in conducted (LGL and Greeneridge, 1987). Anticipated Effects on Fish It is unclear as to whether the drilling further detail earlier in this document, activities, icebreaking operations, or the as behavioral modification. The main One reason for the adoption of airguns ice itself might have been the cause for impact associated with the proposed as the standard energy source for marine activity will be temporarily elevated seismic surveys is that, unlike the whale’s diversion. Bowhead whales noise levels and the associated direct explosives, they have not been are not expected to occur in the effects on marine mammals in any associated with large-scale fish kills. proximity of the proposed action area. particular area of the approximately However, existing information on the Pinnipeds—Brueggeman et al. (1992) 5,628 km2 proposed project area, impacts of seismic surveys on marine reported on the reactions of seals to an previously discussed in this notice. fish and invertebrate populations is icebreaker during activities at two The Palmer is designed for limited. There are three types of prospects in the Chukchi Sea. Reactions continuous passage at 3 kts through ice potential effects of exposure to seismic of seals to the icebreakers varied 1 m thick. During the proposed project surveys: (1) Pathological, (2) between the two prospects. Most (67%) the Palmer will typically encounter physiological, and (3) behavioral. seals did not react to the icebreaker at first- or second-year ice while avoiding Pathological effects involve lethal and either prospect. Reaction at one thicker ice floes, particularly large intact temporary or permanent sub-lethal prospect was greatest during icebreaking multi-year ice, whenever possible. In injury. Physiological effects involve activity (running/maneuvering/jogging) addition, the vessel will follow leads temporary and permanent primary and and was 0.23 km (0.12 nmi) of the vessel when possible while following the secondary stress responses, such as and lowest for animals beyond 0.93 km survey route. As the vessel passes changes in levels of enzymes and (0.5 nmi). At the second prospect through the ice, the ship causes the ice proteins. Behavioral effects refer to however, seal reaction was lowest to part and travel alongside the hull. temporary and (if they occur) permanent during icebreaking activity with higher This ice typically returns to fill the changes in exhibited behavior (e.g., and similar levels of response during wake as the ship passes. The effects are startle and avoidance behavior). The general (non-icebreaking) vessel transitory (i.e., hours at most) and three categories are interrelated in operations and when the vessel was at localized (i.e., constrained to a relatively complex ways. For example, it is anchor or drifting. The frequency of seal narrow swath perhaps 10 m (32.1 ft) to possible that certain physiological and reaction generally declined with each side of the vessel. The Palmer’s behavioral changes could potentially increasing distance from the vessel maximum beam is 18.3 m (60 ft). lead to an ultimate pathological effect except during general vessel activity Applying the maximum estimated on individuals (i.e., mortality). where it remained consistently high to amount of icebreaking (1,000 km), to the The specific received sound levels at about 0.46 km (0.25 nmi) from the corridor opened by the ship, NSF and which permanent adverse effects to fish vessel before declining. ASC anticipate that a maximum of potentially could occur are little studied Similarly, Kanik et al. (1980) found approximately 18 km2 (5.3 nmi2) of ice and largely unknown. Furthermore, the that ringed (Pusa hispida) and harp may be disturbed. This represents an available information on the impacts of seals (Pagophilus groenlandicus) often inconsequential amount of the total ice seismic surveys on marine fish is from dove into the water when an icebreaker present in the Southern Ocean. studies of individuals or portions of a was breaking ice within 1 km (0.5 nmi) Sea ice is important for pinniped life population; there have been no studies of the animals. Most seals remained on functions such as resting, breeding, and at the population scale. The studies of the ice when the ship was breaking ice molting. Icebreaking activities may individual fish have often been on caged 1 to 2 km (0.5 to 1.1 nmi) away. damage seal breathing holes and will fish that were exposed to airgun pulses The potential effects to marine also reduce the haul-out area in the in situations not representative of an mammals described in this section of immediate vicinity of the ship’s track. actual seismic survey. Thus, available the document do not take into Icebreaking along a maximum of 1,000 information provides limited insight on consideration the proposed monitoring km of trackline will alter local ice possible real-world effects at the ocean and mitigation measures described later conditions in the immediate vicinity of or population scale. This makes drawing in this document (see the ‘‘Proposed the vessel. This has the potential to conclusions about impacts on fish Mitigation’’ and ‘‘Proposed Monitoring temporarily lead to a reduction of problematic because, ultimately, the and Reporting’’ sections) which, as suitable seal haul-out habitat. However, most important issues concern effects noted are designed to effect the least the dynamic sea-ice environment on marine fish populations, their

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viability, and their availability to study found that broad whitefish continental shelf to the Sacramento fisheries. (Coregonus nasus) exposed to five River, using a 10 airgun (5,828 in3) Hastings and Popper (2005), Popper airgun shots were not significantly array. Brezzina and Associates were (2009), and Popper and Hastings (2009a, different from those of controls. During hired by USGS to monitor the effects of b) provided recent critical reviews of the both studies, the repetitive exposure to the surveys and concluded that airgun known effects of sound on fish. The sound was greater than would have operations were not responsible for the following sections provide a general occurred during a typical seismic death of any of the fish carcasses synopsis of the available information on survey. However, the substantial low- observed. They also concluded that the the effects of exposure to seismic and frequency energy produced by the airgun profiling did not appear to alter other anthropogenic sound as relevant airguns (less than 400 Hz in the study the feeding behavior of sea lions, seals, to fish. The information comprises by McCauley et al. [2003] and less than or pelicans observed feeding during the results from scientific studies of varying approximately 200 Hz in Popper et al. seismic surveys. degrees of rigor plus some anecdotal [2005]) likely did not propagate to the Some studies have reported, some information. Some of the data sources fish because the water in the study areas equivocally, that mortality of fish, fish may have serious shortcomings in was very shallow (approximately nine eggs, or larvae can occur close to methods, analysis, interpretation, and m in the former case and less than two seismic sources (Kostyuchenko, 1973; reproducibility that must be considered m in the latter). Water depth sets a Dalen and Knutsen, 1986; Booman et when interpreting their results (see lower limit on the lowest sound al., 1996; Dalen et al., 1996). Some of Hastings and Popper, 2005). Potential frequency that will propagate (the the reports claimed seismic effects from adverse effects of the program’s sound ‘‘cutoff frequency’’) at about one-quarter treatments quite different from actual sources on marine fish are noted. wavelength (Urick, 1983; Rogers and seismic survey sounds or even Pathological Effects—The potential Cox, 1988). reasonable surrogates. However, Payne for pathological damage to hearing Wardle et al. (2001) suggested that in et al. (2009) reported no statistical structures in fish depends on the energy water, acute injury and death of differences in mortality/morbidity level of the received sound and the organisms exposed to seismic energy between control and exposed groups of physiology and hearing capability of the depends primarily on two features of capelin eggs or monkfish larvae. Saetre species in question. For a given sound the sound source: (1) The received peak and Ona (1996) applied a ‘worst-case to result in hearing loss, the sound must pressure, and (2) the time required for scenario’ mathematical model to exceed, by some substantial amount, the the pressure to rise and decay. investigate the effects of seismic energy hearing threshold of the fish for that Generally, as received pressure on fish eggs and larvae. They concluded sound (Popper, 2005). The increases, the period for the pressure to that mortality rates caused by exposure consequences of temporary or rise and decay decreases, and the to seismic surveys are so low, as permanent hearing loss in individual chance of acute pathological effects compared to natural mortality rates, that fish on a fish population are unknown; increases. According to Buchanan et al. the impact of seismic surveying on however, they likely depend on the (2004), for the types of seismic airguns recruitment to a fish stock must be number of individuals affected and and arrays involved with the proposed regarded as insignificant. whether critical behaviors involving program, the pathological (mortality) sound (e.g., predator avoidance, prey zone for fish would be expected to be Physiological Effects—Physiological capture, orientation and navigation, within a few meters of the seismic effects refer to cellular and/or reproduction, etc.) are adversely source. Numerous other studies provide biochemical responses of fish to affected. examples of no fish mortality upon acoustic stress. Such stress potentially Little is known about the mechanisms exposure to seismic sources (Falk and could affect fish populations by and characteristics of damage to fish Lawrence, 1973; Holliday et al., 1987; increasing mortality or reducing that may be inflicted by exposure to La Bella et al., 1996; Santulli et al., reproductive success. Primary and seismic survey sounds. Few data have 1999; McCauley et al., 2000a, b, 2003; secondary stress responses of fish after been presented in the peer-reviewed Bjarti, 2002; Thomsen, 2002; Hassel et exposure to seismic survey sound scientific literature. As far as NSF, ASC, al., 2003; Popper et al., 2005; Boeger et appear to be temporary in all studies and NMFS know, there are only two al., 2006). done to date (Sverdrup et al., 1994; papers with proper experimental An experiment of the effects of a Santulli et al., 1999; McCauley et al., methods, controls, and careful single 700 in3 airgun was conducted in 2000a, b). The periods necessary for the pathological investigation implicating Lake Meade, Nevada (USGS, 1999). The biochemical changes to return to normal sounds produced by actual seismic data were used in an Environmental are variable and depend on numerous survey airguns in causing adverse Assessment of the effects of a marine aspects of the biology of the species and anatomical effects. One such study reflection survey of the Lake Meade of the sound stimulus. indicated anatomical damage, and the fault system by the National Park Behavioral Effects—Behavioral effects second indicated TTS in fish hearing. Service (Paulson et al., 1993, in USGS, include changes in the distribution, The anatomical case is McCauley et al. 1999). The airgun was suspended 3.5 m migration, mating, and catchability of (2003), who found that exposure to (11.5 ft) above a school of threadfin shad fish populations. Studies investigating airgun sound caused observable in Lake Meade and was fired three the possible effects of sound (including anatomical damage to the auditory successive times at a 30 second interval. seismic survey sound) on fish behavior maculae of pink snapper (Pagrus Neither surface inspection nor diver have been conducted on both uncaged auratus). This damage in the ears had observations of the water column and and caged individuals (e.g., Chapman not been repaired in fish sacrificed and bottom found any dead fish. and Hawkins, 1969; Pearson et al., 1992; examined almost two months after For a proposed seismic survey in Santulli et al., 1999; Wardle et al., 2001; exposure. On the other hand, Popper et Southern California, USGS (1999) Hassel et al., 2003). Typically, in these al. (2005) documented only TTS (as conducted a review of the literature on studies fish exhibited a sharp startle determined by auditory brainstem the effects of airguns on fish and response at the onset of a sound response) in two of three fish species fisheries. They reported a 1991 study of followed by habituation and a return to from the Mackenzie River Delta. This the Bay Area Fault system from the normal behavior after the sound ceased.

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The Minerals Management Service Literature reviews of the effects of Andre et al. (2011) exposed four (MMS, 2005) assessed the effects of a seismic and other underwater sound on species of cephalopods (Loligo vulgaris, proposed seismic survey in Cook Inlet. invertebrates were provided by Sepia officinalis, Octopus vulgaris, and The seismic survey proposed using Moriyasu et al. (2004) and Payne et al. Ilex coindetii), primarily cuttlefish, to three vessels, each towing two, four- (2008). The following sections provide a two hours of continuous 50 to 400 Hz airgun arrays ranging from 1,500 to synopsis of available information on the sinusoidal wave sweeps at 157±5 dB re 2,500 in3. MMS noted that the impact to effects of exposure to seismic survey 1 mPa while captive in relatively small fish populations in the survey area and sound on species of decapod tanks. They reported morphological and adjacent waters would likely be very crustaceans and cephalopods, the two ultrastructural evidence of massive low and temporary. MMS also taxonomic groups of invertebrates on acoustic trauma (i.e., permanent and concluded that seismic surveys may which most such studies have been substantial alterations [lesions] of displace the pelagic fishes from the area conducted. The available information is statocyst sensory hair cells) to the temporarily when airguns are in use. from studies with variable degrees of exposed animals that increased in However, fishes displaced and avoiding scientific soundness and from anecdotal severity with time, suggesting that the airgun noise are likely to backfill the information. A more detailed review of cephalopods are particularly sensitive to survey area in minutes to hours after the literature on the effects of seismic low frequency sound. The received SPL cessation of seismic testing. Fishes not survey sound on invertebrates is was reported as 157±5 dB re 1 mPa, with dispersing from the airgun noise (e.g., provided in Appendix D of NSF/USGS’s peak levels at 175 dB re 1 mPa. As in the demersal species) may startle and move PEIS. McCauley et al. (2003) paper on sensory short distances to avoid airgun Pathological Effects—In water, lethal hair cell damage in pink snapper as a emissions. and sub-lethal injury to organisms result of exposure to seismic sound, the In general, any adverse effects on fish exposed to seismic survey sound cephalopods were subjected to higher behavior or fisheries attributable to appears to depend on at least two sound levels than they would be under seismic testing may depend on the features of the sound source: (1) The natural conditions, and they were species in question and the nature of the received peak pressure; and (2) the time unable to swim away from the sound fishery (season, duration, fishing required for the pressure to rise and source. method). They may also depend on the decay. Generally, as received pressure Physiological Effects—Physiological age of the fish, its motivational state, its increases, the period for the pressure to effects refer mainly to biochemical rise and decay decreases, and the responses by marine invertebrates to size, and numerous other factors that are chance of acute pathological effects acoustic stress. Such stress potentially difficult, if not impossible, to quantify at increases. For the type of airgun array could affect invertebrate populations by this point, given such limited data on planned for the proposed program, the increasing mortality or reducing effects of airguns on fish, particularly pathological (mortality) zone for reproductive success. Primary and under realistic at-sea conditions. crustaceans and cephalopods is secondary stress responses (i.e., changes Anticipated Effects on Invertebrates expected to be within a few meters of in haemolymph levels of enzymes, the seismic source, at most; however, proteins, etc.) of crustaceans have been The existing body of information on very few specific data are available on noted several days or months after the impacts of seismic survey sound on levels of seismic signals that might exposure to seismic survey sounds marine invertebrates is very limited. damage these animals. This premise is (Payne et al., 2007). It was noted However, there is some unpublished based on the peak pressure and rise/ however, than no behavioral impacts and very limited evidence of the decay time characteristics of seismic were exhibited by crustaceans (Christian potential for adverse effects on airgun arrays currently in use around et al., 2003, 2004; DFO, 2004). The invertebrates, thereby justifying further the world. periods necessary for these biochemical discussion and analysis of this issue. Some studies have suggested that changes to return to normal are variable The three types of potential effects of seismic survey sound has a limited and depend on numerous aspects of the exposure to seismic surveys on marine pathological impact on early biology of the species and of the sound invertebrates are pathological, developmental stages of crustaceans stimulus. physiological, and behavioral. Based on (Pearson et al., 1994; Christian et al., Behavioral Effects—There is the physical structure of their sensory 2003; DFO, 2004). However, the impacts increasing interest in assessing the organs, marine invertebrates appear to appear to be either temporary or possible direct and indirect effects of be specialized to respond to particle insignificant compared to what occurs seismic and other sounds on displacement components of an under natural conditions. Controlled invertebrate behavior, particularly in impinging sound field and not to the field experiments on adult crustaceans relation to the consequences for pressure component (Popper et al., (Christian et al., 2003, 2004; DFO, 2004) fisheries. Changes in behavior could 2001). and adult cephalopods (McCauley et al., potentially affect such aspects as The only information available on the 2000a, b) exposed to seismic survey reproductive success, distribution, impacts of seismic surveys on marine sound have not resulted in any susceptibility to predation, and invertebrates involves studies of significant pathological impacts on the catchability by fisheries. Studies individuals; there have been no studies animals. It has been suggested that investigating the possible behavioral at the population scale. Thus, available exposure to commercial seismic survey effects of exposure to seismic survey information provides limited insight on activities has injured giant squid sound on crustaceans and cephalopods possible real-world effects at the (Guerra et al., 2004), but the article have been conducted on both uncaged regional or ocean scale. The most provides little evidence to support this and caged animals. In some cases, important aspect of potential impacts claim. Tenera Environmental (2011b) invertebrates exhibited startle responses concerns how exposure to seismic reported that Norris and Mohl (1983, (e.g., squid in McCauley et al., 2000a, b). survey sound ultimately affects summarized in Mariyasu et al., 2004) In other cases, no behavioral impacts invertebrate populations and their observed lethal effects in squid (Loligo were noted (e.g., crustaceans in viability, including availability to vulgaris) at levels of 246 to 252 dB after Christian et al., 2003, 2004; DFO 2004). fisheries. 3 to 11 minutes. There have been anecdotal reports of

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reduced catch rates of shrimp shortly this document) shows the distances at 100 m for all low-energy sources in after exposure to seismic surveys; which one would expect to receive three water depths greater than 100 m. This however, other studies have not sound levels (160, 180, and 190 dB) standard 100 m exclusion zone would observed any significant changes in from the two GI airgun array. The 180 be used during the proposed low-energy shrimp catch rate (Andriguetto-Filho et and 190 dB level shut-down criteria are seismic survey. The 180 and 190 dB al., 2005). Similarly, Parry and Gason applicable to cetaceans and pinnipeds, (rms) radii are shut-down criteria (2006) did not find any evidence that respectively, as specified by NMFS applicable to cetaceans and pinnipeds, lobster catch rates were affected by (2000). NSF and ASC used these levels respectively, as specified by NMFS seismic surveys. Any adverse effects on to establish the exclusion and buffer (2000); these levels were used to crustacean and cephalopod behavior or zones. establish exclusion zones. Therefore, the fisheries attributable to seismic survey Received sound levels have been assumed 180 and 190 dB radii are 100 sound depend on the species in modeled by L–DEO for a number of m for intermediate and deep water, question and the nature of the fishery airgun configurations, including two 45 respectively. If the PSO detects a marine (season, duration, fishing method). in3 Nucleus G airguns, in relation to mammal(s) within or about to enter the distance and direction from the airguns appropriate exclusion zone, the airguns Proposed Mitigation (see Figure 2 of the IHA application). In will be shut-down immediately. In order to issue an Incidental Take addition, propagation measurements of Speed and Course Alterations—If a Authorization (ITA) under section pulses from two GI airguns have been marine mammal is detected outside the 101(a)(5)(D) of the MMPA, NMFS must reported for shallow water exclusion zone and, based on its set forth the permissible methods of (approximately 30 m [98.4 ft] depth in position and direction of travel (relative taking pursuant to such activity, and the GOM (Tolstoy et al., 2004). motion), is likely to enter the exclusion other means of effecting the least However, measurements were not made zone, changes of the vessel’s speed and/ practicable impact on such species or for the two GI airguns in deep water. or direct course will be considered if stock and its habitat, paying particular The model does not allow for bottom this does not compromise operational attention to rookeries, mating grounds, interactions, and is most directly safety or damage the deployed and areas of similar significance, and applicable to deep water. Based on the equipment. This would be done if the availability of such species or stock modeling, estimates of the maximum operationally practicable while for taking for certain subsistence uses. distances from the GI airguns where minimizing the effect on the planned NSF and ASC reviewed the following sound levels are predicted to be 190, science objectives. For marine seismic source documents and have 180, and 160 dB re 1 mPa (rms) in surveys towing large streamer arrays, incorporated a suite of appropriate shallow, intermediate, and deep water however, course alterations are not mitigation measures into their project were determined (see Table 2 above). typically implemented due to the description. Empirical data concerning the 190, vessel’s limited maneuverability. After (1) Protocols used during previous 180, and 160 dB (rms) distances were any such speed and/or course alteration NSF and USGS-funded seismic research acquired for various airgun arrays based is begun, the marine mammal activities cruises as approved by NMFS and on measurements during the acoustic and movements relative to the seismic detailed in the recently completed verification studies conducted by L– vessel will be closely monitored to ‘‘Final Programmatic Environmental DEO in the northern GOM in 2003 ensure that the marine mammal does Impact Statement/Overseas (Tolstoy et al., 2004) and 2007 to 2008 not approach within the exclusion zone. Environmental Impact Statement for (Tolstoy et al., 2009). Results of the 36 If the marine mammal appears likely to Marine Seismic Research Funded by the airgun array are not relevant for the two enter the exclusion zone, further National Science Foundation or GI airguns to be used in the proposed mitigation actions will be taken, Conducted by the U.S. Geological survey. The empirical data for the 6, 10, including further speed and/or course Survey;’’ 12, and 20 airgun arrays indicate that, alterations, and/or shut-down of the (2) Previous IHA applications and for deep water, the L–DEO model tends airgun(s). Typically, during seismic IHAs approved and authorized by to overestimate the received sound operations, the source vessel is unable NMFS; and levels at a given distance (Tolstoy et al., to change speed or course, and one or (3) Recommended best practices in 2004). Measurements were not made for more alternative mitigation measures Richardson et al. (1995), Pierson et al. the two GI airgun array in deep water; will need to be implemented. (1998), and Weir and Dolman, (2007). however, NSF and ASC propose to use Shut-down Procedures—NSF and To reduce the potential for the safety radii predicted by L–DEO’s ASC will shut-down the operating disturbance from acoustic stimuli model for the proposed GI airgun airgun(s) if a marine mammal is associated with the activities, NSF, ASC operations in shallow, intermediate, and detected outside the exclusion zone for and/or its designees have proposed to deep water, although they are likely the airgun(s), and if the vessel’s speed implement the following mitigation conservative given the empirical results and/or course cannot be changed to measures for marine mammals: for the other arrays. avoid having the animal enter the (1) Proposed exclusion zones around Based on the modeling data, the exclusion zone, the seismic source will the sound source; outputs from the pair of 45 in3 or 105 be shut-down before the animal is (2) Speed and course alterations; in3 GI airguns proposed to be used within the exclusion zone. Likewise, if (3) Shut-down procedures; and during the seismic survey are a marine mammal is already within the (4) Ramp-up procedures. considered a low-energy acoustic source exclusion zone when first detected, the Proposed Exclusion Zones—During in the NSF/USGS PEIS (2011) for seismic source will be shut-down pre-planning of the cruise, the smallest marine seismic research. A low-energy immediately. airgun array was identified that could be seismic source was defined in the NSF/ Following a shut-down, NSF and ASC used and still meet the geophysical USGS PEIS as an acoustic source whose will not resume airgun activity until the scientific objectives. NSF and ASC use received level at 100 m is less than 180 marine mammal has cleared the radii to designate exclusion and buffer dB. The NSF/USGS PEIS also exclusion zone. NSF and ASC will zones and to estimate take for marine established for these low-energy consider the animal to have cleared the mammals. Table 2 (presented earlier in sources, a standard exclusion zone of exclusion zone if:

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• A PSO has visually observed the sounds from the single airgun and could satisfy the anticipated monitoring animal leave the exclusion zone, or move away if they choose. A ramp-up requirements of the IHA. NSF and • A PSO has not sighted the animal from a shut-down may occur at night, ASC’s proposed ‘‘Monitoring Plan’’ is within the exclusion zone for 15 but only where the exclusion zone is described below this section. NSF and minutes for species with shorter dive small enough to be visible. NSF and ASC understand that this monitoring durations (i.e., small odontocetes and ASC will not initiate a ramp-up of the plan will be subject to review by NMFS pinnipeds), or 30 minutes for species airguns if a marine mammal is sighted and that refinements may be required. with longer dive durations (i.e., within or near the applicable exclusion The monitoring work described here has mysticetes and large odontocetes, zones during the day or close to the been planned as a self-contained project including sperm, pygmy and dwarf vessel at night. independent of any other related sperm, killer, and beaked whales). NMFS has carefully evaluated the monitoring projects that may be Although power-down procedures are applicant’s proposed mitigation occurring simultaneously in the same often standard operating practice for measures and has considered a range of regions. NSF and ASC is prepared to seismic surveys, they are not proposed other measures in the context of discuss coordination of their monitoring to be used during this planned seismic ensuring that NMFS prescribes the program with any related work that survey because powering-down from means of effecting the least practicable might be done by other groups insofar two airguns to one airgun would make adverse impact on the affected marine as this is practical and desirable. only a small difference in the exclusion mammal species and stocks and their Vessel-Based Visual Monitoring zone(s)—but probably not enough to habitat. NMFS’s evaluation of potential allow continued one-airgun operations measures included consideration of the PSOs will be based aboard the seismic if a marine mammal came within the following factors in relation to one source vessel and will watch for marine exclusion zone for two airguns. another: mammals near the vessel during Ramp-up Procedures—Ramp-up of an (1) The manner in which, and the icebreaking activities, daytime airgun airgun array provides a gradual increase degree to which, the successful operations (austral summer) and during in sound levels, and involves a step- implementation of the measure is any ramp-ups of the airguns at night. wise increase in the number and total expected to minimize adverse impacts Nighttime operations of the airguns are volume of airguns firing until the full to marine mammals; not anticipated. PSOs will also watch volume of the airgun array is achieved. (2) The proven or likely efficacy of the for marine mammals near the seismic The purpose of a ramp-up is to ‘‘warn’’ specific measure to minimize adverse vessel for at least 30 minutes prior to the marine mammals in the vicinity of the impacts as planned; and start of airgun operations and after an airguns and to provide the time for them (3) The practicability of the measure extended shut-down (i.e., greater than to leave the area avoiding any potential for applicant implementation. approximately 15 minutes for this injury or impairment of their hearing Based on NMFS’s evaluation of the proposed low-energy seismic survey). abilities. NSF and ASC will follow a applicant’s proposed measures, as well When feasible, PSOs will conduct ramp-up procedure when the airgun as other measures considered by NMFS observations during daytime periods array begins operating after a specified or recommended by the public, NMFS when the seismic system is not period without airgun operations or has preliminarily determined that the operating (such as during transits) for when a shut-down shut down has proposed mitigation measures provide comparison of sighting rates and exceeded that period. NSF and ASC the means of effecting the least behavior with and without airgun propose that, for the present cruise, this practicable adverse impacts on marine operations and between acquisition period would be approximately 15 mammal species or stocks and their periods. Based on PSO observations, the minutes. SIO, L–DEO, and USGS have habitat, paying particular attention to airguns will be shut-down when marine used similar periods (approximately 15 rookeries, mating grounds, and areas of mammals are observed within or about minutes) during previous low-energy similar significance. to enter a designated exclusion zone. seismic surveys. The exclusion zone is a region in which Ramp-up will begin with a single GI Proposed Monitoring and Reporting a possibility exists of adverse effects on airgun (45 or 105 in3). The second GI In order to issue an ITA for an animal hearing or other physical effects. airgun (45 or 105 in3) will be added after activity, section 101(a)(5)(D) of the During seismic operations in the 5 minutes. During ramp-up, the PSOs MMPA states that NMFS must set forth Dumont d’Urville Sea of the Southern will monitor the exclusion zone, and if ‘‘requirements pertaining to the Ocean, at least two PSOs will be based marine mammals are sighted, a shut- monitoring and reporting of such aboard the Palmer. At least one PSO down will be implemented as though taking.’’ The MMPA implementing will stand watch at all times while the both GI airguns were operational. regulations at 50 CFR 216.104 (a)(13) Palmer is operating airguns during the If the complete exclusion zone has not indicate that requests for IHAs must proposed low-energy seismic survey; been visible for at least 30 minutes prior include the suggested means of this procedure will also be followed to the start of operations in either accomplishing the necessary monitoring when the vessel is conducting daylight or nighttime, NSF and ASC and reporting that will result in icebreaking during transit. NSF and will not commence the ramp-up. Given increased knowledge of the species and ASC will appoint the PSOs with these provisions, it is likely that the of the level of taking or impacts on NMFS’s concurrence. The lead PSO airgun array will not be ramped-up from populations of marine mammals that are would be experienced with marine a complete shut-down at night or in expected to be present in the action mammal species in the Southern Ocean, thick fog, because the outer part of the area. the second PSO would receive exclusion zone for that array will not be additional specialized training from the visible during those conditions. If one Proposed Monitoring PSO to ensure that they can identify airgun has operated, ramp-up to full NSF and ASC proposes to sponsor marine mammal species commonly power will be permissible at night or in marine mammal monitoring during the found in the Southern Ocean. poor visibility, on the assumption that proposed project, in order to implement Observations will take place during marine mammals will be alerted to the the proposed mitigation measures that ongoing daytime operations and approaching seismic vessel by the require real-time monitoring, and to nighttime ramp-ups of the airguns.

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During the majority of seismic down of the seismic source. PSOs will whenever there is a change in one or operations, at least one PSO will be on monitor for the presence pinnipeds and more of the variables. duty from observation platforms (i.e., cetaceans during icebreaking activities, All observations, as well as the best available vantage point on the and will be limited to those marine information regarding ramp-ups or shut- source vessel) to monitor marine mammal species in proximity to the ice downs will be recorded in a mammals near the seismic vessel. margin habitat. Observations within the standardized format. Data will be PSO(s) will be on duty in shifts no buffer zone would also include entered into an electronic database. The longer than 4 hours in duration. Other pinnipeds that may be present on the data accuracy will be verified by crew will also be instructed to assist in surface of the sea ice (i.e., hauled-out) computerized data validity checks as detecting marine mammals and and that could potentially dive into the the data are entered and by subsequent implementing mitigation requirements water as the vessel approaches, manual checking of the database by the (if practical). Before the start of the low- indicating disturbance from noise PSOs at sea. These procedures will energy seismic survey, the crew will be generated by icebreaking activities). allow initial summaries of data to be given additional instruction on how to When marine mammals are detected prepared during and shortly after the do so. (Note: because of the high within or about to enter the designated field program, and will facilitate transfer latitude locations of the study areas, exclusion zone, the airguns will of the data to statistical, graphical, and twilight/darkness conditions are immediately be shut-down if necessary. other programs for further processing expected to be limited to between 3 and The PSO(s) will continue to maintain and archiving. 6 hours per day during the proposed watch to determine when the animal(s) Results from the vessel-based action.) are outside the exclusion zone by visual observations will provide the following The Palmer is a suitable platform for confirmation. Airgun operations will information: 1. The basis for real-time mitigation marine mammal observations and will not resume until the animal is (airgun shut-down). serve as the platform from which PSOs confirmed to have left the exclusion 2. Information needed to estimate the will watch for marine mammals before zone, or if not observed after 15 minutes number of marine mammals potentially and during seismic operations. Two for species with shorter dive durations taken by harassment, which must be locations are likely as observation (small odontocetes and pinnipeds) or 30 reported to NMFS. stations onboard the Palmer. Observing minutes for species with longer dive durations (mysticetes and large 3. Data on the occurrence, stations are located on the bridge level, distribution, and activities of marine with the PSO eye level at approximately odontocetes, including sperm, killer, and beaked whales). mammals in the area where the seismic 16.5 m (54.1 ft) above the waterline and study is conducted. the PSO would have a good view PSO Data and Documentation 4. Information to compare the around the entire vessel. In addition, distance and distribution of marine PSOs will record data to estimate the there is an aloft observation tower for mammals relative to the source vessel at numbers of marine mammals exposed to the PSO approximately 24.4 m (80.1 ft) times with and without seismic activity. various received sound levels and to above the waterline that is protected 5. Data on the behavior and document apparent disturbance from the weather, and affords PSOs an movement patterns of marine mammals reactions or lack thereof. Data will be even greater view. Standard equipment seen at times with and without seismic used to estimate numbers of animals for PSOs will be reticle binoculars. activity. Night-vision equipment will not be potentially ‘‘taken’’ by harassment (as NSF and ASC will submit a available or required due to the constant defined in the MMPA). They will also comprehensive report to NMFS within daylight conditions during the Antarctic provide information needed to order a 90 days after the end of the cruise. The summer. The PSOs will be in shut-down of the airguns when a marine report will describe the operations that communication with ship’s officers on mammal is within or near the exclusion were conducted and sightings of marine the bridge and scientists in the vessel’s zone. Observations will also be made mammals near the operations. The operations laboratory, so they can during icebreaking activities as well as report submitted to NMFS will provide advise promptly of the need for daytime periods when the Palmer is full documentation of methods, results, avoidance maneuvers or seismic source underway without seismic operations and interpretation pertaining to all shut-down. Observing stations will be at (i.e., transits, to, from, and through the monitoring. The 90-day report will the bridge level and the aloft study area) to collect baseline biological summarize the dates and locations of observation tower. The approximate data. seismic operations and all marine view around the vessel from the bridge When a sighting is made, the mammal sightings (i.e., dates, times, is 270° and 360° from the aloft following information about the sighting locations, activities, and associated observation tower. During daytime, the will be recorded: seismic survey activities). The report PSO(s) will scan the area around the 1. Species, group size, age/size/sex will minimally include: vessel systematically with reticle categories (if determinable), behavior • Summaries of monitoring effort— binoculars (e.g., 7 × 50 Fujinon FMTRC– when first sighted and after initial total hours, total distances, and SX) and the naked eye. These binoculars sighting, heading (if consistent), bearing distribution of marine mammals will have a built-in daylight compass. and distance from seismic vessel, through the study period accounting for Estimating distances is done primarily sighting cue, apparent reaction to the Beaufort sea state and other factors with the reticles in the binoculars. The seismic source or vessel (e.g., none, affecting visibility and detectability of PSO(s) will be in direct (radio) wireless avoidance, approach, paralleling, etc.), marine mammals; communication with ship’s officers on and behavioral pace. • Analyses of the effects of various the bridge and scientists in the vessel’s 2. Time, location, heading, speed, factors influencing detectability of operations laboratory during seismic activity of the vessel, sea state, wind marine mammals including Beaufort sea operations, so they can advise the vessel force, visibility, and sun glare. state, number of PSOs, and fog/glare; operator, science support personnel, The data listed under (2) will also be • Species composition, occurrence, and the science party promptly of the recorded at the start and end of each and distribution of marine mammals need for avoidance maneuvers or a shut- observation watch, and during a watch sightings including date, water depth,

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numbers, age/size/gender, and group compliance. NSF and ASC may not stimuli (i.e., increased underwater sizes; and analyses of the effects of resume their activities until notified by sound) generated during the operation seismic operations; NMFS via letter or email, or telephone. of the seismic airgun array and • Sighting rates of marine mammals In the event that NSF and ASC icebreaking activities are expected to during periods with and without airgun discovers an injured or dead marine result in the behavioral disturbance of activities (and other variables that could mammal, and the lead PSO determines some marine mammals. There is no affect detectability); that the cause of the injury or death is evidence that the planned activities • Initial sighting distances versus unknown and the death is relatively could result in injury, serious injury, or airgun activity state; recent (i.e., in less than a moderate state mortality for which NSF and ASC seeks • Closest point of approach versus of decomposition as described in the the IHA. The required mitigation and airgun activity state; next paragraph), NSF and ASC will monitoring measures will minimize any • Observed behaviors and types of immediately report the incident to the potential risk for injury, serious injury, movements versus airgun activity state; Chief of the Permits and Conservation or mortality. • Numbers of sightings/individuals Division, Office of Protected Resources, The following sections describe NSF seen versus airgun activity state; and NMFS, at 301–427–8401, and/or by and ASC’s methods to estimate take by • Distribution around the source email to [email protected] and incidental harassment and present the vessel versus airgun activity state. [email protected]. The report applicant’s estimates of the numbers of The report will also include estimates must include the same information marine mammals that could be affected of the number and nature of exposures identified in the paragraph above. during the proposed low-energy seismic that could result in ‘‘takes’’ of marine Activities may continue while NMFS survey in the Dumont d’Urville Sea off mammals by harassment or in other reviews the circumstances of the the coast of East Antarctica. The ways. After the report is considered incident. NMFS will work with NSF estimates are based on a consideration final, it will be publicly available on the and ASC to determine whether of the number of marine mammals that NMFS Web site at: http:// modifications in the activities are could be harassed by approximately www.nmfs.noaa.gov/pr/permits/ appropriate. 2,800 km (1511.9 nmi) of seismic incidental.htm#iha. In the event that NSF and ASC operations with the two GI airgun array In the unanticipated event that the discovers an injured or dead marine to be used and 1,000 km of icebreaking specified activity clearly causes the take mammal, and the lead PSO determines activities. of a marine mammal in a manner that the injury or death is not associated During simultaneous operations of the prohibited by this IHA, such as an with or related to the activities airgun array and the other sound injury (Level A harassment), serious authorized in the IHA (e.g., previously sources, any marine mammals close injury or mortality (e.g., ship-strike, gear wounded animal, carcass with moderate enough to be affected by the single and interaction, and/or entanglement), NSF or advanced decomposition, or multi-beam echosounders, pingers, and ASC will immediately cease the scavenger damage), NSF and ASC will ADCP, sub-bottom profiler, etc. would specified activities and immediately report the incident to the Chief of the already be affected by the airguns. report the incident to the Chief of the Permits and Conservation Division, During times when the airguns are not Permits and Conservation Division, Office of Protected Resources, NMFS, at operating, it is unlikely that marine Office of Protected Resources, NMFS at 301–427–8401, and/or by email to mammals will exhibit more than minor, 301–427–8401 and/or by email to [email protected] and short-term responses to the [email protected] and [email protected], within 24 echosounders, ADCPs, and sub-bottom [email protected]. The report hours of discovery. NSF and ASC will profiler given their characteristics (e.g., must include the following information: provide photographs or video footage (if narrow, downward-directed beam) and • Time, date, and location (latitude/ available) or other documentation of the other considerations described longitude) of the incident; stranded animal sighting to NMFS. previously. Therefore, for this activity, • Name and type of vessel involved; Activities may continue while NMFS take was not authorized specifically for • Vessel’s speed during and leading reviews the circumstances of the these sound sources beyond that which up to the incident; incident. is already authorized for airguns and • icebreaking activities. Description of the incident; Estimated Take by Incidental • Status of all sound source use in the There are no stock assessments and Harassment 24 hours preceding the incident; very limited population information • Water depth; Except with respect to certain available for marine mammals in the • Environmental conditions (e.g., activities not pertinent here, the MMPA Dumont d’Urville Sea. Sighting data wind speed and direction, Beaufort sea defines ‘‘harassment’’ as: any act of from the Australian Antarctic Division’s state, cloud cover, and visibility); pursuit, torment, or annoyance which (i) (AAD) BROKE-West surveys (Southwell • Description of all marine mammal has the potential to injure a marine et al., 2008; 2012) was used to observations in the 24 hours preceding mammal or marine mammal stock in the determine and estimate marine the incident; wild [Level A harassment]; or (ii) has mammals densities for mysticetes and • Species identification or the potential to disturb a marine odontocetes and AAD data components description of the animal(s) involved; mammal or marine mammal stock in the for pinnipeds, which were not available • Fate of the animal(s); and wild by causing disruption of behavioral for the proposed seismic survey’s action • Photographs or video footage of the patterns, including, but not limited to, area in the Dumont d’Urville Sea. While animal(s) (if equipment is available). migration, breathing, nursing, breeding, population density data for cetaceans in Activities shall not resume until feeding, or sheltering [Level B the Southern Ocean is sparse to NMFS is able to review the harassment]. nonexistent, reported sightings data circumstances of the prohibited take. Level B harassment is anticipated and from previous research cruises suggest NMFS shall work with NSF and ASC to proposed to be authorized as a result of cetaceans such as those identified in determine what is necessary to the proposed low-energy marine seismic Table 12 of the IHA application span a minimize the likelihood of further survey in the Dumont d’Urville Sea off range greater than 4,000 km (2,159.8 prohibited take and ensure MMPA the coast of East Antarctica. Acoustic nmi) off the coast of East Antarctica.

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The AAD BROKE-West survey was not surface. This correction factor for estimates are not representative of specifically designed to quantify marine pinnipeds was conservatively based on individuals that are in the water and mammals. The data was in terms of Southwell et al. (2012), which estimated could be potentially exposed to animals sighted per time unit, and this 20 to 40% of crabeater seals may be in underwater sounds during the seismic sighting data was then converted to an the water in a particular area while the airgun operations and icebreaking areal density by multiplying the number rest are hauled-out. The correction activities; therefore, the pinniped of animals observed by the estimated factor takes into consideration some densities have been adjusted to account area observed during the survey. As pinnipeds may not be observed due to for this concern. Take was not requested such, some marine mammals that were poor visibility conditions. for southern elephant seals and present in the area may not have been Sightings data were collected by the Antarctic fur seals because preferred observed. AAD; however, the AAD methodology habitat for these species is not within The estimated number of cetaceans was not described. Density is generally the proposed action area. Although no and pinnipeds that may be potentially reported in the number of animals per sightings of Weddell seals and exposed from the proposed seismic km or square km. Estimated area spectacled porpoises were reported in airgun operations and icebreaking observed by observers was calculated by the BROKE-West sighting data, take was activities based on sighting data from using the average vessel speed (5.6 km/ requested for these species based on previous research cruises over a 52-day hr) times the estimated hours of the NMFS recommendation and IWC period and 13-day period. Some of the survey to estimate the total distance SOWER data. Although there is some AAD sighting data was used as the basis covered for each of the surveys. This uncertainty about the representatives of for estimating take included was then converted from the linear the data and the assumptions used in ‘‘unidentified whale’’ species, this distance into an area by assuming a the calculations below, the approach category was retained and pro-rated to width of 5 km that could be reliably used here is believed to be the best the other species because environmental visually surveyed. Therefore, the available approach. conditions may be present during the estimated area was 5,753 km2 (1,677.3 proposed action to limit identification nmi2) to obtain mysticete and Table 5. Estimated densities and of observed cetaceans. The estimated odontocete densities and the estimated possible number of marine mammal frequency of sightings data for cetaceans area was 1,419 km2 (413.7 nmi2) to species that might be exposed to greater incorporates a correction factor of 5 that obtain pinniped densities. than or equal to 120 dB (icebreaking) assumes only 20% of the animals Of the six species of pinnipeds that and 160 dB (airgun operations) during present were reported due to sea ice and may be present in the study area during NSF and ASC’s proposed low-energy other conditions that may have the proposed action, only four species seismic survey (approximately 1,000 km hindered observation. The 20% factor are expected to be observed and occur of tracklines/approximately 3,500 km2 was intended to conservatively account mostly near pack ice or coastal areas ensonified area for icebreaking activities for this. Conservatively, a 40% and not prevalent in open sea areas and approximately 2,800 km of correction factor was used for where the low-energy seismic survey tracklines/approximately 5,628 km2 pinnipeds. The expected sightings data would be conducted. Because density ensonified area for airgun operations) in incorporates a 40% correction factor to estimates for pinnipeds in that Antarctic the Dumont d’Urville Sea of the account for seals that may be in the regions typically represent individuals Southern Ocean, February to March water versus those hauled-out on ice that have hauled-out of the water, those 2014.

Calculated Calculated take from Reported take from 12 Corrected seismic airgun icebreaking sightings Density in- activities (i.e., Approximate *sightings sightings water operations percentage of (assume 20% (i.e., estimated estimated population Total requested take Species have been for cetaceans, [density in- number of number of pro-rated to water and/or estimate authorization 6 40% of individuals individuals (calculated include pinnipeds in on-ice] exposed to exposed to 2 total take) 5 unidentified water) (#/km) sound levels sound levels animals* ≥160 dB re 1 ≥120 dB re 1 μPa) 3 μPa) 4

Mysticetes: Southern right whale ...... 0 0 0 0 0 NA 0. Humpback whale ...... 238 1,190 0.2068400 1,165 724 5.4 1,165 + 724 = 1,889. Antarctic minke whale ...... 136 680 0.1181943 666 414 0.4 666 + 414 = 1,080. Sei whale ...... 4 20 0.0034763 20 13 0.04 20 + 13 = 33. Fin whale ...... 232 1,160 0.2016255 1,135 706 1.3 1,135 + 706 = 1,841. Blue whale ...... 2 10 0.0017382 10 7 1.0 10 + 7 = 17. Odontocetes: Sperm whale ...... 32 160 0.0278104 157 98 2.7 157 + 98 = 255. Arnoux’s beaked whale ...... 0 0 0 0 0 NA 0. Cuvier’s beaked whale ...... 0 0 0 0 0 NA 0. Southern bottlenose beaked 0 0 0 0 0 NA 0. whale. Killer whale ...... 62 310 0.538827 304 189 2.0 304 + 189 = 493. Long-finned pilot whale ...... 24 120 0.0208578 118 74 0.1 118 + 74 = 192. Hourglass dolphin ...... 27 135 0.0234650 133 83 0.15 133 + 83 = 216. Spectacled porpoise ...... 26 130 0.0225690 128 80 NA 128 + 80 = 208. Pinnipeds: Crabeater seal ...... 2,220 888 0.625546 3,521 7,663 0.2 3,521 + 7,663 = 11,184. [2.189411] Leopard seal ...... 17 7 0.00479 27 59 0.04 27 + 59 = 86. [0.016766] Ross seal ...... 42 17 0.011835 66 145 0.2 66 + 145 = 211. [0.041421]

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Calculated Calculated take from take from Reported Corrected seismic airgun icebreaking 12 Approximate sightings Density in- operations activities (i.e., *sightings sightings water percentage of (assume 20% (i.e., estimated estimated population Total requested take Species have been for cetaceans, [density in- number of number of pro-rated to water and/or estimate authorization 6 40% of individuals individuals (calculated include pinnipeds in on-ice] exposed to exposed to 2 total take) 5 unidentified water) (#/km) sound levels sound levels animals* ≥160 dB re 1 ≥120 dB re 1 μPa) 3 μPa) 4

Weddell seal ...... 302 121 0.054 303 189 0.1 303 + 189 = 492. [0.054] Southern elephant seal ...... 0 0 0 0 0 NA 0. Antarctic fur seal ...... 0 0 0 0 0 NA 0. NA = Not available or not assessed. 1 Sightings from a 52 day (5,753 km2) period on the AAD BROKE-West survey during January to March 2006. 2 Sightings December 3 to 16, 1999 (1,420 km2 and 75,564 km2), below 60° South latitude between 110 to 165° East longitude. All sightings were animals hauled- out of the water and on the sea ice. 3 Calculated take is estimated density (reported density times correction factor) multiplied by the area ensonified to 160 dB (rms) around the planned seismic lines, increased by 25% for contingency. 4 Calculated take is estimated density (reported density) multiplied by the area ensonified to 120 dB (rms) around the planned transit lines where icebreaking activi- ties may occur. 5 Total requested (and calculated) takes expressed as percentages of the species or regional populations. 6 Requested Take Authorization includes unidentified animals that were added to the observed and identified species on a pro-rated basis. Note: Take was not requested for southern elephant seals and Antarctic fur seals because preferred habitat for these species is not within the proposed action area.

Icebreaking in Antarctic waters will diameter is 1,005 m times 2) around the (2) The anticipated area to be occur, as necessary, between the operating airguns. The ensonified area ensonified to that level during airgun latitudes of approximately 66 to 70° for icebreaking was estimated by operations. ° South and between 140 and 165 East. multiplying the distance of the Applying the approach described Based on a maximum sea ice extent of icebreaking activities (1,000 km) by the above, approximately 5,628 km2 250 km and estimating that the Palmer estimated diameter of the area within (including the 25% contingency) would will transit to the innermost shelf and the 120 dB radius (i.e., diameter is 1,750 be ensonified within the 160 dB back into open water twice—a round m times 2). The 160 dB radii are based isopleth for seismic airgun operations trip transit in each of the potential work on acoustic modeling data for the and approximately 3,500 km2 would be regions, it is estimated that the Palmer airguns that may be used during the ensonified within the 120 dB isopleth will actively break ice up to a distance proposed action (see Attachment B of for icebreaking activities on one or more of 1,000 km. Based on the ship’s speed the IHA application). As summarized in occasions during the proposed survey. of 5 kts under moderate ice conditions, Table 2 (see Table 11 of the IHA The take calculations within the study this distance represents approximately application), the modeling results for sites do not explicitly add animals to 108 hrs of icebreaking operations. This the proposed low-energy seismic airgun account for the fact that new animals calculation is likely an overestimation array indicate the received levels are (i.e., turnover) are not accounted for in because icebreakers often follow leads dependent on water depth. Since the the initial density snapshot and animals when they are available and thus do not majority of the proposed airgun could also approach and enter the area break ice at all times. operations would be conducted in ensonified above 160 dB for seismic Numbers of marine mammals that waters 100 to 1,000 m deep, the buffer airgun operations and 120 dB for might be present and potentially zone of 1,005 m used for the two 105 in3 icebreaking activities; however, studies disturbed are estimated based on the GI airguns was used to be more suggest that many marine mammals will available data about marine mammal conservative. The expected sighting data avoid exposing themselves to sounds at distribution and densities in the for pinnipeds accounts for both this level, which suggests that there Southern Ocean study are during the pinnipeds that may be in the water and would not necessarily be a large number austral summer. NSF and ASC those hauled-out on ice surfaces. While of new animals entering the area once estimated the number of different the number of cetaceans that may be the seismic survey and icebreaking individuals that may be exposed to encountered within the ice margin activities started. Because this approach airgun sounds with received levels habitat would be expected to be less for calculating take estimates does not greater than or equal to 160 dB re 1 mPa than open water, the estimates utilized allow for turnover in the marine (rms) for seismic airgun operations and expected sightings for the open water mammal populations in the area during greater than or equal to 120 dB re 1 mPa and represent conservative estimates. It the course of the survey, the actual (rms) for icebreaking activities on one or is unlikely that a particular animal number of individuals exposed may be more occasions by considering the total would stay in the area during the entire underestimated, although the marine area that would be within the survey. conservative (i.e., probably 160 dB radius around the operating overestimated) line-kilometer distances The number of different individuals airgun array and 120 dB radius for the used to calculate the area may offset icebreaking activities on at least one potentially exposed to received levels this. Also, the approach assumes that no occasion and the expected density of greater than or equal to 160 dB re 1 mPa cetaceans or pinnipeds will move away marine mammals in the area (in the (rms) from seismic airgun operations or toward the tracklines as the Palmer absence of the a seismic survey and and 120 dB re 1 mPa (rms) for approaches in response to increasing icebreaking activities). The number of icebreaking activities was calculated by sound levels before the levels reach 160 possible exposures can be estimated by multiplying: dB for seismic airgun operations and considering the total marine area that (1) The expected species density (in 120 dB for icebreaking activities. would be within the 160 dB radius (i.e., number/km2), times. Another way of interpreting the

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estimates that follow is that they the most common delphinid and heading of our Federal Register notices. represent the number of individuals that porpoise species in the area, with Despite co-locating these terms, NMFS are expected (in absence of a seismic estimates of 493, 192, 216, and 208, acknowledges that negligible impact and icebreaking program) to occur in the which would represent 2, 0.1, and and small numbers are distinct waters that will be exposed to greater 0.15% (spectacled porpoise population standards under the MMPA and treat than or equal to 160 dB (rms) for seismic is not available) of the affected them as such. The analyses presented airgun operations and greater than or worldwide or regional populations, below do not conflate the two standards; equal to 120 dB (rms) for icebreaking respectively. Most of the pinnipeds instead, each standard has been activities. potentially taken by Level B harassment considered independently and NMFS NSF and ASC’s estimates of exposures are: Crabeater, leopard, Ross, and has applied the relevant factors to to various sound levels assume that the Weddell seals with estimates of 11,184, inform our negligible impact and small proposed surveys will be carried out in 86, 211, and 492, which would numbers determinations. full; however, the ensonified areas represent 0.2, 0.04, 0.2, and 0.1% of the NMFS has defined ‘‘negligible calculated using the planned number of affected worldwide or regional impact’’ in 50 CFR 216.103 as ‘‘an line-kilometers has been increased by populations, respectively. impact resulting from the specified 25% to accommodate lines that may activity that cannot be reasonably need to be repeated, equipment testing, Encouraging and Coordinating Research expected to, and is not reasonably likely etc. As is typical during offshore ship to, adversely affect the species or stock surveys, inclement weather and NSF and ASC will coordinate the through effects on annual rates of equipment malfunctions are likely to planned marine mammal monitoring recruitment or survival.’’ In making a cause delays and may limit the number program associated with the proposed negligible impact determination, NMFS of useful line-kilometers of seismic low-energy seismic survey with other evaluated factors such as: operations that can be undertaken. The parties that express interest in this (1) The number of anticipated estimates of the numbers of marine activity and area. NSF and ASC will injuries, serious injuries, or mortalities; mammals potentially exposed to 120 dB coordinate with applicable U.S. (2) The number, nature, and intensity, (rms) and 160 dB (rms) received levels agencies (e.g., NMFS), and will comply and duration of Level B harassment (all are precautionary and probably with their requirements. NSF has relatively limited); and overestimate the actual numbers of already reached out to the Australian (3) The context in which the takes marine mammals that could be Antarctic Division (AAD), who are the occur (i.e., impacts to areas of involved. These estimates assume that proponents of the proposed marine significance, impacts to local there will be no weather, equipment, or protected area and regularly conduct populations, and cumulative impacts mitigation delays, which is highly research expeditions in the marine when taking into account successive/ unlikely. environment off East Antarctica. contemporaneous actions when added Table 5 shows the estimates of the The proposed action would to baseline data); number of different individual marine complement fieldwork studying other (4) The status of stock or species of mammals anticipated to be exposed to Antarctic ice shelves, oceanographic marine mammals (i.e., depleted, not greater than or equal to 120 dB re 1 mPa studies, and ongoing development of ice depleted, decreasing, increasing, stable, (rms) for icebreaking activities and sheet and other ocean models. It would impact relative to the size of the greater than or equal to 160 dB re 1 mPa facilitate learning at sea and ashore by population); (rms) for seismic airgun operations students, help to fill important spatial (5) Impacts on habitat affecting rates during the seismic survey if no animals and temporal gaps in a lightly sampled of recruitment/survival; and moved away from the survey vessel. The region of coastal Antarctica, provide (6) The effectiveness of monitoring total requested take authorization is additional data on marine mammals and mitigation measures. given in the far right column of Table present in the East Antarctic study As described above and based on the 5. areas, and communicate its findings via following factors, the specified activities The estimate of the number of reports, publications and public associated with the marine seismic individual cetaceans and pinnipeds that outreach. survey are not likely to cause PTS, or could be exposed to seismic sounds other non-auditory injury, serious with received levels greater than or Impact on Availability of Affected injury, or death. The factors include: equal to 160 dB re 1 mPa (rms) and Species or Stock for Taking for (1) The likelihood that, given sounds from icebreaking activities with Subsistence Uses sufficient notice through relatively slow received levels greater than or equal to Section 101(a)(5)(D) of the MMPA ship speed, marine mammals are 120 dB re 1 mPa (rms) during the also requires NMFS to determine that expected to move away from a noise proposed survey is (with 25% the authorization will not have an source that is annoying prior to its contingency) in Table 5 of this unmitigable adverse effect on the becoming potentially injurious; document. That total (with 25% availability of marine mammal species (2) The potential for temporary or contingency) includes 1,889 humpback, or stocks for subsistence use. There are permanent hearing impairment is 1,080 Antarctic minke, 33 sei, 1,841 fin, no relevant subsistence uses of marine relatively low and would likely be 17 blue, and 255 sperm whales could be mammals in the study area (in the avoided through the implementation of taken by Level B harassment during the Dumont d’Urville Sea off the coast of the shut-down measures; proposed seismic survey, which would East Antarctica) that implicate MMPA No injuries, serious injuries, or represent 5.4, 0.4, 0.04, 1.3, 1, and 2.7% section 101(a)(5)(D). mortalities are anticipated to occur as a of the worldwide or regional result of the NSF and ASC’s planned populations, respectively. Some of the Negligible Impact and Small Numbers low-energy marine seismic survey, and cetaceans potentially taken by Level B Analysis Determination none are proposed to be authorized by harassment are delphinids and As a preliminary matter, NMFS NMFS. Table 5 of this document porpoises: killer whales, long-finned typically includes our negligible impact outlines the number of requested Level pilot whales, hourglass dolphins, and and small numbers analyses and B harassment takes that are anticipated spectacled porpoises are estimated to be determinations under the same section as a result of these activities. Due to the

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nature, degree, and context of Level B Level B harassment were provided in area, several are listed as endangered (behavioral) harassment anticipated and Table 4 of this document. under the ESA, including the described (see ‘‘Potential Effects on NMFS’s practice has been to apply the humpback, sei, fin, blue, and sperm Marine Mammals’’ section above) in this 160 dB re 1 mPa (rms) received level whales. NSF and ASC did not request notice, the activity is not expected to threshold for underwater impulse sound take of endangered Southern right impact rates of annual recruitment or levels and the 120 dB re 1 mPa (rms) whales due to the low likelihood of survival for any affected species or received level threshold for icebreaking encountering this species during the stock, particularly given NMFS’s and activities to determine whether take by cruise. Under section 7 of the ESA, NSF, the applicant’s proposal to implement Level B harassment occurs. Southall et on behalf of ASC and five other research mitigation, monitoring, and reporting al. (2007) provide a severity scale for institutions, has initiated formal measures to minimize impacts to marine ranking observed behavioral responses consultation with the NMFS, Office of mammals. Additionally, the seismic of both free-ranging marine mammals Protected Resources, Endangered survey will not adversely impact marine and laboratory subjects to various types Species Act Interagency Cooperation mammal habitat. of anthropogenic sound (see Table 4 in Division, on this proposed seismic For the other marine mammal species Southall et al. [2007]). survey. NMFS’s Office of Protected that may occur within the proposed NMFS has preliminarily determined, Resources, Permits and Conservation action area, there are no known provided that the aforementioned Division, has initiated formal designated or important feeding and/or mitigation and monitoring measures are consultation under section 7 of the ESA reproductive areas. Many animals implemented, the impact of conducting with NMFS’s Office of Protected perform vital functions, such as feeding, a low-energy marine seismic survey in Resources, Endangered Species Act resting, traveling, and socializing, on a the Dumont d’Urville Sea off the coast Interagency Cooperation Division, to diel cycle (i.e., 24 hr cycle). Behavioral of East Antarctica, February to March obtain a Biological Opinion evaluating reactions to noise exposure (such as 2014, may result, at worst, in a the effects of issuing the IHA on disruption of critical life functions, modification in behavior and/or low- threatened and endangered marine displacement, or avoidance of important level physiological effects (Level B mammals and, if appropriate, habitat) are more likely to be significant harassment) of certain species of marine authorizing incidental take. NMFS will if they last more than one diel cycle or mammals. conclude formal section 7 consultation While behavioral modifications, recur on subsequent days (Southall et prior to making a determination on including temporarily vacating the area al., 2007). Additionally, the seismic whether or not to issue the IHA. If the during the operation of the airgun(s), survey will be increasing sound levels IHA is issued, NSF and ASC, in may be made by these species to avoid in the marine environment in a addition to the mitigation and the resultant acoustic disturbance, the relatively small area surrounding the monitoring requirements included in availability of alternate areas within vessel (compared to the range of the the IHA, will be required to comply these areas for species and the short and animals), which is constantly travelling with the Terms and Conditions of the sporadic duration of the research over distances, and some animals may Incidental Take Statement activities, have led NMFS to only be exposed to and harassed by corresponding to NMFS’s Biological preliminary determine that the taking by sound for less than day. Opinion issued to both NSF and ASC, Of the 14 marine mammal species Level B harassment from the specified and NMFS’s Office of Protected under NMFS jurisdiction that may or activity will have a negligible impact on Resources. are known to likely to occur in the study the affected species in the specified area, five are listed as threatened or geographic region. NMFS believes that National Environmental Policy Act endangered under the ESA: southern the length of the seismic survey, the right, humpback, sei, fin, blue, and requirement to implement mitigation With NSF and ASC’s complete sperm whales. These species are also measures (e.g., shut-down of seismic application, NSF and ASC provided considered depleted under the MMPA. operations), and the inclusion of the NMFS a ‘‘Draft Initial Environmental Of these ESA-listed species, incidental monitoring and reporting measures, will Evaluation/Environmental Assessment take has been requested to be authorized reduce the amount and severity of the to Conduct Marine-Based Studies of the for humpback, sei, fin, blue, and sperm potential impacts from the activity to Totten Glacier System and Marine whales. There is generally insufficient the degree that it will have a negligible Record of Cryosphere—Ocean data to determine population trends for impact on the species or stocks in the Dynamics,’’ (IEE/EA) prepared by the other depleted species in the study action area. AECOM on behalf of NSF and ASC. The area. To protect these animals (and NMFS has preliminary determined, IEE/EA analyzes the direct, indirect, and other marine mammals in the study provided that the aforementioned cumulative environmental impacts of area), NSF and ASC must cease or mitigation and monitoring measures are the proposed specified activities on reduce airgun operations if any marine implemented, that the impact of marine mammals including those listed mammal enters designated zones. No conducting a low-energy marine seismic as threatened or endangered under the injury, serious injury, or mortality is survey in the Dumont d’Urville Sea off ESA. Prior to making a final decision on expected to occur and due to the nature, the coast of East Antarctica, January to the IHA application, NMFS will either degree, and context of the Level B March 2014, may result, at worst, in a prepare an independent EA, or, after harassment anticipated, and the activity temporary modification in behavior review and evaluation of the NSF and is not expected to impact rates of and/or low-level physiological effects ASC IEE/EA for consistency with the recruitment or survival. (Level B harassment) of small numbers regulations published by the Council of As mentioned previously, NMFS of certain species of marine mammals. Environmental Quality (CEQ) and estimates that 14 species of marine See Table 5 for the requested authorized NOAA Administrative Order 216–6, mammals under its jurisdiction could be take numbers of marine mammals. Environmental Review Procedures for potentially affected by Level B Implementing the National harassment over the course of the IHA. Endangered Species Act Environmental Policy Act, adopt the The population estimates for the marine Of the species of marine mammals NSF and ASC IEE/EA and make a mammal species that may be taken by that may occur in the proposed survey decision of whether or not to issue a

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Finding of No Significant Impact 3. Species Authorized and Level of (a) Utilize one, NMFS-qualified, (FONSI). Takes vessel-based Protected Species Observer (PSO) to visually watch for and monitor Proposed Authorization (a) The incidental taking of marine mammals, by Level B harassment only, marine mammals near the seismic As a result of these preliminary is limited to the following species in the source vessel during daytime airgun determinations, NMFS propose to issue waters of the Southern Ocean off the operations (from nautical twilight-dawn an IHA to NSF and ASC for conducting coast of East Antarctica: to nautical twilight-dusk) and before and during ramp-ups of airguns day or the low-energy seismic survey in the (i) Mysticetes—see Table 2 (attached) night. The Palmer’s vessel crew shall tropical western Pacific Ocean, for authorized species and take also assist in detecting marine provided the previously mentioned numbers. mammals, when practicable. PSOs shall mitigation, monitoring, and reporting (ii) Odontocetes—see Table 2 have access to reticle binoculars (7 × 50 requirements are incorporated. The (attached) for authorized species and Fujinon). PSO shifts shall last no longer take numbers. proposed IHA language is provided than 4 hours at a time. PSOs shall also (iii) Pinnipeds—see Table 2 (attached) below: make observations during daytime for authorized species and take National Science Foundation, periods when the seismic airguns are numbers. Division of Polar Programs, 4201 Wilson not operating for comparison of animal (iv) If any marine mammal species are Boulevard, Arlington, Virginia 22230 abundance and behavior, when feasible. encountered during seismic activities and Antarctic Support Contract, 7400 (b) PSOs shall conduct monitoring that are not listed in Table 2 (attached) South Tucson Way, Centennial, while the airgun array and streamer are for authorized taking and are likely to be Colorado 80112, is hereby authorized being deployed or recovered from the exposed to sound pressure levels (SPLs) under section 101(a)(5)(D) of the Marine water. greater than or equal to 160 dB re 1 mPa Mammal Protection Act (MMPA) (16 (c) Record the following information (rms) for seismic airgun operations or U.S.C. 1371(a)(5)(D)), to harass small when a marine mammal is sighted: greater than or equal to 120 dB re 1 mPa numbers of marine mammals incidental (i) Species, group size, age/size/sex (rms) for icebreaking activities, then the to a low-energy marine geophysical categories (if determinable), behavior Holder of this Authorization must alter (seismic) survey conducted by the RVIB when first sighted and after initial speed or course or shut-down the Nathaniel B. Palmer (Palmer) in the sighting, heading (if consistent), bearing airguns to avoid take. and distance from seismic vessel, Dumont d’Urville Sea, Antarctica, (b) The taking by injury (Level A January to March 2014: sighting cue, apparent reaction to the harassment), serious injury, or death of airguns or vessel (e.g., none, avoidance, 1. This Authorization is valid from any of the species listed in Condition approach, paralleling, etc., and January 29 through April 27, 2014. 3(a) above or the taking of any kind of including responses to ramp-up), and 2. This Authorization is valid only for any other species of marine mammal is behavioral pace; and the Palmer’s activities associated with prohibited and may result in the (ii) Time, location, heading, speed, low-energy seismic survey operations modification, suspension or revocation activity of the vessel (including number that shall occur in the following of this Authorization. of airguns operating and whether in specified geographic area: 4. The methods authorized for taking state of ramp-up or shut-down), by Level B harassment are limited to the Beaufort sea state and wind force, In selected regions of the Dumont following acoustic sources without an visibility, and sun glare; and d’Urville Sea in the Southern Ocean off amendment to this Authorization: (iii) The data listed under Condition the coast of East Antarctica and focus on (a) A two Generator Injector (GI) 6(c)(ii) shall also be recorded at the start the Totten Glacier and Moscow airgun array (each with a discharge and end of each observation watch and University Ice Shelf, located on the volume of 45 cubic inches [in3] or 105 during a watch whenever there is a Sabrina Coast, from greater than 3 3 change in one or more of the variables. ° in ) with a total volume of 90 in or 210 approximately 64 South and between 3 (d) Visually observe the entire extent ° in (or smaller); approximately 95 to 135 East, and the (b) A multi-beam echosounder; of the exclusion zone (180 dB re 1 mPa Mertz Glacier and Cook Ice Shelf (c) A single-beam echosounder; [rms] for cetaceans and 190 dB re 1 mPa systems located on the George V and (d) An acoustic Doppler current [rms] for pinnipeds; see Table 2 [above] Oates Coast, from greater than profiler; for distances) using NMFS-qualified ° approximately 65 South and between (e) An acoustic locator; PSOs, for at least 30 minutes prior to ° approximately 140 to 165 East. The (f) A sub-bottom profiler; and starting the airgun array (day or night). study sites are characterized by heavy (g) Icebreaking. If the PSO finds a marine mammal ice cover, with a seasonal break-up in 5. The taking of any marine mammal within the exclusion zone, NSF and the ice that structures biological in a manner prohibited under this ASC must delay the seismic survey until patterns. The studies may occur in both Authorization must be reported the marine mammal(s) has left the area. areas, or entirely in one or the other, immediately to the Office of Protected If the PSO sees a marine mammal that depending on ice conditions. Water Resources, National Marine Fisheries surfaces, then dives below the surface, depths in the survey area generally Service (NMFS), at 301–427–8401. the PSO shall wait 30 minutes. If the range from approximately 100 to 1,000 PSO sees no marine mammals during m, and possibly exceeding 1,000 m in 6. Mitigation and Monitoring that time, they should assume that the some areas. The low-energy seismic Requirements animal has moved beyond the exclusion survey will be conducted in The Holder of this Authorization is zone. If for any reason the entire radius International Waters (i.e., high seas), as required to implement the following cannot be seen for the entire 30 minutes specified in NSF and ASC’s Incidental mitigation and monitoring requirements (i.e., rough seas, fog, darkness), or if Harassment Authorization application when conducting the specified activities marine mammals are near, approaching, and the associated NSF and ASC Initial to achieve the least practicable adverse or in the exclusion zone, the airguns Environmental Evaluation/ impact on affected marine mammal may not be ramped-up. If one airgun is Environmental Assessment (IEE/EA). species or stocks: already running at a source level of at

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least 180 dB re 1 mPa (rms), NSF and initiated when the entire relevant Term and Condition, as well as any ASC may start the second airgun exclusion zones are visible and can be conservation recommendations, and without observing the entire exclusion effectively monitored. describe their effectiveness, for zone for 30 minutes prior, provided no (l) No initiation of airgun array minimizing the adverse effects of the marine mammals are known to be near operations is permitted from a shut- action on Endangered Species Act-listed the exclusion zone (in accordance with down position at night or during low- marine mammals. Condition 6[f] below). light hours (such as in dense fog or (b) Submit a final report to the Chief, (e) Establish a 180 dB re 1 mPa (rms) heavy rain) when the entire relevant Permits and Conservation Division, exclusion zone for cetaceans and a 190 exclusion zone cannot be effectively Office of Protected Resources, NMFS, dB re 1 mPa (rms) exclusion zone for monitored by the PSO(s) on duty. within 30 days after receiving comments pinnipeds before the two GI airgun array from NMFS on the draft report. If NMFS 7. Reporting Requirements (90 or 210 in3 total volume) is in decides that the draft report needs no operation. See Table 2 (above) for The Holder of this Authorization is comments, the draft report shall be distances and exclusion zones. required to: considered to be the final report. (f) Implement a ‘‘ramp-up’’ procedure (a) Submit a draft report on all 8. In the unanticipated event that the when starting up at the beginning of activities and monitoring results to the specified activity clearly causes the take seismic operations or anytime after the Office of Protected Resources, NMFS, of a marine mammal in a manner entire array has been shut-down for within 90 days of the completion of the prohibited by this Authorization, such more than 15 minutes, which means Palmer’s Dumont d’Urville Sea off the as an injury (Level A harassment), starting with a single GI airgun and coast of East Antarctica cruise. This serious injury or mortality (e.g., ship- adding a second GI airgun after five report must contain and summarize the strike, gear interaction, and/or minutes. During ramp-up, the PSOs following information: entanglement), NSF and ASC shall shall monitor the exclusion zone, and if (i) Dates, times, locations, heading, immediately cease the specified marine mammals are sighted, a shut- speed, weather, sea conditions activities and immediately report the down shall be implemented as though (including Beaufort sea state and wind incident to the Chief of the Permits and the full array (both GI airguns) were force), and associated activities during Conservation Division, Office of operational. Therefore, initiation of all seismic operations and marine Protected Resources, NMFS, at 301– ramp-up procedures from shut-down mammal sightings; 427–8401 and/or by email to requires that the PSOs be able to view (ii) Species, number, location, [email protected] and the full exclusion zone as described in distance from the vessel, and behavior [email protected]. The report Condition 6(d) (above). of any marine mammals, as well as must include the following information: (g) Alter speed or course during associated seismic activity (e.g., number (a) Time, date, and location (latitude/ seismic operations if a marine mammal, of shut-downs), observed throughout all longitude) of the incident; the name and based on its position and relative monitoring activities. type of vessel involved; the vessel’s motion, appears likely to enter the (iii) An estimate of the number (by speed during and leading up to the relevant exclusion zone. If speed or species) of marine mammals that: (A) incident; description of the incident; course alteration is not safe or Are known to have been exposed to the status of all sound source use in the 24 practicable, or if after alteration the seismic activity (based on visual hours preceding the incident; water marine mammal still appears likely to observation) at received levels greater depth; environmental conditions (e.g., enter the exclusion zone, further than or equal to 120 dB re 1 mPa (rms) wind speed and direction, Beaufort sea mitigation measures, such as a shut- (for icebreaking activities), greater than state, cloud cover, and visibility); down, shall be taken. or equal to 160 dB re 1 mPa (rms) (for description of marine mammal (h) Shut-down the airgun(s) if a seismic airgun operations), and/or 180 observations in the 24 hours preceding marine mammal is detected within, dB re 1 mPa (rms) for cetaceans and 190 the incident; species identification or approaches, or enters the relevant dB re 1 mPa (rms) for pinnipeds with a description of the animal(s) involved; exclusion zone (as defined in Table 2, discussion of any specific behaviors the fate of the animal(s); and above). A shut-down means all those individuals exhibited; and (B) photographs or video footage of the operating airguns are shut-down (i.e., may have been exposed (based on animal (if equipment is available). turned off). modeled values for the two GI airgun Activities shall not resume until (i) Following a shut-down, the airgun array) to the seismic activity at received NMFS is able to review the activity shall not resume until the PSO levels greater than or equal to 120 dB re circumstances of the prohibited take. has visually observed the marine 1 mPa (rms) (for icebreaking activities), NMFS shall work with NSF and ASC to mammal(s) exiting the exclusion zone greater than or equal to 160 dB re 1 mPa determine what is necessary to and is not likely to return, or has not (rms) (for seismic airgun operations), minimize the likelihood of further been seen within the exclusion zone for and/or 180 dB re 1 mPa (rms) for prohibited take and ensure MMPA 15 minutes for species with shorter dive cetaceans and 190 dB re 1 mPa (rms) for compliance. NSF and ASC may not durations (small odontocetes and pinnipeds with a discussion of the resume their activities until notified by pinnipeds) or 30 minutes for species nature of the probable consequences of NMFS via letter, email, or telephone. with longer dive durations (mysticetes that exposure on the individuals that In the event that NSF and ASC and large odontocetes, including sperm, have been exposed. discovers an injured or dead marine killer, and beaked whales). (iv) A description of the mammal, and the lead PSO determines (j) Following a shut-down and implementation and effectiveness of the: that the cause of the injury or death is subsequent animal departure, airgun (A) Terms and Conditions of the unknown and the death is relatively operations may resume following ramp- Biological Opinion’s Incidental Take recent (i.e., in less than a moderate state up procedures described in Condition Statement (ITS) (attached); and (B) of decomposition as described in the 6(f). mitigation measures of the Incidental next paragraph), NSF and ASC will (k) Marine seismic surveys may Harassment Authorization. For the immediately report the incident to the continue into night and low-light hours Biological Opinion, the report shall Chief of the Permits and Conservation if such segment(s) of the survey is confirm the implementation of each Division, Office of Protected Resources,

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NMFS, at 301–427–8401, and/or by Conservation Division, Office of the authority of this Incidental email to [email protected] and Protected Resources, NMFS, at 301– Harassment Authorization. [email protected]. The report 427–8401, and/or by email to Information Solicited must include the same information [email protected] and identified in Condition 8(a) above. [email protected], within 24 NMFS requests interested persons to Activities may continue while NMFS hours of the discovery. NSF and ASC submit comments and information reviews the circumstances of the shall provide photographs or video concerning this proposed project and incident. NMFS will work with NSF footage (if available) or other NMFS’s preliminary determination of and ASC to determine whether documentation of the stranded animal issuing an IHA (see ADDRESSES). modifications in the activities are sighting to NMFS and the Marine Concurrent with the publication of this appropriate. Mammal Stranding Network. Activities notice in the Federal Register, NMFS is In the event that NSF and ASC may continue while NMFS reviews the forwarding copies of this application to discovers an injured or dead marine circumstances of the incident. the Marine Mammal Commission and mammal, and the lead PSO determines 9. NSF and ASC is required to comply its Committee of Scientific Advisors. that the injury or death is not associated with the Terms and Conditions of the with or related to the activities ITS corresponding to NMFS’s Biological Dated: December 30, 2013. authorized in Condition 2 of this Opinion issued to both NSF, ASC, and P. Michael Payne, Authorization (e.g., previously wounded NMFS’s Office of Protected Resources Chief, Permits and Conservation Division, animal, carcass with moderate to (attached). Office of Protected Resources, National advanced decomposition, or scavenger 10. A copy of this Authorization and Marine Fisheries Service. damage), NSF and ASC shall report the the ITS must be in the possession of all [FR Doc. 2013–31471 Filed 12–31–13; 8:45 am] incident to the Chief of the Permits and contractors and PSOs operating under BILLING CODE 3510–22–P

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Part IV

Department of Energy

10 CFR Parts 429 and 430 Energy Conservation Program: Test Procedures for Residential Furnace Fans; Final Rule

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DEPARTMENT OF ENERGY and Renewable Energy, Building B. Review under the Regulatory Flexibility Technologies Program, EE–2J, 1000 Act 10 CFR Parts 429 and 430 Independence Avenue SW., C. Review Under the Paperwork Reduction Act of 1995 [Docket No. EERE–2010–BT–TP–0010] Washington, DC 20585–0121. D. Review Under the National Telephone: (202) 586–7935. Email: Environmental Policy Act of 1969 RIN 1904–AC21 [email protected]. E. Review Under Executive Order 13132 Ari Altman, U.S. Department of Energy, F. Review Under Executive Order 12988 Energy Conservation Program: Test Office of the General Counsel, GC–71, G. Review Under the Unfunded Mandates Procedures for Residential Furnace 1000 Independence Avenue SW., Reform Act of 1995 Fans Washington, DC 20585–0121. H. Review Under the Treasury and General Telephone: (202) 287–6307. Email: Government Appropriations Act, 1999 AGENCY: Office of Energy Efficiency and I. Review Under Executive Order 12630 Renewable Energy, Department of [email protected]. J. Review Under Treasury and General Energy. SUPPLEMENTARY INFORMATION: This final Government Appropriations Act, 2001 ACTION: Final rule. rule incorporates by reference into part K. Review Under Executive Order 13211 430 the following industry standards: L. Review Under Section 32 of the Federal SUMMARY: On May 15, 2012, the U.S. (1) ANSI/ASHRAE Standard 103– Energy Administration Act of 1974 Department of Energy (DOE) issued a 2007, (Supersedes ANSI/ASHRAE 103– M. Congressional Notification notice of proposed rulemaking (NOPR) 1993), Methods of Testing for Annual N. Approval of the Office of the Secretary to initiate the rulemaking to establish Fuel Utilization Efficiency of I. Authority and Background test procedures for residential furnace Residential Central Furnaces and Title III of the Energy Policy and fans. On April 2, 2013 DOE issued a Boilers, ASHRAE Standards Committee Conservation Act of 1975 (42 U.S.C. supplemental notice of proposed approved on June 23, 2007, ASHRAE 6291, et seq.; ‘‘EPCA’’ or, ‘‘the Act’’) sets rulemaking (SNOPR) to address Board of Directors on June 27, 2007, forth a variety of provisions designed to interested party comments received on ANSI approved March 25, 2008. improve energy efficiency. (All (2) ANSI/ASHRAE 37–2009, Methods the NOPR. The proposed rulemaking references to EPCA refer to the statute of Testing for Rating Electrically Driven serves as the basis for today’s action. as amended through the American Unitary Air-Conditioning and Heat DOE is issuing a final rule to establish Energy Manufacturing Technical Pump Equipment, ASHRAE Standards test procedures for measuring the Corrections Act (AEMTCA), Pub. L. Committee approved on June 20, 2009, electrical consumption for electrically- 112–210 (Dec. 18, 2012)). Part B of title powered devices used in weatherized ASHRAE Board of Directors approved III, which for editorial reasons was and non-weatherized gas, oil and on June 24, 2009; ANSI approved June redesignated as Part A upon electric furnaces and modular blowers 25, 2009. incorporation into the U.S. Code (42 You can purchase copies of ASHRAE to circulate air through ductwork. U.S.C. 6291–6309, as codified), standards from the American Society of DATES: The effective date of this rule is establishes the ‘‘Energy Conservation Heating, Refrigerating and Air- February 3, 2014. Program for Consumer Products Other Conditioning Engineers, Inc. 1791 Tullie The incorporation by reference of Than Automobiles.’’ These include Circle NE., Atlanta, GA 30329, 404– certain publications listed in this rule products that use electricity for the 636–8400, or www.ashrae.org. was approved by the Director of the purposes of circulating air through Federal Register on February 3, 2014. You can also view copies of these standards at the U.S. Department of ductwork, hereinafter referred to as ADDRESSES: The docket, which includes Energy, Resource Room of the Building ‘‘furnace fans,’’ the subject of today’s Federal Register notices, public meeting Technologies Program, 950 L’Enfant notice. (42 U.S.C. 6295(f)(4)(D)) attendee lists and transcripts, Under the Act, this energy Plaza SW., 6th Floor, Washington, DC comments, and other supporting conservation program consists 20024, (202) 586–2945, between 9 a.m. documents/materials, is available for essentially of four parts: (1) Testing; (2) and 4 p.m., Monday through Friday, review at regulations.gov. All labeling; (3) Federal energy conservation except Federal holidays. documents in the docket are listed in standards; and (4) certification and the regulations.gov index. However, Table of Contents enforcement procedures. The testing some documents listed in the index, I. Authority and Background requirements consist of test procedures such as those containing information II. Summary of the Final Rule that manufacturers of covered products that is exempt from public disclosure, III. Discussion must use as the basis for certifying to may not be publicly available. A. Scope DOE that their products comply with A link to the docket Web page can be B. AMCA 210 the applicable energy conservation found at: http://www1.eere.energy.gov/ C. Airflow Equation standards adopted pursuant to EPCA buildings/appliance_standards/ D. Duct Specifications and External Static and for making representations about product.aspx/productid/42. This Web Pressure Measurement the efficiency of those products. (42 page will contain a link to the docket for E. Temperature Measurement Accuracy Requirement U.S.C. 6293(c); 42 U.S.C. 6295(s)) Any this notice on the regulations.gov site. F. Minimum Temperature Rise representation made after July 2, 2014 The regulations.gov Web page will G. Steady-State Stabilization Criteria for energy consumption of residential contain simple instructions on how to H. Inlet and Outlet Airflow Temperature furnace fans must be based upon results access all documents, including public Gradients generated under this test procedure. comments, in the docket. I. Sampling Plan Criteria Upon the compliance date(s) of any For further information on how to J. Alternative Efficiency Determination energy conservation standard(s) for review the docket, contact Ms. Brenda Method (AEDM) residential furnace fans, use of the Edwards at (202) 586–2945 or by email: K. FER Equation L. Air Leakage applicable provisions of this test [email protected]. M. FER Metric procedure to demonstrate compliance FOR FURTHER INFORMATION CONTACT: N. FER Reporting with the energy conservation standard Ronald Majette, U.S. Department of IV. Procedural Issues and Regulatory Review will also be required. Similarly, DOE Energy, Office of Energy Efficiency A. Review Under Executive Order 12866 must use these test procedures in any

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enforcement action to determine and central air conditioners (CAC) and No. 14 at p. 1; Lennox, No. 12 at p. 5; whether covered products comply with heat pumps. 77 FR 76831 (Dec. 31, Morrison, No. 21 at p. 3.) On April 2, these energy conservation standards. (42 2012); 76 FR 65616 (Oct. 24, 2011). 2013, DOE published a supplemental U.S.C. 6295(s)) Manufacturers will be required to use notice of proposed rulemaking (SNOPR) the energy consumption metric, in the Federal Register. A detailed General Test Procedure Rulemaking sampling plans, and testing methods discussion of AHRI’s proposed Process established in this final rule to verify alternative method and interested Under 42 U.S.C. 6293, EPCA sets forth compliance with the new energy parties’ comments regarding the burden the criteria and procedures DOE must conservation standards when they take of the test procedure proposed in the follow when prescribing or amending effect and for making representations of NOPR is provided in the SNOPR. 78 FR test procedures for covered products. the energy consumption of furnace fans. 19612 (April 2, 2013) In the April 2013 Under EPCA, ‘‘[a]ny test procedures On June 3, 2010, DOE published a SNOPR, DOE proposed to adopt a prescribed or amended under this Notice of Public Meeting and modified version of the test method section shall be reasonably designed to Availability of the Framework presented by AHRI as the furnace fan produce test results which measure Document (the June 2010 Framework test procedure. DOE agreed that the key energy efficiency, energy use, . . . or Document) to initiate the energy concept embodied in the alternative estimated annual operating cost of a conservation standard rulemaking for method suggested by AHRI and covered product during a representative furnace fans. 75 FR 31323. In the June manufacturers (using the AFUE test set average use cycle or period of use . . . 2010 Framework Document, DOE up and temperature rise to determine and shall not be unduly burdensome to requested feedback from interested airflow) may provide accurate and conduct.’’ (42 U.S.C. 6293(b)(3)) In parties on many issues related to test repeatable FER values at a significantly addition, if DOE determines that a test methods for evaluating the electrical reduced burden to manufacturers.1 DOE procedure amendment is warranted, it energy consumption of furnace fans. also explained the changes reflected in must publish proposed test procedures DOE held the framework public meeting the test procedure proposed in the and offer the public an opportunity to on June 18, 2010. DOE originally SNOPR compared to the test procedure present oral and written comments on scheduled the framework comment proposed in the NOPR. 78 FR 19606 them. (42 U.S.C. 6293(b)(2)) In any period to close on July 6, 2010. (Apr. 2, 2013) rulemaking to amend a test procedure, However, due to the large number and DOE must determine to what extent, if broad scope of questions and issues II. Summary of the Final Rule any, the proposed test procedure would raised regarding the June 2010 Pursuant to EPCA, this final rule alter the measured energy efficiency of Framework Document in writing and establishes test procedures to enable a covered product as determined under during the public meeting, DOE DOE to develop energy conservation the existing test procedure. (42 U.S.C. published a notice in the Federal standards to address the electricity used 6293(e)(1)) If DOE determines that the Register reopening the comment period for the purpose of circulating air amended test procedure would alter the from July 15, 2010, until July 27, 2010, through duct work. (42 U.S.C. measured efficiency of a covered to allow additional time for interested 6295(o)(3)(A) and (f)(4)(D)) The test product, DOE must amend the parties to submit comments. 75 FR procedure established by this notice is applicable energy conservation standard 41102 (July 15, 2010). applicable to circulation fans used in accordingly. (42 U.S.C. 6293(e)(2)) On May 15, 2012, DOE published a weatherized and non-weatherized gas notice of proposed rulemaking in the Energy Conservation Standards and furnaces, oil furnaces, electric furnaces, Federal Register to initiate the test Test Procedures for Furnace Fans and modular blowers. The test procedure rulemaking for furnace fans. procedure is not applicable to any non- Pursuant to EPCA under 42 U.S.C. 77 FR 28674. In the May 2012 NOPR, ducted products, such as whole-house 6295(f)(4)(D), DOE is currently DOE proposed an energy consumption ventilation systems without ductwork, conducting a rulemaking to consider metric, fan efficiency rating (FER), and central air-conditioning (CAC) new energy conservation standards for proposed methods to measure the condensing unit fans, room fans, and furnace fans. EPCA directs DOE to performance of furnace fans based on furnace draft inducer fans. establish test procedures in conjunction FER. DOE held a public meeting on the DOE aligned the test procedure with new energy conservation test procedure NOPR on June 15, 2012. established by this final rule with the standards, including furnace fans. (42 The test procedure NOPR comment DOE test procedure for furnaces by U.S.C. 6295(o)(3)(A)) DOE does not period closed on September 10, 2012. incorporating by reference specific currently have a test procedure for In response to the May 2012 NOPR, provisions from an industry standard furnace fans. Hence, to fulfill the many interested parties commented that that is also incorporated by reference in statutory requirements, DOE is the proposed test procedure was unduly the DOE test procedure for furnaces. conducting this test procedure burdensome. The Air-Conditioning, DOE’s test procedure for furnaces is rulemaking for furnace fans Heating and Refrigeration Institute codified in appendix N of subpart B of concurrently with the energy (AHRI), with support from Goodman part 430 of the code of federal conservation standards rulemaking for Global, Inc. (‘‘Goodman’’), Ingersoll regulations (CFR). The DOE furnace test furnace fans. The test procedure Rand, Lennox International, Inc. procedure incorporates by reference established by this final rule includes an (‘‘Lennox’’), and Morrison Products, Inc. American National Standards Institute energy consumption metric and the (‘‘Morrison’’), proposed an alternative (ANSI)/American Society of Heating, methods necessary to measure the test method that these parties argue Refrigerating and Air Conditioning energy performance of furnace fans. The would result in accurate and repeatable Engineers (ASHRAE) 103–1993, Method energy consumption metric does not FER values that are comparable to the of Testing for Annual Fuel Utilization account for the electrical energy FER values resulting from the test Efficiency of Residential Central consumption in standby mode and off procedure proposed in the NOPR, but mode because consumption of a furnace are obtained at a significantly reduced 1 Temperature rise in this context and for the fan in those modes is already accounted test burden. (AHRI, No. 16 at p. 3; purposes of this rule is the difference between the for in the DOE rulemakings for furnaces Goodman, No. 17 at p. 4; Ingersoll Rand, inlet and outlet air temperature.

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Furnaces and Boilers (ASHRAE 103– airflow-control settings at different DOE recognizes that some furnace fan 1993). This final rule incorporates by external static pressures (ESPs), basic models may be marketed and reference the definitions, test setup and multiplied by national average operating designed to be installed in multiple equipment, and procedures for hours associated with each setting. installation types. For example, a non- measuring steady-state combustion These ESPs are determined by a weatherized, non-condensing gas efficiency provisions of the 2007 version reference system, based on operation at furnace that can be installed in both of ASHRAE 103 (ASHRAE 103–2007). maximum airflow, that represents mobile homes and non-mobile In addition to these provisions, the test national average ductwork system residences meets the definition for procedure established by this final rule characteristics. ‘‘units designed to be paired with an Table II.1 includes the reference includes provisions for apparatuses and evaporator coil’’ and ‘‘units designed to procedures for measuring temperature system ESP values by installation type that are specified by the test procedure. be installed in a mobile home.’’ In this rise, external static pressure, and final rule, DOE is specifying that a furnace fan electrical input power. The In previous rulemaking documents for manufacturer must test, rate, and certify test procedure established by this final the furnace fan test procedure and compliance of the basic model of rule also incorporates by reference energy conservation standard provisions for measuring temperature rulemaking, DOE used the term furnace fan in all of the installation and external static pressure from ANSI/ ‘‘manufactured home furnace’’ to be types for which it is marketed and ASHRAE 37–2009, Methods of Testing synonymous with ‘‘mobile home designed. For example, the basic model for Rating Electrically Driven Unitary furnace’’, as defined in the Federal of furnace fan that is used in a non- Air-Conditioning and Heat Pump Register. 10 CFR 430.2. DOE will use weatherized, non-condensing furnace, Equipment (ASHRAE 37–2009). There the term ‘‘mobile home’’ hereinafter to as described above, that is marketed and are no differences between the 2005 be consistent with the Federal Register designed to be installed in both non- version (which is already incorporated definition for ‘‘mobile home furnace.’’ mobile home and mobile home by reference in the CFR) and the 2009 All provisions and statements regarding residences will need to be tested and version of the ASHRAE 37 provisions mobile homes and mobile home certified as both a non-weatherized, incorporated by reference for this final furnaces are applicable to manufactured non-condensing gas furnace fan using rule. This final rule also establishes homes and manufactured home the ‘‘units designed to be paired with an calculations to derive the rating metric, furnaces. evaporator coil’’ reference system fan energy rating (FER), for each furnace criteria and as a mobile home, non- fan basic model based on the results of TABLE II.1—REQUIRED REFERENCE weatherized, non-condensing gas testing per the test method established SYSTEM CRITERIA (I.E., ESP AT furnace fan using the ‘‘units designed to by this notice. MAXIMUM AIRFLOW) BY FURNACE be installed in a mobile home’’ reference FER is the estimated annual electrical FAN INSTALLATION TYPE system criteria. energy consumption of the furnace fan This test procedure requires normalized by: (a) The estimated total ESP at maximum measurements for the airflow-control number of annual fan operating hours Installation type airflow settings that correspond to fan operation (1,870); and (b) the airflow in the (in. wc) maximum airflow-control setting. For while performing the cooling function the purposes of the test procedure Units with an internal evapo- (which DOE finds is predominantly established by this final rule, the rator coil ...... 0.50 associated with the maximum airflow- estimated annual electrical energy Units designed to be paired control setting), heating function, and consumption is the sum of the furnace with an evaporator coil ...... 0.65 constant-circulation function. Table II.2 Units designed to be in- describes the required airflow-control fan electrical input power (in Watts), stalled in a mobile home 2 0.30 measured separately for multiple settings by product type.

TABLE II.2—AIRFLOW-CONTROL SETTINGS AT WHICH MEASUREMENTS ARE REQUIRED FOR EACH PRODUCT TYPE

Product type Airflow-control setting 1 Airflow-control setting 2 Airflow-control setting 3

Single-stage Heating ...... Default constant-circulation ...... Default heat ...... Absolute maximum.* Multi-stage or Modulating Heating Default constant-circulation ...... Default low heat ...... Absolute maximum. * For the purposes of the test procedure established by this notice, ‘‘absolute maximum’’ airflow-control setting refers to the airflow-control set- ting that achieves the maximum attainable airflow at operating conditions specified by this test procedure.

As shown in Table II.2, for products heating setting; and the absolute shipped with the product in which the with single-stage heating, the three maximum setting. The absolute lowest furnace fan is integrated. Manufacturers airflow-control settings to be tested are: airflow-control setting is used to typically provide detailed instructions The default constant-circulation setting; represent constant circulation if a for setting the default heating airflow- the default heating setting; and the default constant-circulation setting is control setting to ensure that the absolute maximum setting. For products not specified. For this test procedure, product in which the furnace fan is with multi-stage heating or modulating DOE defines ‘‘default airflow-control integrated operates safely. In instances heating, the airflow-control settings to settings’’ as the airflow-control settings where a manufacturer specifies multiple be tested are: the default constant- for installed use specified by the airflow-control settings for a given circulation setting; the default low manufacturer in the product literature function to account for varying

2 Mobile home external static pressure is much of Housing and Urban Development (HUD) the ductwork for cooling should be designed for 0.3 lower because there is no return air ductwork in requirements for manufactured homes stipulate that in. wc. 24 CFR 3280.715. mobile homes. Also, the United States Department

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installation scenarios, the highest Manufacturer installation guides also designated annual operating hours for airflow-control setting specified for the provide detailed instructions regarding each function (i.e., cooling, heating, and given function shall be used for the DOE compatible thermostats and how to wire constant circulation) that represent test procedure. High heat and reduced them to achieve the specified default national average operation. Table II.3 heat will be considered different settings. shows the estimated national average functions for multi-stage heating units. The Watt measurements for operating hours for each function. calculating FER are weighted using

TABLE II.3—ESTIMATED NATIONAL AVERAGE OPERATING HOUR VALUES FOR CALCULATING FER

Single-stage Multi-stage or modulating Operating mode Variable (hours) (hours)

Heating ...... HH ...... 830 830/HCR. Cooling ...... CH ...... 640 640. Constant Circulation ...... CCH ...... 400 400.

For multi-stage heating or modulating (HCR) to account for variation in time input rate to the measured maximum heating products, the specified spent in this mode associated with heat input rate. operating hours for the heating mode are turndown of heating output. The HCR is The FER equation is: divided by the heating capacity ratio the ratio of the measured reduced heat

III. Discussion does not support the conclusion that conditioner or heat pump product. modular blowers and electric furnaces (Goodman, No. 0037 at pg. 4) A. Scope are very similar in design. (Lennox, No. On the other hand, the Northwest In the SNOPR, DOE addressed 0031 at p. 2) Furthermore, modular Energy Efficiency Alliance (NEEA) and interested party comments on the NOPR blowers that are not electric furnaces do Northwest Power and Conservation regarding the scope of coverage. DOE not currently require AFUE testing. Council (NPPC) strongly disagrees with proposed test procedures for circulation Thus, the test procedure imposes the DOE’s proposal to exclude hydronic and fans that are used in residential furnaces requirement to run AFUE tests on non- split system air conditioning and heat and modular blowers. 78 FR 19609 furnaces, which adds additional burden pump air handlers from the proposed (Apr. 2, 2013) to manufacturers as well as additional scope. NPPC/NEEA commented that AHRI and Morrison Products, Inc. testing costs. (Lennox, No. 0031 at p. 2) DOE noted in the SNOPR that ‘‘The believe that modular blowers should be Goodman Manufacturing Company, L.P. NOPR test procedure’s proposed scope excluded from the scope of the reiterated in comments that DOE’s of applicability included single phase, rulemaking because they are not electrically-powered devices that interpretation of the scope in the currently a federally regulated product. circulate air through ductwork in HVAC SNOPR is too broad and in error. They add that, if 42 U.S.C. 6295(f)(4)(D) systems with heating input capacities Goodman stated that furnace fan were intended to cover modular less than 225,000 Btu per hour, cooling blowers, then there would have been a electrical power consumption in cooling capacities less than 65,000 Btu per hour, corresponding change to the definition mode should not be included in the and airflow capacities less than 3,000 of furnace or the addition of this scope of this rule because it is already cfm.’’ NPPC/NEEA finds this scope to be product class along with a direction to accounted for by the SEER metric when perfectly acceptable and appropriate, develop a corresponding test procedure. the furnace fan is used with a split- and suggests that there is nothing in this Additionally, the proposed test system air conditioner or split-system language that would exclude hydronic procedures in the SNOPR are heat pump. DOE stated in the SNOPR or central air conditioning and heat insufficient for modular blowers and fail that EPCA does not impose a limitation pump air handlers. (NPCC/NEEA, No. to account for the fact that some on DOE’s authority to regulate fan 0039 at pg. 2) Additionally, NPPC and modular blowers in today’s marketplace electrical consumption for these NEEA note that sold separately, the air are not even designed to operate with products across all operating modes handlers used for central air electric heat resistance kits. (AHRI, No. because, in this situation, two different conditioning and heat pump systems are 0034 at pg. 2; Morrison, No. 0036 at pg. products are being regulated, one the virtually indistinguishable from a 2) Lennox International, Inc. agrees with CAC or heat pump product, and one the modular blower, as DOE defines the DOE’s decision not to include fans used separate furnace fan product, which latter. NPPC and NEEA argue that they in other products, such as split-system may or may not be incorporated into a are the same thing, particularly since central air-conditioning and heat pump CAC or heat pump.’’ (78 FR at 19612) DOE plans to include modular blowers air handlers or hydronic air handlers. Goodman commented that DOE’s that can be sold with electric resistance (Lennox, No. 0031 at p. 1) Additionally, justification in the SNOPR for including heating kits. (NPCC/NEEA, No. 0039 at like AHRI, Lennox feels that DOE furnace fan cooling mode operation pg. 3) Furthermore, NPCC/NEEA state should not include modular blowers in ignores the fact that in 100% of that hydronic air handlers can be the scope of coverage because the applications where a furnace is operated properly referred to as ‘‘furnaces’’, thus, definition of modular blowers that is in the cooling mode the furnace is the need to specify a different test contained in the proposed regulation matched with either a central air- procedure for them, other than the one

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proposed for gas- or oil-fired furnaces, is • Products addressed in this recognizes that furnace fans are used not not a valid reason for excluding them rulemaking: furnace fans used in just for circulating air through duct from coverage in this rulemaking. weatherized and non-weatherized gas work during heating operation, but also (NPCC/NEEA, No. 0039 at pg. 3) furnaces, oil furnaces, electric furnaces, for circulating air during cooling and Like NPCC/NEEA, the American Gas and modular blowers. constant-circulation operation. DOE • Association (AGA) supports DOE Products not addressed in this anticipates that higher airflow-control including furnace fans used in other rulemaking: furnace fans used in other settings are factory-set for cooling products, such as split-system central products, such as split-system CAC and operation. Therefore, DOE expects that air-conditioning and heat pump air heat pump blower-coil units, through- the electrical energy consumption of a handlers, through-the-wall air handlers, the-wall blower-coil units, small-duct, furnace fan is generally higher while as well as other types of air handlers, high-velocity (SDHV) blower-coil units, performing the cooling function. but understands that DOE is not energy recovery ventilators (ERVs), heat Additionally, the design of the fan as addressing these products in this recovery ventilators (HRVs), draft well as its typical operating rulemaking but will do so in future inducer fans, exhaust fans, or hydronic characteristics (i.e., ESP levels during rulemakings. (AGA, No. 0040 at pg. 1) blower-coil units. operation in different modes) is directly The California Investor Owned Utilities The test procedure established by this related to the performance requirements notice is applicable to modular blowers. (CA IOUs) also believe DOE should in cooling mode. DOE is also concerned All modular blower models of which include furnace fans that are part of that excluding some functions from DOE is aware can be operated in blower-coil and single-packaged central consideration in rating furnace fan conjunction with an electric resistance air-conditioners and heat pumps within performance would incentivize heat kit. DOE expects that the number the scope of the standards rulemaking manufacturers to design fans that are of modular blowers that are not because the SEER and HSPF do not optimized to perform efficiently at the designed to operate with an electric adequately capture fan energy use. selected rating airflow-control settings resistance heat kit is de minimis. Additionally, CA IOUs encourage DOE but that are not efficient over the broad Consequently, DOE is including to keep hydronic air-handlers within the range of field operating conditions. In modular blowers in the scope of DOE’s view, in order to obtain a scope, and to develop a test procedure coverage of the test procedure for this product class. (CA IOUs, No. complete assessment of overall established by this final rule. performance and a metric that reflects 0032 at p. 1) Manufacturers that produce modular As discussed in the SNOPR, DOE the product’s electrical energy blowers that cannot be operated in consumption during a representative noted that, although the title of this conjunction with an electric resistance statutory section refers to ‘‘furnaces and average use cycle, the metric must heat kit will likely have to apply for a account for electrical consumption in a boilers,’’ the applicable provision at 42 waiver from the test procedure. Waiver set of airflow-control settings that spans U.S.C. 6295(f)(4)(D) was written using applications could include a proposed all active mode functions. This ensures notably broader language than the other alternative test method that includes a more accurate accounting of the provisions within the same section. 78 provisions for generating measureable benefits of improved furnace fans. FR 19606, 19611. Specifically, the heat in the airflow of the product that applicable statutory provision directs can be used to calculate airflow per the B. Standby and Off Mode DOE to ‘‘consider and prescribe energy specified airflow equations. DOE conservation standards or energy use recognizes that testing products that EPCA, as amended by the Energy standards for electricity used for meet the definition of furnace fan, but Independence and Security Act of 2007, purposes of circulating air through duct were previously not subject to DOE’s Public Law 110–140 (EISA), requires work.’’ Such language could be regulatory provisions, requires an that any final rule for a new or amended interpreted as encompassing investment of time and resources, as energy conservation standard adopted electrically-powered devices used in Lennox suggests. However, DOE after July 1, 2010, must address standby any residential HVAC product to interprets EPCA to require consideration mode and off mode energy use pursuant circulate air through duct work, not just of standards for modular blowers, and to 42 U.S.C. 6295(o). (42 U.S.C. furnaces, and DOE has received DOE does not find the time and 6295(gg)(3)) In the NOPR and SNOPR, numerous comments on both sides of resources required to test modular DOE explained that DOE has already this issue. At the present time, however, blowers according to the test procedure fully incorporated standby mode and off DOE is only establishing test procedures established by this final rule to be mode energy use in the test procedures for those circulation fans that are used unduly burdensome. (or proposed test procedures) for all of in residential furnaces and modular After considering available the products to which the test procedure blowers (see discussion below). As a information and public comments established by this notice is applicable. result, DOE is not addressing public regarding exclusion of fan operation in 77 FR 28688 (May 15, 2012) and 78 FR comments that pertain to fans in other cooling mode, DOE maintains that the 19619 (April 2, 2013). summarizes the types of HVAC products. The following test procedure established by this rule test procedure rulemaking vehicles list describes the furnace fans that DOE account for the electrical consumption through which DOE addresses standby is addressing in this rulemaking and of furnace fans while performing all mode and off mode energy consumption those that DOE is not addressing in this active mode functions (i.e., heating, for the products covered by this rulemaking. cooling, and constant circulation). DOE rulemaking.

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TABLE III.1—RULEMAKING ACTIVITIES ADDRESSING FURNACE FAN STANDBY MODE AND OFF MODE ENERGY CONSUMPTION

HVAC products DOE rulemaking DOE rulemaking activity

• Gas Furnaces ...... Residential Furnaces ...... • Docket: EERE–2013–BT–TP–0008. • Oil-fired Furnaces ...... • Most Recent Notice: September 13, 2011 • Electric Furnaces ...... NOPR (76 FR 56339). • Modular Blowers ...... Residential Central Air Condi- • Docket: EERE–2009–BT–TP–0004. • Weatherized Gas Furnace ...... tioners and Heat Pumps. • Most Recent Notice: October 24, 2011 SNOPR (76 FR 65616).

There is no need for DOE to adopt No. 14 at p. 1; Morrison, No. 21 at p. 3.) Goodman added that using elevated additional test procedure provisions for In the SNOPR, DOE proposed a test static pressure values will only condone standby and off mode energy use in the procedure that would not adopt higher/increased energy consumption, test procedure established by this provisions from AMCA 210. poor ductwork design and application. rulemaking. DOE maintains its position Consequently, DOE did not address (Goodman, No. 0017 at pg. 5) Goodman that the standby mode and off mode comments received from interested stated that a survey of its products energy use associated with furnace fans parties on the NOPR regarding AMCA indicated that watt/cfm is roughly 15% used in products covered by this 210 in the SNOPR. Likewise, the test lower at 0.2 in. wc. and 25% lower at rulemaking would be measured by the procedure established by this final rule 0.4 in. wc. than at the DOE-proposed established or proposed test procedures does not include provisions from AMCA 0.65 in. wc., suggesting there should be associated with these products. 210. Therefore, DOE is not addressing incentive to operate at lower statics to In the NOPR, DOE proposed to comments received from interested reduce energy. (Goodman, No. 0017 at include circulation fans used in parties on the NOPR regarding AMCA pg. 6) Morrison stated that by hydronic air handlers in the scope of 210 in this notice. accounting for ESPs that are reported to applicability of the test procedure. D. Reference System be fully representative of field There are no current DOE test conditions in the NOPR, DOE is procedures for measurement of In the NOPR, DOE proposed to advocating scenarios that do not comply electrical energy use in hydronic air specify a single reference system per with the instructions in manufacturers’ handlers, nor is there an ongoing product installation type that would be installation manuals. (Morrison, No. rulemaking to establish such test characterized by an ESP value 0021 at pg. 6) Unico, Inc. stated that procedures. Consequently, DOE also representing national average operating field pressure measurements are known proposed in the NOPR to integrate the conditions of a residential duct system to be notoriously inaccurate and standby mode and off mode electrical for a furnace fan operating in the extremely challenging to collect. (Unico energy consumption measurements with maximum airflow-control setting. 77 FR No. 0023 at pg. 94) the active mode metric for hydronic air 28683 (May 15, 2012) In the SNOPR Some interested parties recommended handlers, resulting in an integrated FER notice, DOE did not address interested that DOE re-evaluate and increase its (IFER). DOE received a number of parties’ comments received in response proposed reference system ESP comments in response to the NOPR to the NOPR regarding its proposed requirements. NPCC/NEEA commented regarding the IFER metric. In the reference system requirements. DOE did that DOE’s data for manufactured home SNOPR, DOE proposed to exclude not alter its proposed reference system ESP values, which come primarily from circulation fans used in hydronic air requirements in the SNOPR. Hence, the Northwest, may not be handlers from the scope of coverage of interested party comments regarding representative of the national average the test procedure. As discussed in this topic are summarized and ESP for manufactured home products section III.A above, the test procedure addressed below. because of a long history of energy Many interested parties commented established by this final rule excludes efficiency programs for those products that the reference system ESP values circulation fans used in hydronic air in that region. NPCC/NEEA should be lower than those proposed in handlers. recommends that DOE collect additional the NOPR. Rheem stated that a single data on field ESP from other regions of C. AMCA 210 furnace ESP specification at 0.65 in. wc. the country before settling on ESP In the NOPR, DOE proposed a test has not been shown to represent a values. (NPCC/NEEA, No. 0022 at pg. 6) procedure based on the provisions national average duct system, and CA IOU recommended that DOE specified in the American National ratings should not be based on poor ESP increase the proposed test ESP based on Standards Institute (ANSI)/Air field conditions where installers ignore a recent study for the California Energy Movement and Control Association manufacturers’ installation instructions. Commission 3 for which the resulting International, Inc. (AMCA) 210–07 | (Rheem, No. 0025 at pg. 3) AHRI stated average furnace fan cooling mode ESP ANSI/American Society of Heating, that the proposed reference system in was 0.85 in. wc. (CA IOU, No. 0020 at Refrigerating and Air Conditioning the NOPR specifies external static pg. 4) The Wisconsin Department of Engineers (ASHRAE) 51–07, Laboratory pressures that are too high as compared Administration, Division of Energy Methods of Testing Fans for Certified to the external static pressures in the Services (WI–DOA) stated the reference Aerodynamic Performance Rating federal test procedure for furnaces. system ESP should be over 0.55 inches. (AMCA 210). 77 FR 28674 (May 15, (AHRI, No. 0023 at pg. 15) Goodman The WI–DOA provided field 2012) Many interested parties echoed AHRI’s comments, stating that measurements for 39 furnace commented on the NOPR that AMCA they are concerned that FER is based on 210 is not an appropriate reference elevated external static pressures and 3 ‘‘Efficiency Characteristics and Opportunities standard for rating furnace fan ignores the fact there are a significant for New California Homes’’ can be found at http:// performance. (AHRI, No. 16 at p. 3; number of applications with lower www.energy.ca.gov/2012publications/CEC-500- Goodman, No. 17 at p. 4; Ingersoll Rand, values. (Goodman, No. 0017 at pg. 2) 2012-062/CEC-500-2012-062.pdf.

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installations throughout Wisconsin that recommends for the product installation possible to link field measured ESPs in had ESP values between 0.32 in. wc. types included in its study). cooling mode to the maximum air and 1.33 in wc. (WI–DOA, No. 0007 at DOE expects specifying ESP values delivery capabilities of the furnace fans. pg. 1) that are representative of field NRCan adds that establishing the In a joint comment from ASAP, conditions will result in ratings that are reference system ESP using the ACEEE, NRDC, and the National most representative of field energy use. maximum air flow for which a furnace Consumer Law Center (NCLC), DOE also expects that the use of is capable of operating in cooling mode hereinafter referred to as ACEEE, et al., manufacturer-recommended ESPs might biases the test and ratings for all other efficiency advocates strongly support underestimate furnace fan energy modes towards lower static pressures DOE’s proposal to characterize a consumption, because the ESP of field- (which may be lower than field ESP reference system at external static installed HVAC systems typically levels for those operating modes). pressures that mimic field conditions. exceeds the ESP recommended by NRCan suggests that one approach that (ACEEE, et al., No. 0013 at pg. 3) NEEA manufacturers. Like manufacturers, DOE might consider for specification of stated that the range of external static DOE is also concerned about the energy the reference system would be to use pressures presented by DOE is use impact of installations with high furnace fan control settings that produce reasonable based on measured data. static pressures. However, DOE does not an air flow suitable for a cooling system (NEEA, No. 0023 at pg. 167) United expect that a reduction in average field with a capacity that matches the Technologies (UTC) also agrees with the ESPs that approaches the manufacturer- national average cooling system (using a reference ESP values selected by DOE, recommended levels is likely to occur, default design air flow rate of say 400 but recommends that the reference ESPs because installing new, larger, and cfm per ton of cooling capacity) in place should be no higher. (UTC, No. 0010 at more-efficient ducts in existing homes is of using the maximum air flow setting pg. 2) generally cost-prohibitive. DOE, like the and an unspecified cooling capacity. The test procedure established by this manufacturers, would prefer that (NRCan, No. 0011 at pg. 2) Conversely, final rule specifies the reference system homeowners modify the ductwork to UTC agrees with DOE’s use of a ESP values proposed in the NOPR, reduce energy use, but DOE has no reference ESP that is based on the which DOE did not modify in the authority to require larger ducts in this highest airflow control setting for the SNOPR. DOE finds that these ESP rulemaking. DOE is concerned that a fan efficiency rating procedure. (UTC, values are consistent with known field metric based on a low, albeit desirable, No. 0010 at pg. 2) static pressure level would not conditions. For the NOPR, DOE accurately represent actual furnace fan DOE acknowledges the concerns of gathered field data from available energy consumption. Also, DOE is Goodman and NRCan regarding the studies and research reports to concerned that a metric based on a low impact that requiring measurements in determine an appropriate ESP value to static pressure may lead to excessive the maximum airflow-control setting propose for the reference system for energy use by furnace fan designs which has on FER and, in turn, on each installation type. DOE compiled do not achieve high efficiency levels manufacturer design and consumer over 1300 field ESP measurements from when operating at the higher, field static purchasing decisions. However, FER is several studies that included furnace pressures. Adapting the efficiency primarily intended for evaluating the fans in single-family and mobile homes metric to the field conditions better national average performance of furnace in different regions of the country as fans. To best fulfill this intent, FER 4 facilitates meaningful comparisons of part of that effort. DOE was not able to furnace fans operating under these estimates national average annual acquire nor did DOE receive from conditions. energy use. Manufacturers have the interested parties additional data Interested parties commented on option of providing a full account of fan sources for mobile home ESP values on DOE’s proposed approach to specify performance in addition to FER in which to base a revision of its previous using the maximum airflow-control product literature to inform consumers. analysis. However, DOE feels confident setting to characterize the required DOE expects that FER will enable in its estimated national average reference system. Goodman believes consumers to evaluate relative reference system ESP value for these that because of the large variability of performance across the entire range of products because the field conditions airflow rate provided by most furnaces, expected field operation because FER is underlying the values are prescribed by the use of a maximum value could determined based on measurements of HUD, as explained in footnote Error! potentially mislead the consumer to furnace fan electrical input power for Bookmark not defined. in section II. purchase a product to be applied at less multiple airflow-control settings at DOE reviewed the CEC study referred to than maximum airflow rate that has a different external static pressures that by the CA–IOU and the field better rating at maximum than another span the entire range of expected measurements provided by WI–DOA. product, even though the other product operation. As a result, FER includes and The range and average of the ESP data may have lower energy consumption for reflects the reduced energy provided in the CEC study and WI– a lower airflow rate. (Goodman, No. consumption of a product that performs DOA’s measurements are consistent 0017 at pg. 4) National Resources more efficiently at less than maximum with the rest of the data DOE collected. Canada (NRCan) commented that the airflow compared to a product that DOE therefore concludes that this new NOPR correctly noted that it is not clear performs more efficiently at maximum data supports the reference system ESP from the reports of installed static airflow, as in Goodman’s example. DOE levels proposed in the SNOPR and pressures for residential furnaces if the disagrees with NRCan that adopted in this final rule (which is measurements were taken with furnace manufacturers are likely to design above 0.55 in. wc. as WI–DOA control settings configured to provide products with higher maximum airflow- their maximum air flow when operating control settings to achieve better FER 4 DOE has included a list of citations for these in cooling mode. In the absence of clear ratings, because FER includes electrical studies in the docket for this rulemaking. The evidence that field measurements of input power consumption in that ADDRESSES section of this notice provides a link and instructions for accessing the docket.... The ESP in cooling mode were actually setting, which increases as the airflow docket number for this rulemaking is EERE–2010– made with the furnaces adjusted to their in that setting increases. In turn, FER BT–TP–0010. highest air flow settings, it is not may also increase.

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DOE recognizes NRCan’s concern that (Unico, No. 0023 at pg. 40; Goodman, its conclusion that using multiple DOE assumes that the ESP field No. 0017 at pg. 6) UTC recommended reference systems is not justified. measurement data DOE gathered are that DOE use the following definition NRCan provided example furnaces for linked to the maximum airflow-control for ESP: ‘‘The difference between the which the heating airflow was between setting. However, the reports from system inlet and outlet static pressures 35 and 88 percent of maximum airlfow. which DOE gathered ESP field data measured in the attached ducting. In (NRCan, No. 0011 at pg. 3) specified that the ESP measurements laboratory testing, the inlet may be non- The test procedure established by this were taken in cooling airflow-control ducted such that the inlet static pressure notice specifies one reference system settings. As NRCan and other interested is zero’’. (UTC, No. 0010 at pg. 4) AMCA curve for each installation type because parties have confirmed, furnace fans stated that ‘‘fan static pressure’’ is not DOE cannot set standards based on typically operate in the highest of the static pressure rise through the fan. multiple metrics. Requiring available airflow-control settings for According to AMCA, the ‘‘Fan static measurements for a second reference cooling. As mentioned above, DOE did pressure’’ is the static pressure rise system would also increase test burden. not find or receive from interested minus the inlet velocity pressure. For the NOPR, DOE investigated the use parties any additional information upon (AMCA, No. 0019 at pg. 2) Conversely, of a combined metric based on multiple which to re-evaluate its assumption that NRCan had no issues with the definition reference system curves. DOE found that field ESP data collected in cooling of ESP as proposed in the NOPR. the combined, multiple reference airflow-control settings is representative (NRCan, No. 0011 at pg. 6; NPCC/NEEA, system FER values varied on average by of field ESP in maximum airflow- No. 0022 at pg. 6) less than 2 percent with a standard control settings. The test procedure established by this deviation of 2 percent compared to the DOE also recognizes that specifying final rule adopts the ASHRAE 37 proposed, single reference system FER the reference system in the maximum definition of external static pressure as and did not alter the ranking of furnace airflow-control setting may result in suggested by Unico and Goodman. The fans by FER. 77 FR 28686 (May 15, FER measurements taken in lower definition that UTC recommends is also 2012) In response to the furnace fan airflow-control settings at ESP levels consistent with the ASHRAE 37 framework document, Rheem suggested that are lower than if a default cooling methods for measuring ESP. criteria for a two reference system airflow-control setting were specified Interested parties also commented on approach: one reference system at 0.3 for the reference system (as suggested by using a single-reference system method in. wc. and another at 0.6 in. wc both NRCan). However, DOE expects that for representing average residential in the default heating setting. These specifying the reference system in an ducting systems versus a multiple- reference system criteria are equivalent airflow-control setting based on national reference system. UTC agreed with the to those specified in CSA Standard average cooling capacity according to fan efficiency rating method proposed C823–11, Performance of Air Handlers NRCan’s suggestion will not address the in the NOPR using a single-reference in Residential Space Conditioning issues that NRCan raises with the system method. (UTC No. 0010 at pg. 2) Systems. DOE chose to use different approach outlined by DOE. The NRCan Rheem prefers a single reference system criteria that comprised higher ESP approach will result in airflow-control which is consistent with the furnace values and in the maximum airflow- selections that deviate from the settings rating plate and manufacturer’s control setting for its NOPR evaluation ultimately selected at installation if the installation instructions, but agreed to of using multiple reference systems. In product is not installed to deliver the multi-reference system in CSA 823 the NOPR, DOE stated that the reference national average cooling capacity, as a compromise to avoid establishment system criteria it selected for its resulting in similar biases. In addition, of a rating based on an unsafe and faulty investigation is approximately some products that are designed for installation condition. (Rheem, No. 0025 equivalent to those suggested by Rheem cooling capacities much higher or much at pg. 8) NPCC/NEEA find the CSA for products for which the heating lower than the national average may not multi-reference system approach and airflow is within 80 to 90 percent of have airflow-control settings that meet manufacturer-recommended installation maximum airflow. DOE recognizes NRCan’s national average criteria. ESP values to be inconsistent with field NRCan’s concern that a furnace fan’s Specifying the reference system in the data and a single set of ESP conditions heating airflow is not always within 80 maximum airflow-control setting is should be specified. (NPCC/NEEA, No. to 90 percent of maximum airflow. DOE more appropriate than the alternative 0022 at pg. 6) Ingersoll Rand supports presented this information to explain approach presented by NRCan for these only one reference system stating that a how its selected criteria for evaluating a reasons. Accordingly, the test procedure multi-reference system would not add multiple reference system approach established by this notice specifies the enough value to warrant double testing. compared to Rheem’s recommended reference system in the maximum (Ingersoll Rand, No. 0014 at pg. 4) criteria, not as a justification for airflow-control setting. Morrison stated that it is better to have proposing to specify a single reference In the NOPR, DOE proposed to define two static pressure levels rather than a system. ESP to mean the difference between the single high static pressure level to help In addition, the test method proposed fan total pressure at the air outlet and consumers and others distinguish by DOE in the NOPR would require the total pressure at the air inlet less between good and bad practice in the measuring fan performance at enough velocity pressure at the air outlet, which field. (Morrison, No. 0023 at pg. 171) operating points within each available is consistent with the AMCA 210 Unico recommended a single reference airflow-control setting to derive definition for ESP. In response to the system method because performance performance curves. These curves NOPR, Unico and Goodman stated that data based on multiple reference would allow for calculating fan they support the ASHRAE 37 definition systems will not improve the quality of performance at any operating point in and measurement specifications for decision making on the part of the any given airflow-control setting, which external static pressure. ASHRAE 37 contractor or consumer. (Unico, No. would enable the use of multiple defines external static pressure as static 0015 at pg. 5) NRCan stated that DOE’s reference systems without requiring pressure measured at the outlet less the assumption that default heating airflow additional measurements. In the static pressure measured at the inlet (or is within 80 to 90 percent of maximum SNOPR, DOE modified its proposed test ambient if a return air duct is not used). airflow for a given product undermines method to reduce burden. DOE’s

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proposed SNOPR test procedure would measurements for the maximum any pilot light input), in British Thermal only require fan performance to be airflow-control setting are taken to allow Units per hour (Btu/h), measured only at operating points for slight variations. 1.08 = Conversion from airflow and consistent with the specified reference temperature rise to heating rate, and E. Airflow Equation system. Requiring measurements for a DT = measured temperature rise. second reference system would increase In the NOPR, DOE proposed to the burden of the test method DOE require measurement of airflow directly In the SNOPR, DOE proposed to use proposed in the SNOPR because using the pressure drop across nozzles a modified version of AHRI’s proposed additional measurements would be according to the procedures in AMCA equation to calculate airflow. The necessary. For these reasons, the test 210. Interested parties commented on numerator of AHRI’s proposed airflow procedure established by this notice the NOPR that this method would be equation estimates the amount of heat does not require multiple reference overly burdensome. AHRI, with the energy produced by the furnace as the systems. support of a number of manufacturers, nameplate annual fuel utilization In the NOPR, DOE proposed to proposed a method of calculating efficiency (AFUE) multiplied by the require measurements at three specific airflow based on temperature rise, nameplate fuel energy input rate (QIN). ESP values without any tolerances. 77 which would significantly reduce test DOE proposed to estimate heat energy FR 28700 (May 15, 2012) Allied Air burden because it can be measured differently because nameplate AFUE stated that because systems can become using procedures and a test setup and QIN are determined based on unstable when measuring airflow in the consistent with those used for the DOE measurements taken at the ESP levels high or low end of the static pressure test procedure for furnaces (AHRI, No. required by the DOE furnace test range, tolerances should be allowed. 16 at p. 3; Goodman, No. 17 at p. 4; procedure (i.e. specified in ASHRAE (Allied Air, No. 0023 at pg. 184) Ingersoll Rand, No. 14 at p. 1; Morrison, 103–1993), which are significantly Additionally, UTC recommended that a No. 21 at p. 3). Specifically, AHRI lower than those proposed in the minimum tolerance of +/¥0.05 be proposed the following equation for SNOPR of this rule. Specifically, DOE allowed for the three ESPs to allow for calculating airflow (AHRI, No. 26 at p. proposed to estimate heat energy as slight variations in the measurement 23): steady-state efficiency (EffySS) less equipment. (UTC, No. 0010 at pg. 4) percent jacket losses quantity multiplied DOE’s test experience confirms Allied by QIN all measured at the operating Air’s and UTC’s concerns that specific conditions proposed in the SNOPR. ESP values are difficult to achieve and DOE also proposed to add a term to the maintain when measuring airflow. The Where: numerator to account for the recoverable test procedure established by this notice heat from the fan. DOE expects that its Q = airflow, in cubic feet per minute (CFM), specifies that products maintain an ESP AFUE = annual fuel utilization efficiency, as estimate of heat energy improves the level between the minimum reference determined by the DOE furnace test accuracy of the equation. DOE proposed system value and 0.05 in. wc. above that procedure, the following equation for calculating minimum value throughout the QIN = fuel energy maximum nameplate input airflow in the SNOPR. 78 FR 19615 stabilization period and at the time that rate at steady-state operation (including (April 2, 2013)

Where: steady-state efficiency and jacket losses steady-state efficiency to calculate the Q = airflow in CFM, of a furnace at a new and higher FER metric because it would impose an EffySS = steady-state efficiency in % as external static pressure operating point, additional testing burden. (AHRI, No. determined according to ASHRAE 103– causing an undue increase in testing 0034 at pg. 1; Rheem, No. 0035 at pg. 2007 at the specified operating burden. (AHRI, No. 0034 at pg. 3; 1; Morrison, No. 0036 at pg. 1) Ingersoll conditions, Lennox, No. 0031 at p. 3; Rheem, No. Rand stated that if the furnace is LJ = jacket loss in % as determined according 0035 at pg. 3; Morrison, No. 0036 at pg. running within the allowable rise range, to ASHRAE 103–2007 at specified 3) AHRI and Morrison stated that the the AFUE can be used in place of the operating conditions, FER metric is comprised of two distinct steady-state efficiency and jacket loss in QIN = measured fuel energy input in Btu/h at furnace operation descriptors—the first the calculation procedure. (Ingersoll specified operating conditions based on the fuel’s high heating value determined is calculated from electrical energy Rand, No. 0038 at pg. 1) AHRI and as required in section 8.2.1.3 or 8.2.2.3 measurements at three separate test Morrison believe that using nominal of ASHRAE 103–2007, conditions and the second is airflow at values associated with AFUE (which 3413 = conversion of kW to Btu/h; a single test condition. AHRI, Rheem, also accounts for jacket losses) and QIN EHeat = electrical energy to the furnace fan and Morrison believe that the airflow to calculate airflow is a conservative motor in kW that is recovered as useable component of the FER metric is approach and will eventually lead to heat, secondary in importance and is meant conservative FER values. Additionally, 1.08 = conversion from airflow and to simply provide a frame of reference. using AFUE and QIN reduces the testing temperature rise to heating rate, and They believe that some of DOE’s burden on manufacturers, as compared DT = temperature rise measured at specified proposed modifications to AHRI’s to measuring steady-state combustion operating conditions. proposed test procedure would increase efficiency and determining jacket losses, AHRI, Lennox, Rheem, and Morrison the testing burden on the industry while which could take up to two additional are concerned that the test procedures adding little or no benefit, and strongly hours for every basic model. (AHRI, No. specified within the SNOPR would urge that DOE not require furnace 0034 at pg. 2; Morrison, No. 0036 at pg. require that a manufacturer test the manufacturers to measure an additional 2) Lennox and Rheem, on the other

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hand, agree with DOE that using the airflow used in the FER equation be furnace at the maximum airflow is steady-state combustion efficiency and calculated based on measured values of sufficiently accurate. (Rheem, No. 0035 the measured fuel energy input would steady-state efficiency and fuel input at pg. 3; Morrison, No. 0036 at pg. 3) provide more accurate air flow energy. However, like the DOE test NPCC/NEEA stated that for multi-stage calculations, as opposed to using AFUE procedure for furnaces, the test systems, three modes of test are not and nominal fuel energy input. (Lennox, procedure established by this final rule enough to properly characterize how the No. 0031 at p. 3; Rheem, No. 0035 at pg. allows manufacturers the option of system will be used in the field. (NPCC/ 2) Goodman strongly suggests DOE measuring jacket loss or using a default NEEA, No. 0022 at pg. 5) consider allowing an alternate method value of 1 percent. In recent DOE tests, DOE disagrees with AHRI, Rheem, of directly measuring airflow using a jacket loss measurements ranged from Lennox, and Morrison that firing the code tester and ASHRAE 37 ductwork (a 0.1 to 0.9 percent, with an average of 0.5 furnace in the maximum airflow-control method typically used by manufacturers percent and a standard deviation of 0.2 setting is always sufficiently accurate. for airflow data published in technical percent. Consequently, the difference As stated previously, DOE finds that the product literature). (Goodman, No. 0037 between measured LJ and the default maximum airflow-control setting is at pg. 1) value can be expected to be less than 1 most often designated for cooling. Firing DOE is aware that manufacturers will percent. Manufacturers that opt to use the burner in the maximum airflow- be required to test products that include the default jacket loss value of 1 percent control setting in these instances would furnace fans that have already been will avoid a significant majority of the not be representative of field use. Also, tested to comply with other DOE additional testing time required to DOE finds that firing the furnace in a rulemaking requirements (e.g., the calculate airflow, but the expected maximum airflow-control setting that is residential furnace energy conservation deviation from measured values is designated only for cooling is not standard). However, EPCA requires DOE reduced to less than 1 percent with this always achievable by third-party testing to consider standards for furnace fans, approach. DOE considers this an facilities by interfacing with the product and DOE does not find the time and acceptable range of accuracy to reduce controls. DOE’s airflow adjustment resources required to test furnace fans test burden. approach is a necessity in these cases. according to the test procedure DOE also recognizes that using a code For these reasons, the test procedure established by this final rule to be tester and ASHRAE 37 ductwork, as established in this final rule includes unduly burdensome. Goodman suggests, could be an provisions for both product variations: DOE agrees with interested parties alternative test method that provides products for which the maximum that the SNOPR proposal to measure similar results to the test procedure airflow-control setting is designated for steady-state efficiency (EffySS), jacket established by this final rule. However, heating, and products for which the loss (LJ), and fuel energy input (QIN) a test procedure based on this approach maximum airflow-control setting is instead of using nameplate values of would differ significantly from the test designated only for cooling. The AFUE and QIN to calculate airflow procedure established in this notice. An provisions for products for which the would result in increased accuracy, but auxiliary fan at the outlet of the airflow maximum airflow-control setting is would require additional testing time. In chamber may be required to achieve the designated for heating are provided in the SNOPR, DOE stated that EffySS external static pressures specified by section III.M. The provisions for could range from 0 to 6 percentage this rule. This method of varying products for which the maximum points higher than AFUE. More recent external static pressure is not consistent airflow-control setting is designated DOE tests resulted in EffySS values that with the method specified by this final only for cooling are as proposed in the ranged from 0 to 4 percentage points rule, which requires that the same duct SNOPR. 78 FR 19627 (April 2, 2013) In higher than AFUE, confirming DOE’s restrictions be maintained throughout short, the maximum airflow is previous estimates. DOE agrees with the test after initial reference system determined by calculating the airflow manufacturers’ estimates that conditions are met. In addition, a test according to the equation above for a approximately 2 hours of additional setup that includes a code tester is not heating setting and adjusted to the testing time would be required if typical when currently testing a furnace maximum (cooling) setting based on measured values for EffySS, LJ and QIN and would add substantial burden. pressure measurements. are used to calculate heat energy instead Instead, DOE tried to harmonize, where In the SNOPR, DOE proposed to of nameplate AFUE and QIN. Through possible, the test set up for furnaces and calculate airflow based on the testing, DOE finds that as much as 1.5 furnace fans. These differences could temperature rise in the default heat hours of this additional testing time will have significant impacts on the setting for single-stage products and the be needed for set up of the jacket loss consistency of using a code tester in lieu default low heat setting for multi-stage test. The flue or stack gas temperature of the setup and methods specified in products. DOE requested comment from and carbon dioxide concentration this rule. Consequently, DOE is not interested parties in the SNOPR on measurements needed to measure adopting an alternative method of using whether a more accurate calculation of steady-state efficiency require less than a code tester to measure airflow for this airflow could be achieved based on 10 minutes in DOE’s experience. For rule. temperature rise measured in the condensing furnaces, the test procedure AHRI and Lennox stated that the maximum heat setting for multi-stage proposed in the SNOR would require 30 assumption that the cooling airflow rate furnaces because temperature rises in additional minutes to collect condensate can be calculated using the measured the maximum heat setting would be to measure steady-state efficiency. DOE temperature rise in the heating mode is higher. 78 FR 19624 (April 2, 2013) disagrees with AHRI, Rheem, and not substantiated in the SNOPR. AHRI AHRI, Rheem, Morrison, and Morrison that the airflow calculation is recommended that the furnace is fired at Goodman disagree with DOE’s assertion secondary in importance and that the maximum airflow rate to calculate that operating a multi-stage furnace at accuracy should be compromised. QMax. (AHRI, No. 0034 at pg. 3; Lennox, the maximum heat setting results in a However, DOE agrees that time to test No. 0031 at p. 3) Additionally, Rheem higher temperature rise. They went on should be minimized while maximizing and Morrison stated that the QMax value to state that there are instances where accuracy. The test procedure established is representative and that the method the temperature rise at a reduced heat by this final rule requires that the proposed by AHRI based on firing the setting is higher than the temperature

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rise at the maximum heat setting. interested parties on whether the 1.08 0031 at p. 3; Rheem, No. 0035 at pg. 3; (AHRI, No. 0034 at pg. 3; Rheem, No. constant should be adjusted by Morrison, No. 0036 at pg. 3; Goodman, 0035 at pg. 3; Morrison, No. 0036 at pg. barometric pressure because air density No. 0037 at pg. 1; Ingersoll Rand, No. 3; Goodman, No. 0037 at pg. 2) changes with pressure (often due to 0038 at pg. 2) DOE’s review of product literature elevation changes and varying weather DOE agrees with AHRI, Lennox, confirms comments from AHRI, Rheem, conditions). 78 FR 19624 (April 2, 2013) Rheem, Morrison, Goodman, and Morrison and Goodman that the AHRI, Lennox, Rheem, Morrison, and maximum heat setting does not always Goodman agree with DOE that higher Ingersoll Rand that the 1.08 conversion result in higher temperature rise. elevations would have an impact on factor should be adjusted by barometric Consequently, the test procedure temperature rise and calculated airflow. pressure at test conditions. The test established in this final rule adopts the They believe that the maximum test procedure established by this final rule provisions proposed in the SNOPR, elevation should be 2,000 feet and includes provisions for measuring the which require firing at the reduced heat recommend that furnace fans should not humidity ratio and dry bulb temperature input and associated airflow-control be tested above 2,000 feet without an of the test room near the inlet to setting to calculate airflow. appropriate adjustment to the test determine the specific volume of test In the SNOPR, DOE proposed to conditions and calculations. (AHRI, No. room air in cubic feet per pound of dry calculate airflow based on temperature 0034 at pg. 3; Lennox, No. 0031 at p. 3; air to calculate airflow. As a result, the rise using the equation presented in this Rheem, No. 0035 at pg. 4; Morrison, No. 1.08 conversion factor is no longer a section above. DOE’s proposed equation 0036 at pg. 3; Goodman, No. 0037 at pg. constant. Instead the constant is a included a constant of 1.08 for 2) AHRI, Lennox, Rheem, Morrison, function of the specific volume of test converting temperature rise and heating Goodman, and Ingersoll Rand suggest room air in cubic feet per pound of dry rate to airflow. This constant assumes that DOE consider the use of a 1.08 air at test conditions. Consequently, the that air has a constant density of 0.075 conversion factor that is adjusted by airflow calculation specified by the test pounds per cubic foot (lb/ft3). In the barometric pressure at test conditions. procedure established by this final rule SNOPR, DOE requested comments from (AHRI, No. 0034 at pg. 3; Lennox, No. is:

Where: temperature gradients. For electric identify operating points. Because the Q = airflow in CFM, furnaces and modular blowers, EffySS AMCA 210 method requires use of a EffySS = steady-state efficiency in % as equals 100, and QIN is the measured supplemental test facility fan to achieve determined according to ASHRAE 103– electrical input power to the sub- the desired flow and ESP conditions, 2007 at the specified operating metered electric resistance heat kit this method is not amenable to moving conditions, multiplied by 3,413 kW per Btu/h. to all of the target flow conditions on LJ = jacket loss in % as determined according the reference system curve simply by F. Duct Specifications and External to ASHRAE 103–2007 at specified changing the speed of the furnace fan Static Pressure Measurement operating conditions or a default value of under test. In contrast, the test approach 1%, In the NOPR, DOE proposed to use suggested by AHRI and other QIN = measured fuel energy input in Btu/h at the methods specified in AMCA 210 for stakeholders and adopted in the SNOPR specified operating conditions based on rating fans. The proposal called for the fuel’s high heating value determined is amenable to this simplified approach. as required in section 8.2.1.3 or 8.2.2.3 evaluation of the fan performance at the DOE proposed in the SNOPR to adopt of ASHRAE 103–2007, flows and ESPs associated with a the alternative method suggested by 3413 = conversion of kW to Btu/h; reference system curve by (1) measuring interested parties and to use the Emotor = electrical energy to the furnace fan performance at multiple conditions at provisions in ASHRAE 103–2007 for motor in the settings for which airflow each airflow-control setting, (2) achieving the specified ESP levels in the is being calculated in kW that is developing equations to represent the maximum airflow-control setting by recovered as useable heat, airflow and power input of the fan as a ‘‘symmetrically restricting the outlet 60 = conversion from hours to minutes, quadratic function of ESP, (3) duct’’. DOE requested comments from 0.24 = specific heat capacity of dry air in Btu/ mathematically determining the ESP lb°F, interested parties whether this language 0.44 = specific heat capacity of water vapor associated with the reference system was sufficiently instructive or if more in Btu/lb°F, curve for the tested airflow-control details are necessary (such as which W = humidity ratio in pounds water vapor setting using the airflow equation, and materials and procedures to use to per pounds dry air, (4) calculating power input using the restrict the duct). 78 FR 19624 (April 2, vair = specific volume of dry air at specified developed power input equation. 2013) operating conditions per the equations in Interested parties commented on the AHRI, Lennox, Morrison, and the psychrometric chapter in 2001 NOPR that the AMCA 210 method Goodman all agree that DOE should not ASHRAE Handbook—Fundamentals in would be unduly burdensome and that specify the methods for restricting the 3 lb/ft an acceptable alternative would be to outlet duct. (AHRI, No. 0034 at pg. 4; DT = temperature rise measured at specified operating conditions. maintain the same duct restrictions Lennox, No. 0031 at p. 3; Morrison, No. throughout the test after initial reference 0036 at pg. 4; Goodman, No. 0037 at pg. Test room air properties are required to system conditions are met in lieu of the 2) AHRI and Morrison stated that a be measured near the inlet of the previously proposed methods of making symmetrical duct restriction is needed product under test to minimize the multiple determinations in each airflow- in order to achieve repeatable results, impacts of test room humidity and control setting and curve-fitting to but the manufacturer should be allowed

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to determine the type of material that of a laboratory that is used for testing at pg. 3) Rheem stated that an allowable would lead to symmetrical restrictions furnaces. Additionally, in Figure 7a in temperature measurement error would on the outlet duct. (AHRI, No. 0034 at ANSI/ASHRAE 37–2005, the tap be +/¥1 degree Fahrenheit, while pg. 4; Morrison, No. 0036 at pg. 4) location dimension from the furnace Ingersoll Rand stated that the ASHRAE Rheem also stated that a specific duct outlet is two times the square root of the 103–2007 accuracy level should be restriction is needed to assure duct width times the duct depth, which maintained (i.e., ±2 degrees Fahrenheit). repeatable test results, and further would put the tap into the 90 degree (Rheem, No. 0035 at pg. 5; Ingersoll explained that they have adopted the bend of the duct and cause inaccurate Rand, No. 0038 at pg. 2) method of ‘‘symmetrically restricting static pressure measurements. (AHRI, DOE agrees with AHRI, Lennox, the outlet of the test duct.’’ (Rheem, No. No. 0034 at pg. 4; Lennox, No. 0031 at Morrison, and Goodman that an 0035 at pg. 4) p. 4). AHRI, Rheem, Morrison, and allowable temperature measurement DOE agrees with AHRI, Lennox, Goodman added that DOE should error of ±0.5 °F is not reasonable for Morrison, and Goodman that the specify the four tap arrangement in thermocouples, which are the proposed requirement to symmetrically AHSI/ASHRAE Standard 37 with the temperature measurement instruments restrict the outlet of the test duct to specification that the pressure taps be typically used in ASHRAE 103. achieve the specified ESP is sufficient. placed 18 inches from the furnace However, DOE finds that T-type The test procedure established by this outlet. (AHRI, No. 0034 at pg. 4; Rheem, thermocouples can meet tighter final rule includes this provision. No. 0035 at pg. 5; Morrison, No. 0036 tolerances than the allowable error of ±2 In the SNOPR, DOE proposed to allow at pg. 4; Goodman, No. 0037 at pg. 2). °F specified in ASHRAE 103. The test manufacturers the option of rating their Furthermore, Rheem stated that the procedure established by this final rule products with or without a return air proposed DOE requirement would no specifies an allowable error of ±0.75 °F, duct. 78 FR 19616 (April 2, 2013) AHRI, longer allow Rheem to make test which is consistent with the special Lennox, Morrison, and Goodman all measurements for AFUE and FER on the limit of error for T-type thermocouples agree with DOE’s proposal to allow for same test stand. A horizontal test set up specified in ASHRAE 41.1 and the optional use of a return air duct. would be required for FER referenced in ASHRAE 37. (AHRI, No. 0034 at pg. 4; Lennox, No. measurement. (Rheem, No. 0035 at pg. Consequently, manufacturers will be 0031 at p. 4; Morrison, No. 0036 at pg. 5) Ingersoll Rand proposed that the fan able to continue using thermocouples 4; Goodman, No. 0037 at pg. 2) test method specify ASHRAE 103–2007 while errors in temperature Furthermore, Goodman added that if a ducts with static pressure taps on all measurements will be minimized. return air duct is used, then DOE should four sides located 12 inches from H. Minimum Temperature Rise specify that the return air pressure tap furnace outlet. (Ingersoll Rand, No. 0038 should be downstream of any bends or at pg. 2) In the SNOPR, DOE requested turns in the return air duct. (Goodman, Through recent testing experience, comment on whether a minimum No. 0037 at pg. 2) Rheem stated that it DOE confirms AHRI’s, Lennox’s, and temperature rise of 18 °F should be follows the duct and plenum Rheem’s comments that the ASHRAE required. 78 FR 19617 (April 2, 2013) arrangements shown in Figure 2 of 37duct requirements, in some cases, can AHRI, Lennox, Morrison, and ASHRAE 103–1993, in which the be incompatible with the ASHRAE 103– Goodman all believe that a minimum downflow configuration requires an 2007 setup, and that for larger products, temperature rise is not required, but inlet duct and the upflow and ducts that meet the ASHRAE 37 agree that a minimum temperature rise horizontal configurations do not require requirements are too large for typical of 18 degrees Fahrenheit is reasonable. an inlet duct. (Rheem, No. 0035 at pg. furnace testing facilities. Consequently, (AHRI, No. 0034 at pg. 4; Lennox, No. 4) Ingersoll Rand proposed that inlet the test procedure established by this 0031 at p. 4; Morrison, No. 0036 at pg. ducts should be allowed on an optional final rule adopts the provisions 4; Goodman, No. 0037 at pg. 3) Rheem basis as detailed in ASHRAE 103–2007 suggested by AHRI, Rheem, Morrison, stated that a minimum temperature rise with pressure taps 12 inches from the and Goodman which require ducting of 18 degrees Fahrenheit could furnace inlet. (Ingersoll Rand, No. 0038 dimensions to meet ASHRAE 103 setup eliminate some furnaces with single at pg. 2) requirements with a pressure tap on speed blower motors from the DOE agrees with manufacturers that each of the four faces of the outlet duct, marketplace. (Rheem, No. 0035 at pg. 5) the test procedure established by this 18 inches from the outlet, and upstream DOE agrees with AHRI, Lennox, final rule should allow for the optional of any bends or turns in the duct. Morrison, and Goodman that a use of a return air duct. The test minimum temperature rise of 18 °F is procedure includes this provision. The G. Temperature Measurement Accuracy reasonable. In addition, DOE expects test procedure also specifies that Requirement that a significant majority of products pressure taps be placed on all four sides In the SNOPR, DOE proposed to are able to meet this minimum of the duct, 12 inches from the inlet, require temperature measurement errors requirement. The test procedure and downstream of any bends or turns no greater than +/¥0.5 degrees established by this final rule includes a in the return air duct. Fahrenheit. 78 FR 19617 (April 2, 2013) minimum temperature rise requirement In the SNOPR, DOE proposed to adopt AHRI, Lennox, Morrison, and of 18 °F. Any manufacturer of products the provisions in ASHRAE 37 for Goodman do not believe that a that cannot meet this requirement can measuring external static pressure that requirement to have temperature apply for a test procedure waiver. specify duct geometry and pressure tap measurement errors no greater than Waivers could include alternative test placement. 78 FR 19616 (April 2, 2013) +/¥0.5 degrees Fahrenheit is reasonably methods that ensure a higher level of AHRI and Lennox agree that the DOE achievable. AHRI, Morrison, and temperature measurement accuracy in test procedures should provide a Goodman recommend that DOE specify lieu of the minimum temperature rise detailed specification and a diagram for an error of +/¥0.9 degrees Fahrenheit, requirement. measuring the external static pressure. per the special limits of error of T-type However, using the provisions in ANSI/ thermocouples. (AHRI, No. 0034 at pg. I. Steady-State Stabilization Criteria ASHRAE Standard 37 may require a 4; Lennox, No. 0031 at p. 4; Morrison, In the SNOPR, DOE proposed to adopt duct that is too tall for the ceiling height No. 0036 at pg. 4; Goodman, No. 0037 the following steady-state stabilization

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criteria. For testing furnace fans used in of the test that do not require firing a with an air mixer installed may be gas and oil furnaces, DOE proposed that burner or energizing electric heat higher than the ESP at which furnace steady-state conditions are attained as resistance elements (i.e., cold flow manufacturers typically test to comply indicated by a temperature variation in tests), DOE likewise found that the with the DOE test procedure for three successive readings, taken 15 steady-state stabilization criteria residential furnaces. DOE is not aware minutes apart, of not more than: proposed in the SNOPR, which are of any negative impacts on the results of • 1.5 °F in the stack gas temperature based on outlet temperature variation, the DOE test procedure for residential for furnaces equipped with draft are not reasonably achievable. Outlet furnaces of gradients in the outlet air diverters; temperature is sensitive to changes in temperature. The test procedure • 2.5 °F in the stack gas temperature ambient temperature, which is highly established by this final rule does not for furnaces equipped with either draft variable in ASHRAE 103–2007 require the use of an air mixer for these hoods, direct exhaust, or direct vent compliant test facilities. To address this reasons. In addition, the outlet systems; and issue, the test procedure established by temperature used to calculate airflow, • 0.5 °F in the flue gas temperature this final rule specifies steady-state and ultimately FER, is the average of the for condensing furnaces. conditions for cold-flow tests based on outlet temperature measurements of the For electric furnaces, DOE proposed that the difference in temperature between thermocouples in the outlet steady-state conditions are reached as the outlet airflow temperature and the thermocouple grid required by this test indicated by a temperature variation of ambient temperature. During testing, procedure. DOE collected over 30 minutes per test not more than 1 °F in the outlet K. Certification Testing of time series inlet, outlet, and ambient temperature in four successive In the NOPR, DOE proposed that the temperature readings taken 15 minutes temperature data for over 10 cold-flow tests. DOE observed a maximum existing sampling plans used for apart. The proposed criteria for all furnaces be adopted and applied to product types are more stringent than difference in temperature between the outlet airflow and ambient of 2.7 °F. measures of energy consumption for the criteria specified in ASHRAE 103– furnace fans. 77 FR at 28691 (May 15, 2007, which are incorporated by DOE believes this is a reasonable threshold for determining steady-state 2012). AHRI and a number of reference in the DOE test procedure for conditions for cold-flow tests. The test manufacturers commented that the furnaces. 78 FR 19617 (April 2, 2013) procedure established by this final rule furnace sampling plan is too stringent AHRI, Lennox, Morrison, Goodman, specifies that steady-state conditions for for furnace fans and that DOE should and Ingersoll Rand all believe that the cold-flow tests are indicated by a use sampling plan criteria consistent steady-state stabilization criteria temperature rise variation in three with the DOE test procedure for proposed by DOE are not reasonably successive readings, taken 15 minutes residential central air conditioners achievable and will increase testing apart, of not more than 3 °F to address (CAC). (Allied Air, Public Meeting burden on manufacturers without this issue. Transcript, No. 23 at p. 225; Goodman, significantly improving the accuracy of No. 17 at p. 6; Rheem, No. 25 at p. 11; the results. Furthermore, they suggest J. Inlet and Outlet Airflow Temperature Ingersoll Rand, No. 14 at p. 2; Lennox, that the current residential furnace Gradients No. 12 at p. 5; Morrison, No. 21 at p. 8.) stabilization criteria in 10 CFR part 430, In the SNOPR, DOE proposed to UTC explained that the CAC sampling subpart B, appendix N are stringent specify the use of a mixer, as depicted plan requirements are more appropriate enough for accuracy and repeatability in Figure 10 of ASHRAE 37, which because the components of the furnace purposes. (AHRI, No. 0034 at pg. 4; references ANSI/ASHRAE Standard fan (i.e. electric motors, blower wheels Lennox, No. 0031 at p. 4; Morrison, No. 41.1–1986 (RA 2001), to minimize outlet and blower housings) are more 0036 at pg. 4; Goodman, No. 0037 at pg. flow temperature gradients if the analogous to an air conditioner or 3; Ingersoll Rand, No. 0038 at pg. 2) temperature difference between any two refrigerator than to the combustion Additionally, AHRI, Lennox, Rheem, thermocouples of the outlet air process of a fuel-fired furnace. (UTC, and Morrison stated that a process that temperature grid is greater than 1.5 °F. No. 10 at p. 4.) DOE agreed with involved three temperature readings 78 FR 19617 (April 2, 2013) interested parties that the furnace fan taken 15 minutes apart, instead of four, AHRI, Lennox, Rheem, Morrison, electrical input power measurements is more than adequate for electric Goodman, and Ingersoll Rand are all and external static pressure furnaces and cold flow tests. (AHRI, No. opposed to using a mixer due to their measurements that would be required 0034 at pg. 4; Lennox, No. 0031 at p. 4; effect on external static pressure. They by the test procedure proposed in the Rheem, No. 0035 at pg. 6; Morrison, No. also stated that mixers are never found SNOPR are different and inherently 0036 at pg. 5) in the field. (AHRI, No. 0034 at pg. 5; more variable than the measurements Recent DOE test results confirm Lennox, No. 0031 at p. 4; Rheem, No. required for AFUE. Consequently, DOE AHRI’s, Lennox’s, Morrison’s, 0035 at pg. 6; Morrison, No. 0036 at pg. proposed in the SNOPR to adopt a Goodman’s, and Ingersoll Rand’s 5; Goodman, No. 0037 at pg. 3; Ingersoll sampling plan that requires any comments that the steady-state Rand, No. 0038 at pg. 2) Furthermore, represented value of FER to be greater stabilization criteria proposed in the AHRI and Morrison believe that the air than or equal to the higher of: the mean SNOPR are not reasonably achievable. temperature can be adequately of the sample or the upper 90 percent Therefore, the test procedure measured by the thermocouple (one-tailed) confidence limit divided by established by this final rule adopts the arrangements that are specified in 1.05, as specified in the sampling plan steady-state stabilization criteria in ANSI/ASHRAE Standard 103–1993. for CAC products. 78 FR 19718 (April 2, ASHRAE 103–2007 (which are identical (AHRI, No. 0034 at pg. 5; Morrison, No. 2013) to those codified in 10 CFR Part 430, 0036 at pg. 5) AHRI, Lennox, Rheem, Morrison, Subpart B, Appendix N as part of the DOE recognizes interested party Goodman, Ingersoll Rand, and NPCC/ DOE furnaces test procedure) for the concerns that using an air mixer is NEEA agree with DOE’s proposal to parts of the test that involve firing a inconsistent with the current DOE adopt a sampling plan that requires any furnace burner or energizing electric residential furnaces test set up. represented value of FER to be greater heat resistance elements. For the parts Consequently, the ESP of the test setup than or equal to the higher of the mean

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of the sample or the upper 90 percent DOE enforcement testing of residential cost for small manufacturers, and (one-tailed) confidence limit divided by furnaces employs a statistic that is based requested that DOE prepare a regulatory 1.05. (AHRI, No. 0034 at pg. 5; Lennox, on a 95 percent two-tailed probability flexibility analysis for the rulemaking No. 0031 at p. 5; Rheem, No. 0035 at pg. level with degrees of freedom (n1¥1), that would relax the testing burden or 7; Morrison, No. 0036 at pg. 5; where n1 is the total number of tests. combine testing requirements with an Goodman, No. 0037 at pg. 3; Ingersoll AHRI, Morrison, Goodman, and AEDM so that all models need not be Rand, No. 0038 at pg. 3; NPCC/NEEA, Ingersoll Rand believe that DOE must tested. (Mortex, No. 0018 at pg. 3) No. 0039 at pg. 5) ensure that the confidence limits with Morrison, Unico, and AHRI echoed DOE’s testing experience confirms respect to the certification and Mortex’s comments, requesting DOE that the furnace fan electrical input enforcement testing of the FER metric provide the option of employing an power measurements and external static are the same. (AHRI, No. 0034 at pg. 5; AEDM. (Morrison, No. 0021 at pg. 8; pressure measurements that are required Morrison, No. 0036 at pg. 5; Goodman, Unico, No. 0015 at pg. 6; AHRI, No. by the test procedure established by this No. 0037 at pg. 3; Ingersoll Rand, No. 0016 at pg. 9) rule are more variable than the 0038 at pg. 3) The sampling plan for At this time, DOE is not adopting measurements required for AFUE. certification testing utilizes a one-sided provisions that allow for the ratings of Consequently, as was proposed in the confidence limit, which ensures that the furnace fans to be established based on SNOPR, the test procedure established rating used by manufacturers is simulations or computer models. DOE by this final rule adopts a sampling plan supported by the test data they currently does not allow the use of that requires any represented value of conducted on a given basic model and AEDMs for residential products, with FER to be greater than or equal to the allows the manufacturers the option to the exception of central air conditioners higher of the mean of the sample or the conservatively rate if they desire. DOE and heat pumps. DOE believes that the upper 90 percent (one-tailed) uses a one-sided confidence limit in number of furnace fan basic models that confidence limit divided by 1.05, as determination of ratings because it is a manufacturer will need to test and specified in the sampling plan for CAC interested in ensuring consumers get a certify will be significantly smaller than products. 78 FR 19718 (April 2, 2013) level of performance for a given basic NPCC/NEEA and CA IOU urge DOE to the number of combinations of split- model that is at least as good as what system air conditioners and heat pumps require manufacturers to certify is being represented by manufacturers. that are currently allowed to be rated individual mode FERs. (CA IOU, No. In other words, DOE is primarily with an alternative rating method. 0032 at p. 3) NPCC/NEEA claims there concerned with preventing overrating. While DOE is not opposed to is no additional testing burden On the other hand, the Department considering AEDMs for furnace fans in associated with this proposal, even employs a two-sided sampling plan for the future, it is declining to do so in this though they recognize some enforcement testing with a 95-percent rulemaking until manufacturers provide manufacturer reluctance to certify probability limit for all high-volume DOE with evidence that alternative multiple values. NPCC/NEEA believes covered products and equipment rating methods are needed. DOE the importance and value of the because it is interested in the variability recognizes Mortex’s concerns regarding transparency afforded by certifying the of all units within the sample when individual mode values far outweighs considering compliance against the differential impacts on small any concerns the manufacturers might standard. DOE is looking at the manufacturers. DOE conducted a have with regard to certifying the distribution of values within the sample regulatory flexibility analysis as part of components of a single FER rating as compared to the Federal standard. the NOPR of the furnace fans energy metric. (NPCC/NEEA, No. 0039 at pg. 5) While DOE is open to further conservation standards rulemaking to WI–DOA stated that furnace investigating whether the sampling assess impacts on small manufacturers, manufacturers should be required to plans for enforcement testing should be as Mortex requested. 78 FR 64132– provide fan tables for airflow and changed, specifically whether DOE 64134 (October 25, 2013). Further, DOE corresponding watts with static pressure should move to a one-sided probability adopted burden reducing measures to up to 1.20 in. wc. (WI–DOA, No. 0007 limit for assessing compliance with the test procedure during the at pg. 1) DOE is not adopting standards, DOE is declining to do so in rulemaking in response to certification requirements for furnace this rulemaking. DOE is accepting data manufacturers’ comments (e.g., DOE fans in this rulemaking. DOE proposed which attempts to characterize the aligned the test procedure established in the furnace fan standards rulemaking variability, both the testing and by this final rule with the DOE test that manufacturers be required to certify manufacturing, of furnace fan basic procedure for furnaces). Even in the the single FER rating metric, along with models. absence of the ability to rate furnace some intermediary values that provide fans with AEDMs, only basic models of DOE details about the values used when L. Alternative Efficiency Determination furnace fans are required to be tested the manufacturer conducted its own Method (AEDM) and rated in accordance with the test testing. DOE will consider these AHRI, Rheem, Morrison, Goodman, procedure established by this final rule. comments on certification requirements and Lennox believe the option of Manufacturers may group individual for furnace fans along with any others employing an alternative efficiency furnace fan models into a basic model submitted in response to the proposal in determination method to determine FER if they have essentially identical the standards rulemaking. Should must be made available instead of physical, functional, and electrical commenters have additional details mandating that a minimum of two characteristics and are represented by about why individual mode values are samples be tested in order to achieve the same FER. For example, only one important and would be useful to DOE certification. (AHRI, No. 0034 at model of a series of electric furnace fan consumers, they may provide additional pg. 2; Rheem, No. 0035 at pg. 2; models that only differ by electric comments to the standards docket Morrison, No. 0036 at pg. 2; Goodman, resistance heat capacity is required to be (Docket Number: EERE–2010–BT–STD– No. 0037 at pg. 4; Lennox, No. 0012 at tested in accordance with the test 0011). pg. 5) In response to the NOPR, Mortex procedure established by this rule, if the AHRI, Morrison, and Ingersoll Rand Products, Inc. commented that it is capacity variation does not include added that the sampling plan for the concerned about the testing burden and design changes that alter furnace fan

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performance as measured by the test of testing at the heating speed to products for which the maximum procedure established by this rule. determine QHeat and using a multiplier airflow-control setting is only a cooling to calculate Q should be an optional setting) is unnecessary. This approach M. FER Modifications and Alternatives Max method for furnaces that cannot be avoids the uncertainty inherent in using In the NOPR, DOE proposed to operated or run appropriately at the the airflow adjustment equation. require measurements in the absolute maximum airflow setting. (Ingersoll • EMax shall be measured while the maximum airflow-control setting, which Rand, No. 0038 at pg. 2) Rheem added HVAC product is producing heat in the DOE found is most often designated for that the assumption that the heating maximum airflow-control setting and cooling. DOE also proposed to specify speed can be determined by an assumed steady-state conditions have been met. that the reference system ESP be set in system curve must be adjusted by the For single-stage units, EMax and EHeat are the maximum airflow-control setting to safety requirement that the furnace equivalent because the maximum avoid rating performance above the operate within prescribed temperature airflow-control setting and the heating proposed reference system ESP values. rise range that is listed on each rating airflow-control setting in which 77 FR 28683 (May 15, 2012). Interested plate. (Rheem, No. 0025 at pg. 5) measurements are specified to be made parties commented on the NOPR that UTC agreed with DOE that the are the same. Consequently, the same the maximum airflow-control setting is maximum airflow-control setting on a value is used for both variables in the not always designated for cooling. In the furnace is typically referred to as the FER equation. For multi-stage units, SNOPR, DOE did not change the cooling speed. (UTC, No. 0010 at pg. 1) EMax and EHeat are not equivalent airflow-control settings in which it DOE understands that, in some cases, because the maximum airflow-control proposed to require measurements nor the maximum airflow-control setting is setting and the heating airflow-control its proposal to set the reference system designated for heating, not cooling. setting (the default low heat airflow ESP in the maximum airflow-control Even though DOE finds that the control setting) in which measurements setting. 78 FR 19608 (April 2, 2013) maximum airflow-control setting is are specified to be made are not the Interested parties stated that the most often designated for cooling, the same. EHeat is required to be measured maximum airflow-control setting is not test procedure established by this final in the reduced heat airflow-control always designated for cooling. Goodman rule specifies that measurements be setting. disagrees with DOE’s comment that the taken in the absolute maximum airflow- Contrary to Ingersoll Rand’s maximum airflow-control setting is control setting, not the default cooling recommendation, the test procedure often designated for cooling operation. airflow-control setting to accommodate established by this final rule does not They stated that a single furnace both scenarios as Ingersoll Rand require firing in the maximum airflow- capacity (e.g. 60,000 Btu/h) is often recommends. Specifying that control setting if that setting is not offered with more than one air moving measurements be taken in the maximum designated for heating (even if it is option (‘‘drive’’), and the heating speed airflow-control setting ensures that the possible to do so). Instead, the test tap will vary depending upon the drive full range of fan operation is accounted procedure established by this final rule provided. A 60,000 Btu/h furnace for for in the FER metric regardless of requires firing in the default heating northern applications may have a 3-ton whether the maximum airflow-control airflow-control setting. Requiring firing drive with ‘‘high’’ speed tap for heating, setting is designated for heating or in the maximum airflow-control setting while a 60,000 Btu/h furnace for cooling. The test procedure established in addition would result in increased southern applications may have a 4-ton in this final rule has specific provisions testing burden. Also contrary to drive with ‘‘medium’’ speed tap for for units for which the maximum Ingersoll Rand’s recommendation, the heating. (Goodman, No. 0037 at pg. 2) test procedure established by this final airflow-control setting is a heating Rheem added that the assumption that rule does not allow fan energy for setting. For such units, the test the cooling speed will be the highest cooling to be determined at an procedure established by this notice speed is a worst case assumption. intermediate airflow-control setting (i.e., specifies that: (Rheem, No. 0025 at pg. 5) During the the highest airflow-control setting • The burner or electric resistance NOPR public meeting and in written designated for cooling as specified in heat elements of the HVAC product in comments, Ingersoll Rand noted that if the installation and operating which the furnace fan is integrated shall the maximum airflow speed is instructions that is not the absolute be firing/energized while setting the multiplied by cooling hours and the maximum airflow-control setting). DOE initial conditions (i.e., achieving steady- heating speed is higher than the cooling finds that manufacturers are not as state at the specified reference system speed, then the FER equation is limited in the setting they designate for ESP in the maximum airflow-control incorrect. (Ingersoll Rand, No. 0023 at cooling as they are by safety concerns setting). pg. 124) Ingersoll Rand proposed that and design constraints for designating • airflow for the maximum airflow- when a furnace’s highest air flow setting heating settings. Consequently, control setting shall be calculated using is used for heating, that the test manufacturers could designate the temperature rise measured in the procedure and calculations allow QMax lowest airflow-control setting for maximum airflow-control setting (as to equal QHeat and allow the cooling cooling to produce favorable FER speed energy to be determined at Ingersoll Rand suggests) because the values, resulting in a potential loophole maximum cooling speed tap as specified HVAC product will be producing heat. in the test method. in the installation and operating Consequently, calculating airflow based In the NOPR, DOE proposed to instructions. (Ingersoll Rand, No. 0038 on temperature rise in an intermediate incorporate the HCR to adjust the at pg. 2) Ingersoll Rand stated that many airflow-control setting that is designated heating operating hours in both the furnaces will run appropriately with the for heating and using the airflow numerator (i.e. estimated annual energy 5 blower set to the maximum speed adjustment equation to determine consumption) and denominator (i.e. setting. They proposed that for those maximum airflow (as is specified for normalization factor of total operating units the airflow, QMax be determined hours times airflow in the maximum 5 The airflow adjustment equation can be found directly from testing at the maximum in the regulatory text of this notice and the furnace airflow-control setting) of the FER airflow setting. Ingersoll Rand went on fan test procedure SNOPR published on April 2, equation. 77 FR at 28701 (May 15, to state that the DOE proposed method 2013. 78 FR. 2012). In the SNOPR, DOE revised its

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proposed FER equation by proposing to maximum airflow, where the efficiency FER for furnace fans. (Rheem, No. 0025 incorporate HCR in the numerator, and is measured. (Unico, No. 0015 at pg. 3) at pg. 3) ASAP, ACEEE, NCLC, and eliminate it from the denominator. DOE NRCan stated that normalizing the FER NRDC strongly support DOE’s proposal proposed this revision after finding that rating to produce watts/cfm is difficult to incorporate multiple measures of this modification results in FER values for stakeholders to understand when power consumption into the certifiable that more accurately reflect the relative compared to having a kWh metric. rating metric, including heating, estimated annual energy consumption (NRCan, No. 0011 at pg. 6) Conversely, cooling, and constant circulation modes. of multi-stage and modulating units ACEEE stated that a watts/cfm metric is (ACEEE et al., No. 0013 at pg. 2) NRCan, compared to single-stage units. 78 FR better than a kWh/year metric due to the NPCC, and NEEA suggested that DOE 19609 (April 2, 2013) number of assumptions and consider developing fan efficiency AHRI, Lennox, Rheem, and Morrison extrapolations required to determine ratings for different climatic conditions oppose DOE’s proposal to modify the annual energy consumption. (ACEEE, which would entail development of FER equation by eliminating the HCR No. 0023 at pg. 198) During the NOPR different assumptions regarding the from the denominator and replacing it public meeting, NEEA stated operating operating hours in each mode, with 830. They argue that this change hours should be used to weight average mimicking DOE’s rating procedures for will penalize multi-stage and fan efficiency watts/cfm and not the heat pumps. (NRCan, No. 0011 at pg. 1 modulating furnaces (AHRI, No. 0034 at energy use metric because annual and NPCC/ NEEA, No. 0022 at pg. 7) pg. 2; Lennox, No. 0031 at p. 5; Rheem, energy use will vary more than the Goodman stated that the FER metric No. 0035 at pg. 2; Morrison, No. 0036 efficiency of the fan. (NEEA, No. 0023 does not accurately portray to the at pg. 2) Goodman also echoed AHRI’s at pg. 190) consumer what the relative energy comment in regards to the FER DOE considered FER metric variations consumption would be as applied in equation, but added that the cooling similar to those suggested by ASAP, different regions and in different hours should not be included in FER. ACEEE, NRDC, NRCan, NEEA and applications. According to Goodman, (Goodman, No. 0037 at pg. 5) Unico. The FER metric established by weighting energy consumption on a DOE finds that when HCR is included this final rule is not normalized by a ‘‘national average’’ basis can potentially in the numerator and denominator of time-weighted airflow value instead of cause consumers in either northern or the FER equation (as AHRI, Lennox, the maximum airflow, as ACEEE et al. southern regions to choose a product Rheem, Morrison and Goodman suggests, because the additional that has a lower FER rating, but actually recommend), FER comparisons between measurements required to determine consumes more energy for their locale. multi-stage and single-stage units results airflow in additional airflow-control (Goodman, No. 0017 at pg. 5) Goodman in an estimated reduction in FER of settings would increase test burden. The stated that a product with a higher approximately 30 percent when adding metric recommended by NEEA would SEER, HSPF or AFUE metric will multi-staging to a product with a also require added burden to measure consume less energy annually regardless constant-torque BPM motor. DOE data airflow in additional airflow-control of climate region than a different shows that the estimated annual energy settings. DOE disagrees with Unico that product with a lower SEER, HSPF or consumption, as calculated for the FER FER will incentivize manufacturers to AFUE. However, this is not the case metric, is 15 percent less for multi-stage only optimize performance in the with the FER metric. (Goodman, No. products compared to similar single- maximum airflow-control setting 0017 at pg. 2) stage products. DOE finds that because FER is determined based on eliminating HCR from the denominator furnace fan electrical input DOE acknowledges the concerns of of the FER equation results in an measurements in multiple airflow- Ingersoll Rand, NRCan, and Goodman estimated reduction in FER of 15 control settings across the entire range that using national average operating percent, which is more consistent with of expected operation. DOE disagrees hours may not result in ratings that are estimated annual energy consumption with NRCan that interested parties will reflective of furnace fan energy comparisons. Consequently, the test have difficulty understanding a metric consumption in all climate regions. procedure established by this final rule in units of watts per 1000 cfm. However, the residential furnace fan excludes HCR from the denominator of Interested parties are familiar with energy conservation standard will result the FER equation as proposed in the discussing fan efficiency in terms of in a national standard, not a regional SNOPR. As stated in the SNOPR, watts per 1000 cfm, as this is how fan standard. Consequently, the metric cooling hours are included pursuant to performance is estimated in the established by this final rule is EPCA because electricity used to alternative rating method for coil-only proportional to the estimated national circulate air through duct work occurs CAC products. average annual energy consumption of in cooling and constant circulation Interested parties commented on furnace fans. As detailed in the NOPR, modes, not just in heating mode. 42 DOE’s estimated national average DOE’s estimated national average U.S.C. 6295(f)(4)(D) operating hours and how these furnace fan cooling and heating hours Interested parties suggested estimates are used in determining FER. are based on data sources that include modifications and alternatives to the Ingersoll Rand questions the value of inputs from all U.S. climate regions. 77 units of FER and how its factors are using operating hours because those FR 28680 (May 15, 2012) DOE weighted. ASAP, ACEEE, NCLC, and estimates come from such a small recognizes that its estimated national NRDC recommended that DOE section of the country, and suggested average constant circulation hours are incorporate a time weighted airflow evaluating performance of the appliance based on limited data from a single value (i.e., weighted for time spent in based on the end condition, removing climatic region. As described in the cooling, heating, and circulation modes) any dependence on location. (Ingersoll NOPR, DOE made adjustments to its instead of choosing the maximum Rand, No. 0023 at pg. 198) Rheem stated national average constant circulation airflow. (ACEEE et al., No. 0013 at pg. that it does not agree that DOE has the hours estimate to account for climate 5) Unico suggested that a preferred authority to set an energy conservation region biases. 77 FR 28683 (May 15, metric to FER would be a weighted standard that weights multiple metrics 2012) Interested parties did not provide average watts/cfm for all modes of (45% heating mode, 34% cooling mode, any additional data with which DOE operation to prevent a design push to a 21% circulation mode) to create a single could revise its estimate for national

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average constant circulation hours. DOE BTU output comparison. (Unico, No. are based on a different metric, e, which disagrees with Rheem that DOE does not 0023 at pg. 112) is furnace fan energy consumption as a have the authority to issue standards DOE recognizes that a metric based on percentage of total furnace energy based on a weighted metric. EPCA does power demand per unit of heat, as consumption. Since manufacturers are not contain language limiting DOE’s suggested by Taitem, Unico and prohibited from making representations authority to determine the appropriate Morrison, could be useful. However, of furnace fan efficiency using a metric metric. Accordingly, determining the furnace fans consume electricity to other than FER after 180 days, DOE will nature of a technical measurement is circulate air through duct work in work with EPA to transition the within the scope of authority delegated modes that are not for heating (i.e., ENERGY STAR program. to the agency. cooling and constant circulation). FER During the NOPR public meeting, AGA recommends that DOE include a accounts for energy consumption in both AHRI and Allied Air stated that secondary FER that would convert the heating and non-heating modes and is they feel that DOE should consider primary FER using the extended site therefore, a more appropriate metric for adopting the EISA eb metric because it measure of energy consumption until this test procedure. FER, as described in allows for relative electrical DOE/EERE can consider and complete a section II, is the rating metric for the test performance comparison of furnace fans transition to the use of full-fuel-cycle procedure established by this final rule. without imposing unnecessary burden measure of energy consumption. The Pertaining to the rating metric, AHRI of air flow measurement at additional addition of a secondary energy and Morrison commented that the note external static pressures.6 (AHRI, No. descriptor to capture full-fuel-cycle under Appendix AA to Subpart B of 0023 at pg. 16; Allied Air, No. 0023 at efficiency would be in line with the Part 430 on page 19625 of the SNOPR pg. 129) On the other hand, ACEEE general response to the National should be revised to clarify that it stated that they would be very Research Council (NRC) pertains to the FER rating metric. (AHRI, uncomfortable with consideration of No. 0034 at pg. 2; Morrison, No. 0036 recommendations on appliance using eb because eb was originally efficiency ratings that would also be at pg. 2) developed as a threshold mechanism for applicable to ‘‘furnace fans.’’ (AGA, No. DOE recognizes that furnace fan incentive programs that wanted to 0040 at pg. 1) manufacturers may already include raw recognize efficient air handlers. (ACEEE, DOE will continue to set energy fan energy use at various operating No. 0023 at pg. 125) In more recent conservation standards for covered conditions in product literature. DOE written comments in response to the products based on energy consumption also realizes that furnace fan SNOPR, AHRI (with the support of manufacturers use fan energy metrics at the point-of-use, as required by EPCA, manufacturers) proposed an alternative other than FER to report and make as amended. (42 U.S.C. 6291(4)–(6), test method that included the use of representations of fan energy 6311(3)(4), (18)) Consequently, DOE FER as proposed by DOE in the SNOPR consumption and efficiency. Pursuant to does not require a secondary FER that as the rating metric. (AHRI, No. 16 at p. EPCA, manufacturers of covered captures full-fuel-cycle energy 3; Goodman, No. 17 at p. 4; Ingersoll products must use the applicable test consumption. 76 FR 51282 (Aug. 18, Rand, No. 14 at p. 1; Morrison, No. 21 procedure as the basis for certifying to 2011), as amended at 77 FR 49701 at p. 3) DOE that their products comply with (August 17, 2012). However, DOE used DOE believes that BE, e, and e are the applicable energy conservation b FFC measures of energy use and less appropriate than FER, because they standards adopted pursuant to EPCA greenhouse gas (GHG) and other are based on measurements at one and for making representations about emissions in the national impact operating point for units with single- the efficiency of those products. (42 analysis and environmental analysis for stage heating or measurements at two U.S.C. 6293(c); 42 U.S.C. 6295(s)) DOE’s the furnace fan energy conservation operating points for units with multi- standard rulemaking. 78 FR 64127 regulations allow for representations stage or modulating heating. These (October 25, 2013) and reporting of raw fan energy metrics do not account for operation in Interested parties commented that the consumption in various airflow-control rating metric should be tied to heating settings and at varying ESP in addition cooling or constant circulation modes. performance and capacity. Taitem to FER. While DOE is not including fan Also, these metrics are inappropriate Engineering, PC is concerned about a energy consumption for individual because they are measured at ESPs that rating metric that is based on power functions of operation (i.e., cooling, are not representative of field demand per unit of airflow. They heating, and constant circulation) in the conditions. recommend a metric based on power certification requirements for this rule, N. Air Leakage demand per delivered unit of heat be manufacturers can use these NPCC and NEEA are concerned about used. (Taitem, No. 0033 at p. 1) Unico representations as long as they are made the impacts of air handler cabinet and Morrison added that since furnace- in accordance with the test procedure leakage on energy efficiency and health type products are purchased for their established by this rule. In regards to and safety.7 NPCC/NEEA field testing heating capacity, an artificial other metrics, manufacturers may has shown that cabinet leakage can mechanism like watts/cfm should not be continue using the annual auxiliary occur on the order of one to five used. (Unico, No. 0023 at pg. 94; electrical energy consumption (Eae) percent. According to NPCC/NEEA, the Morrison, No. 0023 at pg. 113) Morrison metric as specified by the DOE furnace noted that the metric proposed in the test procedure as long as it is reported appropriate amount of air to measure is NOPR moves too far away from end-user in conjunction with FER once the amount of air excluding cabinet air application, and would prefer the metric compliance with FER is required. 6 The ‘‘eb’’ metric is a ratio of the electrical energy was tied to heating performance and Manufacturers cannot use any other consumed by the furnace fan to the total fuel and capacity of the unit so that the energy metrics to make representations about electrical energy consumed by the furnace. descriptor is useful to consumers. furnace fan energy consumption or 7 According to NPCC/NEEA, air leakage is also a (Morrison, No. 0023 at pg. 133) Unico efficiency beginning 180 days after matter of health and safety when an air handler is located in a garage because contaminants often suggested that a watts/cfm metric would publication of this final rule in the found in garages are pulled in by the air handler make a product’s efficiency look worse Federal Register. DOE understands that and delivered to the home. (NPCC/NEEA, No. 0039 than it actually is compared to using a current ENERGY STAR specifications at pg. 4)

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leakage in the process of rating the furnace fans in combinations of airflow- DOE realizes that the cumulative efficiency with which air is delivered to control and heating/cooling/circulation effect of multiple regulations on an a residence. NPCC/NEEA strongly settings for which they are not intended industry may significantly increase the recommends that DOE require testing of to operate (i.e., firing the burner while burden faced by manufacturers that air handlers using ANSI/ASHRAE 193– the circulation fan operates in an need to comply with regulations and 2010, and either adjusting the air airflow-control setting designated only testing requirements from different delivered by an air handler accordingly for cooling). The test procedure organizations and levels of government. before calculating FER (and therefore established by this final rule does not DOE considers the cumulative cost of the rated efficiency of the air handler), specify combinations of settings for multiple regulations on manufacturers or providing a separate rating for cabinet which a product is not designed. in the cumulative regulatory burden leakage, so that consumers and Consequently, independent test labs section in the standards NOPR contractors can choose the best- will be able to achieve operating settings published on October 25, 2013. 78 FR performing products for the market. required by this rule without guidance 64103 DOE agrees that the key concept (NPCC/NEEA, No. 0039 at pg. 4) CA from manufacturers other than the embodied in the alternative method IOU also recommends the adoption of product literature that is shipped with suggested by AHRI and manufacturers ASHRAE 193–2010 for measuring air the product. (using the AFUE test set up and leakage, which should also be P. Manufacturer Burden temperature rise to determine airflow) incorporated into the FER. (CA IOU, No. provides reasonable FER values at a 0032 at p. 2) In response to the NOPR, AHRI stated significantly reduced burden to DOE disagrees with NPCC, NEEA, and that it found the manufacturer testing manufacturers. The test procedure CA IOU that the test procedure burden to be high since it includes established by this final rule adopts a established by this final rule should AFUE, standby and off mode modified version of the test method incorporate ANSI/ASHRAE 193–2010 to requirements, FER rating at different presented by AHRI as the furnace fan account for cabinet air leakage. The test static pressures outside of ASHRAE 103, test procedure to minimize test burden. procedure established by this final rule airflow measurements, as well as calculates airflow such that the results Canada’s new and different furnace fan IV. Procedural Issues and Regulatory do not include any air that may have metric. (AHRI, No. 0023 at pg. 238) Review leaked from the cabinet upstream of the Morrison believes the DOE estimated A. Review Under Executive Order 12866 heat exchanger. This air will not have testing cost of 2% of the manufacturer absorbed any significant amount of heat selling price in the NOPR does not The Office of Management and Budget before leaking from the cabinet. Hence account for the cumulative regulatory (OMB) has determined that test the heat addition will cause a greater burden associated with the AFUE, procedure rulemakings do not constitute temperature rise in the remaining air standby and off mode, and fan ‘‘significant regulatory actions’’ under that does absorb heat from the heat efficiency. (Morrison, No. 0021 at pg. 9) section 3(f) of Executive Order 12866, exchanger, and for which temperature is Additionally, Morrison believes that the Regulatory Planning and Review, 58 FR measured by the discharge temperature test burden of the NOPR proposal will 51735 (Oct. 4, 1993). Accordingly, this sensors. Hence, assuming that most of be increased because this is a second action was not subject to review under the leaked air absorbs a negligible static test point in addition to what is the Executive Order by the Office of amount of heat before leaking out of the already required under the DOE AFUE Information and Regulatory Affairs cabinet, the measurement already takes testing. (Morrison, No. 0023 at pg. 152) (OIRA) in the Office of Management and the air leakage into account. Air that Rheem commented that they do not Budget (OMB). does not pass over the heat exchanger currently have airflow data to rate B. Review Under the Regulatory (which would include air leaked current furnace models using the Flexibility Act through the cabinet upstream of the heat proposed metric, and it is not exchanger, or air that passes near reasonable to assume manufacturers The Regulatory Flexibility Act (5 potential leakage gaps in the cabinet already have this data. (Rheem, No. U.S.C. 601 et seq.) requires preparation casing surrounding, but distant from, 0025 at pg. 3) Lennox stated that due to of an initial regulatory flexibility the heat exchanger) is not included in variability in motor performance, analysis (IFRA) for any rule that by law the equation. manufacturing and testing, more than must be proposed for public comment, two units may need to be tested for unless the agency certifies that the rule, O. Brushless Permanent Magnet Motor some models. The additional testing if promulgated, will not have a Issues time, engineering time to review and significant economic impact on a In the NOPR, DOE requested convert data into the FER calculation, substantial number of small entities. As comment on whether independent test along with time required to statistically required by Executive Order 13272, labs would have difficulty selecting and develop the FER rating and maintain the ‘‘Proper Consideration of Small Entities operating a furnace fan in the airflow- required DOE documentation, are in Agency Rulemaking,’’ 67 FR 53461 control settings DOE proposed in the additional burdens. (Lennox, No. 0012 (August 16, 2002), DOE published NOPR. 77 FR 28697 May 15, 2012 UTC, at pg. 4) Since the SNOPR, AHRI (with procedures and policies on February 19, Rheem, and Morrison confirmed that the support of a number of 2003, to ensure that the potential independent test labs will need manufacturers) proposed a method of impacts of its rules on small entities are additional guidance on motor control calculating airflow based on properly considered during the DOE and recommends that the independent temperature rise, which would rulemaking process. 68 FR 7990. DOE test laboratory be allowed to confer with significantly reduce test burden because has made its procedures and policies the individual manufacturers on it can be measured using procedures available on the Office of the General particular models. (UTC, No. 0010 at pg. and a test setup consistent with those Counsel’s Web site: http://energy.gov/ 6; Rheem, No. 0025 at pg. 9; Morrison, used for the DOE test procedure for gc/office-general-counsel. No. 0021 at pg. 7) DOE expects that furnaces (AHRI, No. 16 at p. 3; DOE reviewed today’s rule under the independent test labs would have Goodman, No. 17 at p. 4; Ingersoll Rand, provisions of the Regulatory Flexibility difficulty selecting and operating No. 14 at p. 1; Morrison, No. 21 at p. 3). Act and the procedures and policies

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published on February 19, 2003. 68 FR standards, which are being developed in manufacturer would be the same 7990. DOE has concluded that the a concurrent rulemaking, for the regardless of test method, DOE expects proposed rule would not have a products that are the subject of this that the cost to conduct a test would significant economic impact on a rulemaking. This notice establishes new also be reduced by 30 to 60 percent. substantial number of small entities test procedures for active mode testing DOE estimated that conducting a test under the provisions of the Regulatory for all such products. The rule will according to its NOPR proposed test Flexibility Act. The factual basis for this require a modified version of the testing procedure would cost a small certification is as follows: methods prescribed in a public manufacturer $2.30 per unit shipped. The Small Business Administration submission from AHRI (the trade This estimate is largely based on DOE’s (SBA) considers an entity to be a small organization that represents experience with third-party test lab business if, together with its affiliates, it manufacturers of furnace fans). The labor rates for fan testing. 77 FR at employs fewer than a threshold number AHRI proposal recommends test 28691 (May 15, 2012). A 30 percent of workers as specified in 13 CFR part methods that are purposely aligned with reduction would yield a conservative 121. The threshold values set forth in the current DOE test procedure for cost estimate of $1.61 per unit shipped these regulations use size standards and furnaces in order to minimize test to conduct a test according to AHRI’s codes established by the North burden. (AHRI, No. 26); Appendix N of method. DOE does not expect that its American Industry Classification Subpart B of 10 CFR part 430. As modifications to the AHRI method System (NAICS) that are available at: discussed above, this would not would result in additional costs to http://www.sba.gov/sites/default/files/ represent a substantial burden to any conduct a test. DOE finds that the _ _ Size Standards Table.pdf. The furnace fan manufacturer, small or large. selling price for HVAC products that threshold number for NAICS According to AHRI, its proposed incorporate furnace fans ranges from classification for 333415, which applies method would result in an 80 to 90 approximately $400 to $4,000. to Air-Conditioning and Warm Air percent reduction in test burden Therefore, the added cost of testing Heating Equipment and Commercial compared to the test procedure according to DOE’s test procedure and Industrial Refrigeration Equipment proposed by DOE in the NOPR. AHRI would be less than one percent of the Manufacturing (this includes furnace attributed this reduction primarily to manufacturer selling price (and lower 8 fan manufacturers) is 750 employees. manufacturers not having to acquire or than 0.1 percent in some cases). DOE reviewed AHRI’s Directory of use any test equipment beyond the For these reasons, DOE certifies that Certified Product Performance for equipment that is already used to the test procedure established by this Residential Furnaces and Boilers conduct the test method specified in the rule will not have a significant 9 (2009), the ENERGY STAR Product DOE furnace test procedure (i.e. the economic impact on a substantial Databases for Gas and Oil Furnaces AFUE test setup). (AHRI, No. 16 at p. 3.) number of small entities. Accordingly, 10 (May 15, 2009), the California Energy Mortex, a small manufacturer, stated DOE has not prepared a regulatory Commission’s Appliance Database for flexibility analysis for this rulemaking. 11 that measuring airflow and electrical Residential Furnaces and Boilers, and power input at a few more airflow- DOE will provide its certification and the Consortium for Energy Efficiency’s control settings as a part of the existing supporting statement of factual basis to Qualifying Furnace and Boiler List the Chief Counsel for Advocacy of the 12 AFUE test procedure should not require (April 2, 2009). From this review, DOE any capital outlay, unlike the method SBA for review under 5 U.S.C. 605(b). identified 14 small businesses within proposed by DOE in the NOPR. (Mortex, C. Review Under the Paperwork the furnace fan industry. DOE does not No. 18 at p. 2.) DOE’s modifications to Reduction Act of 1995 believe the test procedure described in AHRI’s approach will not require this rule would represent a substantial There is currently no information equipment beyond what is currently burden to any manufacturer, including collection requirement related to the test used to perform the AFUE test. small manufacturers, as explained procedure for furnace fans. In the event Therefore, DOE expects no additional below. that DOE proposes an energy This rule establishes test procedures cost as the result of the new test conservation standard with which that would be used for representations procedure. manufacturers must demonstrate of energy use and to test compliance DOE also expects that the time and compliance, or otherwise proposes to with new energy conservation cost to conduct testing according to the require the collection of information proposed test procedure will not be derived from the testing of furnace fans 8 U.S. Small Business Administration, Table of significantly burdensome. During according to this test procedure, DOE Small Business Size Standards (August 22, 2008) discussions with manufacturers, DOE will seek OMB approval of such (Available at: http://www.sba.gov/sites/default/ received feedback that the time to test files/Size_Standards_Table.pdf). information collection requirement. 9 The Air-Conditioning, Heating, and a single unit according to the AHRI Manufacturers of covered products Refrigeration Institute, Directory of Certified method would be 30 to 60 percent less must certify to DOE that their products Product Performance (June 2009) (Available at: relative to using the procedure DOE comply with any applicable energy http://www.ahridirectory.org/ahridirectory/pages/ proposed in the NOPR. Goodman conservation standard. 10 CFR 429.12. home.aspx). performed tests according to both DOE’s 10 The U.S. Environmental Protection Agency and In certifying compliance, manufacturers the U.S. Department of Energy, ENERGY STAR NOPR test procedure proposal and must test their products according to the Furnaces—Product Databases for Gas and Oil AHRI’s suggested method and found applicable DOE test procedure, Furnaces (May 15, 2009) (Available at: http:// that testing time is reduced by almost 60 including any amendments adopted for www.energystar.gov/index.cfm?c=furnaces.pr_ furnaces). percent using AHRI’s method. that test procedure. See 10 CFR 429.13. 11 The California Energy Commission, Appliance (Goodman, No. 17 at p. 3.) Rheem also DOE established regulations for the Database for Residential Furnaces and Boilers conducted tests according to both certification and recordkeeping (2009) (Available at: http:// procedures and stated that the time to requirements for certain covered www.appliances.energy.ca.gov/QuickSearch.aspx). test a single-stage furnace was reduced consumer products and commercial 12 Consortium of Energy Efficiency, Qualifying Furnace and Boiler List (April 2, 2009) (Available from 4 hours to 45 minutes by using the equipment. 76 FR 12422 (March 7, at: http://www.ceedirectory.org/ceedirectory/pages/ AHRI method. (Rheem, No. 25 at p. 4.) 2011). The collection-of-information cee/ ceeDirectoryInfo.aspx). Assuming that the labor rate for a given requirement for the certification and

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recordkeeping was subject to review and examine the constitutional and statutory them. DOE has completed the required approval by OMB under the Paperwork authority supporting any action that review and determined that, to the Reduction Act (PRA). This requirement would limit the policymaking discretion extent permitted by law, this final rule was approved by OMB under OMB of the States and to carefully assess the meets the relevant standards of Control Number 1910–1400. Public necessity for such actions. The Executive Order 12988. reporting burden for the certification Executive Order also requires agencies was estimated to average 20 hours per to have an accountable process to G. Review Under the Unfunded response, including the time for ensure meaningful and timely input by Mandates Reform Act of 1995 reviewing instructions, searching State and local officials in the Title II of the Unfunded Mandates existing data sources, gathering and development of regulatory policies that Reform Act of 1995 (UMRA) requires maintaining the data needed, and have Federalism implications. On each Federal agency to assess the effects completing and reviewing the collection March 14, 2000, DOE published a of Federal regulatory actions on State, of information. statement of policy describing the local, and Tribal governments and the As stated above, in the event DOE intergovernmental consultation process private sector. Public Law 104–4, sec. proposes an energy conservation it will follow in the development of standard for furnace fans with which such regulations. 65 FR 13735. DOE 201 (codified at 2 U.S.C. 1531). For a manufacturers must demonstrate examined this final rule and determined regulatory action resulting in a rule that compliance, DOE will seek OMB that it will not have a substantial direct may cause the expenditure by State, approval of the associated information effect on the States, on the relationship local, and Tribal governments, in the collection requirement. DOE will seek between the national government and aggregate, or by the private sector of approval either through a proposed the States, or on the distribution of $100 million or more in any one year amendment to the information power and responsibilities among the (adjusted annually for inflation), section collection requirement approved under various levels of government. EPCA 202 of UMRA requires a Federal agency OMB control number 1910–1400 or as a governs and prescribes Federal to publish a written statement that separate proposed information preemption of State regulations as to estimates the resulting costs, benefits, collection requirement. energy conservation for the products and other effects on the national Notwithstanding any other provision that are the subject of today’s final rule. economy. (2 U.S.C. 1532(a), (b)) The of the law, no person is required to States can petition DOE for exemption UMRA also requires a Federal agency to respond to, nor shall any person be from such preemption to the extent, and develop an effective process to permit subject to a penalty for failure to comply based on criteria, set forth in EPCA. (42 timely input by elected officers of State, with, a collection of information subject U.S.C. 6297(d)) No further action is local, and Tribal governments on a to the requirements of the PRA, unless required by Executive Order 13132. proposed ‘‘significant intergovernmental that collection of information displays a mandate,’’ and requires an agency plan currently valid OMB Control Number. F. Review Under Executive Order 12988 for giving notice and opportunity for Regarding the review of existing timely input to potentially affected D. Review Under the National regulations and the promulgation of small governments before establishing Environmental Policy Act of 1969 new regulations, section 3(a) of any requirements that might In this final rule, DOE establishes its Executive Order 12988, ‘‘Civil Justice significantly or uniquely affect small test procedure for furnace fans. DOE has Reform,’’ 61 FR 4729 (Feb. 7, 1996), governments. On March 18, 1997, DOE determined that this rule falls into a imposes on Federal agencies the general published a statement of policy on its class of actions that are categorically duty to adhere to the following process for intergovernmental excluded from review under the requirements: (1) Eliminate drafting consultation under UMRA. 62 FR National Environmental Policy Act of errors and ambiguity; (2) write 12820; also available at http:// 1969 (42 U.S.C. 4321 et seq.) and DOE’s regulations to minimize litigation; (3) energy.gov/gc/office-general-counsel. implementing regulations at 10 CFR part provide a clear legal standard for DOE examined today’s final rule 1021. Specifically, this rule amends an affected conduct rather than a general according to UMRA and its statement of existing rule without affecting the standard; and (4) promote simplification policy and determined that the rule amount, quality or distribution of and burden reduction. Section 3(b) of contains neither an intergovernmental energy usage, and, therefore, will not Executive Order 12988 specifically mandate, nor a mandate that may result result in any environmental impacts. requires that Executive agencies make in the expenditure of $100 million or Thus, this rulemaking is covered by every reasonable effort to ensure that the more in any year, so these requirements Categorical Exclusion A5 under 10 CFR regulation: (1) Clearly specifies the do not apply. part 1021, subpart D, which applies to preemptive effect, if any; (2) clearly any rulemaking that interprets or specifies any effect on existing Federal H. Review Under the Treasury and amends an existing rule without law or regulation; (3) provides a clear General Government Appropriations changing the environmental effect of legal standard for affected conduct Act, 1999 that rule. Accordingly, neither an while promoting simplification and environmental assessment nor an burden reduction; (4) specifies the Section 654 of the Treasury and environmental impact statement is retroactive effect, if any; (5) adequately General Government Appropriations required. defines key terms; and (6) addresses Act, 1999 (Pub. L. 105–277) requires other important issues affecting clarity Federal agencies to issue a Family E. Review Under Executive Order 13132 and general draftsmanship under any Policymaking Assessment for any rule Executive Order 13132, ‘‘Federalism,’’ guidelines issued by the Attorney that may affect family well-being. 64 FR 43255 (August 4, 1999) imposes General. Section 3(c) of Executive Order Today’s final rule will not have any certain requirements on agencies 12988 requires Executive agencies to impact on the autonomy or integrity of formulating and implementing policies review regulations in light of applicable the family as an institution. or regulations that preempt State law or standards in sections 3(a) and 3(b) to Accordingly, DOE has concluded that it that have Federalism implications. The determine whether they are met or it is is not necessary to prepare a Family Executive Order requires agencies to unreasonable to meet one or more of Policymaking Assessment.

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I. Review Under Executive Order 12630 L. Review Under Section 32 of the N. Approval of the Office of the Federal Energy Administration Act of Secretary DOE has determined, under Executive 1974 Order 12630, ‘‘Governmental Actions The Secretary of Energy has approved publication of this final rule. and Interference with Constitutionally Under section 301 of the Department Protected Property Rights’’ 53 FR 8859 of Energy Organization Act (Pub. L. 95– List of Subjects (March 18, 1988), that this regulation 91; 42 U.S.C. 7101), DOE must comply 10 CFR Part 429 will not result in any takings that might with section 32 of the Federal Energy require compensation under the Fifth Administration Act of 1974, as amended Confidential business information, Amendment to the U.S. Constitution. by the Federal Energy Administration Energy conservation, Household appliances, Imports, Reporting and J. Review Under Treasury and General Authorization Act of 1977. (15 U.S.C. recordkeeping requirements. Government Appropriations Act, 2001 788; FEAA) Section 32 essentially provides in relevant part that, where a 10 CFR Part 430 Section 515 of the Treasury and proposed rule authorizes or requires use General Government Appropriations Administrative practice and of commercial standards, the notice of procedure, Confidential business Act, 2001 (44 U.S.C. 3516 note) provides proposed rulemaking must inform the for agencies to review most information, Energy conservation, public of the use and background of Household appliances, Imports, disseminations of information to the such standards. In addition, section public under guidelines established by Incorporation by reference, 32(c) requires DOE to consult with the each agency pursuant to general Intergovernmental relations, Small Attorney General and the Chairman of guidelines issued by OMB. OMB’s businesses. the Federal Trade Commission (FTC) guidelines were published at 67 FR Issued in Washington, DC, on December 8452 (Feb. 22, 2002), and DOE’s concerning the impact of the 24, 2013. commercial or industry standards on guidelines were published at 67 FR Kathleen B. Hogan, competition. 62446 (Oct. 7, 2002). DOE has reviewed Deputy Assistant Secretary for Energy today’s final rule under the OMB and The test procedure established by this Efficiency, Energy Efficiency and Renewable DOE guidelines and has concluded that action incorporates testing methods Energy. it is consistent with applicable policies contained in the DOE test procedure for For the reasons stated in the in those guidelines. furnaces codified in Appendix N or preamble, DOE amends parts 429 and K. Review Under Executive Order 13211 Subpart B of part 430 of the CFR (which 430 of chapter II, subchapter D, of Title incorporates by reference ANSI/ 10 of the Code of Federal Regulations as Executive Order 13211, ‘‘Actions ASHRAE Standard 103, ‘‘Method of set forth below: Concerning Regulations That Testing for Annual Fuel Utilization Significantly Affect Energy Supply, Efficiency of Residential Central PART 429—CERTIFICATION, Distribution, or Use,’’ 66 FR 28355 (May Furnaces and Boilers,’’) and ANSI/ COMPLIANCE, AND ENFORCEMENT 22, 2001), requires Federal agencies to ASHRAE Standard 37–2009, ‘‘Methods FOR CONSUMER PRODUCTS AND prepare and submit to OMB, a of Testing for Rating Electrically Driven COMMERCIAL AND INDUSTRIAL Statement of Energy Effects for any Unitary Air-Conditioning and Heat EQUIPMENT significant energy action. A ‘‘significant Pump Equipment.’’) While today’s ■ 1. The authority citation for part 429 energy action’’ is defined as any action proposed test procedure is not continues to read as follows: by an agency that promulgated or is exclusively based on these standards, expected to lead to promulgation of a some components of the DOE test Authority: 42 U.S.C. 6291–6317. final rule, and that: (1) Is a significant procedure would adopt definitions, test ■ 2. Add § 429.58 to read as follows: regulatory action under Executive Order setup, measurement techniques, and 12866, or any successor order; and (2) additional calculations from them § 429.58 Furnace fans. is likely to have a significant adverse without any change. DOE has evaluated (a) Sampling plan for selection of effect on the supply, distribution, or use these two versions of this standard and units for testing. (1) The requirements of of energy; or (3) is designated by the is unable to conclude whether it fully § 429.11 are applicable to furnace fans; Administrator of OIRA as a significant complies with the requirements of and energy action. For any significant energy (2) For each basic model of furnace section 32(b) of the FEAA (i.e. whether action, the agency must give a detailed fan, a sample of sufficient size shall be it was developed in a manner that fully statement of any adverse effects on randomly selected and tested to ensure provides for public participation, energy supply, distribution, or use if the that any represented value of fan energy comment, and review.) DOE has regulation is implemented, and of rating (FER), rounded to the nearest reasonable alternatives to the action and consulted with both the Attorney integer, shall be greater than or equal to their expected benefits on energy General and the Chairman of the FTC the higher of: supply, distribution, and use. about the impact on competition of (i) The mean of the sample, where: using the methods contained in these Today’s regulatory action is not a standards and has received no significant regulatory action under comments objecting to their use. Executive Order 12866. Moreover, it would not have a significant adverse M. Congressional Notification effect on the supply, distribution, or use And, x¯ is the sample mean; n is the of energy, nor has it been designated as As required by 5 U.S.C. 801, DOE will number of samples; and xi is the a significant energy action by the report to Congress on the promulgation measured value for the ith sample; Administrator of OIRA. Therefore, it is of today’s rule before its effective date. Or, not a significant energy action, and, The report will state that it has been (ii) The upper 90 percent confidence accordingly, DOE has not prepared a determined that the rule is not a ‘‘major limit (UCL) of the true mean divided by Statement of Energy Effects. rule’’ as defined by 5 U.S.C. 804(2). 1.05, where:

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of Testing for Annual Fuel Utilization 2007 by ASHRAE, approved by the American Efficiency of Residential Central National Standards Institute (ANSI) on March 25, 2008, and entitled ‘‘Method of And x¯ is the sample mean; s is the Furnaces and Boilers, except for sections 7.2.2.5, 8.6.1.1, 9.1.2.2, 9.5.1.1, Testing for Annual Fuel Utilization sample standard deviation; n is the Efficiency of Residential Central Furnaces 9.5.1.2.1, 9.5.1.2.2, 9.5.2.1, 9.7.1, number of samples; and t0.90 is the t and Boilers’’. Only those sections of ASHRAE statistic for a 90% one-tailed confidence 11.2.12, 11.3.12, 11.4.12, 11.5.12 and 103–2007 (incorporated by reference; see interval with n-1 degrees of freedom appendices B and C, ANSI approved § 430.3) specifically referenced in this test (from Appendix A). March 25, 2008, IBR approved for procedure are part of this test procedure. In (b) [Reserved] appendix AA to subpart B. cases where there is a conflict, the language * * * * * of the test procedure in this appendix takes precedence over ASHRAE 103–2007. PART 430—ENERGY CONSERVATION ■ 6. Section 430.23 is amended by PROGRAM FOR CONSUMER 2.4. ANSI/ASHRAE Standard 41.1–1986 adding paragraph (cc) to read as follows: (RA 2006) means the test standard published PRODUCTS in 1986, approved by ANSI on February 18, § 430.23 Test procedures for the ■ 1987, reaffirmed in 2006, and entitled 3. The authority citation for part 430 measurement of energy and water ‘‘Standard Method for Temperature continues to read as follows: consumption. Measurement’’ (incorporated by reference; Authority: 42 U.S.C. 6291–6309; 28 U.S.C. * * * * * see § 430.3). 2461 note. (cc) Furnace Fans. The energy 2.5. ASHRAE Standard 37–2009 means the ■ consumption of a single unit of a test standard published in 2009 by ASHRAE 4. Section 430.2 is amended by entitled ‘‘Methods of Testing for Rating ■ furnace fan basic model expressed in a. Adding paragraph (3) to the Unitary Air-Conditioning and Heat Pump definition for ‘‘basic model’’; and watts per 1000 cubic feet per minute (cfm) to the nearest integer shall be Equipment’’ (incorporated by reference; see ■ b. Adding a definition for ‘‘furnace § 430.3). fan’’ in alphabetical order. calculated in accordance with Appendix 2.6. Default airflow-control settings are the The additions read as follows: AA of this subpart. airflow-control settings specified for ■ 7. Appendix AA to subpart B of part installed-use by the manufacturer. For the § 430.2 Definitions. 430 is added to read as follows: purposes of this appendix, manufacturer * * * * * specifications for installed-use are those Basic model *** Appendix AA to Subpart B of Part specifications provided for typical consumer (3) with respect to furnace fans: Are 430—Uniform Test Method for installations in the product literature shipped marketed and/or designed to be Measuring the Energy Consumption of with the product in which the furnace fan is installed in the same type of Furnace Fans installed. In instances where a manufacturer installation. specifies multiple airflow-control settings for Note: Any representation made after July 2, a given function to account for varying * * * * * 2014 for energy consumption of furnace fans installation scenarios, the highest airflow- Furnace fan means an electrically- must be based upon results generated under control setting specified for the given powered device used in a consumer this test procedure. Upon the compliance function shall be used for the procedures product for the purpose of circulating date(s) of any energy conservation specified in this appendix. air through ductwork. standard(s) for furnace fans, use of the 2.7. External static pressure (ESP) means * * * * * applicable provisions of this test procedure the difference between static pressures to demonstrate compliance with the energy measured in the outlet duct and return air ■ 5. Section 430.3 is amended by: ■ conservation standard will also be required. opening (or return air duct when used for a. Redesignating paragraphs (f)(4) 1. Scope. This appendix covers the test testing) of the product in which the furnace through (10) as paragraphs (f)(5) through requirements used to measure the energy fan is integrated. (11); consumption of fans used in weatherized and 2.8. Furnace fan means an electrically- ■ b. Adding new paragraph (f)(4); non-weatherized gas furnaces, oil furnaces, powered device used in a consumer product ■ c. Removing, in newly redesignated electric furnaces, and modular blowers. for the purpose of circulating air through (f)(5), ‘‘Reaffirmed 2001’’ and adding in 2. Definitions. Definitions include the ductwork. its place ‘‘Reaffirmed 2006’’; and definitions as specified in section 3 of 2.9. Modular blower means a product removing ‘‘appendix E and appendix M ASHRAE 103–2007 (incorporated by which only uses single-phase electric to subpart B’’ and adding in its place reference, see § 430.3) and the following current, and which: ‘‘appendices E, M, and AA to subpart additional definitions, some of which (a) Is designed to be the principal air B’’; supersede definitions found in ASHRAE circulation source for the living space of a ■ 103–2007: residence; d. Revising newly redesignated 2.1. Active mode means the condition in (b) Is not contained within the same paragraph (f)(10); which the product in which the furnace fan cabinet as a furnace or central air The addition and revision read as is integrated is connected to a power source conditioner; and follows: and circulating air through ductwork. (c) Is designed to be paired with HVAC 2.2. Airflow-control settings are products that have a heat input rate of less § 430.3 Materials incorporated by programmed or wired control system than 225,000 Btu per hour and cooling reference. configurations that control a fan to achieve capacity less than 65,000 Btu per hour. * * * * * discrete, differing ranges of airflow—often 2.10. Off mode means the condition in (f) * * * designated for performing a specific function which the product in which the furnace fan (4) ANSI/ASHRAE Standard 37–2009, (e.g., cooling, heating, or constant is integrated either is not connected to the (‘‘ASHRAE 37–2009’’), Methods of circulation)—without manual adjustment power source or is connected to the power Testing for Rating Electrically Driven other than interaction with a user-operable source but not energized. Unitary Air-Conditioning and Heat control such as a thermostat that meets the 2.11. Seasonal off switch means a switch Pump Equipment, ANSI approved June manufacturer specifications for installed-use. on the product in which the furnace fan is 25, 2009, IBR approved for appendix For the purposes of this appendix, integrated that, when activated, results in a manufacturer specifications for installed-use measurable change in energy consumption AA to subpart B. shall be found in the product literature between the standby and off modes. * * * * * shipped with the unit. 2.12. Standby mode means the condition in (10) ANSI/ASHRAE Standard 103– 2.3. ASHRAE 103–2007 means ANSI/ which the product in which the furnace fan 2007, (‘‘ASHRAE 103–2007’’), Methods ASHRAE Standard 103–2007, published in is integrated is connected to the power

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source, energized, but the furnace fan is not reference, see § 430.3) or the steady-state test from other electrical input power circulating air. described in section 9.1 of ASHRAE 103– measurements. 2.13. Thermal stack damper means a type 2007. Do not insulate the internal vent pipe 7. Test Conditions. The testing conditions of stack damper that opens only during the before the cool-down and heat-up tests shall be as specified in section 8, not direct conversion of thermal energy of the described in sections 9.5 and 9.6, including section 8.6.1.1, of ASHRAE 103– stack gases. respectively, of ASHRAE 103–2007. If the 2007 (incorporated by reference, see § 430.3); 3. Classifications. Classifications are as vent pipe is surrounded by a metal jacket, do and as specified in section 7.1 of this specified in section 4 of ASHRAE 103–2007 not insulate the metal jacket. Install a 5-ft test appendix. (incorporated by reference, see § 430.3). stack of the same cross sectional area or 7.1. Measurement of Jacket Surface 4. Requirements. Requirements are as perimeter as the vent pipe above the top of Temperature (optional). The jacket of the specified in section 5 of ASHRAE 103–2007 the furnace. Tape or seal around the junction furnace or boiler shall be subdivided into 6- (incorporated by reference, see § 430.3). In connecting the vent pipe and the 5-ft test inch squares when practical, and otherwise addition, Fan Energy Rating (FER) of furnace stack. Insulate the 5-ft test stack with into 36-square-inch regions comprising 4 in. fans shall be determined using test data and insulation having a minimum R-value of 7 x 9 in. or 3 in. x 12 in. sections, and the estimated national average operating hours and an outer layer of aluminum foil. (See surface temperature at the center of each pursuant to section 10.10 of this appendix. Figure 3–E of ASHRAE 103–2007.) square or section shall be determined with a 5. Instruments. Instruments must be as 6.3. Modular Blowers. A modular blower surface thermocouple. The 36-square-inch specified in section 6, not including section shall be equipped with the electric heat areas shall be recorded in groups where the 6.2, of ASHRAE 103–2007 (incorporated by resistance kit that is likely to have the largest temperature differential of the 36-square-inch reference, see § 430.3); and as specified in volume of retail sales with that particular area is less than 10 °F for temperature up to section 5.1 and 5.2 of this appendix. basic model of modular blower. 100 °F above room temperature and less than 5.1. Temperature. Temperature measuring 6.4. Ducts and Plenums. Ducts and 20 °F for temperature more than 100 °F above instruments shall meet the provisions plenums shall be built to the geometrical room temperature. For forced air central specified in section 5.1 of ASHRAE 37–2009 specifications in section 7 of ASHRAE 103– furnaces, the circulating air blower (incorporated by reference, see § 430.3) and 2007. An apparatus for measuring external compartment is considered as part of the shall be accurate to within 0.75 degree static pressure shall be integrated in the duct system and no surface temperature Fahrenheit (within 0.4 degrees Celsius). plenum and test duct as specified in sections measurement of the blower compartment 5.1.1. Outlet Air Temperature 6.4, excluding specifications regarding the needs to be recorded for the purpose of this Thermocouple Grid. Outlet air temperature minimum length of the ducting and test. For downflow furnaces, measure all shall be measured as described in section minimum distance between the external cabinet surface temperatures of the heat 8.2.1.5.5 of ASHRAE 103–2007 (incorporated static pressure taps and product inlet and exchanger and combustion section, including by reference, see § 430.3) and illustrated in outlet, and 6.5 of ASHRAE 37–2009 the bottom around the outlet duct, and the Figure 2 of ASHRAE 103–2007. (incorporated by reference, see § 430.3). burner door, using the 36 square-inch Thermocouples shall be placed downstream External static pressure measuring thermocouple grid. The cabinet surface of pressure taps used for external static instruments shall be placed between the temperatures around the blower section do pressure measurement. furnace openings and any restrictions or not need to be measured (see figure 3–E of 5.2. Humidity. Air humidity shall be elbows in the test plenums or ducts. For all ASHRAE 103–2007.) measured with a relative humidity sensor test configurations, external static pressure 8. Test Procedure. Testing and that is accurate to within 5% relative taps shall be placed 18 inches from the measurements shall be as specified in section humidity. Air humidity shall be measured as outlet. 9 of ASHRAE 103–2007 (incorporated by close as possible to the inlet of the product 6.4.1. For tests conducted using a return air reference, see § 430.3) except for sections in which the furnace fan is installed. duct. Additional external static pressure taps 9.1.2.1, 9.3, 9.5.1.1, 9.5.1.2.1, 9.5.1.2.2, 6. Apparatus. The apparatus used in shall be placed 12 inches from the product 9.5.2.1, and section 9.7.1; and as specified in conjunction with the furnace during the inlet. Pressure shall be directly measured as sections 8.1 through 8.6 of this appendix. testing shall be as specified in section 7 of a differential pressure as depicted in Figure 8.1. Direct Measurement of Off-Cycle ASHRAE 103–2007 (incorporated by 8 of ASHRAE 37–2009 rather than Losses Testing Method. [Reserved.] reference, see § 430.3) except for section 7.1, determined by separately measuring inlet 8.2. Measurement of Electrical Standby the second paragraph of section 7.2.2.2, and outlet static pressure and subtracting the and Off Mode Power. [Reserved] section 7.2.2.5, and section 7.7, and as results. 8.3. Steady-State Conditions for Gas and specified in sections 6.1, 6.2, 6.3,6.4, 6.5 and 6.4.2. For tests conducted without a return Oil Furnaces. Steady-state conditions are 6.6 of this appendix. air duct. External static pressure shall be indicated by an external static pressure 6.1. General. The product in which the directly measured as the differential pressure within the range shown in Table 1 and a furnace fan is integrated shall be installed in between the outlet duct static pressure and temperature variation in three successive the test room in accordance with the product the ambient static pressure as depicted in readings, taken 15 minutes apart, of not more manufacturer’s written instructions that are Figure 7a of ASHRAE 37–2009. than any of the following: shipped with the product unless required 6.5. Air Filters. Air filters shall be removed. (a) 3 °F in the stack gas temperature for otherwise by a specific provision of this 6.6. Electrical Measurement. Only furnaces equipped with draft diverters; appendix. The apparatus described in this electrical input power to the furnace fan (and (b) 5 °F in the stack gas temperature for section is used in conjunction with the electric resistance heat kit for electric furnaces equipped with either draft hoods, product in which the furnace fan is furnaces and modular blowers) shall be direct exhaust, or direct vent systems; and integrated. Each piece of the apparatus shall measured for the purposes of this appendix. (c) 1 °F in the flue gas temperature for conform to material and construction Electrical input power to the furnace fan and condensing furnaces. specifications and the reference standard electric resistance hate kit shall be sub- 8.4. Steady-state Conditions for Electric cited. Test rooms containing equipment shall metered separately. Electrical input power to Furnaces and Modular Blowers. Steady-state have suitable facilities for providing the all other electricity-consuming components conditions are indicated by an external static utilities necessary for performance of the test of the product in which the furnace fan is pressure within the range shown in Table 1 and be able to maintain conditions within the integrated shall not be included in the and a temperature variation of not more than limits specified. electrical input power measurements used in 5 °F in the outlet air temperature in four 6.2. Downflow furnaces. Install the internal the FER calculation. If the procedures of this successive temperature readings taken 15 section of vent pipe the same size as the flue appendix are being conducted at the same minutes apart. collar for connecting the flue collar to the top time as another test that requires metering of 8.5. Steady-State Conditions for Cold Flow of the unit, if not supplied by the components other than the furnace fan and Tests. For tests during which the burner or manufacturer. Do not insulate the internal electric resistance heat kit, the electrical electric heating elements are turned off (i.e., vent pipe during the jacket loss test (if input power to the furnace fan and electric cold flow tests), steady-state conditions are conducted) described in section 8.6 of resistance heat kit shall be sub-metered indicated by an external static pressure ASHRAE 103–2007 (incorporated by separately from one another and separately within the range shown in Table 1 and a

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variation in the difference between outlet 8.6.2. Constant circulation airflow-control ESPi = external static pressure, in inches temperature and ambient temperature of not setting measurements. The main burner or water column, at time of the electrical more than 3 °F in three successive electric heating elements shall be turned off. power measurement in airflow-control temperature readings taken 15 minutes apart. The furnace fan controls shall be adjusted to setting i, where i can be ‘‘Circ’’ to represent 8.6. Fan Energy Rating (FER) Test. the default constant circulation airflow- constant-circulation (or minimum airflow) 8.6.1. Initial FER test conditions and control setting. If the manufacturer does not mode, ‘‘Heat’’ to represent heating mode, maximum airflow-control setting specify a constant circulation airflow-control or ‘‘Max’’ to represent cooling (or measurements. Measure the relative setting, the lowest airflow-control setting maximum airflow) mode. humidity (W) and dry bulb temperature (Tdb) shall be used. Maintain these settings until FER = fan energy rating, in watts/1000 cfm of the test room. steady-state conditions are attained as HH = annual furnace fan heating operating specified in section 8.3, 8.4, and 8.5 of this 8.6.1.1. Furnace fans for which the hours appendix. Measure furnace fan electrical maximum airflow-control setting is not a HCR = heating capacity ratio (nameplate input power (E ) and external static default heating airflow-control setting. The Circ reduced heat input capacity divided by main burner or electric heating elements pressure (ESPCirc). nameplate maximum input heat capacity) shall be turned off. Adjust the external static 8.6.3. Heating airflow-control setting k = physical descriptor characterizing the pressure to within the range shown in Table measurements. For single-stage gas and oil ref reference system 1 by symmetrically restricting the outlet of furnaces, the burner shall be fired at the maximum heat input rate. For single-stage Tdb = dry bulb temperature of the test room, the test duct. Maintain these settings until ° steady-state conditions are attained as electric furnaces, the electric heating in F specified in section 8.3, 8.4, and 8.5 of this elements shall be energized at the maximum Ti, In = inlet air temperature at time of the ° appendix. Measure furnace fan electrical heat input rate. For multi-stage and electrical power measurement, in F, in airflow-control setting i, where i can be input power (EMax), external static pressure modulating furnaces the reduced heat input (ESPMax), and outlet air temperature rate settings shall be used. Burner ‘‘Circ’’ to represent constant-circulation (or (TMax,Out). adjustments shall be made as specified by minimum airflow) mode, ‘‘Heat’’ to 8.6.1.2. Furnace fans for which the section 8.4.1 of ASHRAE 103–2007 represent heating mode, or ‘‘Max’’ to maximum airflow-control setting is a default (incorporated by reference, see § 430.3). After represent maximum airflow (typically heating airflow-control setting. Adjust the the burner is activated and adjusted or the designated for cooling) mode main burner or electric heating element electric heating elements are energized, the Ti, Out = average outlet air temperature as controls to the default heat setting designated furnace fan controls shall be adjusted to measured by the outlet thermocouple grid for the maximum airflow-control setting. operate the fan in the default heat airflow- at time of the electrical power Burner adjustments shall be made as control setting. In instances where a measurement, in °F, in airflow-control specified by section 8.4.1 of ASHRAE 103– manufacturer specifies multiple airflow- setting i, where i can be ‘‘Circ’’ to represent 2007 (incorporated by reference, see § 430.3). control settings for a given function to constant-circulation (or minimum airflow) account for varying installation scenarios, the Adjust the furnace fan controls to the mode, ‘‘Heat’’ to represent heating mode, highest airflow-control setting specified for maximum airflow-control setting. Adjust the or ‘‘Max’’ to represent maximum airflow the given function shall be used. High heat external static to within the range shown in and reduced heat shall be considered (typically designated for cooling) mode Table 1 by symmetrically restricting the different functions for multi-stage heating DTi = Ti, Out minus Ti, In, which is the air outlet of the test duct. Maintain these settings units. Maintain these settings until steady- throughput temperature rise in setting i, in ° until steady-state conditions are attained as state conditions are attained as specified in F specified in section 8.3, 8.4, and 8.5 of this section 8.3, 8.4, and 8.5 of this appendix and Qi = airflow in airflow-control setting i, in appendix and the temperature rise (DTMax) is the temperature rise (DTHeat) is at least 18 °F. cubic feet per minute (CFM) at least 18 °F. Measure furnace fan electrical Measure furnace fan electrical input power QIN,i = for electric furnaces and modular input power (EMax), fuel or electric resistance (EHeat), external static pressure (ESPHeat), blowers, the measured electrical input heat kit input energy (QIN, Max), external static steady-state efficiency for this setting (EffySS) power to the electric resistance heat kit at pressure (ESPMax), steady-state efficiency for as specified in sections 11.2 and 11.3 of specified operating conditions i in kW. For this setting (EffySS, Max) as specified in ASHRAE 103–2007, outlet air temperature gas and oil furnaces, measured fuel energy sections 11.2 and 11.3 of ASHRAE 103–2007, (THeat, Out) and temperature rise (DTHeat). input rate, in Btu/h, at specified operating outlet air temperature (TMax,Out), and 9. Nomenclature. Nomenclature shall conditions i based on the fuel’s high temperature rise (DTMax) include the nomenclature specified in heating value determined as required in section 10 of ASHRAE 103–2007 section 8.2.1.3 or 8.2.2.3 of ASHRAE 103– TABLE 1—REQUIRED MINIMUM EXTER- (incorporated by reference, see § 430.3) and 2007, where i can be ‘‘Max’’ for the NAL STATIC PRESSURE IN THE MAX- the following additional variables: maximum heat setting or ‘‘R’’ for the IMUM AIRFLOW-CONTROL SETTING CH = annual furnace fan cooling hours reduced heat setting. CCH = annual furnace fan constant- BY INSTALLATION TYPE W = humidity ratio in pounds water vapor circulation hours per pounds dry air ECirc = furnace fan electrical consumption at Installation type ESP (in. wc.) * vair = specific volume of dry air at specified the default constant-circulation airflow- operating conditions per the equations in control setting (or minimum airflow- the psychrometric chapter in 2001 Units with an internal, fac- control setting operating point if a default tory-installed evaporator ASHRAE Handbook—Fundamentals in lb/ constant-circulation airflow-control setting ft3 coil ...... 0.50–0.55 is not specified), in watts Units designed to be paired EHeat = furnace fan electrical consumption in 10. Calculation of derived results from test with an evaporator coil, but the default heat airflow-control setting for measurements for a single unit. Calculations without one installed ...... 0.65–0.70 single-stage heating products or the default shall be as specified in section 11 of Mobile home ...... 0.30–0.35 low-heat setting for multi-stage heating ASHRAE 103–2007 (incorporated by products, in watts reference, see § 430.3), except for appendices Once the specified ESP has been achieved, EMax = furnace fan electrical consumption in B and C; and as specified in sections 10.1 the same outlet duct restrictions shall be the maximum airflow-control setting, in through 10.10 and Figure 1 of this appendix. used for the remainder of the furnace fan test. watts 10.1. Fan Energy Rating (FER)

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Where: Qmax = Qheat for products for which the maximum airflow-control setting is a default heat setting, or

for products for which the maximum airflow control setting is only designated for cooling; and

The estimated national average operating hours presented in Table IV.2 shall be used to calculate FER.

TABLE IV.2—ESTIMATED NATIONAL AVERAGE OPERATING HOUR VALUES FOR CALCULATING FER

Multi-stage or Operating mode Variable Single-stage modulating (hours) (hours)

Heating ...... HH ...... 830 830/HCR. Cooling ...... CH ...... 640 640. Constant Circulation ...... CCH ...... 400 400.

Where:

[FR Doc. 2013–31257 Filed 1–2–14; 8:45 am] BILLING CODE 6450–01–P

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Part V

The President

Memorandum of December 27, 2013—Provision of Aviation Insurance Coverage for Commercial Air Carrier Service in Domestic and International Operations

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Federal Register Presidential Documents Vol. 79, No. 2

Friday, January 3, 2014

Title 3— Memorandum of December 27, 2013

The President Provision of Aviation Insurance Coverage for Commercial Air Carrier Service in Domestic and International Operations

Memorandum for the Secretary of Transportation

By the authority vested in me as President by the Constitution and the laws of the United States, including 49 U.S.C. 44301–44310, I hereby: 1. Determine that the continuation of U.S. air transportation is necessary in the interest of air commerce, national security, and the foreign policy of the United States. 2. Approve provision by the Secretary of Transportation of insurance or reinsurance to U.S.-certificated air carriers against loss or damage arising out of any risk from the operation of an aircraft, in the manner and to the extent provided in chapter 443 of title 49, United States Code, until January 15, 2014, if he determines that such insurance or reinsurance cannot be obtained on reasonable terms from any company authorized to conduct an insurance business in a State of the United States. 3. Delegate to the Secretary of Transportation the authority, vested in me by 49 U.S.C. 44306(c), to extend this approval and determination through December 31, 2014, or until any date prior to December 31, 2014, provided that the Congress further extends the date contained in section 44310 and further provided that he not use this delegation to extend this determination and approval beyond the dates authorized under any such provision of law with an ending effective date prior to December 31, 2014. You are directed to bring this determination immediately to the attention of all air carriers, as defined in 49 U.S.C. 40102(a)(2), and to arrange for its publication in the Federal Register.

THE WHITE HOUSE, Washington, December 27, 2013

[FR Doc. 2014–00004 Filed 1–2–14; 11:15 am] Billing code 4910–09

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Reader Aids Federal Register Vol. 79, No. 2 Friday, January 3, 2014

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