Federal Register Vol. 80, No.141,

Federal Register Volume 80, Issue 141 (July 23, 2015)

Page Range43613-43907
FR Document

80_FR_141
Current View
Page and SubjectPDF
80 FR 43907 - Continuation of the National Emergency With Respect to Transnational Criminal OrganizationsPDF
80 FR 43901 - Delegation of Certain Authorities and Assignment of Certain Functions Under the Bipartisan Congressional Trade Priorities and Accountability Act of 2015PDF
80 FR 43795 - Government in the Sunshine Act Meeting NoticePDF
80 FR 43613 - Designation of the Republic of Tunisia as a Major Non-NATO AllyPDF
80 FR 43794 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
80 FR 43833 - Akron Barberton Cluster Railway Company-Lease and Operation Exemption-Metro Regional Transit AuthorityPDF
80 FR 43707 - Information Collection Activity; Comment RequestPDF
80 FR 43706 - Notice of Intent To Renew a Currently Approved Information CollectionPDF
80 FR 43784 - Findings of Research MisconductPDF
80 FR 43709 - Circular Welded Carbon Steel Pipes and Tubes From Turkey: Notice of Court Decision Not in Harmony With Final Results of Countervailing Duty Administrative Review and Notice of Amended Final Results of Countervailing Duty Administrative Review; 2011PDF
80 FR 43763 - Applications for New Awards; Rehabilitation Services Administration, Disability Innovation Fund-Automated Personalization Computing ProjectPDF
80 FR 43617 - IFR Altitudes; Miscellaneous AmendmentsPDF
80 FR 43770 - Proposed Information Collection Request; Comment Request; EPA's ENERGY STAR Program in the Commercial and Industrial Sectors (Renewal)PDF
80 FR 43830 - 60-Day Notice of Proposed Information Collection: Iraqi Citizens and Nationals Employed by Federal Contractors and GranteesPDF
80 FR 43778 - Information Collection; Service ContractingPDF
80 FR 43796 - Agency Information Collection Activities; Submission for OMB Review; Comment Request for Information Collection for the National Guard Youth ChalleNGe Job ChalleNGe Evaluation, New CollectionPDF
80 FR 43625 - Safety Zones; Annual Events in the Captain of the Port Buffalo ZonePDF
80 FR 43631 - Medium- and Heavy-Duty Vehicle Fuel Efficiency ProgramPDF
80 FR 43615 - Agriculture Risk Coverage, Price Loss Coverage, and Cotton Transition Assistance ProgramsPDF
80 FR 43615 - Foreign Quarantine NoticesPDF
80 FR 43772 - Agency Information Collection Activities: Proposed Collection Renewals; Comment RequestPDF
80 FR 43795 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Rehabilitation Maintenance CertificatePDF
80 FR 43798 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and SubcontractorsPDF
80 FR 43793 - Scientific Earthquake Studies Advisory CommitteePDF
80 FR 43779 - Clinical Laboratory Improvement Advisory Committee: Notice of Charter AmendmentPDF
80 FR 43779 - Board of Scientific Counselors, National Center for Injury Prevention and Control, (BSC, NCIPC)PDF
80 FR 43705 - Agency Information Collection Activities: Proposed Collection; Comment Request-WIC Federal and State Agreements (Form FNS-339)PDF
80 FR 43832 - FTA Supplemental Fiscal Year (FY) 2015 Apportionments, Allocations, and Program InformationPDF
80 FR 43707 - Notice of Intent to Renew an Existing Information CollectionPDF
80 FR 43708 - Information Collection Activity; Comment RequestPDF
80 FR 43777 - Proposed Agency Information Collection Activities; Comment RequestPDF
80 FR 43792 - Agency Information Collection Activities: Request for CommentsPDF
80 FR 43774 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMBPDF
80 FR 43719 - Atlantic Coastal Fisheries Cooperative Management Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing PermitsPDF
80 FR 43790 - Endangered Species; Issuance of PermitsPDF
80 FR 43786 - Endangered and Threatened Species Permit ApplicationsPDF
80 FR 43694 - International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Fishing Effort and Catch Limits and Other Restrictions and RequirementsPDF
80 FR 43789 - Endangered Species; Recovery Permit ApplicationPDF
80 FR 43831 - Notice of Relocation; Change of Physical Address for the Federal Aviation Administration Southwest Regional OfficePDF
80 FR 43634 - International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Bigeye Tuna Catch Limits in Longline Fisheries for 2015PDF
80 FR 43788 - Endangered and Threatened Wildlife and Plants; Availability of Proposed Low-Effect Habitat Conservation Plans, Lake, Volusia, and Brevard County, FLPDF
80 FR 43781 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Reclassification Petitions for Medical Devices; CorrectionPDF
80 FR 43780 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approval; Record Retention Requirements for the Soy Protein and Risk of Coronary Heart Disease Health ClaimPDF
80 FR 43790 - Endangered Species; Marine Mammals; Receipt of Applications for PermitPDF
80 FR 43828 - Agency Information Collection Activities: Proposed Request and Comment RequestPDF
80 FR 43785 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
80 FR 43637 - Amendments to the Capital Plan and Stress Test RulesPDF
80 FR 43793 - Filing of Plats of Survey: CaliforniaPDF
80 FR 43794 - Notice of Public Meeting: Northern California Resource Advisory CouncilPDF
80 FR 43806 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Related to Fees for Use of EDGX Exchange, Inc.PDF
80 FR 43810 - Self-Regulatory Organizations; EDGX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change to Rules 11.6, 11.8, 11.9, 11.10 and 11.11 to Align With Similar Rules of the BATS Exchange, Inc.PDF
80 FR 43803 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Extend the Pilot Programs That Permit the Exchange To Have No Minimum Size Requirement for Orders Entered Into the PIP and COPIPPDF
80 FR 43826 - Self-Regulatory Organizations; ISE Gemini, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Extend the Price Improvement Mechanism Pilot ProgramPDF
80 FR 43807 - Self-Regulatory Organizations; International Securities Exchange, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Extend the Price Improvement Mechanism Pilot ProgramPDF
80 FR 43825 - Broms Asset Management NextShares Trust, et al.; Notice of ApplicationPDF
80 FR 43809 - Pioneer ETMF Series Trust I, et al.; Notice of ApplicationPDF
80 FR 43801 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
80 FR 43779 - Intent To Review a Study Data Reviewer's Guide TemplatePDF
80 FR 43782 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Sun Protection Factor Labeling and Testing Requirements and Drug Facts Labeling for Over-the-Counter Sunscreen Drug ProductsPDF
80 FR 43772 - Information Collection Request Submitted to OMB for Review and Approval; Comment Request; NESHAP for Hazardous Waste Combustors (Renewal)PDF
80 FR 43782 - Product-Specific Bioequivalence Recommendations; Draft and Revised Draft Guidances for Industry; Availability; CorrectionPDF
80 FR 43781 - Gastroparesis: Clinical Evaluation of Drugs for Treatment; Draft Guidance for Industry; AvailabilityPDF
80 FR 43739 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Rehabilitation of Jetty A at the Mouth of the Columbia RiverPDF
80 FR 43710 - Taking of Marine Mammals Incidental to Specified Activities; Construction of the East Span of the San Francisco-Oakland Bay BridgePDF
80 FR 43720 - Taking of Marine Mammals Incidental to Specified Activities: Mukilteo Multimodal Project Tank Farm Pier RemovalPDF
80 FR 43803 - New Postal ProductPDF
80 FR 43770 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Gainful Employment Recent Graduates Employment and Earning Survey Pilot TestPDF
80 FR 43762 - Submission for OMB Review; Comment RequestPDF
80 FR 43761 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
80 FR 43762 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
80 FR 43760 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
80 FR 43833 - Notification of Citizens Coinage Advisory Committee August 10, 2015, Public MeetingPDF
80 FR 43617 - Modification of Restricted Areas R-4501A, R-4501B, R-4501C, R-4501D, R-4501F, and R-4501H; Fort Leonard Wood, MOPDF
80 FR 43831 - Waiver of Aeronautical Land-Use Assurance: Kansas City International Airport (MCI), Kansas City, MOPDF
80 FR 43776 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
80 FR 43774 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
80 FR 43802 - Request for Public Comment on an Updated Standardized Research Performance Progress Report Format to be Used for Both Interim and Final Performance Progress ReportingPDF
80 FR 43785 - National Institute of Mental Health; Notice of Closed MeetingPDF
80 FR 43784 - Center for Scientific Review; Notice of Closed MeetingPDF
80 FR 43785 - National Institute of Biomedical Imaging and Bioengineering; Notice of MeetingPDF
80 FR 43799 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Affordable Care Act Internal Claims and Appeals and External Review Procedures for Non-Grandfathered PlansPDF
80 FR 43800 - Proposed Extension of Existing Collection; Comment RequestPDF
80 FR 43661 - Approval and Promulgation of Implementation Plans; Arkansas; Regional Haze and Interstate Visibility Transport Federal Implementation Plan; Reopening of Comment PeriodPDF
80 FR 43663 - Approval and Promulgation of Air Quality Implementation Plans; District of Columbia, Maryland, and Virginia; 2011 Base Year Emissions Inventories for the Washington, DC-MD-VA Nonattainment Area for the 2008 Ozone National Ambient Air Quality StandardPDF
80 FR 43625 - Approval and Promulgation of Air Quality Implementation Plans; District of Columbia, Maryland, and Virginia; 2011 Base Year Emissions Inventories for the Washington DC-MD-VA Nonattainment Area for the 2008 Ozone National Ambient Air Quality StandardPDF
80 FR 43663 - Rear Impact Protection, Lamps, Reflective Devices, and Associated Equipment, Single Unit TrucksPDF
80 FR 43642 - Airworthiness Directives; The Boeing Company AirplanesPDF
80 FR 43615 - Airworthiness Directives; Bell Helicopter Textron, Inc.PDF
80 FR 43645 - Airworthiness Directives; Airbus Helicopters (Previously Eurocopter France) HelicoptersPDF
80 FR 43619 - Revisions to Public Utility Filing RequirementsPDF
80 FR 43648 - Airworthiness Directives; The Boeing Company AirplanesPDF
80 FR 43628 - Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Control of Volatile Organic Compounds From Adhesives and SealantsPDF
80 FR 43662 - Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Control of Volatile Organic Compounds from Adhesives and SealantsPDF
80 FR 43652 - Disguised Payments for ServicesPDF
80 FR 43871 - Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity ActPDF
80 FR 43835 - Pipeline Safety: Pipeline Damage Prevention ProgramsPDF

Issue

80 141 Thursday, July 23, 2015 Contents Agriculture Agriculture Department See

Animal and Plant Health Inspection Service

See

Commodity Credit Corporation

See

Food and Nutrition Service

See

National Institute of Food and Agriculture

See

Rural Utilities Service

Animal Animal and Plant Health Inspection Service RULES Foreign Quarantine Notices; CFR Correction, 43615 2015-18071 Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 43760-43762 2015-18014 2015-18015 2015-18016 Centers Disease Centers for Disease Control and Prevention NOTICES Charter Amendments: Clinical Laboratory Improvement Advisory Committee, 43779 2015-18065 Meetings: Board of Scientific Counselors, National Center for Injury Prevention and Control; Correction, 43779 2015-18064 Coast Guard Coast Guard RULES Safety Zones: Annual Events in the Captain of the Port Buffalo Zone, 43625 2015-18074 Commerce Commerce Department See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Commodity Credit Commodity Credit Corporation RULES Agriculture Risk Coverage, Price Loss Coverage, and Cotton Transition Assistance; CFR Correction, 43615 2015-18072 Defense Department Defense Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 43762-43763 2015-18017 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Service Contracting, 43778-43779 2015-18077 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Gainful Employment Recent Graduates Employment and Earning Survey Pilot Test, 43770 2015-18018 Applications for New Awards: Rehabilitation Services Administration, Disability Innovation Fund — Automated Personalization Computing Project, 43763-43770 2015-18085 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: District of Columbia, Maryland and Virginia; 2011 Base Year Emissions Inventories for Nonattainment Area of 2008 Ozone National Ambient Air Quality Standard, 43625-43628 2015-17974 Rhode Island; Control of Volatile Organic Compounds from Adhesives and Sealants, 43628-43631 2015-17852 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Arkansas; Regional Haze and Interstate Visibility Transport Federal Implementation Plan, 43661-43662 2015-17990 District of Columbia, Maryland, and Virginia; 2011 Base Year Emissions Inventories for the Washington, DC-MD-VA Nonattainment Area for the 2008 Ozone National Ambient Air Quality Standard, 43663 2015-17976 Rhode Island; Control of Volatile Organic Compounds from Adhesives and Sealants, 43662 2015-17851 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: ENERGY STAR Program in the Commercial and Industrial Sectors, 43770-43771 2015-18082 NESHAP for Hazardous Waste Combustors, 43772 2015-18025 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Bell Helicopter Textron, Inc., 43615-43617 2015-17953 IFR Altitudes: Miscellaneous Amendments, 43617-43619 2015-18083 Restricted Areas: R-4501A, R-4501B, R-4501C, R-4501D, R-4501F, and R-4501H; Fort Leonard Wood, MO, 43617 2015-18012 PROPOSED RULES Airworthiness Directives: Airbus Helicopters (Previously Eurocopter France) Helicopters, 43645-43647 2015-17952 The Boeing Company Airplanes, 43642-43645, 43648-43651 2015-17932 2015-17955 NOTICES Aeronautical Land-Use Waivers: Kansas City International Airport (MCI), Kansas City, MO, 43831 2015-18011 Relocations; Changes of Physical Addresses: Federal Aviation Administration Southwest Regional Office, 43831-43832 2015-18047 Federal Deposit Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 43772-43774 2015-18069 Federal Energy Federal Energy Regulatory Commission RULES Revisions to Public Utility Filing Requirements: Order No. 812, 43619-43625 2015-17950 Federal Reserve Federal Reserve System PROPOSED RULES Capital Plan and Stress Test, 43637-43642 2015-18038 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 43774-43778 2015-18056 2015-18059 Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 43774 2015-18009 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 43776-43777 2015-18010 Federal Transit Federal Transit Administration NOTICES Funding Availability: Supplemental Apportionments, Allocations, and Program Information, 43832-43833 2015-18062 Fish Fish and Wildlife Service NOTICES Permits: Availability of Proposed Low-Effect Habitat Conservation Plans, Lake, Volusia, and Brevard County, FL; Endangered and Threatened Wildlife and Plants, 43788-43789 2015-18045 Endangered and Threatened Species, 43786-43788 2015-18052 Endangered Species, 43790 2015-18053 Endangered Species; Marine Mammals, 43790-43792 2015-18041 Endangered Species; Recovery, 43789-43790 2015-18048 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Reclassification Petitions for Medical Devices; Correction, 43781 2015-18043 Record Retention Requirements for the Soy Protein and Risk of Coronary Heart Disease Health Claim, 43780 2015-18042 Sun Protection Factor Labeling and Testing Requirements and Drug Facts Labeling for Over-the-Counter Sunscreen Drug Products, 43782-43784 2015-18026 Guidance: Gastroparesis: Clinical Evaluation of Drugs for Treatment, 43781 2015-18023 Product-Specific Bioequivalence Recommendations; Corrections, 43782 2015-18024 Study Data Reviewer's Guide Template, 43779-43780 2015-18027 Food and Nutrition Food and Nutrition Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: WIC Federal and State Agreements, 43705-43706 2015-18063 General Services General Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Service Contracting, 43778-43779 2015-18077 Geological Geological Survey NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 43792-43793 2015-18057 Meetings: Scientific Earthquake Studies Advisory Committee, 43793 2015-18066 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Food and Drug Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

NOTICES Findings of Research Misconduct, 43784 2015-18088
Homeland Homeland Security Department See

Coast Guard

Interior Interior Department See

Fish and Wildlife Service

See

Geological Survey

See

Land Management Bureau

Internal Revenue Internal Revenue Service PROPOSED RULES Disguised Payments for Services, 43652-43661 2015-17828 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Circular Welded Carbon Steel Pipes and Tubes from Turkey, 43709-43710 2015-18087 International Trade Com International Trade Commission NOTICES Complaints: Certain Activity Tracking Devices, Systems, and Components Thereof, 43794-43795 2015-18175 Meetings; Sunshine Act, 43795 2015-18205 Labor Department Labor Department See

Workers Compensation Programs Office

RULES Implementation of the Nondiscrimination and Equal Opportunity Provisions of the Workforce Innovation and Opportunity Act, 43872-43899 2015-17637 NOTICES Affordable Care Act Internal Claims and Appeals and External Review Procedures for Non-Grandfathered Plans, 43799-43800 2015-18002 Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Guard Youth ChalleNGe Job ChalleNGe Evaluation, 43796-43798 2015-18076 Prohibiting Discrimination Based on Sexual Orientation and Gender Identity by Contractors and Subcontractors, 43798-43799 2015-18067 Rehabilitation Maintenance Certificate, 43795-43796 2015-18068
Land Land Management Bureau NOTICES Meetings: Northern California Resource Advisory Council, 43794 2015-18036 Plats of Surveys: California, 43793-43794 2015-18037 NASA National Aeronautics and Space Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Service Contracting, 43778-43779 2015-18077 National Highway National Highway Traffic Safety Administration RULES Medium- and Heavy-Duty Vehicle Fuel Efficiency Program; CFR Correction, 43631-43634 2015-18073 PROPOSED RULES Rear Impact Protection, Lamps, Reflective Devices, and Associated Equipment, Single Unit Trucks, 43663-43694 2015-17973 National Institute Food National Institute of Food and Agriculture NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 43706-43707 2015-18061 2015-18104 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 43784-43785 2015-18005 National Institute of Biomedical Imaging and Bioengineering, 43785 2015-18004 National Institute of Mental Health, 43785 2015-18006 National Oceanic National Oceanic and Atmospheric Administration RULES International Fisheries: Western and Central Pacific Fisheries for Highly Migratory Species; Bigeye Tuna Catch Limits in Longline Fisheries, 43634-43636 2015-18046 PROPOSED RULES International Fisheries: Western and Central Pacific Fisheries for Highly Migratory Species; Fishing Effort and Catch Limits and other Restrictions and Requirements, 43694-43704 2015-18050 NOTICES Exempted Fishing Permits: General Provisions for Domestic Fisheries; Application, Atlantic Coastal Fisheries Cooperative Management Act Provisions, 43719-43720 2015-18054 Takes of Marine Mammals Incidental to Specified Activities: Construction of the East Span of the San Francisco-Oakland Bay Bridge, 43710-43719 2015-18021 Mukilteo Multimodal Project Tank Farm Pier Removal, 43720-43739 2015-18020 Rehabilitation of Jetty A at the Mouth of the Columbia River, 43739-43760 2015-18022 National Science National Science Foundation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 43801-43802 2015-18028 Updated Standardized Research Performance Progress Report Format, 43802-43803 2015-18007 Pipeline Pipeline and Hazardous Materials Safety Administration RULES Pipeline Safety: Pipeline Damage Prevention Programs, 43836-43869 2015-17259 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 43803 2015-18019 Presidential Documents Presidential Documents EXECUTIVE ORDERS Bipartisan Congressional Trade Priorities and Accountability Act of 2015; Delegation of Authorities and Assignment of Functions (EO 13701), 43901-43905 2015-18292 ADMINISTRATIVE ORDERS Transnational Criminal Organizations; Continuation of National Emergency (Notice of July 21, 2015), 43907 2015-18293 Tunisia; Major Non-NATO Ally Status, Designation (Presidential Determination No. 2015-09 of July 10, 2015), 43613 2015-18193 Rural Utilities Rural Utilities Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 43707-43709 2015-18055 2015-18060 2015-18109 Securities Securities and Exchange Commission NOTICES Applications: Broms Asset Management NextShares Trust, et al., 43825-43826 2015-18030 Pioneer ETMF Series Trust I, et al., 43809-43810 2015-18029 Self-Regulatory Organizations; Proposed Rule Changes: BOX Options Exchange, LLC, 43803-43805 2015-18033 EDGX Exchange, Inc., 43806-43807, 43810-43825 2015-18034 2015-18035 International Securities Exchange, LLC, 43807-43809 2015-18031 ISE Gemini, LLC, 43826-43828 2015-18032 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 43828-43830 2015-18040 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Iraqi Citizens and Nationals Employed by Federal Contractors and Grantees, 43830-43831 2015-18078 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 43785-43786 2015-18039 Surface Transportation Surface Transportation Board NOTICES Leases and Operation Exemptions: Akron Barberton Cluster Railway Co. with Metro Regional Transit Authority, 43833 2015-18143 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Transit Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

See

Surface Transportation Board

Treasury Treasury Department See

Internal Revenue Service

See

United States Mint

U.S. Mint United States Mint NOTICES Meetings: Citizens Coinage Advisory Committee, 43833-43834 2015-18013 Workers' Workers Compensation Programs Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 43800-43801 2015-18001 2015-18000 Separate Parts In This Issue Part II Transportation Department, Pipeline and Hazardous Materials Safety Administration, 43836-43869 2015-17259 Part III Labor Department, 43872-43899 2015-17637 Part IV Presidential Documents, 43901-43905, 43907 2015-18292 2015-18293 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.thefederalregister.org and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions.

80 141 Thursday, July 23, 2015 Rules and Regulations DEPARTMENT OF AGRICULTURE Animal and Plant Health Inspection Service 7 CFR Part 319 Foreign Quarantine Notices CFR Correction

In Title 7 of the Code of Federal Regulations, Parts 300 to 399, revised as of January 1, 2015, on page 372, in § 319.56-57, paragraph (c)(2) is correctly reinstated to read as follows:

§ 319.56-57 Sand pears from China.

(c) * * *

(2) Packinghouses must have a tracking system in place to readily identify all sand pears that enter the packinghouse destined for export to the United States back to their place of production.

[FR Doc. 2015-18071 Filed 7-22-15; 8:45 am] BILLING CODE 1505-01-D
DEPARTMENT OF AGRICULTURE Commodity Credit Corporation 7 CFR Part 1412 Agriculture Risk Coverage, Price Loss Coverage, and Cotton Transition Assistance Programs CFR Correction

In Title 7 of the Code of Federal Regulations, Parts 1200 to 1599, revised as of January 1, 2015, on page 516, in § 1412.45, in paragraph (b)(3), the term “P&CP” is replaced with the term “planted”.

[FR Doc. 2015-18072 Filed 7-22-15; 8:45 am] BILLING CODE 1505-01-D
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-2906; Directorate Identifier 2014-SW-068-AD; Amendment 39-18213; AD 2015-15-04] RIN 2120-AA64 Airworthiness Directives; Bell Helicopter Textron, Inc. AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule; request for comments.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Bell Helicopter Textron, Inc. (Bell), Model 204B, 205A, 205A-1, and 212 helicopters. This AD requires removing a certain part-numbered main rotor (M/R) blade grip (grip) from service. This AD is prompted by an error in a parts manufacturer approval (PMA) that incorrectly allows installation of the grips on the Bell Model 212. The actions specified in this AD are intended to prevent grip failure, separation of the M/R blade, and subsequent loss of control of the helicopter.

DATES:

This AD becomes effective August 7, 2015. We must receive comments on this AD by September 21, 2015.

ADDRESSES:

You may send comments by any of the following methods:

Federal eRulemaking Docket: Go to http://www.regulations.gov. Follow the online instructions for sending your comments electronically.

Fax: 202-493-2251.

Mail: Send comments to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

Hand Delivery: Deliver to the “Mail” address between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Examining the AD Docket

You may examine the AD docket on the Internet at http://www.regulations.gov or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the economic evaluation, any comments received, and other information. The street address for the Docket Operations Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

For Timken service information identified in this AD, contact Timken Alcor Aerospace Technologies, Inc., Aftermarket Customer Service, 3110 N. Oakland, Mesa, AZ 85215; telephone 1-480-606-3130; email [email protected]; or at http://www.timken.com/en-us/solutions/aerospace/aftermarket/Pages/default.aspx. You may review the referenced service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177.

FOR FURTHER INFORMATION CONTACT:

Scott Franke, Aviation Safety Engineer, Fort Worth Aircraft Certification Office, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177; telephone (817) 222-5170; email [email protected]

SUPPLEMENTARY INFORMATION:

Comments Invited

This AD is a final rule that involves requirements affecting flight safety, and we did not provide you with notice and an opportunity to provide your comments prior to it becoming effective. However, we invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that resulted from adopting this AD. The most helpful comments reference a specific portion of the AD, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit them only one time. We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this rulemaking during the comment period. We will consider all the comments we receive and may conduct additional rulemaking based on those comments.

Discussion

We are adopting a new AD for Bell Model 204B, 205A, 205A-1, and 212 helicopters with a grip part number (P/N) ASI-4011-121-113 installed. This AD requires removing any grip from service if the grip is currently or has ever been installed on a Bell Model 212 helicopter, or if it is unknown whether the grip has ever been installed on a Model 212 helicopter. This AD also prohibits installing grip P/N ASI-4011-121-113 on any helicopter if the grip has ever been installed on a Bell Model 212 helicopter. This AD is prompted by an error in the PMA that allows installing the subject grip on the Bell Model 212.

Grip P/N ASI-4011-121-113 is currently produced by Timken Alcor Aerospace Technologies, Inc., under a PMA as a replacement grip for Bell P/N 204-011-121-113. This approval incorrectly listed grip P/N ASI-4011-121-113 as eligible for installation on Bell Model 212 helicopters. The PMA has been revised to remove that eligibility. This grip was previously produced and sold as a replacement grip for Bell P/N 204-011-121-113 by Air Services International of Scottsdale, AZ, as P/N ASI-4011-121-113. The actions required in this AD are intended to prevent installation of an unapproved grip, which could result in grip failure, separation of the M/R blade, and subsequent loss of control of the helicopter.

FAA's Determination

We are issuing this AD because we evaluated all known relevant information and determined that the unsafe condition described previously is likely to exist in other products of these same type designs.

Related Service Information

We reviewed Timken T-700 Service Bulletin, Revision B, dated October 20, 2014. The service bulletin specifies the airworthiness life limitations and inspection interval schedule for various Timken Alcor Aerospace Technologies, Inc., replacement parts and articles.

AD Requirements

This AD requires, within 5 hours time-in-service (TIS), removing any grip P/N ASI-4011-121-113 from service if the grip is currently or has ever been installed on a Bell Model 212 helicopter. This AD also prohibits installing a grip P/N ASI-4011-121-113 on any helicopter if the grip is currently or has ever been installed on a Bell Model 212 helicopter.

Differences Between This AD and the Service Information

The Timken service bulletin provides the airworthiness limitations and inspection intervals for various life limited parts, including grip P/N ASI-4011-121-113. This AD only applies to helicopters with grip P/N ASI-4011-121-113 and requires removing the grip from service if it is currently or has ever been installed on a Bell Model 212 helicopter.

Costs of Compliance

We estimate that this AD could affect 130 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this AD. It takes about 20 work-hours to replace two M/R grips per helicopter. We estimate an average labor rate of $85 per work-hour, and a required parts cost of approximately $56,385 for two grips. Based on these figures, we estimate a total cost of $58,085 per helicopter and $7,551,050 for the U.S. fleet.

FAA's Justification and Determination of the Effective Date

Providing an opportunity for public comments prior to adopting these AD requirements would delay implementing the safety actions needed to correct this known unsafe condition. Therefore, we find that the risk to the flying public justifies waiving notice and comment prior to the adoption of this rule because the unsafe condition can adversely affect control of the helicopter and the required corrective actions must be accomplished within 5 hours TIS.

Since an unsafe condition exists that requires the immediate adoption of this AD, we determined that notice and opportunity for public comment before issuing this AD are impracticable and contrary to the public interest and that good cause exists for making this amendment effective in less than 30 days.

Authority for This Rulemaking

Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

Regulatory Findings

We determined that this AD would not have federalism implications under Executive Order 13132. This AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

For the reasons discussed, I certify that this AD:

1. Is not a “significant regulatory action” under Executive Order 12866;

2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

List of Subjects in 14 CFR Part 39

Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

Adoption of the Amendment

Accordingly, under the authority delegated to me by the Administrator, the FAA amends 14 CFR part 39 as follows:

PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

49 U.S.C. 106(g), 40113, 44701.

§ 39.13 [Amended]
2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2015-15-04 Bell Helicopter Textron, Inc. (Bell): Amendment 39-18213; Docket No. FAA-2015-2906; Directorate Identifier 2014-SW-068-AD. (a) Applicability

This AD applies to the following helicopters, certificated in any category:

(1) Bell Model 204B, 205A, and 205A-1 helicopters, with a main rotor (M/R) blade grip (grip) part number (P/N) ASI-4011-121-113 installed, if the grip was ever installed on a Model 212 helicopter or if it is unknown whether a grip was ever installed on a Model 212 helicopter; and

(2) Bell Model 212 helicopters, with a grip P/N ASI-4011-121-113 installed.

(b) Unsafe Condition

This AD defines the unsafe condition as installation of a grip that does not meet type design. This condition could result in grip failure, separation of the M/R blade, and subsequent loss of control of the helicopter.

(c) Effective Date

This AD becomes effective August 7, 2015.

(d) Compliance

You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

(e) Required Actions

(1) Within 5 hours time-in-service, remove each grip from service.

(2) Do not install a grip listed in paragraph (a) of this AD on any helicopter.

(f) Alternative Methods of Compliance (AMOC)

(1) The Manager, Fort Worth Aircraft Certification Office, FAA, may approve AMOCs for this AD. Send your proposal to: Scott Franke, Aviation Safety Engineer, Fort Worth Aircraft Certification Office, Rotorcraft Directorate, FAA, 10101 Hillwood Pkwy, Fort Worth, TX 76177; telephone (817) 222-5170; email [email protected]

(2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.

(g) Additional Information

Timken T-700 Service Bulletin, Revision B, dated October 20, 2014, which is not incorporated by reference, contains additional information about the subject of this AD. For Timken service information identified in this AD, contact Timken Alcor Aerospace Technologies, Inc., Aftermarket Customer Service, 3110 N. Oakland, Mesa, AZ 85215; telephone 1-480-606-3130; email [email protected]; or at http://www.timken.com/en-us/solutions/aerospace/aftermarket/Pages/default.aspx. You may review a copy of this service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy, Room 6N-321, Fort Worth, TX 76177.

(h) Subject

Joint Aircraft Service Component (JASC) Code: 6620, Main Rotor Blade Grip.

Issued in Fort Worth, Texas, on July 13, 2015. Bruce E. Cain, Acting Directorate Manager, Rotorcraft Directorate, Aircraft Certification Service.
[FR Doc. 2015-17953 Filed 7-22-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 73 [Docket No. FAA-2014-0640; Airspace Docket No. 14-ACE-4] RIN 2120-AA66 Modification of Restricted Areas R-4501A, R-4501B, R-4501C, R-4501D, R-4501F, and R-4501H; Fort Leonard Wood, MO AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule; correction.

SUMMARY:

This action corrects a final rule published in the Federal Register on May 26, 2015 by adding one set of geographic latitude/longitude coordinates that was inadvertently omitted from the restricted area R-4501H boundary description.

DATES:

Effective date 0901 UTC, August 20, 2015.

FOR FURTHER INFORMATION CONTACT:

Colby Abbott, Airspace Policy and Regulations Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone: (202) 267-8783.

SUPPLEMENTARY INFORMATION:

History

A final rule was published in the Federal Register on May 26, 2015 (80 FR 29941), that established a single ceiling of one restricted area (R-4501B), added exclusions to three restricted areas (R-4501C, R-4501F, and R-4501H) to prevent overlapped restricted areas being active at the same time, made administrative changes to the title of two restricted areas (R-4501A and R-4501B), and made administrative changes to the using agency information of six restricted areas (R-4501A-D, R-4501F, and R-4501H) in Fort Leonard Wood, MO. Subsequent to publication, the FAA determined that one set of geographic latitude/longitude coordinates was inadvertently omitted from the R-4501H boundary description. This correction inserts the set of geographic latitude/longitude coordinates back into the R-4501H boundary description to retain the lateral boundary of the restricted area as it existed prior to the published final rule.

Correction to Final Rule

Accordingly, pursuant to the authority delegated to me, in Docket No. FAA-2014-0640, the boundary description for restricted area R-4501H, as published in the Federal Register on May 26, 2015 (80 FR 29941), FR Doc. 2015-12627, modifying the restricted areas at Fort Leonard Wood, MO, is corrected as follows:

§ 73.45 (Amended)

On page 29942, column 2, line 57, after the words “Reservation boundary;” insert “to lat. 37°46′45″ N., long. 92°01′41″ W.;”.

Issued in Washington, DC, on July 16, 2015. Gary A. Norek, Manager, Airspace Policy and Regulations Group.
[FR Doc. 2015-18012 Filed 7-22-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 95 [Docket No. 31030; Amdt. No. 521] IFR Altitudes; Miscellaneous Amendments AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This amendment adopts miscellaneous amendments to the required IFR (instrument flight rules) altitudes and changeover points for certain Federal airways, jet routes, or direct routes for which a minimum or maximum en route authorized IFR altitude is prescribed. This regulatory action is needed because of changes occurring in the National Airspace System. These changes are designed to provide for the safe and efficient use of the navigable airspace under instrument conditions in the affected areas.

DATES:

Effective 0901 UTC, August 20, 2015.

FOR FURTHER INFORMATION CONTACT:

Richard A. Dunham, Flight Procedure Standards Branch (AMCAFS-420), Flight Technologies and Programs Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd. Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.

SUPPLEMENTARY INFORMATION:

This amendment to part 95 of the Federal Aviation Regulations (14 CFR part 95) amends, suspends, or revokes IFR altitudes governing the operation of all aircraft in flight over a specified route or any portion of that route, as well as the changeover points (COPs) for Federal airways, jet routes, or direct routes as prescribed in part 95.

The Rule

The specified IFR altitudes, when used in conjunction with the prescribed changeover points for those routes, ensure navigation aid coverage that is adequate for safe flight operations and free of frequency interference. The reasons and circumstances that create the need for this amendment involve matters of flight safety and operational efficiency in the National Airspace System, are related to published aeronautical charts that are essential to the user, and provide for the safe and efficient use of the navigable airspace. In addition, those various reasons or circumstances require making this amendment effective before the next scheduled charting and publication date of the flight information to assure its timely availability to the user. The effective date of this amendment reflects those considerations. In view of the close and immediate relationship between these regulatory changes and safety in air commerce, I find that notice and public procedure before adopting this amendment are impracticable and contrary to the public interest and that good cause exists for making the amendment effective in less than 30 days.

Conclusion

The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

List of Subjects in 14 CFR Part 95

Airspace, Navigation (air).

Issued in Washington, DC, on July 17, 2015. John Duncan, Director, Flight Standards Service. Adoption of the Amendment

Accordingly, pursuant to the authority delegated to me by the Administrator, part 95 of the Federal Aviation Regulations (14 CFR part 95) is amended as follows effective at 0901 UTC, August 20, 2015.

PART 95—[AMENDED] 1. The authority citation for part 95 continues to read as follows: Authority:

49 U.S.C. 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44719, 44721.

2. Part 95 is amended to read as follows: Revisions to IFR Altitudes & Changeover Point [Amendment 521 effective date August 20, 2015] FROM TO MEA MAA § 95.3000 LOW ALTITUDE RNAV ROUTES § 95.3293 RNAV ROUTE T293 is Amended To Read in Part CHUTT, AL WP NFTRY, GA WP 2500 17500 FROM TO MEA § 95.6001 VICTOR ROUTES—U.S § 95.6169 VOR FEDERAL AIRWAY V169 is Amended To Read in Part TOBE, CO VOR/DME HUGO, CO VOR/DME 8100 § 95.6181 VOR FEDERAL AIRWAY V181 is Amended To Read in Part OMAHA, IA VORTAC NORFOLK, NE VOR/DME 3600 § 95.6452 ALASKA VOR FEDERAL AIRWAY V452 is Amended To Read in Part GALENA, AK VOR/DME HORSI, AK FIX E BND *8000 W BND *4000 *4000—GNSS MEA § 95.6456 ALASKA VOR FEDERAL AIRWAY V456 is Amended To Read in Part BINAL, AK FIX TANIE, AK FIX #*14000 *3400—MOCA #MEA IS ESTABLISHED WITH A GAP IN NAVIGATION SIGNAL COVERAGE § 95.6489 ALASKA VOR FEDERAL AIRWAY V489 is Amended To Read In Part GALENA, AK VOR/DME HORSI, AK FIX E BND *8000 W BND *4000 *4000—GNSS MEA HORSI, AK FIX ROSII, AK FIX NE BND *6000 SW BND *8000 *4000—MOCA ROSII, AK FIX TANANA, AK VOR/DME NE BND 3400 SW BND 6000 § 95.6508 ALASKA VOR FEDERAL AIRWAY V508 is Amended To Read in Part AKGAS, AK FIX SPARREVOHN, AK VOR/DME W BND 6000 E BND 12000 AIRWAY SEGMENT FROM TO CHANGEOVER DISTANCE FROM § 95.8003 VOR FEDERAL AIRWAY Changeover Point V181 is Amended To Add Changeover Point OMAHA, IA VORTAC NORFOLK, NE VOR/DME 51 OMAHA
[FR Doc. 2015-18083 Filed 7-22-15; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 46 [Docket No. RM15-3-000; Order No. 812] Revisions to Public Utility Filing Requirements AGENCY:

Federal Energy Regulatory Commission, Energy.

ACTION:

Final rule.

SUMMARY:

The Commission is revising its regulation to eliminate the requirement to submit FERC-566 (Annual Report of a Utility's 20 Largest Customers) for regional transmission organizations, independent system operators, and exempt wholesale generators. The Commission is also revising its regulations to eliminate the requirement to submit FERC-566 for public utilities that have not made any reportable sales under FERC-566 in any of the three preceding years. Further, the Commission is eliminating the requirement for public utilities submitting FERC-566 to identify individual residential customers by name and address.

DATES:

This rule will become effective October 6, 2015.

FOR FURTHER INFORMATION CONTACT:

Mary LaFave (Technical Information), Office of Energy Market Regulation, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6060 Lina Naik (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8882 SUPPLEMENTARY INFORMATION:

Table of Contents Paragraph Nos. I. Discussion 2 A. RTOs and ISOs 5 1. Commission Proposal 5 2. Comments 6 3. Commission Determination 11 B. EWGs 15 1. Commission Proposal 15 2. Comments 16 3. Commission Determination 17 C. Public Utilities That Have Not Made Reportable Sales in Preceding Three Years 18 1. Commission Proposal 18 2. Comments 19 3. Commission Determination 23 D. Identification Requirement 26 1. Commission Proposal 26 2. Comments 27 3. Commission Determination 30 II. Information Collection Statement 35 III. Environmental Analysis 41 IV. Regulatory Flexibility Act Certification 42 V. Document Availability 46 VI. Effective Date and Congressional Notification 49 Order No. 812—Final Rule

1. In this final rule, the Commission revises part 46 of its regulations to eliminate the requirement to submit FERC-566 (Annual Report of a Utility's 20 Largest Customers) for regional transmission organizations (RTOs), independent system operators (ISOs), and exempt wholesale generators (EWGs). The Commission also revises its regulations to eliminate the requirement to submit FERC-566 for public utilities that have not made any reportable sales under FERC-566 in any of the three preceding years. Further, the Commission is eliminating the requirement for public utilities submitting FERC-566 to identify individual residential customers by name and address.

I. Discussion

2. Section 305(c) of the FPA requires, among other things, that, on or before January 31 of each calendar year, each public utility shall publish a list, pursuant to rules prescribed by the Commission, of any company, firm, or organization that is one of the 20 purchasers of electric energy which purchased (for purposes other than resale) one of the 20 largest annual amounts of electric energy sold by such public utility (or by any public utility which is part of the same holding company system) during any one of the three calendar years immediately preceding the filing date.1

1 16 U.S.C. 825d(c).

3. The Commission implemented Congress's mandate in part 46 of the Commission's regulations.2 Section 46.3 of the regulations thus provides, in relevant part, that, on or before January 31 of each year, each public utility shall compile a list of purchasers of electric energy (other than for resale), and shall identify each purchaser by name and principal business address, and shall submit the list to the Secretary and make the list publicly available. The list identifies each purchaser who, during any of the three preceding calendar years, purchased (for purposes other than resale) from a public utility one of the 20 largest amounts of electric energy by such public utility, and the public utility is required to notify each purchaser which has been identified on the list.3

2 18 CFR part 46.

3 18 CFR 46.3.

4. In a Notice of Proposed Rulemaking (NOPR) issued on December 18, 2014, the Commission proposed to revise its regulations to reduce the regulatory burden of compliance on public utilities, while meeting the statutory standards set forth in the FPA. Specifically, the Commission proposed to eliminate the requirement to submit FERC-566 for RTOs, ISOs, and EWGs, as well as public utilities that have not made any reportable sales in any of the three preceding years. The Commission further proposed to eliminate the requirement for public utilities submitting FERC-566 to identify individual residential customers by name and address.4

4Revisions to Public Utility Filing Requirements, 79 FR 78,739 (Dec. 31, 2014), FERC Stats. & Regs., Proposed Regs. ¶ 32,704 (2014).

A. RTOs and ISOs 1. Commission Proposal

5. The Commission proposed to eliminate the requirement to submit FERC-566 for RTOs and ISOs. The Commission stated that the statute expressly seeks to acquire information about purchasers of electric energy who purchased “for purposes other than resale.” 5 The Commission noted that, by their nature, RTOs and ISOs are focused primarily on sales of electric energy for resale.

5 16 U.S.C. 825(c)(2)(D).

2. Comments

6. The ISO/RTO Council,6 South Central MCN, LLC (South Central MCN) and Midcontinent MCN, LLC (Midcontinent MCN), Edison Electric Institute (EEI), International Transmission Company d/b/a ITC Transmission, Michigan Electric Transmission Company, LLC, ITC Midwest LLC, and ITC Great Plains, LLC (collectively ITC), and Financial Marketers Coalition support the proposed rule to eliminate the requirement that RTOs and ISOs submit FERC-566.

6 The ISO/RTO Council is comprised of Alberta Electric System Operator; California Independent System Operator Corporation; Electric Reliability Council of Texas, Inc.; Independent Electricity System Operator; ISO New England Inc.; Midcontinent Independent System Operator, Inc.; New York Independent System Operator, Inc.; PJM Interconnection, L.L.C.; and Southwest Power Pool, Inc.

7. South Central MCN and Midcontinent MCN support eliminating the requirement that RTOs and ISOs submit FERC-566, but recommend that the Commission also extend the exemption to all transmission-only companies (transcos) such as South Central MCN and Midcontinent MCN. South Central MCN and Midcontinent MCN state that, like RTOs and ISOs, transcos, by their nature, do not make any retail sales of electricity and do not have any retail customers. Accordingly, transcos will not have reportable sales under FERC-566 and should be exempted from the filing requirement.

8. Similarly, EEI recommends that the Commission extend the reporting exemption to cover qualifying facilities (QFs). EEI states that QFs engage in sales primarily or exclusively at wholesale. EEI submits that eliminating the reporting requirement on QFs would ease the administrative burden for both them and the Commission.

9. In addition, EEI encourages the Commission to clarify that public utilities participating in RTO and ISO markets are also exempt from the FERC-566 filing requirement as to all transactions conducted in those markets. EEI submits that the RTO and ISO markets are essentially wholesale in nature and participants in those markets will, by definition, be engaging only in non-reportable sales in the markets. Finally, EEI notes that the Commission should correct the proposed regulatory text in section 46.3(a)(2) by replacing “Regional Transmission Operators” with “Regional Transmission Organizations.”

10. Powerex Corp. (Powerex) argues that the Commission should expand its exemptions from FERC-566 reporting to include public utilities that have a de minimis market presence in making sales to purchasers “for purposes other than resale.” Powerex asserts that this would recognize that many public utility sellers are almost exclusively engaged in wholesale sales. Specifically, Powerex proposes that the Commission establish a de minimis threshold for exemption from filing FERC-566 if the seller makes 4,000,000 megawatt-hours (MWhs) or less of annual non-wholesale sales (based on an average of the non-wholesale sales it made in the preceding three years). Powerex claims that this is the de minimis market presence threshold that the Commission adopted for non-public utilities in its decision to exclude certain non-public utilities from the requirement to submit Electric Quarterly Reports (EQR).

3. Commission Determination

11. The Commission will adopt the proposed exemption of RTOs and ISOs from the requirement to file FERC-566. We also revise proposed section 46.3(a)(2) by replacing “Regional Transmission Operators” with “Regional Transmission Organizations.” We find that the revised regulation will reduce the regulatory burden of compliance on RTOs and ISOs.

12. We decline to grant the clarification requested by EEI that public utilities participating in RTO and ISO markets are exempt from the FERC-566 filing requirement as to all transactions conducted in those markets. Such utilities may well also make sales “for purposes other than for resale,” and the statutory directive encompasses such utilities and such sales.7 Adopting EEI's suggestion would virtually eliminate the filing requirement, contrary to the statute. We also decline to grant EEI's request to exempt QFs from the requirement to file FERC-566. QFs, in fact, may make sales “for purposes other than for resale,” and the statutory directive encompasses such utilities and such sales. Moreover, in its regulations exempting QFs from certain provisions of the FPA, the Commission specifically excluded FPA section 305(c). Specifically, section 292.601(c) states that “[a]ny qualifying facility . . . shall be exempt from all sections of the Federal Power Act, except: . . . Sections 305(c).” 8 We are not persuaded to change that regulation at this time.

7 Insofar as EEI may be concerned about sales made in those markets, to the extent those sales may be sales for resale, such sales would not be themselves reportable in any event. Only sales for purposes other than for resale are reportable.

8 18 CFR 292.601(c)(4).

13. Likewise, we decline to extend the exemption to transcos. We agree with South Central MCN and Midcontinent MCN that transcos by their nature would be unlikely to make retail sales. Unlike RTOs and ISOs, however, transcos are not defined in the Commission's regulations and as such, are not as easily identified. Further, a transco may also—at any time—readily shift its business strategy to encompass making sales for purposes other than for resale. And, in any event, if a transco does not, in fact, make any sales for purposes other than resale, the burden is minimal, particularly given the further change that we adopt below to eliminate the reporting obligation when a public utility makes no reportable sales for the preceding three years.

14. We also decline to establish a de minimis threshold for exemption from filing FERC-566. The language of the statute does not appear to permit the Commission to establish the kind of exemption Powerex seeks. Further, while Powerex claims that this is the de minimis market presence threshold the Commission adopted for non-public utilities in its decision to exclude certain non-public utilities from the requirement to submit EQRs, such reports were not expressly required by the statute but instead were established by the Commission. Thus, the Commission has far greater leeway in allowing exemptions from EQR reporting requirements.

B. EWGs 1. Commission Proposal

15. The Commission proposed to eliminate the requirement to submit FERC-566 for EWGs. The Commission noted that, by definition, EWGs do not have retail customers.9 Because the statute seeks to acquire information about purchasers of electric energy who purchased for purposes other than for resale, i.e., for retail, EWGs should not be required to submit FERC-566.

9 The Commission's regulations define an EWG as any person that is “engaged . . . exclusively in the business of owning or operating, or both owning and operating, all or part of one or more eligible facilities and selling electric energy at wholesale.” 18 CFR 366.1 (emphasis added).

2. Comments

16. The NRG Companies (NRG), Financial Marketers Coalition, South Central MCN and Midcontinent MCN, ITC, and EEI support the proposed elimination of the requirement that EWGs submit FERC-566. NRG states that eliminating the obligation to have EWGs file a blank form will remove an administrative burden on companies, will be consistent with directives in the Government Paperwork Elimination Act to reduce the information collection burden, and will not have any impact on the reporting of actual customers to the Commission.

3. Commission Determination

17. The Commission will adopt the proposed exemption. We find that the revised regulation will reduce the regulatory burden of compliance on EWGs, who definitionally cannot make sales for purposes other than for resale.10

10See supra note 10.

C. Public Utilities That Have not Made Reportable Sales in Preceding Three Years 1. Commission Proposal

18. The Commission proposed to eliminate the requirement to submit FERC-566 for those public utilities that have not made any reportable sales in any of the three preceding years. The Commission stated that section 305(c) requires public utilities to publish a list of purchasers; it does not require a report of the absence of purchasers.

2. Comments

19. NRG, ITC, South Central MCN and Midcontinent MCN, Financial Marketers Coalition and EEI support the proposed rule to eliminate the requirement to submit FERC-566 for public utilities that have not made any reportable sales in any of the three preceding years. NRG states that, of its over 100 public utilities, less than 10 typically have retail customers in any given year, and, therefore, for the majority of its public utilities, NRG does not have customers to report on FERC-566. ITC states that, as independent electric transmission companies, its operating companies have never made reportable sales. EEI agrees that public utilities that have only wholesale sales in the three year period covered by each annual FERC-566 should not be required to file the report. NRG, ITC, South Central MCN and Midcontinent MCN, and EEI variously assert that it makes no sense to file a report when there is no reportable information, that there is no benefit to the Commission or parties in indicating no reportable sales, and that such an exemption will promote administrative efficiency.

20. In addition, EEI states that the Commission should clarify proposed section 46.3(a)(4) in one respect. EEI states that, by stating that any public utility without “reportable sales” in the three year period is exempt from filing FERC-566, the Commission should specify that it means to exempt any public utility with “no sales or only wholesale sales” in the three year period.

21. EEI also states that because section 305(c)(2) applies only to public utilities and their sales, it recommends that the Commission clarify that only public utilities within a holding company system need to file FERC-566, and only sales by such utilities within the holding company system need to be considered in compiling the report.

22. Powerex states that there is uncertainty as to the types of transactions that fall within the Commission's Part 46 reporting requirements regarding sales of electric energy to purchasers “for purposes other than for resale.” Powerex submits that the Commission should clarify how public utilities should identify sales to purchasers “for purposes other than for resale” for inclusion in FERC-566. Powerex states that, as a marketer, it generally does not have information on whether its purchasers subsequently resold the power they purchased from Powerex. Powerex states that, out of an abundance of caution and to ensure compliance, in its FERC-566 submissions it submits an overly-inclusive listing of purchasers it believes have end-use facilities and would otherwise be required to possess, but do not appear to currently have, Commission authorization to make market-based rate wholesale sales.

3. Commission Determination

23. The Commission will adopt the proposed regulation, but will clarify it in accordance with the suggestion by EEI, by replacing “public utilities that have no reportable sales as defined in section (b)” with “public utilities that have either no reportable sales as defined in paragraph (b) or only sales for resale.” We find that this revised regulation will reduce the regulatory burden of compliance on public utilities that have no reportable sales.

24. We decline to grant the clarification requested by EEI that only public utilities within a holding company system need to file FERC-566, and only the sales by such utilities within the holding company system need to be considered in compiling the report. FPA section 305(c) applies to all public utilities, not just public utilities within a holding company system.

25. We disagree with Powerex that there is uncertainty as to the types of transactions that fall within the Commission's Part 46 reporting requirements regarding sales of electric energy to purchasers “for purposes other than for resale.” Section 305(c) of the FPA requires that each public utility shall publish a list of any company, firm, or organization that, during any one of the three calendar years preceding the filing date, was one of the 20 purchasers of electric energy “which purchased (for purposes other than for resale) one of the 20 largest annual amounts of electric energy sold by such public utility (or by any public utility which is part of the same holding company system)” during any one of those three years.11

11 16 U.S.C. 825d(c).

D. Identification Requirement 1. Commission Proposal

26. The Commission proposed to eliminate the requirement for public utilities submitting FERC-566 to identify individual residential customers by name and address. The Commission noted that the regulations currently require that each public utility identify each purchaser on the list of the 20 largest purchasers by name and principal business address, but that it may not be necessary to have such detailed information about residential customers.

2. Comments

27. Financial Marketers Coalition, South Central MCN and Midcontinent MCN, EEI and ITC support the proposed rule to eliminate the requirement for public utilities submitting FERC-566 to identify individual residential customers by name and address.

28. Contending that the current regulations go beyond the statutory requirements, EEI states that the Commission should eliminate the need to report residential customers by clarifying that public utilities need report only any “company, firm, or organization” that falls within the 20 highest-volume purchasers in any of the preceding three years. EEI also states that the Commission should eliminate from section 46.3 the requirement to notify and include the address of each of the purchasers listed in FERC-566. EEI further states that the Commission should eliminate the requirement at section 46.3(e) to submit revised FERC-566 by March 1 of each year if the January 31 filing was based on estimated data. EEI submits that this filing is not required by statute, is unnecessary, and adds to the reporting burden. EEI states that, if the Commission does not eliminate the requirement altogether, the Commission should specify that revised reports need to be filed only if new data available by March 1 would make a material difference in the report.

29. EEI also states that the Commission should clarify that despite the “aggregation” provision at section 46.3(c), public utilities can treat individual stores or other facilities within a family of stores or parent company as separate customers rather than having to be batched, if the stores or facilities purchase or pay for their electricity separately rather than as a group through the parent company.

3. Commission Determination

30. The Commission will adopt the proposed regulation to eliminate the requirement for public utilities submitting FERC-566 to identify individual residential customers by name and address. Instead we will allow public utilities to identify individual residential customers as “Residential Customer,” and provide a zip code in lieu of an address. We find that the revised regulation will reduce the regulatory burden of compliance on public utilities.

31. We agree with EEI that the requirement that public utilities notify the 20 largest purchasers, currently found in section 46.3 of the regulations, is unnecessary. Thus, we eliminate this requirement from the regulations.

32. However, we decline to grant the clarification requested by EEI that public utilities need not report residential customers but rather need report only any “company, firm, or organization” that falls within the 20 highest-volume purchasers in any of the preceding three years. EEI seeks to draw a distinction not made by the statute, because, although the statute requires public utilities to report “any company, firm, or organization” which was one of the 20 largest purchasers of electric energy, an individual residential customer could, in fact, be a business structured as a sole proprietorship or some other ownership structure; this could explain why a residential customer is one of the public utility's 20 largest purchasers.

33. We also disagree with EEI that public utilities may treat individual stores or other facilities within a family of stores or under a parent company as separate customers rather than having to be batched, if the stores or facilities purchase or pay for their electricity separately rather than as a group through the parent company. The statute requires the reporting of “purchasers” of electric energy, not accounts. Therefore, even if a family of stores or other facilities within a family pay for their electric energy separately, it would be appropriate to aggregate them in accordance with the statute and section 46.3(c) of the Commission's regulations.12

12 Even if we were to adopt such a change, it would not reduce the reporting from 20 purchasers to some lesser number. While some purchasers might drop off the list as a result, others that were previously the 24th or 27th largest purchasers, for example, would then effectively move up the list to within the 20 largest purchasers. In short, who is on the list might change, but the number of purchasers reported would not change.

34. We also decline to grant EEI's request that we eliminate the requirement to submit revised FERC-566 reports by March 1 of each year if the January 31 filing was based on estimated data. Although not specifically required by statute, the regulation helps ensure that the data collected is accurate.

II. Information Collection Statement

35. The Paperwork Reduction Act (PRA) requires each federal agency to seek and obtain Office of Management and Budget (OMB) approval before undertaking a collection of information directed to ten or more persons or contained in a rule of general applicability. OMB's regulations,13 in turn, require approval of certain information collection requirements imposed by agency rules. Upon approval of a collection(s) of information, OMB will assign an OMB control number and an expiration date. Respondents subject to the filing requirements of a rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number.

13 5 CFR part 1320.

36. The Commission is submitting the proposed modifications to its information collection to OMB for review and approval in accordance with section 3507(d) of the Paperwork Reduction Act of 1995.14 In the NOPR, the Commission solicited comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected or retained, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques.

14 44 U.S.C. 3507(d).

37. The Commission did not receive any comments specifically addressing the burden estimates provided in the NOPR. The Commission did receive comments on eliminating or further modifying filing requirements; those comments and the Commission's responses are addressed above. Public Reporting Burden: The burden and cost estimates below are based on the estimated reduction in burden for: (a) Entities that would no longer have to file the annual report of twenty largest purchasers, (b) filers that would no longer have to identify individual residential customers by name and address, and (c) filers that would no longer be required to notify the 20 largest purchasers appearing on the list. The Commission estimates the current annual report requires (on average) six hours to prepare and to file. Implementation of this Final Rule will reduce the number of filings (due to the discontinuance of filings from the six RTOs/ISOs and an additional 880 filers that report no purchasers, including EWGs, and reduce the average number of hours per filing for the remaining filers (due to the elimination of the name and address for residential customers, and notification to the 20 largest purchasers).

38. The following table provides the current OMB-approved burden estimate, as well as the estimated burden reductions being implemented by this Final Rule:

FERC-566, Estimated Burden [Rounded] Respondent category Number of
  • respondents
  • Annual
  • number of
  • responses per
  • respondent
  • Total
  • number of
  • responses
  • Average
  • burden hours
  • & cost per
  • response 15
  • Annual
  • burden hours
  • & total annual cost 16
  • (1) (2) (1)*(2) = (3) (4) (3)*(4) = (5) Current OMB-Approved Burden Estimate, before Implementation of Final Rule in RM15-3 All Filers 1,082 1 1,082 6 6,492 Elimination of Selected Filings, due to Final Rule in RM15-3 Elimination of filings by RTOs/ISOs 6 1 elimination of 6 (elimination) −6 hrs.; −$432 (elimination) −36 hrs.; −$2,592 Elimination of Filings by Filers with No Purchasers (including EWGs) 880 1 elimination of 880 (elimination) −6 hrs.; −$432 (elimination) −5,280 hrs.; −$380,160 Burden Reduction of Remaining Filings, due to Final Rule in RM15-3 Elimination of Name & Address for Residential. Customers 17 29 1 29 (reduction) −0.25 hrs.; −$18 (reduction) −7.25 hrs.; −$522 Elimination of Requirement to Notify 20 Largest Purchasers 18 196 1 196 (reduction) −0.5 hrs.; −$36 (reduction) −98 hrs.; −$7,056 Total Reduction (rounded), due to implementation of RM15-3) 886 1 (elimination) −886 (elimination of filings and reduction of hours) −5,421 hrs.; −$390,312 Net Total, after implementation of RM15-3 19 196 1 196 5.46 hrs.; $393.34 1,071 hrs.; $77,094

    Title: Annual Report of Twenty Largest Purchasers (FERC-566).

    15 The estimates for cost per response are derived using the following formula: Burden Hours per Response * $72.00/hour = Cost per Response. The $72.00/hour is based on the average salary plus benefits for a Commission employee for Fiscal Year 2015. We assume that industry respondents earn at a rate similar to Commission employees.

    16 Total Annual Burden Hours * $72.00/hour.

    17 The Commission estimates that approximately 29 (or 15%) of the 196 filers have residential customers. Each of those 29 filers is estimated to save 0.25 hours annually due to elimination of the requirement for name and address of residential purchasers.

    18 The Commission estimates that each of the 196 filers will save 0.5 hours annually, due to elimination of this requirement.

    19 After implementation of this Final Rule, the Commission estimates the remaining 196 filers will each have an average annual burden of 5.46 hours per filing (a reduction from the previous estimate of 6 hours). Twenty-nine of the 196 filers will annually each have 5.25 hours of burden, and 167 of the 196 filers will each have 5.5 hours of burden. The estimated total annual burden for all of the 196 filers will be 1,071 hours (rounded).

    Action: Revision to existing collection.

    OMB Control No: 1902-0114.

    Respondents: Business or other for profit, and not for profit institutions.

    Frequency of Responses: Annually.

    Necessity of the Information: The Commission is required by the Federal Power Act to collect information on public utilities' twenty largest retail purchasers. This information helps the Commission understand electric energy markets and transactions, in order to better safeguard public and private interests. Upon review, the Commission finds that, as described above, certain entities no longer need to make the annual filing, and other filers will be able to eliminate certain data and notification requirements.

    Internal review: The Commission has assured itself, by means of its internal review, that there is specific, objective support for the burden estimates associated with the information requirements.

    39. Interested persons may obtain information on the reporting requirements by contacting the Federal Energy Regulatory Commission, Office of the Executive Director, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, email: [email protected], phone: (202) 502-8663, fax: (202) 273-0873].

    40. Comments concerning the information collection proposed in this Final Rule and the associated burden estimates, should be sent to the Commission in this docket and may also be sent to the Office of Management and Budget, Office of Information and Regulatory Affairs [Attention: Desk Officer for the Federal Energy Regulatory Commission]. For security reasons, comments should be sent by email to OMB at the following email address: [email protected] Please refer to OMB Control Number 1902-0114 in your submission to OMB.

    III. Environmental Analysis

    41. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.20 The collection of information has been categorically excluded from such analysis under section 380.4(a)(5) of the Commission's regulations, however.21 Thus, no such analysis is required.

    20Regulations Implementing National Environmental Policy Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats. & Regs. Preambles 1986-1990 ¶ 30,783 (1987).

    21 18 CFR 380.4(a)(2)(ii).

    IV. Regulatory Flexibility Act Certification

    42. The Regulatory Flexibility Act of 1980 (RFA) 22 generally requires a description and analysis of rules that will have significant economic impact on a substantial number of small entities. The Small Business Administration (SBA) revised its size standard (effective January 22, 2014) for electric utilities from a standard based on megawatt hours to a standard based on the number of employees including affiliates.23

    22 5 U.S.C. 601-12.

    23 SBA Final Rule on “Small Business Size Standards: Utilities,” 78 FR 77343 (Dec. 23, 2013).

    43. This Final Rule revises the Commission's regulations to eliminate some filings and to reduce reporting burdens for others. Specifically, the Commission is eliminating the requirement to submit FERC-566 for RTOs and ISOs, EWGs, and those public utilities that did not make retail sales in the preceding three years. The Commission estimates that, on average, each of those 886 entities that will no longer have to file the FERC-566 will have an annual reduction in cost of $432.

    44. The Commission is also reducing the burden for the remaining 196 filers because they will no longer have (a) to identify individual residential customers by name and address, and (b) to provide notification to the 20 largest purchasers. The Commission estimates that each of the remaining 196 filers will have an average annual reduction in cost of $38.66 per year.

    45. Accordingly, the Commission certifies that this Final Rule will not have a significant economic impact on a substantial number of small entities.

    V. Document Availability

    46. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

    47. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

    48. User assistance is available for eLibrary and the Commission's Web site during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected]

    VI. Effective Date and Congressional Notification

    49. These regulations are effective October 6, 2015. The Commission has determined, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. This final rule is being submitted to the Senate, House of Representatives, Government Accountability Office, and Small Business Administration.

    List of Subjects in 18 CFR Part 46

    Electric utilities, Reporting and recordkeeping requirements.

    By the Commission.

    Issued: July 16, 2015. Kimberly D. Bose, Secretary.

    In consideration of the foregoing, the Commission amends Part 46, Chapter I, Title 18, Code of Federal Regulations, as follows.

    PART 46—PUBLIC UTILITY FILING REQUIREMENTS AND FILING REQUIREMENTS FOR PERSONS HOLDING INTERLOCKING POSITIONS 1. The authority citation for Part 46 continues to read as follows: Authority:

    16 U.S.C. 792-828c; 16 U.S.C. 2601-2645; 42 U.S.C. 7101-7352; E.O. 12009, 3 CFR 142.

    2. Section 46.3 is amended as follows: a. Paragraph (a) is revised. b. Paragraph (d) is removed, and paragraph (e) is redesignated as (d).
    § 46.3 Purchaser list.

    (a)(1) Compilation and filing list. On or before January 31 of each year, except as provided below, each public utility shall compile a list of the purchasers described in paragraph (b) of this section, and subject to paragraph (a)(5) of this section, shall identify each purchaser by name and principal business address. The public utility must submit the list to the Secretary of the Commission in accordance with filing procedures posted on the Commission's Web site at http://www.ferc.gov and make the list publicly available through its principal business office.

    (2) Notwithstanding paragraph (a)(1) of this section, public utilities that are defined as Regional Transmission Organizations, as defined in § 35.34(b)(1) of this chapter, and public utilities that are defined as Independent System Operators, as defined in § 35.46(d) of this chapter, are exempt from the requirement to file.

    (3) Notwithstanding paragraph (a)(1) of this section, public utilities that meet the criteria for exempt wholesale generators, as defined in § 366.1 of this chapter, and are certified as such pursuant to § 366.7 of this chapter, are exempt from the requirement to file.

    (4) Notwithstanding paragraph (a)(1) of this section, public utilities that have either no reportable sales as defined in paragraph (b) or only sales for resale in any of the three preceding years are exempt from the requirement to file.

    (5) Notwithstanding paragraph (a)(1) of this section, individual residential customers on the list should be identified as “Residential Customer,” and with a zip code in lieu of an address.

    [FR Doc. 2015-17950 Filed 7-22-15; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2015-0502] RIN 1625-AA00 Safety Zones; Annual Events in the Captain of the Port Buffalo Zone AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    At various times throughout the month of August, the Coast Guard will enforce certain safety zones located in the Captain of the Port Buffalo Zone. This action is necessary and intended for the safety of life and property on navigable waters during this event. During each enforcement period, no person or vessel may enter the respective safety zone without the permission of the Captain of the Port Buffalo.

    DATES:

    The regulations in 33 CFR 165.939(a)(30) will be enforced on August 15 and 16, 2015 from 9 a.m. to 5 p.m.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this notice of enforcement, call or email Petty Officer Willie Diaz, Waterways Management Division, Coast Guard Sector Buffalo, 1 Fuhrmann Blvd., Buffalo, NY 14203; Coast Guard telephone 716-843-9343, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the Safety Zones; Annual Events in the Captain of the Port Buffalo Zone listed in 33 CFR 165.939(a)(30) for the following events:

    (1) Thunder on the Niagara Hydroplane Boat Races, North Tonawanda, NY; The safety zone listed in 33 CFR 165.939(a)(30) will be enforced from 9 a.m. to 5 p.m. on August 15, 2015 and August 16, 2015.

    Pursuant to 33 CFR 165.23, entry into, transiting, or anchoring within these safety zones during an enforcement period is prohibited unless authorized by the Captain of the Port Buffalo or his designated representative. Those seeking permission to enter one of these safety zones may request permission from the Captain of Port Buffalo via channel 16, VHF-FM. Vessels and persons granted permission to enter one of these safety zones shall obey the directions of the Captain of the Port Buffalo or his designated representative. While within a safety zone, all vessels shall operate at the minimum speed necessary to maintain a safe course.

    This notice of enforcement is issued under authority of 33 CFR 165.939 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with advance notification of these enforcement periods via Broadcast Notice to Mariners or Local Notice to Mariners. If the Captain of the Port Buffalo determines that one of these safety zones need not be enforced for the full duration stated in this notice of enforcement he or she may use a Broadcast Notice to Mariners to grant general permission to enter the respective safety zone.

    Dated: June 15, 2015. B.W. Roche, Captain, U.S. Coast Guard, Captain of the Port Buffalo.
    [FR Doc. 2015-18074 Filed 7-22-15; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2014-0759; FRL-9930-96-Region-3] Approval and Promulgation of Air Quality Implementation Plans; District of Columbia, Maryland, and Virginia; 2011 Base Year Emissions Inventories for the Washington DC-MD-VA Nonattainment Area for the 2008 Ozone National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve the 2011 base year carbon monoxide (CO) emissions inventories submitted by the District of Columbia, State of Maryland, and Commonwealth of Virginia (collectively, the States) for the Washington, DC-MD-VA nonattainment area (the DC Area or Area) for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS). EPA is approving the 2011 CO base year emissions inventories for the 2008 8-hour ozone NAAQS for the DC Area in accordance with the requirements of the Clean Air Act (CAA).

    DATES:

    This rule is effective on September 21, 2015 without further notice, unless EPA receives adverse written comment by August 21, 2015. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R03-OAR-2014-0759 by one of the following methods:

    A. www.regulations.gov. Follow the on-line instructions for submitting comments.

    B. Email: [email protected].

    C. Mail: EPA-R03-OAR-2014-0759, Cristina Fernandez, Associate Director, Office of Air Program Planning, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

    D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2014-0759. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

    Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittals are available at the District of Columbia Department of the Environment, Air Quality Division, 1200 1st Street NE., 5th floor, Washington, DC 20002; the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230; and the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

    FOR FURTHER INFORMATION CONTACT:

    Marilyn Powers, (215) 814-2308, or by email at [email protected].

    SUPPLEMENTARY INFORMATION: I. Background II. Summary of SIP Revision III. Final Action IV. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia V. Statutory and Executive Order Reviews I. Background

    On May 13, 2015 (80 FR 27276), EPA published a direct final rulemaking action (DFRN) approving the 2011 base year emissions inventories submitted by the District of Columbia Department of the Environment (DDOE), the Maryland Department of the Environment (MDE), and the Virginia Department of Environmental Quality (VADEQ) for the DC Area for the 2008 8-hour ozone NAAQS. See EPA Docket ID number EPA-R03-OAR-2014-0759 Direct Final Rule-1. The May 13, 2015 DFRN took action on the base year inventories submitted by the States for nitrogen oxides (NOX) and volatile organic compounds (VOC), but inadvertently did not take action on the CO base year inventories that were also part of the States' submittal. This rulemaking takes action on the CO inventories.

    II. Summary of SIP Revision

    On July 17, 2014, DDOE and VADEQ submitted their 2011 base year inventories, and on August 4, 2014, MDE submitted its base year inventories. As noted, the submissions included 2011 CO inventories, which include emissions estimates that cover the general source categories of stationary point sources, stationary nonpoint sources, nonroad mobile sources, and onroad mobile sources.

    The emissions inventory is developed by the incorporation of data from multiple sources. States were required to develop and submit to EPA a triennial emissions inventory according to the Consolidated Emissions Reporting Rule (CERR) for all source categories (i.e., point, nonpoint, nonroad mobile, and on-road mobile). The States developed the point source emissions inventory using actual emissions directly reported by electric generating unit (EGU) and non-EGU sources in the Area. For nonpoint source emissions, emissions were estimated by multiplying an emission factor by a known indicator of activity for each source category in the county (or county-equivalent). Nonroad mobile source emissions were determined using the EPA's NONROAD2008 model. Onroad mobile source emissions were developed using the EPA's highway mobile source emissions model MOVES 2010a. More information regarding EPA's review and analysis of the CO inventories for CAA requirements is available in the technical support document (TSD) that is located in the docket for this rulemaking action.

    III. Final Action

    EPA is approving the 2011 base year CO emissions inventories submitted by the District of Columbia, Maryland, and Virginia for the DC Area for the 2008 8-hour ozone NAAQS as revisions to the States' respective SIPs. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revisions if adverse comments are filed. This rule will be effective on September 21, 2015 without further notice unless EPA receives adverse comment by August 21, 2015. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

    IV. General Information Pertaining to SIP Submittals From the Commonwealth of Virginia

    In 1995, Virginia adopted legislation that provides, subject to certain conditions, for an environmental assessment (audit) “privilege” for voluntary compliance evaluations performed by a regulated entity. The legislation further addresses the relative burden of proof for parties either asserting the privilege or seeking disclosure of documents for which the privilege is claimed. Virginia's legislation also provides, subject to certain conditions, for a penalty waiver for violations of environmental laws when a regulated entity discovers such violations pursuant to a voluntary compliance evaluation and voluntarily discloses such violations to the Commonwealth and takes prompt and appropriate measures to remedy the violations. Virginia's Voluntary Environmental Assessment Privilege Law, Va. Code Sec. 10.1-1198, provides a privilege that protects from disclosure documents and information about the content of those documents that are the product of a voluntary environmental assessment. The Privilege Law does not extend to documents or information that: (1) Are generated or developed before the commencement of a voluntary environmental assessment; (2) are prepared independently of the assessment process; (3) demonstrate a clear, imminent and substantial danger to the public health or environment; or (4) are required by law.

    On January 12, 1998, the Commonwealth of Virginia Office of the Attorney General provided a legal opinion that states that the Privilege Law, Va. Code § 10.1-1198, precludes granting a privilege to documents and information “required by law,” including documents and information “required by Federal law to maintain program delegation, authorization or approval,” since Virginia must “enforce Federally authorized environmental programs in a manner that is no less stringent than their Federal counterparts . . . .” The opinion concludes that “[r]egarding § 10.1-1198, therefore, documents or other information needed for civil or criminal enforcement under one of these programs could not be privileged because such documents and information are essential to pursuing enforcement in a manner required by Federal law to maintain program delegation, authorization or approval.” Virginia's Immunity law, Va. Code Sec. 10.1-1199, provides that “[t]o the extent consistent with requirements imposed by Federal law,” any person making a voluntary disclosure of information to a state agency regarding a violation of an environmental statute, regulation, permit, or administrative order is granted immunity from administrative or civil penalty. The Attorney General's January 12, 1998 opinion states that the quoted language renders this statute inapplicable to enforcement of any Federally authorized programs, since “no immunity could be afforded from administrative, civil, or criminal penalties because granting such immunity would not be consistent with Federal law, which is one of the criteria for immunity.”

    Therefore, EPA has determined that Virginia's Privilege and Immunity statutes will not preclude the Commonwealth from enforcing its program consistent with the Federal requirements. In any event, because EPA has also determined that a state audit privilege and immunity law can affect only state enforcement and cannot have any impact on Federal enforcement authorities, EPA may at any time invoke its authority under the CAA, including, for example, sections 113, 167, 205, 211 or 213, to enforce the requirements or prohibitions of the state plan, independently of any state enforcement effort. In addition, citizen enforcement under section 304 of the CAA is likewise unaffected by this, or any, state audit privilege or immunity law.

    V. Statutory and Executive Order Reviews A. General Requirements

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

    • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);

    • does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

    • is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

    • does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

    • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

    • is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

    • is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA; and

    • does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

    In addition, this rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the DC Area, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

    B. Submission to Congress and the Comptroller General

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 21, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action.

    This action approving the 2011 CO emissions inventories for the DC Area for the 2008 ozone NAAQS may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Nitrogen oxides, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: July 10, 2015. William C. Early, Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart J—District of Columbia 2. In § 52.474, paragraph (f) is revised to read as follows:
    § 52.474 Base Year Emissions Inventory.

    (f) EPA approves as a revision to the District of Columbia State Implementation Plan the 2011 base year emissions inventory for the District of Columbia portion of the Washington, DC-MD-VA 2008 8-hour ozone nonattainment area submitted by the District Department of the Environment on July 17, 2014. The 2011 base year emissions inventory includes emissions estimates that cover the general source categories of point sources, non-road mobile sources, area sources, on-road mobile sources, and biogenic sources. The pollutants that comprise the inventory are carbon monoxide (CO), nitrogen oxides (NOX) and volatile organic compounds (VOC).

    Subpart V—Maryland 3. In § 52.1075, paragraph (o) is revised to read as follows:
    § 52.1075 Base year emissions inventory.

    (o) EPA approves as a revision to the Maryland State Implementation Plan the 2011 base year emissions inventory for the Maryland portion of the Washington, DC-MD-VA 2008 8-hour ozone nonattainment area submitted by the Maryland Department of Environment on August 4, 2014. The 2011 base year emissions inventory includes emissions estimates that cover the general source categories of point sources, non-road mobile sources, area sources, on-road mobile sources, and biogenic sources. The pollutants that comprise the inventory are carbon monoxide (CO), nitrogen oxides (NOX) and volatile organic compounds (VOC).

    Subpart VV—Virginia 4. In § 52.2425, paragraph (g) is revised to read as follows:
    § 52.2425 Base Year Emissions Inventory.

    (g) EPA approves as a revision to the Virginia State Implementation Plan the 2011 base year emissions inventory for the Virginia portion of the Washington, DC-MD-VA 2008 8-hour ozone nonattainment area submitted by the Virginia Department of Environmental Quality on July 17, 2014. The 2011 base year emissions inventory includes emissions estimates that cover the general source categories of point sources, non-road mobile sources, area sources, on-road mobile sources, and biogenic sources. The pollutants that comprise the inventory are carbon monoxide (CO), nitrogen oxides (NOX) and volatile organic compounds (VOC).

    [FR Doc. 2015-17974 Filed 7-22-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2010-0460; A-1-FRL-9930-94-Region 1] Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Control of Volatile Organic Compounds From Adhesives and Sealants AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a State Implementation Plan (SIP) revision submitted by the State of Rhode Island. This revision includes a regulation adopted by Rhode Island that establishes and requires Reasonably Available Control Technology (RACT) for volatile organic compound (VOC) sources of emissions from miscellaneous adhesives and sealants. The intended effect of this action is to approve these requirements into the Rhode Island SIP. This action is being taken in accordance with the Clean Air Act.

    DATES:

    This direct final rule will be effective September 21, 2015, unless EPA receives adverse comments by August 24, 2015. If adverse comments are received, EPA will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R01-OAR-2010-0460 by one of the following methods:

    1. www.regulations.gov: Follow the on-line instructions for submitting comments.

    2. Email: [email protected]

    3. Fax: (617) 918-0047.

    4. Mail: Docket Identification Number EPA-R01-OAR-2010-0460, Anne Arnold, U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Quality Planning Unit, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912.

    5. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, Manager, Air Quality Planning Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays.

    Instructions: Direct your comments to Docket ID No EPA-R01-OAR-2010-0460. EPA's policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit through www.regulations.gov, or email, information that you consider to be CBI or otherwise protected. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

    Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy at U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, 5 Post Office Square—Suite 100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays.

    In addition, copies of the state submittal are also available for public inspection during normal business hours, by appointment at the State Air Agency; Office of Air Resources, Department of Environmental Management, 235 Promenade Street, Providence, RI 02908-5767.

    FOR FURTHER INFORMATION CONTACT:

    David Mackintosh, Air Quality Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912, telephone number (617) 918-1584, fax number (617) 918-0584, email [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA.

    Organization of this document. The following outline is provided to aid in locating information in this preamble.

    I. Background II. Rhode Island's SIP Revision III. EPA's Evaluation of Rhode Island's SIP Revision IV. Final Action V. Incorporation by Reference VI. Statutory and Executive Order Reviews I. Background

    In 1997, EPA revised the health-based National Ambient Air Quality Standard (NAAQS) for ozone, setting it at 0.08 parts per million (ppm) averaged over an 8-hour time frame. EPA set the 8-hour ozone standard based on scientific evidence demonstrating that ozone causes adverse health effects at lower ozone concentrations and over longer periods of time than was understood when the pre-existing 1-hour ozone standard was set. EPA determined that the 8-hour standard would be more protective of human health, especially with regard to children and adults who are active outdoors, and individuals with a pre-existing respiratory disease, such as asthma. On April 30, 2004, pursuant to the Federal Clean Air Act (the Act, or CAA), 42 U.S.C. 7401 et seq., EPA designated portions of the country as being in nonattainment of the 1997 8-hour ozone NAAQS (69 FR 23858). The entire State of Rhode Island was designated as nonattainment for ozone and classified as moderate. The entire State of Rhode Island is also part of the Ozone Transport Region (OTR) under Section 184(a) of the CAA. Sections 182(b)(2) and 184 of the CAA compel states with moderate and above ozone nonattainment areas, as well as areas in the OTR respectively, to submit a revision to their applicable State Implementation Plan (SIP) to include provisions to require the implementation of reasonable available control technology (RACT) for sources covered by a Control Techniques Guideline (CTG) and for all major sources. A CTG is a document issued by EPA which establishes a “presumptive norm” for RACT for a specific VOC source category.

    EPA has determined that States which have RACT provisions approved in their SIPs for the 1-hour ozone standard have several options for fulfilling the RACT requirements for the 8-hour ozone NAAQS. If a State meets certain conditions, it may certify that previously adopted 1-hour ozone RACT controls in the SIP continue to represent RACT control levels for purposes of fulfilling 8-hour ozone RACT requirements. Alternatively, a State may establish new or more stringent requirements that represent RACT control levels, either in lieu of, or in conjunction with, a certification. In addition, a State may submit a negative declaration if there are no CTG sources or major sources of VOC and NOx emissions in lieu of, or in addition to, a certification. See Final Rule to Implement the 8-Hour Ozone National Ambient Air Quality Standard—Phase 2 (the Phase 2 Rule) (70 FR 71612; November 29, 2005).

    As noted in the EPA's Phase 2 ozone implementation rule, the RACT submittal for the 1997 8-hour ozone standard was due from Rhode Island on September 16, 2006. (See 40 CFR 51.916(b)(2).) On March 24, 2008 (73 FR 15416), EPA issued a finding of failure to submit to Rhode Island for the 1997 8-hour ozone RACT requirement. This finding started an 18-month sanctions clock, as well as a 24 month Federal Implementation Plan (FIP) clock. On April 30, 2008, the RI DEM submitted a SIP revision which included an attainment demonstration, a RACT demonstration, and a reasonable further progress plan for the 8-hour ozone NAAQS. EPA determined the SIP revision complete on May 30, 2008, stopping the 18-month sanctions clock.

    II. Rhode Island's SIP Revision

    On October 27, 2009, the Rhode Island Department of Environmental Management (DEM) submitted a SIP revision to EPA. This SIP revision included Rhode Island's new Air Pollution Control (APC) Regulation No. 44, “Control of Volatile Organic Compounds from Adhesives and Sealants.” Then, on March 25, 2015, Rhode Island DEM submitted a SIP revision containing a minor revision to APC Regulation No. 44 to address a typographical error in the regulation.

    III. EPA's Evaluation of Rhode Island's SIP Revision

    Rhode Island's APC Regulation No. 44, “Control of Volatile Organic Compounds from Adhesives and Sealants,” is based on the OTC Model Rule for Adhesives and Sealants. APC Regulation No. 44 includes all of the approaches to controlling VOC emissions found in EPA's CTG for Miscellaneous Industrial Adhesives (EPA 453/R-08-005, September 2008): VOC content limits for adhesives and cleaning solvents; work practices; record keeping; air pollution control equipment requirements; surface preparation requirements; and spray gun cleaning requirements. Rhode Island's rule is also more comprehensive than the CTG, since it establishes VOC content limits for sealants and sealant primers (in addition to adhesives as covered by the CTG), regulates sellers and manufacturers, not just appliers, of regulated adhesives, adhesive primers and sealants, and contains a VOC composite vapor pressure limit for cleaning materials. The exemptions of APC Regulation No. 44 are similar to those recommended in the CTG. While there are minor differences in the named adhesive categories (and emission limits) included in the CTG and APC Regulation No. 44, those differences are inconsequential compared to the broader applicability of APC Regulation No. 44 noted above.

    The March 25, 2015, SIP revision corrects the header on page 1 to identify the regulation as “No. 44” and not “No. 33.”

    IV. Final Action

    EPA is approving, and incorporating into the Rhode Island SIP, Rhode Island's APC Regulation No. 44, “Control of Volatile Organic Compounds from Adhesives and Sealants.”

    The EPA is publishing this action without prior proposal because the Agency views this as a noncontroversial amendment and anticipates no adverse comments. However, in the proposed rules section of this Federal Register publication, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision should relevant adverse comments be filed. This rule will be effective September 21, 2015 without further notice unless the Agency receives relevant adverse comments by August 24, 2015.

    If the EPA receives such comments, then EPA will publish a notice withdrawing the final rule and informing the public that the rule will not take effect. All public comments received will then be addressed in a subsequent final rule based on the proposed rule. The EPA will not institute a second comment period on the proposed rule. All parties interested in commenting on the proposed rule should do so at this time. If no such comments are received, the public is advised that this rule will be effective on September 21, 2015 and no further action will be taken on the proposed rule. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    V. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the [State Agency Regulations] described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    VI. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

    • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

    • does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.);

    • is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.);

    • does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);

    • does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);

    • is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);

    • is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and

    • does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by September 21, 2015. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: June 18, 2015. H. Curtis Spalding, Regional Administrator, EPA New England.

    Part 52 of chapter I, title 40 of the Code of Federal Regulations is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart OO—Rhode Island
    2. In § 52.2070, the table in paragraph (c), EPA-Approved Rhode Island Regulations, is amended by adding an entry in numerical order for Air Pollution Control Regulation 44 to read as follows:
    § 52.2070 Identification of plan.

    (c) * * *

    EPA-Approved Rhode Island Regulations State citation Title/subject State effective date EPA approval
  • date
  • Explanations
    *         *         *         *         *         *         * Air Pollution Control Regulation 44 Control of Volatile Organic Compounds from Adhesives and Sealants 06/04/2009 07/23/2015
  • [Insert Federal Register citation]
  • *         *         *         *         *         *         *
    [FR Doc. 2015-17852 Filed 7-22-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 535 Medium- and Heavy-Duty Vehicle Fuel Efficiency Program CFR Correction

    In Title 49 of the Code of Federal Regulations, Parts 400 to 571, revised as of October 1, 2014, on page 146, § 535.9 is reinstated to read as follows:

    § 535.9 Enforcement approach.

    (a) Compliance. (1) NHTSA will assess compliance with fuel consumption standards each year, based upon EPA final verified data submitted to NHTSA for its heavy-duty vehicle fuel efficiency program established pursuant to 49 U.S.C. 32902(k). NHTSA may conduct verification testing throughout a given model year in order to validate data received from manufacturers and will discuss any potential issues with EPA and the manufacturer.

    (2) Credit values in gallons are calculated based on the final CO2 emissions and fuel consumption data submitted by manufacturers and verified/validated by EPA.

    (3) NHTSA will verify a manufacturer's credit balance in each averaging set for each given model year. The average set balance is based upon the engines or vehicles performance above or below the applicable regulatory subcategory standards in each respective averaging set and any credits that are traded into or out of an averaging set during the model year.

    (i) If the balance is positive, the manufacturer is designated as having a credit surplus.

    (ii) If the balance is negative, the manufacturer is designated as having a credit deficit.

    (4) NHTSA will provide written notification to the manufacturer that has a negative balance for any averaging set for each model year. The manufacturer will be required to confirm the negative balance and submit a plan indicating how it will allocate existing credits or earn, and/or acquire by trade credits, or else be liable for a civil penalty as determined in paragraph (b) of this section. The manufacturer must submit a plan within 60 days of receiving agency notification.

    (5) Credit shortfall within an averaging set may be carried forward only three years, and if not offset by earned or traded credits, the manufacturer may be liable for a civil penalty as described in paragraph (b) of this section.

    (6) Credit allocation plans received from a manufacturer will be reviewed and approved by NHTSA. NHTSA will approve a credit allocation plan unless it determines that the proposed credits are unavailable or that it is unlikely that the plan will result in the manufacturer earning sufficient credits to offset the subject credit shortfall. If a plan is approved, NHTSA will revise the respective manufacturer's credit account accordingly by identifying which existing or traded credits are being used to address the credit shortfall, or by identifying the manufacturer's plan to earn future credits for addressing the respective credit shortfall. If a plan is rejected, NHTSA will notify the respective manufacturer and request a revised plan. The manufacturer must submit a revised plan within 14 days of receiving agency notification. The agency will provide a manufacturer one opportunity to submit a revised credit allocation plan before it initiates civil penalty proceedings.

    (7) For purposes of this regulation, NHTSA will treat the use of future credits for compliance, as through a credit allocation plan, as a deferral of civil penalties for non-compliance with an applicable fuel consumption standard.

    (8) If NHTSA receives and approves a manufacturer's credit allocation plan to earn future credits within the following three model years in order to comply with regulatory obligations, NHTSA will defer levying civil penalties for non-compliance until the date(s) when the manufacturer's approved plan indicates that credits will be earned or acquired to achieve compliance, and upon receiving confirmed CO2 emissions and fuel consumption data from EPA. If the manufacturer fails to acquire or earn sufficient credits by the plan dates, NHTSA will initiate civil penalty proceedings.

    (9) In the event that NHTSA fails to receive or is unable to approve a plan for a non-compliant manufacturer due to insufficiency or untimeliness, NHTSA may initiate civil penalty proceedings.

    (10) In the event that a manufacturer fails to report accurate fuel consumption data for vehicles or engines covered under this rule, noncompliance will be assumed until corrected by submission of the required data, and NHTSA may initiate civil penalty proceedings.

    (b) Civil penalties. (1) Generally. NHTSA may assess a civil penalty for any violation of this part under 49 U.S.C. 32902(k). This section states the procedures for assessing civil penalties for violations of § 535.5. The provisions of 5 U.S.C. 554, 556, and 557 do not apply to any proceedings conducted pursuant to this section.

    (2) Initial determination of noncompliance. An action for civil penalties is commenced by the execution of a Notice of Violation. A determination by NHTSA's Office of Enforcement of noncompliance with applicable fuel consumption standards utilizing the certified and reported CO2 emissions and fuel consumption data provided by the Environmental Protection Agency as described in this part, and after considering all the flexibilities available under § 535.7, underlies a Notice of Violation. If NHTSA Enforcement determines that a manufacturer's averaging set of vehicles or engines fails to comply with the applicable fuel consumption standard(s) by generating a credit shortfall, the chassis, vehicle or engine manufacturer, as relevant, shall be subject to a civil penalty.

    (3) Numbers of violations and maximum civil penalties. Any violation shall constitute a separate violation with respect to each vehicle or engine within the applicable regulatory averaging set. The maximum civil penalty is not more than $37,500.00 per vehicle or engine. The maximum civil penalty under this section for a related series of violations shall be determined by multiplying $37,500.00 times the vehicle or engine production volume for the model year in question within the regulatory averaging set. NHTSA may adjust this civil penalty amount to account for inflation.

    (4) Factors for determining penalty amount. In determining the amount of any civil penalty proposed to be assessed or assessed under this section, NHTSA shall take into account the gravity of the violation, the size of the violator's business, the violator's history of compliance with applicable fuel consumption standards, the actual fuel consumption performance related to the applicable standards, the estimated cost to comply with the regulation and applicable standards, the quantity of vehicles or engines not complying, and the effect of the penalty on the violator's ability to continue in business. The “estimated cost to comply with the regulation and applicable standards,” will be used to ensure that penalties for non-compliance will not be less than the cost of compliance.

    (5) NHTSA enforcement report of determination of non-compliance. (i) If NHTSA Enforcement determines that a violation has occurred, NHTSA Enforcement may prepare a report and send the report to the NHTSA Chief Counsel.

    (ii) The NHTSA Chief Counsel will review the report prepared by NHTSA Enforcement to determine if there is sufficient information to establish a likely violation.

    (iii) If the Chief Counsel determines that a violation has likely occurred, the Chief Counsel may issue a Notice of Violation to the party.

    (iv) If the Chief Counsel issues a Notice of Violation, he or she will prepare a case file with recommended actions. A record of any prior violations by the same party shall be forwarded with the case file.

    (6) Notice of violation. (i) The Notice of Violation will contain the following information:

    (A) The name and address of the party;

    (B) The alleged violation(s) and the applicable fuel consumption standard(s) violated;

    (C) The amount of the proposed penalty and basis for that amount;

    (D) The place to which, and the manner in which, payment is to be made;

    (E) A statement that the party may decline the Notice of Violation and that if the Notice of Violation is declined within 30 days of the date shown on the Notice of Violation, the party has the right to a hearing, if requested within 30 days of the date shown on the Notice of Violation, prior to a final assessment of a penalty by a Hearing Officer; and

    (F) A statement that failure to either pay the proposed penalty or to decline the Notice of Violation and request a hearing within 30 days of the date shown on the Notice of Violation will result in a finding of violation by default and that NHTSA will proceed with the civil penalty in the amount proposed on the Notice of Violation without processing the violation under the hearing procedures set forth in this subpart.

    (ii) The Notice of Violation may be delivered to the party by:

    (A) Mailing to the party (certified mail is not required);

    (B) Use of an overnight or express courier service; or

    (C) Facsimile transmission or electronic mail (with or without attachments) to the party or an employee of the party.

    (iii) At any time after the Notice of Violation is issued, NHTSA and the party may agree to reach a compromise on the payment amount.

    (iv) Once a penalty amount is paid in full, a finding of “resolved with payment” will be entered into the case file.

    (v) If the party agrees to pay the proposed penalty, but has not made payment within 30 days of the date shown on the Notice of Violation, NHTSA will enter a finding of violation by default in the matter and NHTSA will proceed with the civil penalty in the amount proposed on the Notice of Violation without processing the violation under the hearing procedures set forth in this subpart.

    (vi) If within 30 days of the date shown on the Notice of Violation a party fails to pay the proposed penalty on the Notice of Violation, and fails to request a hearing, then NHTSA will enter a finding of violation by default in the case file, and will assess the civil penalty in the amount set forth on the Notice of Violation without processing the violation under the hearing procedures set forth in this subpart.

    (vii) NHTSA's order assessing the civil penalty following a party's default is a final agency action.

    (7) Hearing Officer. (i) If a party timely requests a hearing after receiving a Notice of Violation, a Hearing Officer shall hear the case.

    (ii) The Hearing Officer will be appointed by the NHTSA Administrator, and is solely responsible for the case referred to him or her. The Hearing Officer shall have no other responsibility, direct or supervisory, for the investigation of cases referred for the assessment of civil penalties. The Hearing Officer shall have no duties related to the light-duty fuel economy or medium- and heavy-duty fuel efficiency programs.

    (iii) The Hearing Officer decides each case on the basis of the information before him or her.

    (8) Initiation of action before the Hearing Officer. (i) After the Hearing Officer receives the case file from the Chief Counsel, the Hearing Officer notifies the party in writing of:

    (A) The date, time, and location of the hearing and whether the hearing will be conducted telephonically or at the DOT Headquarters building in Washington, DC;

    (B) The right to be represented at all stages of the proceeding by counsel as set forth in paragraph (b)(9) of this section;

    (C) The right to a free copy of all written evidence in the case file.

    (ii) On the request of a party, or at the Hearing Officer's direction, multiple proceedings may be consolidated if at any time it appears that such consolidation is necessary or desirable.

    (9) Counsel. A party has the right to be represented at all stages of the proceeding by counsel. A party electing to be represented by counsel must notify the Hearing Officer of this election in writing, after which point the Hearing Officer will direct all further communications to that counsel. A party represented by counsel bears all of its own attorneys' fees and costs.

    (10) Hearing location and costs. (i) Unless the party requests a hearing at which the party appears before the Hearing Officer in Washington, DC, the hearing may be held telephonically. In Washington, DC, the hearing is held at the headquarters of the U.S. Department of Transportation.

    (ii) The Hearing Officer may transfer a case to another Hearing Officer at a party's request or at the Hearing Officer's direction.

    (iii) A party is responsible for all fees and costs (including attorneys' fees and costs, and costs that may be associated with travel or accommodations) associated with attending a hearing.

    (11) Hearing procedures. (i) There is no right to discovery in any proceedings conducted pursuant to this subpart.

    (ii) The material in the case file pertinent to the issues to be determined by the Hearing Officer is presented by the Chief Counsel or his or her designee.

    (iii) The Chief Counsel may supplement the case file with information prior to the hearing. A copy of such information will be provided to the party no later than 3 business days before the hearing.

    (iv) At the close of the Chief Counsel's presentation of evidence, the party has the right to examine respond to and rebut material in the case file and other information presented by the Chief Counsel. In the case of witness testimony, both parties have the right of cross-examination.

    (v) In receiving evidence, the Hearing Officer is not bound by strict rules of evidence. In evaluating the evidence presented, the Hearing Officer must give due consideration to the reliability and relevance of each item of evidence.

    (vi) At the close of the party's presentation of evidence, the Hearing Officer may allow the introduction of rebuttal evidence that may be presented by the Chief Counsel.

    (vii) The Hearing Officer may allow the party to respond to any rebuttal evidence submitted.

    (viii) After the evidence in the case has been presented, the Chief Counsel and the party may present arguments on the issues in the case. The party may also request an opportunity to submit a written statement for consideration by the Hearing Officer and for further review. If granted, the Hearing Officer shall allow a reasonable time for submission of the statement and shall specify the date by which it must be received. If the statement is not received within the time prescribed, or within the limits of any extension of time granted by the Hearing Officer, it need not be considered by the Hearing Officer.

    (ix) A verbatim transcript of the hearing will not normally be prepared. A party may, solely at its own expense, cause a verbatim transcript to be made. If a verbatim transcript is made, the party shall submit two copies to the Hearing Officer not later than 15 days after the hearing. The Hearing Officer shall include such transcript in the record.

    (12) Determination of violations and assessment of civil penalties. (i) Not later than 30 days following the close of the hearing, the Hearing Officer shall issue a written decision on the Notice of Violation, based on the hearing record. This may be extended by the Hearing officer if the submissions by the Chief Counsel or the party are voluminous. The decision shall address each alleged violation, and may do so collectively. For each alleged violation, the decision shall find a violation or no violation and provide a basis for the finding. The decision shall set forth the basis for the Hearing Officer's assessment of a civil penalty, or decision not to assess a civil penalty. In determining the amount of the civil penalty, the gravity of the violation, the size of the violator's business, the violator's history of compliance with applicable fuel consumption standards, the actual fuel consumption performance related to the applicable standard, the estimated cost to comply with the regulation and applicable standard, the quantity of vehicles or engines not complying, and the effect of the penalty on the violator's ability to continue in business. The assessment of a civil penalty by the Hearing Officer shall be set forth in an accompanying final order. The Hearing Officer's written final order is a final agency action.

    (ii) If the Hearing Officer assesses civil penalties in excess of $1,000,000, the Hearing Officer's decision shall contain a statement advising the party of the right to an administrative appeal to the Administrator within a specified period of time. The party is advised that failure to submit an appeal within the prescribed time will bar its consideration and that failure to appeal on the basis of a particular issue will constitute a waiver of that issue in its appeal before the Administrator.

    (iii) The filing of a timely and complete appeal to the Administrator of a Hearing Officer's order assessing a civil penalty shall suspend the operation of the Hearing Officer's penalty, which shall no longer be a final agency action.

    (iv) There shall be no administrative appeals of civil penalties assessed by a Hearing Officer of less than $1,000,000.

    (13) Appeals of civil penalties in excess of $1,000,000. (i) A party may appeal the Hearing Officer's order assessing civil penalties over $1,000,000 to the Administrator within 21 days of the date of the issuance of the Hearing Officer's order.

    (ii) The Administrator will review the decision of the Hearing Officer de novo, and may affirm the decision of the hearing officer and assess a civil penalty, or

    (iii) The Administrator may:

    (A) Modify a civil penalty;

    (B) Rescind the Notice of Violation; or

    (C) Remand the case back to the Hearing Officer for new or additional proceedings.

    (iv) In the absence of a remand, the decision of the Administrator in an appeal is a final agency action.

    (14) Collection of assessed or compromised civil penalties. (i) Payment of a civil penalty, whether assessed or compromised, shall be made by check, postal money order, or electronic transfer of funds, as provided in instructions by the agency. A payment of civil penalties shall not be considered a request for a hearing.

    (ii) The party must remit payment of any assessed civil penalty to NHTSA within 30 days after receipt of the Hearing Officer's order assessing civil penalties, or, in the case of an appeal to the Administrator, within 30 days after receipt of the Administrator's decision on the appeal.

    (iii) The party must remit payment of any compromised civil penalty to NHTSA on the date and under such terms and conditions as agreed to by the party and NHTSA. Failure to pay may result in NHTSA entering a finding of violation by default and assessing a civil penalty in the amount proposed in the Notice of Violation without processing the violation under the hearing procedures set forth in this part.

    (c) Changes in corporate ownership and control. Manufacturers must inform NHTSA of corporate relationship changes to ensure that credit accounts are identified correctly and credits are assigned and allocated properly.

    (1) In general, if two manufacturers merge in any way, they must inform NHTSA how they plan to merge their credit accounts. NHTSA will subsequently assess corporate fuel consumption and compliance status of the merged fleet instead of the original separate fleets.

    (2) If a manufacturer divides or divests itself of a portion of its automobile manufacturing business, it must inform NHTSA how it plans to divide the manufacturer's credit holdings into two or more accounts. NHTSA will subsequently distribute holdings as directed by the manufacturer, subject to provision for reasonably anticipated compliance obligations.

    (3) If a manufacturer is a successor to another manufacturer's business, it must inform NHTSA how it plans to allocate credits and resolve liabilities per 49 CFR part 534.

    [FR Doc. 2015-18073 Filed 7-22-15; 8:45 am] BILLING CODE 1505-01-D
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 150619537-5615-01] RIN 0648-BF19 International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Bigeye Tuna Catch Limits in Longline Fisheries for 2015 AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    NMFS issues regulations under authority of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFC Implementation Act) to establish a catch limit of 3,502 metric tons (mt) of bigeye tuna (Thunnus obesus) for vessels in the U.S. pelagic longline fisheries operating in the western and central Pacific Ocean (WCPO) for calendar year 2015. The limit does not apply to vessels in the longline fisheries of American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands (CNMI). Once the limit of 3,502 mt is reached in 2015, retaining, transshipping, or landing bigeye tuna caught in the area of application of the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention), which comprises the majority of the WCPO, will be prohibited for the remainder of the calendar year, with certain exceptions. This action is necessary for the United States to satisfy its obligations under the Convention, to which it is a Contracting Party.

    DATES:

    Effective on July 23, 2015.

    ADDRESSES:

    Copies of supporting documents prepared for this final rule, including the regulatory impact review (RIR) and the Programmatic Environmental Assessment (PEA), are available via the Federal e-Rulemaking Portal, at www.regulations.gov (search for Docket ID NOAA-NMFS-2015-0085. Those documents are also available from NMFS at the following address: Michael D. Tosatto, Regional Administrator, NMFS, Pacific Islands Regional Office (PIRO), 1845 Wasp Blvd., Building 176, Honolulu, HI 96818.

    FOR FURTHER INFORMATION CONTACT:

    Rini Ghosh, NMFS PIRO, 808-725-5033.

    SUPPLEMENTARY INFORMATION: Background on the Convention

    The Convention focuses on the conservation and management of highly migratory species (HMS) and the management of fisheries for HMS. The objective of the Convention is to ensure, through effective management, the long-term conservation and sustainable use of HMS in the WCPO. To accomplish this objective, the Convention established the Commission on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Commission or WCPFC). The Commission includes Members, Cooperating Non-members, and Participating Territories (hereafter, collectively “members”). The United States is a Member. American Samoa, Guam, and the CNMI are Participating Territories.

    As a Contracting Party to the Convention and a Member of the Commission, the United States is obligated to implement the decisions of the Commission. The WCPFC Implementation Act (16 U.S.C. 6901 et seq.) authorizes the Secretary of Commerce, in consultation with the Secretary of State and the Secretary of the Department in which the United States Coast Guard is operating (currently the Department of Homeland Security), to promulgate such regulations as may be necessary to carry out the obligations of the United States under the Convention, including implementation of the decisions of the Commission. The WCPFC Implementation Act further provides that the Secretary of Commerce shall ensure consistency, to the extent practicable, of fishery management programs administered under the WCPFC Implementation Act and the Magnuson-Stevens Fishery Conservation and Management Act (MSA; 16 U.S.C. 1801 et seq.), as well as other specific laws (see 16 U.S.C. 6905(b)). The Secretary of Commerce has delegated the authority to promulgate regulations under the WCPFC Implementation Act to NMFS.

    A map showing the boundaries of the area of application of the Convention (Convention Area), which comprises the majority of the WCPO, can be found on the WCPFC Web site at: www.wcpfc.int/doc/convention-area-map.

    WCPFC Decision on Tropical Tunas

    At its Eleventh Regular Session, in December 2014, the WCPFC adopted Conservation and Management Measure (CMM) 2014-01, “Conservation and Management Measure for Bigeye, Yellowfin and Skipjack Tuna in the Western and Central Pacific Ocean.” CMM 2014-01 is the most recent in a series of CMMs for the management of tropical tuna stocks under the purview of the Commission. It is a successor to CMM 2013-01, adopted in December 2013. These and other CMMs are available at: www.wcpfc.int/conservation-and-management-measures.

    The stated general objective of CMM 2014-01 and several of its predecessor CMMs is to ensure that the stocks of bigeye tuna (Thunnus obesus), yellowfin tuna (Thunnus albacares), and skipjack tuna (Katsuwonus pelamis) in the WCPO are, at a minimum, maintained at levels capable of producing their maximum sustainable yield as qualified by relevant environmental and economic factors. The CMM includes specific objectives for each of the three stocks: For each, the fishing mortality rate is to be reduced to or maintained at levels no greater than the fishing mortality rate associated with maximum sustainable yield.

    CMM 2014-01 went into effect February 3, 2015, and is generally applicable for the 2015-2017 period. The CMM includes provisions for purse seine vessels, longline vessels, and other types of vessels that fish for HMS. The CMM's provisions for longline vessels include catch limits for bigeye tuna and a general provision not to increase catches of yellowfin tuna.

    Paragraphs 40-42 CMM 2014-01 require WCPFC members to limit catches of bigeye tuna in the Convention Area to specified levels in each of 2015, 2016, and 2017. The applicable limits for the United States in those 3 years are 3,554 metric tons (mt), 3,554 mt, and 3,345 mt, respectively. In addition, paragraph 40 of the CMM states that any catch overage in a given year shall be deducted from the catch limit for the following year. This provision was also in CMM 2013-01, the predecessor to CMM 2014-01, so it pertains to the catch limit for 2015, as well as 2016 and 2017. No limits are required for the longline fisheries of any of the U.S. Participating Territories.

    Implementation of CMM 2014-01

    NMFS implemented the purse seine fishing effort limits specified under CMM 2014 earlier this year (see interim final rule, 80 FR 29220; published May 21, 2015). NMFS is also undertaking a separate rulemaking to implement other requirements under CMM 2014-01 for purse seine vessels for 2015 (RIN 0648-BE84). That rule would establish a framework process through which NMFS could specify limits on fishing effort and catches, as well as spatial and temporal restrictions on particular fishing activities and other requirements, in U.S. fisheries for HMS in the WCPO, to implement particular decisions of the Commission. Using that framework process, NMFS would establish specific limits for 2015, including restrictions on the use of fish aggregating devices by purse seine vessels. The rule would also implement several other unrelated WCPFC decisions and make some changes to existing regulations that implement WCPFC decisions, including the longline bigeye tuna catch limits. However, the rule would not affect the 2015 longline bigeye tuna catch limit being implemented in this final rule. Rather, it is anticipated that longline catch limits in future years would be implemented pursuant the framework and other requirements established in the separate rulemaking (RIN 0648-BE84).

    Provisions Implemented in This Action

    This final rule is limited to implementing the 2015 calendar year longline bigeye tuna catch limit for U.S. fisheries in the Convention Area, as mandated under CMM 2014-01. As stated above, the limit for 2015 is 3,554 mt less any overage of the limit applicable for 2014. The applicable limit for 2014 was 3,763 mt (see the final rule that established that limit at 78 FR 58240; published September 23, 2013). NMFS has estimated that bigeye tuna catches in the U.S. longline fishery in the Convention Area in 2014 were 3,815 mt, 52 mt more than the limit of 3,763 mt; therefore, the applicable limit for 2015 is 3,502 mt (3,554 minus 52).

    The 2015 longline bigeye tuna catch limit will apply only to U.S-flagged longline vessels operating as part of the U.S. longline fisheries. The limit will not apply to U.S. longline vessels operating as part of the longline fisheries of American Samoa, the CNMI, or Guam. Existing regulations at 50 CFR 300.224(b), (c), and (d) detail the manner in which longline-caught bigeye tuna is attributed among the fisheries of the United States and the U.S. Participating Territories.

    Consistent with the basis for the limits prescribed in CMM 2014-01 and with previous rules issued by NMFS to implement bigeye tuna catch limits in U.S. longline fisheries, the catch limit is measured in terms of retained catches—that is, bigeye tuna that are caught by longline gear and retained on board the vessel.

    Announcement of the Limit Being Reached

    As set forth under the existing regulations at 50 CFR 300.224(e), if NMFS determines that the limit is expected to be reached in 2015, NMFS will publish a notice in the Federal Register to announce specific fishing restrictions that will be effective from the date the limit is expected to be reached until the end of the 2015 calendar year. NMFS will publish the notice of the restrictions at least 7 calendar days before the effective date to provide vessel owners and operators with advance notice. Periodic forecasts of the date the limit is expected to be reached will be made available to the public, such as by posting on a Web site, to help vessel owners and operators plan for the possibility of the limit being reached.

    Restrictions After the Limit Is Reached

    As set forth under the existing regulations at 50 CFR 300.224(f), if the limit is reached, the restrictions that will be in effect will include the following:

    1. Retain on board, transship, or land bigeye tuna: Starting on the effective date of the restrictions and extending through December 31 of 2015, it will be prohibited to use a U.S. fishing vessel to retain on board, transship, or land bigeye tuna captured in the Convention Area by longline gear, except as follows:

    First, any bigeye tuna already on board a fishing vessel upon the effective date of the restrictions can be retained on board, transshipped, and/or landed, provided that they are landed within 14 days after the restrictions become effective. A vessel that had declared to NMFS pursuant to 50 CFR 665.803(a) that the current trip type is shallow-setting is not subject to this 14-day landing restriction, so these vessels will be able to land fish more than 14 days after the restrictions become effective.

    Second, bigeye tuna captured by longline gear can be retained on board, transshipped, and/or landed if they are caught by a fishing vessel registered for use under a valid American Samoa Longline Limited Access Permit, or if they are landed in American Samoa, Guam, or the CNMI. However, the bigeye tuna must not be caught in the portion of the U.S. EEZ surrounding the Hawaiian Archipelago, and must be landed by a U.S. fishing vessel operated in compliance with a valid permit issued under 50 CFR 660.707 or 665.801.

    Third, bigeye tuna captured by longline gear can be retained on board, transshipped, and/or landed if they are caught by a vessel that is included in a specified fishing agreement under 50 CFR 665.819(d), in accordance with 50 CFR 300.224(f)(iv).

    2. Transshipment of bigeye tuna to certain vessels: Starting on the effective date of the restrictions and extending through December 31 of 2015, it will be prohibited to transship bigeye tuna caught in the Convention Area by longline gear to any vessel other than a U.S. fishing vessel operated in compliance with a valid permit issued under 50 CFR 660.707 or 665.801.

    3. Fishing inside and outside the Convention Area: To help ensure compliance with the restrictions related to bigeye tuna caught by longline gear in the Convention Area, the final rule establishes two additional, related prohibitions that are in effect starting on the effective date of the restrictions and extending through December 31 of 2015. First, vessels are prohibited from fishing with longline gear both inside and outside the Convention Area during the same fishing trip, with the exception of a fishing trip that is in progress at the time the announced restrictions go into effect. In that exceptional case, the vessel still must land any bigeye tuna taken in the Convention Area within 14 days of the effective date of the restrictions, as described above. Second, if a vessel is used to fish using longline gear outside the Convention Area and enters the Convention Area at any time during the same fishing trip, the longline gear on the fishing vessel must be stowed in a manner so as not to be readily available for fishing while the vessel is in the Convention Area. These two prohibitions do not apply to the following vessels: (1) Vessels on declared shallow-setting trips pursuant to 50 CFR 665.803(a); and (2) vessels operating for the purposes of this rule as part of the longline fisheries of American Samoa, Guam, or the CNMI. This second group includes vessels registered for use under valid American Samoa Longline Limited Access Permits and vessels landing their bigeye tuna catch in one of the three U.S. Participating Territories, so long as these vessels conduct fishing activities in accordance with the conditions described above, and vessels included in a specified fishing agreement under 50 CFR 665.819(d), in accordance with 50 CFR 300.224(f)(iv).

    Classification

    The Administrator, Pacific Islands Region, NMFS, has determined that this final rule is consistent with the WCPFC Implementation Act and other applicable laws.

    Administrative Procedure Act

    There is good cause under 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment on this action, because prior notice and the opportunity for public comment would be impracticable and contrary to the public interest. This rule establishes a bigeye tuna catch limit for U.S. longline fisheries in the Convention Area for 2015 that is similar to limits implemented from 2009-2014. Affected entities have been subject to longline bigeye tuna catch limits in the Convention Area since 2009, and have received information regarding NMFS' estimates of the 2015 longline bigeye tuna catch in the Convention Area and the approximate date the catch limit may be reached via NMFS' Web site and other means. Allowing for advance notice and public comment on this action is impracticable because the amount of U.S. longline bigeye tuna catch in the Convention Area to date in 2015 has been greater than in prior years, and it is critical that NMFS publish the catch limit for 2015 as soon as possible to ensure that it is not exceeded, in compliance with our international legal obligations with respect to CMM 2014-01. Based on preliminary data available to date, NMFS expects that the applicable limit of 3,502 mt is likely to be reached in early August of 2015. Delaying this rule to allow for advance notice and public comment would bring a substantial risk that more than 3,502 mt of bigeye tuna would be caught by U.S. longline fisheries operating in the WCPO, constituting non-compliance by the United States with respect to the longline bigeye tuna catch limit provisions of CMM 2014-01 for calendar year 2015. Because a delay in implementing this limit for 2015 could result in the United States violating its international legal obligations with respect to the longline bigeye tuna catch limit provisions of CMM 2014-01, which are important for the conservation and management of tropical tuna stocks in the WCPO, allowing advance notice and the opportunity for public comment would be contrary to the public interest.

    For the reasons articulated above, there is also good cause under 5 U.S.C. 553(d)(3) to waive the 30-day delay in effective date for this rule. As described above, NMFS must implement the longline bigeye tuna catch limit provisions of CMM 2014-01 for 2015 as soon as possible, in order to ensure that the catch limit is not exceeded. The catch limit is intended to reduce or otherwise control fishing pressure on bigeye tuna in the WCPO in order to restore this stock to levels capable of producing maximum sustainable yield on a continuing basis. According to the NMFS stock status determination criteria, bigeye tuna in the Pacific Ocean is currently experiencing overfishing. Failure to immediately implement the 2015 catch limit would result in additional fishing pressure on this stock, in violation of international and domestic legal obligations.

    Executive Order 12866

    This final rule has been determined to be not significant for purposes of Executive Order 12866.

    Regulatory Flexibility Act

    Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are inapplicable. Therefore, no final regulatory flexibility analysis was required and none has been prepared.

    List of Subjects in 50 CFR Part 300

    Administrative practice and procedure, Fish, Fisheries, Fishing, Marine resources, Reporting and recordkeeping requirements, Treaties.

    Dated: July 17, 2015. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 300 is amended as follows:

    PART 300—INTERNATIONAL FISHERIES REGULATIONS Subpart O—Western and Central Pacific Fisheries for Highly Migratory Species 1. The authority citation for 50 CFR part 300, subpart O, continues to read as follows: Authority:

    16 U.S.C. 6901 et seq.

    2. In § 300.224, paragraph (a) is revised to read as follows:
    § 300.224 Longline fishing restrictions.

    (a) Establishment of bigeye tuna catch limit. There is a limit of 3,502 metric tons of bigeye tuna that may be captured in the Convention Area by longline gear and retained on board by fishing vessels of the United States during calendar year 2015.

    [FR Doc. 2015-18046 Filed 7-22-15; 8:45 am] BILLING CODE 3510-22-P
    80 141 Thursday, July 23, 2015 Proposed Rules FEDERAL RESERVE SYSTEM 12 CFR Parts 225 and 252 [Regulations Y and YY; Docket No. R-1517] RIN 7100 AE 33 Amendments to the Capital Plan and Stress Test Rules AGENCY:

    Board of Governors of the Federal Reserve System (Board).

    ACTION:

    Notice of proposed rulemaking with request for comment.

    SUMMARY:

    The Board invites comment on a notice of proposed rulemaking to revise the capital plan and stress test rules for large bank holding companies and certain banking organizations with total consolidated assets of more than $10 billion. The proposed changes would apply beginning with the 2016 capital plan and stress test cycles. For all banking organizations, the proposal would remove the tier 1 common capital ratio requirement. For large bank holding companies, the proposal would modify the stress test capital action assumptions. For banking organizations subject to the advanced approaches, the proposal would delay the incorporation of the supplementary leverage ratio for one year and indefinitely defer the use of the advanced approaches risk-based capital framework in the capital plan and stress test rules. For bank holding companies with total consolidated assets of more than $10 billion but less than $50 billion and savings and loan holding companies with total consolidated assets of more than $10 billion, the proposal would eliminate the fixed assumptions regarding dividend payments for company-run stress tests and delay the application of stress testing for these savings and loan holding companies for one year. The proposal would also make certain technical amendments to the capital plan and stress test rules to incorporate changes related to other rulemakings.

    DATES:

    Comments must be received on or before September 24, 2015.

    ADDRESSES:

    When submitting comments, please consider submitting your comments by email or fax because paper mail in the Washington, DC area and at the Board may be subject to delay. You may submit comments, identified by Docket No. R-1517, by any of the following methods:

    Agency Web site: http://www.federalreserve.gov. Follow the instructions for submitting comments at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm.

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Email: [email protected] Include docket number in the subject line of the message.

    Fax: (202) 452-3819 or (202) 452-3102.

    Mail: Robert de V. Frierson, Secretary, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW., Washington, DC 20551.

    All public comments are available from the Board's Web site at http://www.federalreserve.gov/generalinfo/foia/ProposedRegs.cfm as submitted, unless modified for technical reasons. Accordingly, comments will not be edited to remove any identifying or contact information. Public comments may also be viewed electronically or in paper form in Room 3515, 1801 K Street NW. (between 18th and 19th Street NW.), Washington, DC 20006 between 9:00 a.m. and 5:00 p.m. on weekdays.

    FOR FURTHER INFORMATION CONTACT:

    Lisa Ryu, Associate Director, (202) 263-4833, Constance Horsley, Assistant Director, (202) 452-5239, Mona Touma Elliot, Manager, (202) 912-4688, Page Conkling, Senior Supervisory Financial Analyst, (202) 912-4647, Joseph Cox, Senior Financial Analyst, (202) 452-3216, or Hillel Kipnis, Financial Analyst, (202) 452-2924, Division of Banking Supervision and Regulation; Laurie Schaffer, Associate General Counsel, (202) 452-2272, Christine Graham, Counsel, (202) 452-3005, or Julie Anthony, Senior Attorney, (202) 475-6682, Legal Division, Board of Governors of the Federal Reserve System, 20th Street and Constitution Avenue NW., Washington, DC 20551. Users of Telecommunication Device for Deaf (TDD) only, call (202) 263-4869.

    SUPPLEMENTARY INFORMATION: I. Background

    The Board's capital planning and stress testing regime is an annual assessment of a banking organization's capital planning and capital adequacy on a post-stress basis and a cornerstone of the Board's supervisory program for bank holding companies with total consolidated assets of $50 billion or more (large bank holding companies).1 The Board's capital planning and stress testing regime consists of two related programs: The Comprehensive Capital Analysis and Review (CCAR), which is conducted pursuant to the Board's capital plan rule (12 CFR 225.8), and Dodd-Frank Act stress testing, which is conducted pursuant to the Board's stress test rules (subparts B, E, and F of Regulation YY). In CCAR, the Board assesses the internal capital planning processes of large bank holding companies and their ability to maintain sufficient capital to continue their operations under expected and stressful conditions. Large bank holding companies must submit annual capital plans to the Board, which the Board may object to on either quantitative or qualitative grounds. If the Board objects to a large bank holding company's capital plan, the large bank holding company may not make any capital distributions unless the Board indicates in writing that it does not object to such distributions.

    1 12 CFR 225.8. The changes in this proposed rulemaking would also apply to nonbank financial companies supervised by the Board that become subject to the capital planning and stress test requirements as well as to U.S. intermediate holding companies of foreign banking organizations in accordance with the transition provisions of the final rule incorporating enhanced prudential standards for U.S. bank holding companies and foreign banking organizations with total consolidated assets of $50 billion or more. (79 FR 17240 (March 27, 2014)). For simplicity, this preamble discussion of proposed amendments generally refers only to large bank holding companies.

    Dodd-Frank Act stress testing is a forward-looking quantitative evaluation of the impact of stressful economic and financial market conditions on the capital adequacy of banking organizations.2 As part of Dodd-Frank Act stress testing, the Board conducts supervisory stress tests of large bank holding companies, and these bank holding companies also must conduct annual and mid-cycle company-run stress tests. In addition, bank holding companies with total consolidated assets of more than $10 billion but less than $50 billion, savings and loan holding companies with total consolidated assets of more than $10 billion, and state member banks with total consolidated assets of more than $10 billion must conduct annual company-run stress tests.3

    2See 12 U.S.C. 5365(i)(1) and 12 CFR part 252.

    3 77 FR 62378 (October 12, 2012) (codified at 12 CFR part 252, subparts E and F). The stress test requirements apply to savings and loan holding companies that are subject to the minimum regulatory capital requirements in 12 CFR part 217. The Board has not applied capital requirements to savings and loan holding companies that are substantially engaged in commercial activities or insurance underwriting activities to date. The Board is currently working on developing an appropriate capital regime for those institutions.

    This proposal invites comment on targeted adjustments to the Board's capital plan and stress test framework that would apply for the 2016 capital plan and stress test cycles. The Board notes that is considering a broad range of issues relating to the capital plan and stress test rules, including how the rules interact with other elements of the regulatory capital rules and whether any modification may be appropriate. However, the Board does not anticipate proposing another rulemaking that would affect the 2016 capital plan and stress test cycle beyond what is contained in this proposal. The Board would propose any changes resulting from the considerations described above through a separate rulemaking. Any such changes would take effect no earlier than the 2017 capital plan and stress test cycle.

    For all banking organizations, the proposal would remove the tier 1 common capital ratio requirement in the capital plan and stress test rules. For large bank holding companies, the proposal would modify the stress test capital action assumptions under the stress test rules. For banking organizations subject to the advanced approaches, the proposal would delay the incorporation of the supplementary leverage ratio for one year and indefinitely defer the use of advanced approaches in the capital plan and stress test rules.4 For the company-run stress test rules, the proposal would eliminate the fixed dividend payment assumptions for bank holding companies with total consolidated assets of more than $10 billion but less than $50 billion and savings and loan holding companies with total consolidated assets of more than $10 billion, and would delay the application of the company-run stress test requirements to these savings and loan holding companies for one stress test cycle. The proposal would also make certain technical amendments to the capital plan and stress test rules to incorporate changes related to other rulemakings.

    4 The supplementary leverage ratio requirement applies only to banking organizations subject to the advanced approaches. A banking organization is subject to the advanced approaches if it has consolidated assets of at least $250 billion or if it has total consolidated on-balance sheet foreign exposures of at least $10 billion. The proposed amendments to the company-run stress test rules apply to large bank holding companies, bank holding companies with total consolidated assets of more than $10 billion but less than $50 billion, savings and loan holding companies with total consolidated assets of more than $10 billion, and state member banks with total consolidated assets of more than $10 billion; however, the capital plan and supervisory stress test rules only apply to large bank holding companies at this time.

    II. Proposed Revisions to the Capital Plan and Stress Test Rules for All Banking Organizations

    The proposal would remove the requirement that a banking organization demonstrate its ability to maintain a pro forma tier 1 common capital ratio of five percent of risk-weighted assets under expected and stressed scenarios. When the Board adopted the tier 1 common requirement as part of the capital plan and stress test rules, the Board noted that it expected the tier 1 common ratio to remain in force until the Board adopted a minimum common equity capital requirement. In 2013, the Board revised its regulatory capital rules to strengthen the quantity and quality of regulatory capital held by banking organizations. These revisions included a new minimum common equity tier 1 capital requirement of 4.5 percent of risk-weighted assets, which was fully phased-in on January 1, 2015.5

    5 Banking organizations subject to the advanced approaches became subject to a minimum common equity tier 1 requirement of 4.0 percent on January 1, 2014.

    The 2016 capital plan and stress test cycle is the first cycle in which banking organizations will be subject to the 4.5 percent common equity tier 1 capital ratio for each quarter of the planning horizon. The common equity tier 1 capital ratio generally is expected to be more binding than the tier 1 common ratio under the severely adverse scenario because of the regulatory capital rule's stringent capital deductions, most of which will be fully phased-in by the end of the next planning horizon. Removing the tier 1 common ratio requirement will further reduce the burden of maintaining legacy systems and processes necessary for calculating the tier 1 common ratio.

    III. Proposed Revisions to the Capital Plan and Stress Test Rules for Large Bank Holding Companies

    The proposal would modify capital action assumptions in the stress test rules to allow large banking holding companies to reflect dividends associated with expensed employee compensation and issuances to fund acquisitions. The stress test rules require large bank holding companies to assume that they do not issue capital or redeem capital instruments in the second through ninth quarters of the planning horizon. The October 2014 revisions to the capital plan and stress test rules (October 2014 revisions) provided an exception to this assumption for issuances related to expensed employee compensation.6 The proposal would make a related technical change to require a firm to assume that it pays dividends equal to the quarterly average dollar amount of common stock dividends that the company paid in the previous year on any issuance of stock related to expensed employee compensation.

    6 79 FR 64026 (October 27, 2014).

    In addition, the proposal would permit a large bank holding company to assume that it issues capital associated with funding a planned acquisition. This proposed revision would align the capital action assumptions with the assumptions relating to business plan changes, which require a large bank holding company to project the effects of any planned mergers or acquisitions. Under the proposal, to the extent that a large bank holding company is required to include an acquisition in its balance sheet projections, the bank holding company could include any stock issuance associated with funding the acquisition in its stress test.

    IV. Proposed Revisions to the Capital Plan and Stress Test Rules for Banking Organizations Subject to the Advanced Approaches A. Delay of Inclusion of the Supplementary Leverage Ratio

    The supplementary leverage ratio requirement applies only to banking organizations that use the advanced approaches to calculate their minimum regulatory capital requirements. For these banking organizations, the proposal would delay the incorporation of the supplementary leverage ratio in the capital plan and stress test rules for one year. Under the proposal, these banking organizations would not be required to include an estimate of the supplementary leverage ratio for the capital plan and stress test cycles beginning on January 1, 2016. This proposed change is appropriate in light of the October 2014 revisions, which changed the commencement date of the capital plan and stress test cycles. Prior to the timing change in the October 2014 revisions, these banking organizations would have been required to incorporate the supplementary leverage ratio into the stress test cycle beginning on October 1, 2016 (i.e., in the sixth quarter of the 2017 stress testing and capital planning cycle). As a result of the timing change, however, these banking organizations would be required to incorporate the supplementary leverage ratio into the upcoming stress test cycle beginning January 1, 2016 (i.e., in the ninth quarter of the 2016 stress testing and capital planning cycle).

    To provide adequate time to develop the required systems necessary to project the supplementary leverage ratio, the proposal would not require these banking organizations to demonstrate compliance with the supplementary leverage ratio for purposes of the 2016 capital plan and stress test cycles.

    B. Deferral of the Introduction of the Advanced Approaches

    Under the current capital plan and stress test rules, banking organizations that use the advanced approaches to calculate their minimum regulatory capital requirements must project their risk-weighted assets using both the standardized and the advanced approaches. Several banking organizations have noted that the use of advanced approaches in the capital plan and stress test rules would require significant resources and would introduce complexity and opacity. In light of the concerns raised by these banking organizations, and pending a broader review of how the capital plan and stress test rules interact with the regulatory capital rules as described above, the proposal would delay until further notice the use of the advanced approaches for calculating risk-based capital requirements for purposes of the capital plan and stress test rules.

    V. Proposed Revisions to Stress Test Rules for Certain Bank Holding Companies and Savings and Loan Holding Companies With Total Consolidated Assets of $10 Billion or More

    For bank holding companies with total consolidated assets of more than $10 billion but less than $50 billion and savings and loan holding companies with total consolidated assets of more than $10 billion, the proposal would eliminate the fixed dividend assumptions for company-run stress tests and would delay the application of the company-run stress testing requirements to these savings and loan holding companies for one stress test cycle.

    A. Elimination of Fixed Dividend Assumptions

    The proposal would eliminate the requirement that bank holding companies with total consolidated assets of more than $10 billion but less than $50 billion and savings and loan holding companies with total consolidated assets of more than $10 billion incorporate fixed assumptions regarding dividends in their stress tests. These bank holding companies and savings and loan holding companies would instead be required to incorporate their own dividend payment assumptions consistent with internal capital needs and projections.

    Currently, the stress test rules require these bank holding companies and savings and loan holding companies to make the same capital action assumptions in their stress tests that apply to large bank holding companies. These capital action assumptions require these bank holding companies and savings and loan holding companies to assume they maintain their common stock dividend at a steady rate over the planning horizon, continue payments on other regulatory capital instruments at their stated dividend rate, and assume no repurchases or issuance of shares for each of the second through ninth quarters of the planning horizon. The proposal would maintain the assumptions of no repurchases, redemptions, or issuance of regulatory capital instruments in the stress tests.

    This proposed change is responsive to concerns raised by banking organizations that dividends made at the holding company level are often funded directly through a subsidiary bank's distributions to its holding company, but that subsidiary banks may be subject to dividend restrictions that would not permit the bank to upstream capital to its holding company. The proposed change would also better align the stress test rules with the rules applicable to state member banks and the rules of the other banking agencies.

    B. Company Run Stress Test Transition Provisions for Certain Savings and Loan Holding Companies

    The proposal would delay for one stress test cycle the application of the company-run stress test rules to saving and loan holding companies with total consolidated assets of more than $10 billion, such that these savings and loan holding companies would become subject to the stress test rules for the first time beginning on January 1, 2017.

    Savings and loan holding companies with total consolidated assets of more than $10 billion must conduct annual company-run stress tests.7 The original stress test rules provided a two-year transition period for these savings and loan holding companies to comply with the stress test requirements once they became subject to regulatory capital requirements on January 1, 2015. However, the October 2014 revisions to the stress test rules resulted in a shortening of this initial transition period to one year. The proposal would reinstate the previous transition period, such that these savings and loan holding companies would become subject to the company-run stress tests on January 1, 2017. Accordingly, savings and loan holding companies with total consolidated assets of more than $50 billion would report results by April 5, 2017, and those with total consolidated assets of less than $50 billion would report results by July 31, 2017.

    7 Currently, savings and loan holding companies are not subject to the Board's capital plan rule or supervisory stress tests, regardless of size.

    VI. Proposed Technical Amendments to the Capital Plan and Stress Test Rules

    The proposal would also make certain technical amendments to the capital plan and stress test rules to incorporate changes related to other rulemakings. On January 1, 2015, the risk-based capital rules under 12 CFR part 217 became effective, and the proposal would remove references to the risk-based capital rules in 12 CFR part 225 that are no longer operative as of that date.

    In addition, the Board is proposing to amend the definition of minimum regulatory capital ratio in 12 CFR 225.8(d)(8), and the definition of regulatory capital ratio in 12 CFR 252.12(n), 12 CFR 252.42(m), and 12 CFR 252.52(n) to incorporate the deductions required under 12 CFR 248.12(d) (the Volcker Rule). The Volcker Rule requires a banking organization to deduct from tier 1 capital its aggregate investments in covered funds (as defined in 12 CFR. 248.10(b)). These required deductions are not, however, reflected in the regulatory text of 12 CFR part 217. Accordingly, the proposal would revise the regulatory text of the above-referenced definitions to include the required deductions under the Volcker Rule in the definition of regulatory capital ratio and minimum regulatory capital ratio. The amended language will ensure that the definitions referenced above will incorporate not only the deductions required under 12 CFR part 217 but also the deductions required under the Volcker Rule.

    Administrative Law Matters a. Paperwork Reduction Act

    In accordance with the requirements of the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3521), the Board may not conduct or sponsor, and a respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The Board reviewed this proposed rule under the authority delegated to the Board by the OMB and determined that it contains no collections of information. As the Board considers the public comments received and finalizes the rulemaking, the Board will reevaluate this PRA determination.

    b. Regulatory Flexibility Act Analysis

    The Board is providing an initial regulatory flexibility analysis with respect to this proposed rule. The Regulatory Flexibility Act, 5 U.S.C. 601 et seq. (RFA), generally requires that an agency prepare and make available an initial regulatory flexibility analysis in connection with a notice of proposed rulemaking.

    Under regulations issued by the Small Business Administration (“SBA”), a small entity includes a depository institution, bank holding company, or savings and loan holding company with total assets of $550 million or less (a small banking organization).8 As of March 31, 2015, there were approximately 631 small state member banks. As of December 31, 2014, there were approximately 3,833 small bank holding companies and 271 small savings and loan holding companies. The proposed rule would apply to bank holding companies, savings and loan holding companies, and state member banks with total consolidated asset of $10 billion or more and nonbank financial companies supervised by the Board. Companies that would be subject to the proposed rule therefore substantially exceed the $550 million total asset threshold at which a company is considered a small company under SBA regulations. Therefore, there are no significant alternatives to the proposed rule that would have less economic impact on small banking organizations. As discussed above, the projected reporting, recordkeeping, and other compliance requirements of the rule are expected to be small. The Board does not believe that the rule duplicates, overlaps, or conflicts with any other Federal rules. In light of the foregoing, the Board does not believe that the final rule would have a significant economic impact on a substantial number of small entities.

    8See 13 CFR 121.201. Effective July 14, 2014, the Small Business Administration revised the size standards for banking organizations to $550 million in assets from $500 million in assets. 79 FR 33647 (June 12, 2014).

    The Board welcomes comment on all aspects of its analysis. A final regulatory flexibility analysis will be conducted after consideration of comments received during the public comment period.

    c. Solicitation of Comments on Use of Plain Language

    Section 722 of the Gramm-Leach-Bliley Act (Pub. L. 106-102, 113 Stat. 1338, 1471, 12 U.S.C. 4809) requires the federal banking agencies to use plain language in all proposed and final rules published after January 1, 2000. The Board has sought to present the proposed rule in a simple and straightforward manner, and invites comment on the use of plain language.

    For example:

    • Have we organized the material to suit your needs? If not, how could the rule be more clearly stated?

    • Are the requirements in the rule clearly stated? If not, how could the rule be more clearly stated?

    • Do the regulations contain technical language or jargon that is not clear? If so, which language requires clarification?

    • Would a different format (grouping and order of sections, use of headings, paragraphing) make the regulation easier to understand? If so, what changes would make the regulation easier to understand?

    • Would more, but shorter, sections be better? If so, which sections should be changed?

    • What else could we do to make the regulation easier to understand?

    List of Subjects 12 CFR Part 225

    Administrative practice and procedure, Banks, Banking, Capital planning, Holding companies, Reporting and recordkeeping requirements, Securities, Stress testing.

    12 CFR Part 252

    Administrative practice and procedure, Banks, Banking, Capital planning, Federal Reserve System, Holding companies, Reporting and recordkeeping requirements, Securities, Stress testing.

    Authority and Issuance

    For the reasons stated in the Supplementary Information, the Board of Governors of the Federal Reserve System proposes to amend 12 CFR chapter II as follows:

    PART 225—BANK HOLDING COMPANIES AND CHANGE IN BANK CONTROL (REGULATION Y) 1. The authority citation for part 225 continues to read as follows: Authority:

    12 U.S.C. 1817(j)(13), 1818, 1828(o), 1831i, 1831p-1, 1843(c)(8), 1844(b), 1972(1), 3106, 3108, 3310, 3331-3351, 3906, 3907, and 3909; 15 U.S.C. 1681s, 1681w, 6801 and 6805.

    Subpart A—General Provisions 2. Section 225.8 is amended by: a. Revising paragraphs (c)(3), (d)(8), and (d)(11); b. Removing paragraphs (d)(12) and (d)(13); c. Redesignating paragraph (d)(14) as paragraph (d)(12); d. Removing and reserving paragraph (e)(2)(i)(B); and e. Revising paragraphs (e)(2)(ii)(A), (f)(1)(i)(C), (f)(2)(ii)(C), and (g)(1)(i).

    The revisions to read as follows:

    § 225.8 Capital planning.

    (c) * * *

    (3) Transition periods for bank holding companies subject to the supplementary leverage ratio. Notwithstanding paragraph (d)(8) of this section, only for purposes of the capital plan cycle beginning on January 1, 2016, a bank holding company shall not include an estimate of its supplementary leverage ratio.

    (d) * * *

    (8) Minimum regulatory capital ratio means any minimum regulatory capital ratio that the Federal Reserve may require of a bank holding company, by regulation or order, including, the bank holding company's tier 1 and supplementary leverage ratios as calculated under 12 CFR 217, including the deductions required under 12 CFR 248.12, as applicable, and the bank holding company's common equity tier 1, tier 1, and total risk-based capital ratios as calculated under 12 CFR part 217, including the deductions required under 12 CFR 248.12 and the transition provisions at 12 CFR 217.1(f)(4) and 12 CFR 217.300, or any successor regulation; except that, the bank holding company shall not use the advanced approaches to calculate its regulatory capital ratios.

    (11) Tier 1 capital has the same meaning as under 12 CFR part 217 or any successor regulation.

    (e) * * *

    (2)(i) * * *

    (B) [Reserved]

    (ii) * * *

    (A) A discussion of how the bank holding company will, under expected and stressful conditions, maintain capital commensurate with its risks, maintain capital above the minimum regulatory capital ratios, and serve as a source of strength to its subsidiary depository institutions;

    (f) * * *

    (1)(i) * * *

    (C) The bank holding company's ability to maintain capital above each minimum regulatory capital ratio on a pro forma basis under expected and stressful conditions throughout the planning horizon, including but not limited to any scenarios required under paragraphs (e)(2)(i)(A) and (e)(2)(ii) of this section.

    (2)(ii) * * *

    (C) The bank holding company has not demonstrated an ability to maintain capital above each minimum regulatory capital ratio on a pro forma basis under expected and stressful conditions throughout the planning horizon; or

    (g) * * *

    (1) * * *

    (i) After giving effect to the capital distribution, the bank holding company would not meet a minimum regulatory capital ratio;

    PART 252—ENHANCED PRUDENTIAL STANDARDS (Regulation YY). 3. The authority citation for part 252 continues to read as follows: Authority:

    12 U.S.C. 321-338a, 1467a(g), 1818, 1831p-1, 1844(b), 1844(c), 5361, 5365, 5366.

    4. Section 252.12 is amended by revising paragraph (n) to read as follows:
    § 252.12 Definitions.

    (n) Regulatory capital ratio means a capital ratio for which the Board established minimum requirements for the company by regulation or order, including a company's tier 1 and supplementary leverage ratio as calculated under 12 CFR 217, including the deductions required under 12 CFR 248.12, as applicable, and the company's common equity tier 1, tier 1, and total risk-based capital ratios as calculated under 12 CFR part 217, including the deductions required under 12 CFR 248.12 and the transition provisions at 12 CFR 217.1(f)(4) and 12 CFR 217.300, or any successor regulation; except that, the company shall not use the advanced approaches to calculate its regulatory capital ratios.

    5. Section 252.13 is amended by revising paragraphs (b)(2) and (b)(3) to read as follows:
    § 252.13 Applicability.

    (b) * * *

    (2) Transition period for savings and loan holding companies. (i) A savings and loan holding company that is subject to minimum regulatory capital requirements and exceeds the asset threshold for the first time on or before March 31 of a given year, must comply with the requirements of this subpart beginning on January 1 of the following year, unless that time is extended by the Board in writing;

    (ii) A savings and loan holding company that is subject to minimum regulatory capital requirements and exceeds the asset threshold for the first time after March 31 of a given year must comply with the requirements of this subpart beginning on January 1 of the second year following that given year, unless that time is extended by the Board in writing; and

    (iii) Notwithstanding paragraph (b)(2)(i) of this section, a savings and loan holding company that is subject to minimum regulatory capital requirements and exceeded the asset threshold for the first time on or before March 31, 2015, must comply with the requirements of this subpart beginning on January 1, 2017, unless that time is extended by the Board in writing.

    (3) Transition periods for companies subject to the supplementary leverage ratio.

    Notwithstanding § 252.12(n) of this subpart, for purposes of the stress test cycle beginning on January 1, 2016, a company shall not include an estimate of its supplementary leverage ratio.

    6. Section 252.15 is amended by revising paragraph (b)(2) to read as follows:
    § 252.15 Methodologies and practices.

    (b) * * *

    (2) For each of the second through ninth quarters of the planning horizon, the bank holding company or savings and loan holding company must:

    (i) Assume no redemption or repurchase of any capital instrument that is eligible for inclusion in the numerator of a regulatory capital ratio;

    (ii) Assume no issuances of common stock or preferred stock, except for issuances related to expensed employee compensation or in connection with a planned merger or acquisition to the extent that the merger or acquisition is reflected in the company's pro forma balance sheet estimates; and

    (iii) Make reasonable assumptions regarding payments of dividends consistent with internal capital needs and projections.

    7. Section 252.42 is amended by: a. Revising paragraph (m); and b. Removing paragraph (r).

    The revision to read as follows:

    § 252.42 Definitions.

    (m) Regulatory capital ratio means a capital ratio for which the Board established minimum requirements for the company by regulation or order, including the company's tier 1 and supplementary leverage ratios as calculated under 12 CFR part 217, including the deductions required under 12 CFR 248.12, as applicable, and the company's common equity tier 1, tier 1, and total risk-based capital ratios as calculated under 12 CFR part 217, including the deductions required under 12 CFR 248.12 and the transition provisions at 12 CFR 217.1(f)(4) and 12 CFR 217.300, or any successor regulation; except that, the company shall not use the advanced approaches to calculate its regulatory capital ratios.

    8. Section 252.43 is amended by revising paragraph (c) to read as follows:
    § 252.43 Applicability.

    (c) Transition periods for covered companies subject to the supplementary leverage ratio. Notwithstanding § 252.42(m) of this subpart, only for purposes of the stress test cycle beginning on January 1, 2016, the Board will not include an estimate a covered company's supplementary leverage ratio.

    9. Section 252.44 is amended by revising paragraph (a)(2) to read as follows:
    § 252.44 Annual analysis conducted by the Board.

    (a) * * *

    (2) The analysis will include an assessment of the projected losses, net income, and pro forma capital levels and regulatory capital ratios and other capital ratios for the covered company and use such analytical techniques that the Board determines are appropriate to identify, measure, and monitor risks of the covered company that may affect the financial stability of the United States.

    10. Section 252.45 is amended by revising paragraph (b)(2) to read as follows:
    § 252.45 Data and information required to be submitted in support of the Board's analyses.

    (b) * * *

    (2) Project a company's pre-provision net revenue, losses, provision for loan and lease losses, and net income; and, pro forma capital levels, regulatory capital ratios, and any other capital ratio specified by the Board under the scenarios described in § 252.44(b).

    11. Section 252.52 is amended by: a. Revising paragraph (n); and b. removing paragraph (t).

    The revision to read as follows:

    § 252.52 Definitions.

    (n) Regulatory capital ratio means a capital ratio for which the Board established minimum requirements for the company by regulation or order, including the company's tier 1 and supplementary leverage ratios as calculated under 12 CFR part 217, including the deductions required under 12 CFR 248.12, as applicable, and the company's common equity tier 1, tier 1, and total risk-based capital ratios as calculated under 12 CFR part 217, including the deductions required under 12 CFR 248.12 and the transition provisions at 12 CFR 217.1(f)(4) and 12 CFR 217.300, or any successor regulation; except that, the company shall not use the advanced approaches to calculate its regulatory capital ratios.

    12. Section 252.53 is amended by revising paragraph (b)(3) to read as follows:
    § 252.53 Applicability.

    (b) * * *

    (3) Transition periods for covered companies subject to the supplementary leverage ratio. Notwithstanding § 252.52(n) of this subpart, only for purposes of the stress test cycle beginning on January 1, 2016, a bank holding company shall not include an estimate of its supplementary leverage ratio.

    13. Section 252.56 is amended by revising paragraphs (a)(2), (b)(2)(i), and (b)(2)(iv) to read as follows:
    § 252.56 Methodologies and practices.

    (a) * * *

    (2) The potential impact on pro forma regulatory capital levels and pro forma capital ratios (including regulatory capital ratios and any other capital ratios specified by the Board), incorporating the effects of any capital actions over the planning horizon and maintenance of an allowance for loan losses appropriate for credit exposures throughout the planning horizon.

    (b) * * *

    (2) * * *

    (i) Common stock dividends equal to the quarterly average dollar amount of common stock dividends that the company paid in the previous year (that is, the first quarter of the planning horizon and the preceding three calendar quarters) plus common stock dividends attributable to issuances related to expensed employee compensation;

    (iv) An assumption of no issuances of common stock or preferred stock, except for issuances related to expensed employee compensation or in connection with a planned merger or acquisition to the extent that the merger or acquisition is reflected in the covered company's pro forma balance sheet estimates.

    14. Section 252.58 is amended by revising paragraphs (b)(3)(v), (b)(4), and (c)(2) to read as follows:
    § 252.58 Disclosure of stress test results.

    (b) * * *

    (3) * * *

    (v) Pro forma regulatory capital ratios and any other capital ratios specified by the Board;

    (4) An explanation of the most significant causes for the changes in regulatory capital ratios; and

    (c) * * *

    (2) The disclosure of pro forma regulatory capital ratios and any other capital ratios specified by the Board that is required under paragraph (b) of this section must include the beginning value, ending value, and minimum value of each ratio over the planning horizon.

    By order of the Board of Governors of the Federal Reserve System, July 17, 2015. Margaret McCloskey Shanks, Deputy Secretary of the Board.
    [FR Doc. 2015-18038 Filed 7-22-15; 8:45 am] BILLING CODE P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-2958; Directorate Identifier 2014-NM-248-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model 787 airplanes. This proposed AD was prompted by the disclosure that the inner diameters of some batches of landing gear pins were not shot peened in accordance with design specifications and need to be replaced. This proposed AD would require inspection for improperly manufactured landing gear pins, and replacement if necessary. We are proposing this AD to detect and correct insufficient shot peening that could lead to stress corrosion cracking and failure of the landing gear pin, and cause landing gear collapse and inability to control the airplane at high speeds on the ground.

    DATES:

    We must receive comments on this proposed AD by September 8, 2015.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2958.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2958; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Melanie Violette, Senior Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6422; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-2958; Directorate Identifier 2014-NM-248-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

    Discussion

    We have received a report indicating that the inner diameters of some batches of landing gear pins were not shot peened and need to be replaced. On high strength steel parts, shot peening increases fatigue life and reduces the likelihood of stress corrosion cracking. Stress corrosion cracking, if not corrected, could result in failure of the landing gear pin, and consequent landing gear collapse and the inability to control the airplane at high speeds on the ground.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin B787-81205-SB320022-00, Issue 001, dated November 14, 2014. The service information describes procedures for the inspection for improperly manufactured landing gear pins (parts that were not shot peened), and replacement if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

    FAA's Determination

    We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

    Proposed AD Requirements

    This proposed AD would require accomplishing the actions specified in the service information described previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” Refer to this service information for details on the procedures and compliance times.

    Differences Between This Proposed AD and the Service Information

    Boeing Alert Service Bulletin B787-81205-SB320022-00, Issue 001, dated November 14, 2014, limits the effectivity in Group 2 to airplanes delivered prior to the publication of Boeing Alert Service Bulletin B787-81205-SB320022-00, Issue 001, dated November 14, 2014. However, this NPRM does not propose to include that limitation. The applicability of this proposed AD includes all The Boeing Company Model 787 airplanes. Because the affected landing gear pins are rotable parts, we have determined that these parts could later be installed on production airplanes, thereby subjecting those airplanes to the unsafe condition. This difference has been coordinated with Boeing.

    Costs of Compliance

    We estimate that this proposed AD affects 13 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspection 3 work-hours × $85 per hour = $255 $0 $255 $3,315

    We estimate the following costs to do any necessary replacements that would be required based on the results of the proposed inspection. We have no way of determining the number of aircraft that might need these replacements:

    On-Condition Costs Action Labor cost Parts cost Cost per product Replacement Up to 19 work-hours × $85 per hour = $1,615 $35,569 Up to $37,184 Explanation of “RC” Steps in Service Information

    The FAA worked in conjunction with industry, under the Airworthiness Directive Implementation Aviation Rulemaking Committee (ARC), to enhance the AD system. One enhancement was a new process for annotating which steps in the service information are required for compliance with an AD. Differentiating these steps from other tasks in the service information is expected to improve an owner's/operator's understanding of crucial AD requirements and help provide consistent judgment in AD compliance. The steps identified as RC (required for compliance) in any service information identified previously have a direct effect on detecting, preventing, resolving, or eliminating an identified unsafe condition.

    For service information that contains steps that are labeled as Required for Compliance (RC), the following provisions apply: (1) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD, and an AMOC is required for any deviations to RC steps, including substeps and identified figures; and (2) steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. Subtitle VII: Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701: “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

    We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

    For the reasons discussed above, I certify this proposed regulation:

    (1) Is not a “significant regulatory action” under Executive Order 12866,

    (2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

    (3) Will not affect intrastate aviation in Alaska, and

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    The Proposed Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2015-2958; Directorate Identifier 2014-NM-248-AD. (a) Comments Due Date

    We must receive comments by September 8, 2015.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model 787 airplanes, certificated in any category.

    (d) Subject

    Air Transport Association (ATA) of America Code 32, Landing Gear.

    (e) Unsafe Condition

    This AD was prompted by the disclosure that the inner diameters of some batches of landing gear pins were not shot peened in accordance with design specifications and need to be replaced. We are issuing this AD to detect and correct insufficient shot peening that could lead to stress corrosion cracking and failure of the landing gear pin, and cause landing gear collapse and inability to control the airplane at high speeds on the ground.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Inspection and Replacement

    At the applicable time specified in paragraph 5, “Compliance,” of Boeing Alert Service Bulletin B787-81205-SB320022-00, Issue 001, dated November 14, 2014, do a landing gear pin part number and serial number inspection, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB320022-00, dated November 14, 2014. A review of airplane maintenance or delivery records is acceptable in lieu of this inspection if the part number and serial number of the installed landing gear pins can be conclusively determined from that review.

    (1) If no part number or serial number is found that matches the list of affected pin numbers: No further action is required by this paragraph at that pin location.

    (2) If any part number or serial number is found that matches the list of affected pin numbers: At the applicable time specified in paragraph 5, “Compliance,” of Boeing Alert Service Bulletin B787-81205-SB320022-00, Issue 001, dated November 14, 2014, replace the affected pin with a pin that does not have an affected part number and serial number, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB320022-00, Issue 001, dated November 14, 2014.

    (h) Parts Installation Prohibition

    As of the effective date of this AD, no person may install on any airplane a landing gear pin having an affected part or serial number identified in Boeing Alert Service Bulletin B787-81205-SB320022-00, Issue 001, dated November 14, 2014.

    (i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (j)(1) of this AD. Information may be emailed to: [email protected]

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (4) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (i)(4)(i) and (i)(4)(ii) apply.

    (i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

    (ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

    (j) Related Information

    (1) For more information about this AD, contact Melanie Violette, Senior Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6422; fax: 425-917-6590; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on July 14, 2015. Suzanne Masterson, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-17955 Filed 7-22-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-2568; Directorate Identifier 2014-SW-026-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Helicopters (Previously Eurocopter France) Helicopters AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede airworthiness directive (AD) 2014-07-52 for certain Airbus Helicopters (previously Eurocopter France) Model AS350B, AS350BA, AS350B1, AS350B2, AS350B3, AS350C, AS350D, AS350D1, AS355E, AS355F, AS355F1, AS355F2, AS355N, and AS355NP helicopters. AD 2014-07-52 currently requires repetitively inspecting certain reinforcement angles of the rear structure to tailboom junction frame (reinforcement angles) for a crack at 10 hour time-in-service (TIS) intervals, repairing any cracked reinforcement angle, and allows an optional repetitive inspection with a 165 hour TIS inspection interval as a terminating action for the 10 hour TIS inspections. This proposed AD would retain the inspection requirements of AD 2014-07-52 and require the inspection of the area around each reinforcement angle screw hole as terminating action to the 10 hour TIS inspections. These proposed actions are intended to detect a crack in the reinforcement angle, which if not corrected, could result in loss of the tailboom and subsequent loss of control of the helicopter.

    DATES:

    We must receive comments on this proposed AD by September 21, 2015.

    ADDRESSES:

    You may send comments by any of the following methods:

    Federal eRulemaking Docket: Go to http://www.regulations.gov. Follow the online instructions for sending your comments electronically.

    Fax: 202-493-2251.

    Mail: Send comments to the U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

    Hand Delivery: Deliver to the “Mail” address between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov or in person at the Docket Operations Office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the European Aviation Safety Agency (EASA) AD, the economic evaluation, any comments received and other information. The street address for the Docket Operations Office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    For service information identified in this proposed AD, contact Airbus Helicopters, Inc., 2701 N. Forum Drive, Grand Prairie, TX 75052; telephone (972) 641-0000 or (800) 232-0323; fax (972) 641-3775; or at http://www.airbushelicopters.com/techpub. You may review service information at the FAA, Office of the Regional Counsel, Southwest Region, 10101 Hillwood Pkwy., Room 6N-321, Fort Worth, TX 76177.

    FOR FURTHER INFORMATION CONTACT:

    Robert Grant, Aviation Safety Engineer, Safety Management Group, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to participate in this rulemaking by submitting written comments, data, or views. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from adopting the proposals in this document. The most helpful comments reference a specific portion of the proposal, explain the reason for any recommended change, and include supporting data. To ensure the docket does not contain duplicate comments, commenters should send only one copy of written comments, or if comments are filed electronically, commenters should submit only one time.

    We will file in the docket all comments that we receive, as well as a report summarizing each substantive public contact with FAA personnel concerning this proposed rulemaking. Before acting on this proposal, we will consider all comments we receive on or before the closing date for comments. We will consider comments filed after the comment period has closed if it is possible to do so without incurring expense or delay. We may change this proposal in light of the comments we receive.

    Discussion

    On May 21, 2014, we issued AD 2014-07-52, Amendment 39-17858, 79 FR 33054, June 10, 2014) for Airbus Helicopters Model AS350B, AS350BA, AS350B1, AS350B2, AS350B3, AS350C, AS350D, AS350D1, AS355E, AS355F, AS355F1, AS355F2, AS355N, and AS355NP helicopters with Modification (MOD) 07 3215 installed or with a reinforcement angle, part-number (P/N) 350A08.2493.21 or 350A08.2493.23, installed. AD 2014-07-52 requires, for helicopters with 640 or more hours TIS, within 10 hours TIS and thereafter at intervals not exceeding 10 hours TIS, repetitively inspecting each reinforcement angle for a crack. If there is a crack, AD 2014-07-52 requires, before further flight, repairing the reinforcement angle. As an optional terminating action for the repetitive 10 hour TIS inspections, AD 2014-07-52 allows a repetitive 165 hour TIS inspection of the reinforcement angle under each attaching screw for a crack.

    AD 2014-07-52 was prompted by Emergency AD No. 2014-0076-E, dated March 25, 2014, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for Airbus Helicopters Model AS350B, AS350BA, AS350BB, AS350B1, AS350B2, AS350B3, AS350D, AS355E, AS355F, AS355F1, AS355F2, AS355N, and AS355NP helicopters with MOD 07 3215 or with at least one reinforcement angle, P/N 350A08.2493.21 or P/N 350A08.2493.23, installed. EASA advises that during the inspection of several AS355 helicopters, cracks found in the reinforcement angles had initiated on the non-visible surface of the angle, and that this condition, if not corrected, could lead to further crack propagation and subsequent loss of the tailboom, resulting in loss of control of the helicopter. The EASA AD requires repetitive inspections of the reinforcement angles, and states that a terminating action is under investigation.

    Actions Since AD 2014-07-52 Was Issued

    Since we issued AD 2014-07-52 (79 FR 33054, June 10, 2014), we have determined that the optional terminating action in AD 2014-07-52 should be a required terminating action. This NPRM would retain the actions in AD 2014-07-52 but would require the 165-hour TIS visual inspection as terminating action for the 10-hour TIS inspections. In addition, because MOD 07 3215 installed reinforcement angle P/Ns 350A08.2493.21 and 350A08.2493.23, AD 2014-07-52 was written to apply to helicopters with either the reinforcement angle P/Ns or with MOD 07 3215, so that operators could more easily determine whether AD 2014-07-52 applied to their aircraft. Airbus Helicopters then developed MOD 07 3232, which removes reinforcement angle P/N 350A08.2493.21 and P/N 350A08.2493.23. Because a helicopter with both MOD 07 3215 and MOD 07 3232 in its aircraft records would not have reinforcement angle P/N 350A08.2493.21 or P/N 350A08.2493.23 installed, this NPRM would revise the applicability to no longer include helicopters with MOD 07 3215 and to include a note clarifying that the AD would not apply if MOD 07 3232 is installed.

    Comments

    After AD 2014-07-52 (79 FR 33054, June 10, 2014), was published, we received comments from three commenters.

    Request

    Two commenters requested that the AD not be applicable to aircraft with MOD 07 3232 installed, as this modification improved the attachment at the junction frame to prevent cracking.

    We partially agree. Although AD 2014-07-52 does not apply to helicopters with MOD 07 3232 installed, we have revised the language in the proposed AD so that this exclusion is more clear.

    Two commenters requested that we increase the time between inspections or allow the repetitive inspections to end if no cracks are found after a few inspections. The commenters stated that the inspection frequency of the repetitive 165-hour TIS inspection is excessive and that if correctly installed, the doublers do not crack. One commenter stated that in practice the 165-hour inspection is being completed at every 100-hour inspection to avoid repeated grounding of the aircraft. Another commenter stated that frequent removal of the bolts and nuts could affect the airworthiness of the aircraft.

    We do not agree. Analysis has demonstrated that cracking has been found in more than one location, which indicates there may be more than one cause of the cracking. The uncertainty regarding the root cause of the cracking supports requiring the 165-hour TIS inspections without any changes.

    FAA's Determination

    These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in its AD. We are proposing this AD because we evaluated all known relevant information and determined that an unsafe condition is likely to exist or develop on other products of the same type design.

    Related Service Information Under 1 CFR Part 51

    Airbus Helicopters issued Emergency Alert Service Bulletin (EASB) No. 05.00.70 for Model AS350B, BA, BB, Bl, B2, B3, and D helicopters and EASB No. 05.00.62 for Model AS355E, F, F1, F2, N, and NP helicopters, both Revision 0 and dated March 24, 2014. EASB No. 05.00.70 and EASB No. 05.00.62 describe procedures for inspecting the angle reinforcements for a crack. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM.

    Proposed AD Requirements

    This proposed AD would retain the 10 hour TIS repetitive inspection of the junction frame required by AD 2014-07-52 (79 FR 33054, June 10, 2014), and would also require the repetitive 165 hour TIS inspection of the junction frame bores as a terminating action for the 10 hour TIS inspection. This proposed AD would also revise the applicability paragraph by no longer including helicopters with MOD 07 3215.

    Differences Between This Proposed AD and the EASA AD

    This proposed AD is not applicable to the AS350BB as that model is not type certificated in the U.S. This proposed AD applies to Airbus Helicopters Model AS350C and AS350D1 helicopters because these helicopters have a similar design. Finally, the EASA AD requires operators to contact Airbus Helicopters if there is a crack, and this proposed AD does not, however it does require repairing the crack before further flight.

    Interim Action

    We consider this proposed AD to be an interim action. If final action is later identified, we might consider further rulemaking then.

    Costs of Compliance

    We estimate that this proposed AD would affect 822 helicopters of U.S. Registry. We estimate that operators may incur the following costs in order to comply with this proposed AD. At an average labor rate of $85 per hour, inspecting the reinforcement angles for a crack without removing the screws would require 1.0 work-hour, for a cost per helicopter of $85 and a total cost of $69,870 for the U.S. fleet per inspection cycle. Removing the screws and inspecting the reinforcement angle would require 2 work-hours, for a cost per helicopter of $170 and a total cost of $139,740 for the U.S. fleet, per inspection cycle. If required, repairing a cracked reinforcement angle would require about 10 work-hours, and required parts would cost about $300, for a total cost per helicopter of $1,150.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, section 106, describes the authority of the FAA Administrator. “Subtitle VII: Aviation Programs,” describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in “Subtitle VII, Part A, Subpart III, Section 44701: General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

    We determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

    For the reasons discussed, I certify this proposed regulation:

    1. Is not a “significant regulatory action” under Executive Order 12866;

    2. Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979);

    3. Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction; and

    4. Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    We prepared an economic evaluation of the estimated costs to comply with this proposed AD and placed it in the AD docket.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    The Proposed Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2014-07052, Amendment 39-17858 (79 FR 33054, June 10, 2014), and adding the following new AD: Airbus Helicopters (previously Eurocopter France): Docket No. FAA-2015-2568; Directorate Identifier 2014-SW-026-AD. (a) Applicability

    This AD applies to Airbus Helicopters Model AS350B, AS350BA, AS350B1, AS350B2, AS350B3, AS350C, AS350D, AS350D1, AS355E, AS355F, AS355F1, AS355F2, AS355N, and AS355NP helicopters, with a reinforcement angle part number (P/N) 350A08.2493.21 or P/N 350A08.2493.23 installed, certificated in any category.

    Note 1 to paragraph (a) of this AD:

    Helicopters with Modification (MOD) 073232 do not have P/N 350A08.2493.21 or P/N 350A08.2493.23 installed.

    (b) Unsafe Condition

    This AD defines the unsafe condition as a crack in a rear structure to tailboom junction frame reinforcement angle (reinforcement angle), which if not detected could result in loss of the tail boom and subsequent loss of control of the helicopter.

    (c) Affected ADs

    This AD supersedes AD 2014-07-52, Amendment 39-17858 (79 FR 33054, June 10, 2014).

    (d) Comments Due Date

    We must receive comments by September 21, 2015.

    (e) Compliance

    You are responsible for performing each action required by this AD within the specified compliance time unless it has already been accomplished prior to that time.

    (f) Required Actions

    (1) For helicopters with 640 or more hours time-in-service (TIS) since installation of MOD 07 3215 or since installation of an applicable reinforcement angle, within 10 hours TIS, and thereafter at intervals not exceeding 10 hours TIS, inspect each reinforcement angle for a crack as depicted in Figure 1 of Airbus Helicopters Emergency Alert Service Bulletin No. 05.00.70 for Model AS350B, AS350BA, AS350B1, AS350B2, AS350B3, AS350C, AS350D, and AS350D1 helicopters and Airbus Helicopters Emergency Alert Service Bulletin No. 05.00.62 for AS355E, AS355F, AS355F1, AS355F2, AS355N, and AS355NP helicopters, both Revision 0 and dated March 24, 2014.

    (2) If there is a crack, before further flight, repair the reinforcement angle in a manner approved by the manager listed in paragraph (h)(1) of this AD.

    (3) Within 165 hours TIS after the first inspection required by paragraph (f)(1) of this AD, and thereafter at intervals not exceeding 165 hours TIS, remove screw No. 5 from the reinforcement angle, thoroughly clean the area around the hole and inspect the reinforcement angle for a crack. If there is not a crack, reinstall the screw. Sequentially repeat the steps required by this paragraph for screws No. 6 through No. 12. If there is a crack, comply with paragraph (f)(2) of this AD. Accomplishment of the inspection required by this paragraph terminates the repetitive inspections required by paragraph (f)(1) of this AD.

    (g) Special Flight Permit

    Special flight permits are prohibited.

    (h) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Safety Management Group, FAA, may approve AMOCs for this AD. Send your proposal to: Robert Grant, Aviation Safety Engineer, Safety Management Group, FAA, 10101 Hillwood Pkwy., Fort Worth, TX 76177; telephone (817) 222-5110; email [email protected]

    (2) For operations conducted under a 14 CFR part 119 operating certificate or under 14 CFR part 91, subpart K, we suggest that you notify your principal inspector, or lacking a principal inspector, the manager of the local flight standards district office or certificate holding district office before operating any aircraft complying with this AD through an AMOC.

    (3) AMOCs approved previously in accordance with AD 2014-07-52, Amendment 39-17858 (79 FR 33054, June 10, 2014) are approved as AMOCs for the corresponding requirements of paragraph (f)(2) of this AD.

    (i) Additional Information

    The subject of this AD is addressed in European Aviation Safety Agency (EASA) AD 2014-0076-E, dated March 25, 2014. You may view the EASA AD on the Internet at http://www.regulations.gov in Docket No. FAA-2015-2568.

    (j) Subject

    Joint Aircraft Service Component (JASC) Code: 5302: Rotorcraft Tailboom.

    Issued in Fort Worth, Texas, on July 15, 2015. Bruce E. Cain, Acting Directorate Manager, Rotorcraft Directorate, Aircraft Certification Service.
    [FR Doc. 2015-17952 Filed 7-22-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-2464; Directorate Identifier 2014-NM-195-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to supersede Airworthiness Directive (AD) 2013-22-11, which applies to certain The Boeing Company Model 747-400 and -400D series airplanes. AD 2013-22-11 currently requires repetitive inspections to detect cracks in the floor panel attachment fastener holes of certain upper deck floor beam upper chords, repetitive inspections, corrective actions if necessary, and replacement of the upper deck floor beam upper chords. Since we issued AD 2013-22-11, we received a report that certain fastener holes in the upper deck floor beam upper chords may not have been inspected in accordance with AD 2013-22-11. This proposed AD would add additional repetitive inspections for cracks for certain airplanes, and corrective actions if necessary. We are proposing this AD to detect and correct fatigue cracking in certain upper chords of the upper deck floor beam, which could become large and cause the floor beams to become severed and result in rapid decompression or reduced controllability of the airplane.

    DATES:

    We must receive comments on this proposed AD by September 8, 2015.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

    Mail: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this proposed AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P.O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; telephone 206-544-5000, extension 1; fax 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2464.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2464; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this proposed AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email: [email protected]

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposed AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2015-2464; Directorate Identifier 2014-NM-195-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this proposed AD. We will consider all comments received by the closing date and may amend this proposed AD because of those comments.

    We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

    Discussion

    Structural fatigue damage is progressive. It begins as minute cracks, and those cracks grow under the action of repeated stresses. This can happen because of normal operational conditions and design attributes, or because of isolated situations or incidents such as material defects, poor fabrication quality, or corrosion pits, dings, or scratches. Fatigue damage can occur locally, in small areas or structural design details, or globally. Global fatigue damage is general degradation of large areas of structure with similar structural details and stress levels. Multiple-site damage is global damage that occurs in a large structural element such as a single rivet line of a lap splice joining two large skin panels. Global damage can also occur in multiple elements such as adjacent frames or stringers. Multiple-site-damage and multiple-element-damage cracks are typically too small initially to be reliably detected with normal inspection methods. Without intervention, these cracks will grow, and eventually compromise the structural integrity of the airplane, in a condition known as widespread fatigue damage (WFD). As an airplane ages, WFD will likely occur, and will certainly occur if the airplane is operated long enough without any intervention.

    The FAA's WFD final rule (75 FR 69746, November 15, 2010), became effective on January 14, 2011. The WFD rule requires certain actions to prevent structural failure due to WFD throughout the operational life of certain existing transport category airplanes and all of these airplanes that will be certificated in the future. For existing and future airplanes subject to the WFD rule, the rule requires that design approval holders (DAH) establish a limit of validity (LOV) of the engineering data that support the structural maintenance program. Operators affected by the WFD rule may not fly an airplane beyond its LOV, unless an extended LOV is approved.

    The WFD rule (75 FR 69746, November 15, 2010), does not require identifying and developing maintenance actions if the DAHs can show that such actions are not necessary to prevent WFD before the airplane reaches the LOV. Many LOVs, however, do depend on accomplishment of future maintenance actions. As stated in the WFD rule, any maintenance actions necessary to reach the LOV will be mandated by airworthiness directives through separate rulemaking actions.

    In the context of WFD, this action is necessary to enable DAHs to propose LOVs that allow operators the longest operational lives for their airplanes, and still ensure that WFD will not occur. This approach allows for an implementation strategy that provides flexibility to DAHs in determining the timing of service information development (with FAA approval), while providing operators with certainty regarding the LOV applicable to their airplanes.

    On October 17, 2013, we issued AD 2013-22-11, Amendment 39-17643 (78 FR 66254, November 5, 2013), for certain The Boeing Company Model 747-400 and -400D series airplanes. AD 2013-22-11 requires repetitive inspections to detect cracks in the floor panel attachment fastener holes of the Section 41 upper deck floor beam upper chords, and corrective actions if necessary; repetitive post-repair and post-modification inspections, and corrective actions if necessary; repetitive inspections of Section 44 upper deck floor beam upper chords, and corrective actions if necessary; repetitive post-repair and post-modification inspections, and corrective actions if necessary; and replacement of the upper deck floor beam upper chords. AD 2013-22-11 superseded AD 2009-10-06, Amendment 39-15901 (74 FR 22424, May 13, 2009). AD 2013-22-11 resulted from an evaluation by the design approval holder (DAH) indicating that certain upper chords of the upper deck floor beam are subject to widespread fatigue damage (WFD). We issued AD 2013-22-11 to detect and correct fatigue cracking in certain upper chords of the upper deck floor beam, which could become large and cause the floor beams to become severed and result in rapid decompression or reduced controllability of the airplane.

    Actions Since AD 2013-22-11, Amendment 39-17643 (78 FR 66254, November 5, 2013), Was Issued

    Since we issued AD 2013-22-11, Amendment 39-17643 (78 FR 66254, November 5, 2013), an evaluation by the DAH indicated that certain fastener holes in the upper deck floor beam upper chords in Section 41, that were plugged or re-used during the conversion to a Boeing Converted Freighter, may not have been inspected in accordance with the requirements of AD 2013-22-11, because the locations may be hidden and not recognized as inspection locations. We have determined that, for certain airplanes, it is necessary to add additional repetitive inspections for cracks in the Section 41 upper deck floor beam upper chords and repair if necessary.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014. The service information describes procedures for upper deck floor beam upper chord inspection and repair at floor panel attachment fastener holes in section 41 and section 42. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this NPRM. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-2464.

    FAA's Determination

    We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

    Proposed AD Requirements

    Although this proposed AD does not explicitly restate the requirements of AD 2013-22-11, Amendment 39-17643 (78 FR 66254, November 5, 2013), this proposed AD would retain all of the requirements of AD 2013-22-11. Those requirements are referenced in the service information identified previously, which, in turn, is referenced in paragraphs (g) through (k) of this proposed AD. This proposed AD would add new actions. This proposed AD would require accomplishing the actions specified in the service information identified previously, except as discussed under “Differences Between this Proposed AD and the Service Information.” Refer to this service information for information on the procedures and compliance times.

    In addition, the phrase “corrective actions” might be used in this proposed AD. “Corrective actions” are actions that correct or address any condition found. Corrective actions in an AD could include, for example, repairs.

    Differences Between This Proposed AD and the Service Information

    Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, specifies to contact the manufacturer for instructions on how to repair certain conditions, but this proposed AD would require repairing those conditions in one of the following ways:

    • In accordance with a method that we approve; or

    • Using data that meet the certification basis of the airplane, and that have been approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) whom we have authorized to make those findings.

    Costs of Compliance

    We estimate that this proposed AD affects 84 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspection (retained actions from AD 2013-22-11, Amendment 39-17643 (78 FR 66254, November 5, 2013)) Up to 309 work-hours × $85 per hour = $26,265 per inspection cycle $0 Up to $26,265 per inspection cycle Up to $2,206,260 per inspection cycle. New Inspections Up to 241 work-hours × $85 per hour = $20,485 $0 Up to $20,485 per inspection cycle Up to $1,720,740 per inspection cycle.

    We have received no definitive data that would enable us to provide a cost estimate for the repair or modification specified in this proposed AD.

    Authority for This Rulemaking

    Title 49 of the United States Code specifies the FAA's authority to issue rules on aviation safety. Subtitle I, Section 106, describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the Agency's authority.

    We are issuing this rulemaking under the authority described in Subtitle VII, Part A, Subpart III, Section 44701, “General requirements.” Under that section, Congress charges the FAA with promoting safe flight of civil aircraft in air commerce by prescribing regulations for practices, methods, and procedures the Administrator finds necessary for safety in air commerce. This regulation is within the scope of that authority because it addresses an unsafe condition that is likely to exist or develop on products identified in this rulemaking action.

    Regulatory Findings

    We have determined that this proposed AD would not have federalism implications under Executive Order 13132. This proposed AD would not have a substantial direct effect on the States, on the relationship between the national Government and the States, or on the distribution of power and responsibilities among the various levels of government.

    For the reasons discussed above, I certify that the proposed regulation:

    (1) Is not a “significant regulatory action” under Executive Order 12866,

    (2) Is not a “significant rule” under the DOT Regulatory Policies and Procedures (44 FR 11034, February 26, 1979),

    (3) Will not affect intrastate aviation in Alaska, and

    (4) Will not have a significant economic impact, positive or negative, on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 39

    Air transportation, Aircraft, Aviation safety, Incorporation by reference, Safety.

    The Proposed Amendment

    Accordingly, under the authority delegated to me by the Administrator, the FAA proposes to amend 14 CFR part 39 as follows:

    PART 39—AIRWORTHINESS DIRECTIVES 1. The authority citation for part 39 continues to read as follows: Authority:

    49 U.S.C. 106(g), 40113, 44701.

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2013-22-11, Amendment 39-17643 (78 FR 66254, November 5, 2013), and adding the following new AD: The Boeing Company: Docket No. FAA-2015-2464; Directorate Identifier 2014-NM-195-AD. (a) Comments Due Date

    The FAA must receive comments on this AD action by September 8, 2015.

    (b) Affected ADs

    This AD replaces AD 2013-22-11, Amendment 39-17643 (78 FR 66254, November 5, 2013).

    (c) Applicability

    (1) This AD applies to The Boeing Company Model 747-400 and -400D series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014.

    (d) Subject

    Air Transport Association (ATA) of America Code 53, Fuselage.

    (e) Unsafe Condition

    This AD was prompted by an evaluation by the design approval holder (DAH) indicating that certain upper chords of the upper deck floor beam are subject to widespread fatigue damage (WFD). This AD was also prompted by reports that certain fastener holes in the upper deck floor beam upper chords in Section 41, may not have been inspected in accordance with AD 2013-22-11, Amendment 39-17643 (78 FR 66254, November 5, 2013). We are issuing this AD to detect and correct fatigue cracking in certain upper chords of the upper deck floor beam, which could become large and cause the floor beams to become severed and result in rapid decompression or reduced controllability of the airplane.

    (f) Compliance

    Comply with this AD within the compliance times specified, unless already done.

    (g) Section 41—Repetitive Inspections, and Corrective Actions

    At the applicable time specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, do open hole or surface high frequency eddy current inspections for cracking of the floor panel attachment holes in the upper deck floor beam upper chords, in accordance with Part 1 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014. If any crack is found during any inspection, before further flight, repair in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, or repair using a method approved in accordance with procedures specified in paragraph (o) of this AD. Repeat the inspections thereafter at the applicable time specified in table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, until an action specified in paragraph (g)(1) or (g)(2) of this AD is done.

    (1) Doing a repair as a hole modification in accordance with Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(2) of this AD, terminates the inspections required by paragraph (g) of this AD for the modified hole only.

    (2) Doing a modification in accordance with Figure 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(2) of this AD, terminates the inspections required by paragraph (g) of this AD for the modification only.

    (h) Section 41—Repetitive Inspection of Repaired or Modified Holes, and Corrective Actions

    For airplanes on which a repair specified in Part 2 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688 is done or a modification specified in Figure 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688 is done: At the applicable time specified in table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(3) of this AD, do open hole or surface high frequency eddy current inspections for cracking of repaired or modified floor panel attachment holes in the upper deck floor beam upper chords, in accordance with Part 1 or Part 3, as applicable, of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014. If any crack is found during any inspection required by this paragraph, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (o) of this AD. Repeat the inspections thereafter at the applicable time specified in table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014.

    (i) Section 44—Repetitive Inspection, and Corrective Actions

    For airplanes identified in Group 1 in Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014: At the applicable time specified in table 3 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(4) of this AD, do open hole or surface high frequency eddy current inspections of the floor panel attachment holes in the upper deck floor beam upper chords, in accordance with Part 4 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014. If any crack is found during any inspection required by this paragraph, before further flight, repair in accordance with Part 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(2) of this AD. Repeat the inspections thereafter at the applicable time specified in table 3 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, until an action specified in paragraph (i)(1) or (i)(2) of this AD is done.

    (1) Doing a repair as a hole modification in accordance with Part 5 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(2) of this AD, terminates the inspections required by paragraph (i) of this AD for that modified hole only.

    (2) Doing a modification in accordance with Figure 21 of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(2) of this AD, terminates the inspections required by paragraph (i) of this AD for that modified hole only.

    (j) Section 44—Repetitive Inspection of Repaired or Modified Holes, and Corrective Actions

    For airplanes identified in Group 1 in Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, on which a repair specified in Part 5 of Boeing Alert Service Bulletin 747-53A2688 is done or a modification specified in Figure 21 of Boeing Alert Service Bulletin 747-53A2688 is done: At the applicable time specified in table 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(3) of this AD, do open hole or surface high frequency eddy current inspections of repaired or modified floor panel attachment holes in the upper deck floor beam upper chords, in accordance with Part 4 or Part 6, as applicable, of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014. If any crack is found during any inspection by this paragraph, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (o) of this AD. Repeat the inspections thereafter at the applicable time specified in table 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014.

    (k) Section 41 and 44—Replacement and Post-Replacement Repetitive Inspections

    At the applicable time specified in table 5 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014: Replace all upper deck floor beam upper chords, in accordance with Part 7 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014. Within 20,000 flight cycles after doing the replacement, do the inspections specified in paragraphs (g) and (i) of this AD, as applicable. Thereafter, repeat the inspections required by paragraphs (g) and (i) of this AD, as applicable, at the times specified in paragraphs (g) and (i) of this AD.

    (l) Section 41—Repetitive Inspection of Plugged or Re-Used Holes, and Corrective Actions

    For airplanes identified in Group 2 in Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014: At the applicable time specified in table 6 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, except as required by paragraph (m)(1) of this AD, at all plugged or re-used floor panel attachment holes in the affected floor beam upper chords, do a surface high frequency eddy current inspection of the upper deck floor beam upper chords and detailed inspection for cracks on the vertical flange, in accordance with Part 8 of the Accomplishment Instructions of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014. If any crack is found during any inspection required by this paragraph, before further flight, repair using a method approved in accordance with the procedures specified in paragraph (o) of this AD. Repeat the inspections thereafter at the applicable time specified in table 6 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014.

    (m) Exceptions to Service Information Specifications

    (1) Where Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, specifies a compliance time “after the Revision 2 date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) Where Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014; specifies to contact Boeing for certain procedures: Do the specified actions before further flight using a method approved in accordance with the procedures specified in paragraph (o) of this AD.

    (3) Where table 2 or table 4 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 747-53A2688, Revision 2, dated August 21, 2014, specifies to contact Boeing for inspections and compliance times: Before further flight, contact the Manager, FAA, Seattle Aircraft Certification Office (ACO), for inspections and compliance times and accomplish the inspections at the given times.

    (4) Where Boeing Alert Service Bulletin 747-53A2688, Revision 1, dated September 19, 2012, specifies a compliance time “after the Revision 1 date of this service bulletin,” this AD requires compliance within the specified compliance time after December 10, 2013 (the effective date of AD 2013-22-11, Amendment 39-17643 (78 FR 66254, November 5, 2013)).

    (n) Credit for Previous Actions

    (1) This paragraph restates the requirements of paragraph (o) of AD 2013-22-11, Amendment 39-17643 (78 FR 66254, November 5, 2013), with new paragraph (h). This paragraph provides credit for the actions required by paragraphs (g) and (h) of this AD, if those actions were performed before December 10, 2013 (the effective date of AD 2013-22-11) using Boeing Alert Service Bulletin 747-53A2688, dated August 21, 2008.

    (2) This paragraph provides credit for the actions required by paragraphs (g) through (k) of this AD, if those actions were performed before the effective date of this AD using Boeing Alert Service Bulletin 747-53A2688, Revision 1, dated September 19, 2012, which is not incorporated by reference in this AD.

    (o) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Seattle Aircraft Certification Office (ACO), FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the ACO, send it to the attention of the person identified in paragraph (p)(1) of this AD. Information may be emailed to: [email protected].

    (2) Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (3) An AMOC that provides an acceptable level of safety may be used for any repair required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO, to make those findings. For a repair method to be approved, the repair must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

    (4) AMOCs approved for AD 2013-22-11, Amendment 39-17643 (78 FR 66254, November 5, 2013), are approved as AMOCs for the corresponding provisions of paragraphs (g) through (k) of this AD.

    (p) Related Information

    (1) For more information about this AD, contact Nathan Weigand, Aerospace Engineer, Airframe Branch, ANM-120S, FAA, Seattle Aircraft Certification Office (ACO), 1601 Lind Avenue SW., Renton, WA 98057-3356; phone: 425-917-6428; fax: 425-917-6590; email: [email protected].

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Data & Services Management, P. O. Box 3707, MC 2H-65, Seattle, WA 98124-2207; phone: 206-544-5000, extension 1; fax: 206-766-5680; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Airplane Directorate, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on July 15, 2015. Suzanne Masterson, Acting Manager, Transport Airplane Directorate, Aircraft Certification Service.
    [FR Doc. 2015-17932 Filed 7-22-15; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-115452-14] RIN 1545-BM12 Disguised Payments for Services AGENCY:

    Internal Revenue Service (IRS), Treasury

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    This document contains proposed regulations relating to disguised payments for services under section 707(a)(2)(A) of the Internal Revenue Code. The proposed regulations provide guidance to partnerships and their partners regarding when an arrangement will be treated as a disguised payment for services. This document also proposes conforming modifications to the regulations governing guaranteed payments under section 707(c). Additionally, this document provides notice of proposed modifications to Rev. Procs. 93-27 and 2001-43 relating to the issuance of interests in partnership profits to service providers.

    DATES:

    Written and electronic comments and requests for a public hearing must be received by October 21, 2015.

    ADDRESSES:

    Send submissions to CC:PA:LPD:PR (REG-115452-14), Room 5203, Internal Revenue Service, P.O. Box 7604, Ben Franklin Station, Washington, DC 20044. Submissions may be hand-delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to CC:PA:LPD:PR (REG-115452-14), Courier's Desk, Internal Revenue Service, 1111 Constitution Avenue NW., Washington, DC, or sent electronically, via the Federal eRulemaking Portal at http://www.regulations.gov (indicate IRS and REG-115452-14).

    FOR FURTHER INFORMATION CONTACT:

    Concerning submissions of comments, Oluwafunmilayo (Funmi) Taylor (202) 517-6901; concerning the proposed regulations, Jaclyn M. Goldberg (202) 317-6850 (not toll-free numbers).

    SUPPLEMENTARY INFORMATION:

    Background

    Generally, under the statutory framework of Subchapter K of the Code, an allocation or distribution between a partnership and a partner for the provision of services can be treated in one of three ways: (1) A distributive share under section 704(b); (2) a guaranteed payment under section 707(c); or (3) as a transaction in which a partner has rendered services to the partnership in its capacity as other than a partner under section 707(a).

    Distributive Share Treatment

    Partnership allocations that are determined with regard to partnership income and that are made to a partner for services rendered by the partner in its capacity as a partner are generally treated as distributive shares of partnership income, taxable under the general rules of sections 702, 703, and 704. In some cases, the right to a distributive share may qualify as a profits interest defined in Rev. Proc. 93-27, 1993-2 C.B. 343. Rev. Proc. 93-27, clarified by Rev. Proc. 2001-43, 2001-2 C.B. 191, provides guidance on the treatment of the receipt of a profits interest for services provided to or for the benefit of the partnership.

    Arrangements Subject to Sections 707(c) or 707(a)(1).

    In 1954, Congress added section 707 to the Code to clarify transactions between a partner and a partnership. Section 707(a) addresses arrangements in which a partner engages with the partnership other than in its capacity as a partner. The legislative history to section 707(a) provides the general rule that a partner who engages in a transaction with the partnership, other than in its capacity as a partner is treated as though it were not a partner. The provision was intended to apply to the sale of property by the partner to the partnership, the purchase of property by the partner from the partnership, and the rendering of services by the partner to the partnership or by the partnership to the partner. H.R. Rep. No. 1337, 83d Cong., 2d Sess. 227 (1954) (House Report); S. Rep. No. 1622, 83d Cong., 2d Sess. 387 (1954) (Senate Report).

    Congress simultaneously added section 707(c) to address payments to partners of the partnership acting in their partner capacity. Section 707(c) provides that to the extent determined without regard to the income of the partnership, payment to a partner for services shall be considered as made to a person who is not a partner, but only for purposes of sections 61(a) and 162(a). The Senate Report and the House Report provide that a fixed salary, payable without regard to partnership income, to a partner who renders services to the partnership is a guaranteed payment. The amount of the payment shall be included in the partner's gross income, and shall not be considered a distributive share of income or gain. A partner who is guaranteed a minimum annual amount for its services shall be treated as receiving a fixed payment in that amount. House Report at 227; Senate Report at 387.

    In 1956, the Treasury Department and the IRS issued additional guidance under § 1.707-1 relating to a partner not acting in its capacity as a partner under section 707(a) and to guaranteed payments under section 707(c). See TD 6175. However, it remained unclear when a partner's services to the partnership were rendered in a non-partner capacity under section 707(a) rather than in a partner capacity under section 707(c).

    In 1975, the Tax Court distinguished sections 707(a) and 707(c) payments in Pratt v. Commissioner, 64 T.C. 204 (1975), aff'd in part, rev'd in part, 550 F.2d 1023 (5th Cir. 1977). In Pratt, the general partners in two limited partnerships formed to purchase, develop, and operate two shopping centers received a fixed percentage of gross rentals in exchange for the performance of managerial services. The Tax Court held that these payments were not guaranteed payments under section 707(c) because they were computed based on a percentage of gross rental income and therefore were not paid without regard to partnership income. The Tax Court further held that section 707(a) did not apply because the general partners performed managerial duties in their partner capacities in accordance with their basic duties under the partnership agreement. On appeal, the Fifth Circuit affirmed the Tax Court's decision. The Fifth Circuit reasoned that Congress enacted section 707(a) to apply to partners who perform services for the partnership that are outside the scope of the partnership's activities. The Court indicated that if the partner performs services that the partnership itself provides, then the compensation to the service provider is merely a rearrangement among the partners of their distributive shares in the partnership income.

    In response to the decision in Pratt, the Treasury Department and the IRS issued Rev. Rul. 81-300, 1981-2 C.B. 143 and Rev. Rul. 81-301, 1981-2 C.B. 144 to clarify the treatment of transactions under sections 707(a) and 707(c). As in the Pratt case, Rev. Rul. 81-300 considers a partnership formed to purchase, develop, and operate a shopping center. The partnership agreement required the general partners to contribute their time, managerial abilities, and best efforts to the partnership. In return for these services, the general partners received a fee equal to five percent of the partnership's gross rental income. The ruling concluded that the taxpayers performed managerial services in their capacities as general partners, and characterized the management fees as guaranteed payments under section 707(c). The ruling provides that, although guaranteed payments under section 707(c) frequently involve a fixed amount, they are not limited to fixed amounts. Thus, the ruling concluded that a payment for services determined by reference to an item of gross income will be a guaranteed payment if, on the basis of all facts and circumstances, the payment is compensation rather than a share of profits.

    Rev. Rul. 81-301 describes a limited partnership which has two classes of general partners. The first class of general partner (director general partners) had complete control over the management, conduct, and operation of partnership activities. The second class of general partner (adviser general partner) rendered to the partnership services that were substantially the same as those that the adviser general partner rendered to other persons as an independent contractor. The adviser general partner received 10 percent of daily gross income in exchange for the management services it provided to the partnership. Rev. Rul. 81-301 held that the adviser general partner received its gross income allocation in a nonpartner capacity under section 707(a) because the adviser general partner provided similar services to other parties, was subject to removal by the director general partners, was not personally liable to the other partners for any losses, and its management was supervised by the director general partners.

    Enactment of Section 707(a)(2)(A)

    Congress revisited the scope of section 707(a) in 1984, in part to prevent partners from circumventing the capitalization requirements of sections 263 and 709 by structuring payments for services as allocations of partnership income under section 704. H.R. Rep. No. 432 (Pt. 2), 98th Cong., 2d Sess. 1216-21 (1984) (H.R. Rep.); S. Prt. No. 169 (Vol. 1), 98th Cong., 2d Sess. 223-32 (1984) (S. Prt.). Congress specifically addressed the holdings in Rev. Rul. 81-300 and Rev. Rul. 81-301, affirming Rev. Rul. 81-301 and concluding that the payment in Rev. Rul. 81-300 should be recharacterized as a section 707(a) payment. S. Prt. at 230. Accordingly, the Treasury Department and the IRS are obsoleting Rev. Rul. 81-300 and request comments on whether it should be reissued with modified facts.

    Congress also added an anti-abuse rule to section 707(a) relating to payments to partner service providers. Section 707(a)(2)(A) provides that if a partner performs services for a partnership and receives a related direct or indirect allocation and distribution, and the performance of services and allocation and distribution, when viewed together, are properly characterized as a transaction occurring between the partnership and a partner acting other than in its capacity as a partner, the transaction will be treated as occurring between the partnership and one who is not a partner under section 707(a)(1). See section 73 of the Tax Reform Act of 1984 (the 1984 Act). The Treasury Department and the IRS have concluded that section 707(a)(2) applies to arrangements in which distributions to the service provider depend on an allocation of an item of income, and section 707(c) applies to amounts whose payments are unrelated to partnership income.

    Section 707(a)(2) grants the Secretary broad regulatory authority to identify transactions involving disguised payments for services under section 707(a)(2)(A). This grant of regulatory authority stems from Congress's concern that partnerships and service providers were inappropriately treating payments as allocations and distributions to a partner even when the service provider acted in a capacity other than as a partner. S. Prt. at 225. Congress determined that allocations and distributions that were, in substance, direct payments for services should be treated as a payment of fees rather than as an arrangement for the allocation and distribution of partnership income. H.R. Rep. at 1218; S. Prt. at 225. Congress differentiated these arrangements from situations in which a partner receives an allocation (or increased allocation) for an extended period to reflect its contribution of property or services to the partnership, such that the partner receives the allocation in its capacity as a partner. In balancing these potentially conflicting concerns, Congress anticipated that the regulations would take five factors into account in determining whether a service provider would receive its putative allocation and distribution in its capacity as a partner. H.R. Rep. at 1219-20; S. Prt. at 227.

    Congress identified as its first and most important factor whether the payment is subject to significant entrepreneurial risk as to both the amount and fact of payment. In explaining why entrepreneurial risk is the most important factor, Congress provides that “[p]artners extract the profits of the partnership with reference to the business success of the venture, while third parties generally receive payments which are not subject to this risk.” S. Prt. at 227. An arrangement for an allocation and distribution to a service provider which involves limited risk as to amount and payment is treated as a fee under section 707(a)(2)(A). Congress specified examples of allocations that presumptively limit a partner's risk, including (i) capped allocations of income, (ii) allocations for a fixed number of years under which the income that will go to the partner is reasonably certain, (iii) continuing arrangements in which purported allocations and distributions are fixed in amount or reasonably determinable under all facts and circumstances, and (iv) allocations of gross income items.

    An arrangement in which an allocation and distribution to a service provider are subject to significant entrepreneurial risk as to amount will generally be recognized as a distributive share, although other factors are also relevant. The legislative history to section 707(a)(2)(A) includes the following examples of factors that could bear on this determination: (i) Whether the partner status of the recipient is transitory; (ii) whether the allocation and distribution that are made to the partner are close in time to the partner's performance of services; (iii) whether the facts and circumstances indicate that the recipient became a partner primarily to obtain tax benefits for itself or the partnership that would not otherwise have been available; and (iv) whether the value of the recipient's interest in general and in continuing partnership profits is small in relation to the allocation in question.

    Explanation of Provisions

    Section 1.707-1 sets forth general rules on the operation of section 707. Section 1.707-2 is titled “Disguised payments for services” and is currently reserved. Sections 1.707-3 through 1.707-7 provide guidance regarding transactions involving disguised sales under section 707(a)(2)(B). These proposed regulations are issued under § 1.707-2 and provide guidance regarding transactions involving disguised payments for services under section 707(a)(2)(A). The effective date of the proposed regulations is provided under § 1.707-9.

    I. General Rules Regarding Disguised Payments for Services A. Scope

    Consistent with the language of section 707(a)(2)(A), § 1.707-2(b) of the proposed regulations provides that an arrangement will be treated as a disguised payment for services if (i) a person (service provider), either in a partner capacity or in anticipation of being a partner, performs services (directly or through its delegate) to or for the benefit of the partnership; (ii) there is a related direct or indirect allocation and distribution to the service provider; and (iii) the performance of the services and the allocation and distribution when viewed together, are properly characterized as a transaction occurring between the partnership and a person acting other than in that person's capacity as a partner.

    The proposed regulations provide a mechanism for determining whether or not an arrangement is treated as a disguised payment for services under section 707(a)(2)(A). An arrangement that is treated as a disguised payment for services under these proposed regulations will be treated as a payment for services for all purposes of the Code. Thus, the partnership must treat the payments as payments to a non-partner in determining the remaining partners' shares of taxable income or loss. Where appropriate, the partnership must capitalize the payments or otherwise treat them in a manner consistent with the recharacterization.

    The consequence of characterizing an arrangement as a payment for services is otherwise beyond the scope of these regulations. For example, the proposed regulations do not address the timing of inclusion by the service provider or the timing of a deduction by the partnership other than to provide that each is taken into account as provided for under applicable law by applying all relevant sections of the Code and all relevant judicial doctrines. Further, if an arrangement is subject to section 707(a), taxpayers should look to relevant authorities to determine the status of the service provider as an independent contractor or employee. See, generally, Rev. Rul. 69-184, 1969-1 C.B. 256. The Treasury Department and the IRS believe that section 707(a)(2)(A) generally should not apply to arrangements that the partnership has reasonably characterized as a guaranteed payment under section 707(c).

    Allocations pursuant to an arrangement between a partnership and a service provider to which sections 707(a) and 707(c) do not apply will be treated as a distributive share under section 704(b). Rev. Proc. 93-27 and Rev. Proc. 2001-43 may apply to such an arrangement if the specific requirements of those Revenue Procedures are also satisfied. The Treasury Department and the IRS intend to modify the exceptions set forth in those revenue procedures to include an additional exception for profits interests issued in conjunction with a partner forgoing payment of a substantially fixed amount. This exception is discussed in part IV of the Explanation of Provisions section of this preamble.

    B. Application and Timing

    These proposed regulations apply to a service provider who purports to be a partner even if applying the regulations causes the service provider to be treated as a person who is not a partner. S. Prt. at 227. Further, the proposed regulations may apply even if their application results in a determination that no partnership exists. The regulations also apply to a special allocation and distribution received in exchange for services by a service provider who receives other allocations and distributions in a partner capacity under section 704(b).

    The proposed regulations characterize the nature of an arrangement at the time at which the parties enter into or modify the arrangement. Although section 707(a)(2)(A)(ii) requires both an allocation and a distribution to the service provider, the Treasury Department and the IRS believe that a premise of section 704(b) is that an income allocation correlates with an increased distribution right, justifying the assumption that an arrangement that provides for an income allocation should be treated as also providing for an associated distribution for purposes of applying section 707(a)(2)(A). The Treasury Department and the IRS considered that some arrangements provide for distributions in a later year, and that those later distributions may be subject to independent risk. However, the Treasury Department and the IRS believe that recharacterizing an arrangement retroactively is administratively difficult. Thus, the proposed regulations characterize the nature of an arrangement when the arrangement is entered into (or modified) regardless of when income is allocated and when money or property is distributed. The proposed regulations apply to both one-time transactions and continuing arrangements. S. Prt. at 226.

    II. Factors Considered

    Whether an arrangement constitutes a payment for services (in whole or in part) depends on all of the facts and circumstances. The proposed regulations include six non-exclusive factors that may indicate that an arrangement constitutes a disguised payment for services. Of these factors, the first five factors generally track the facts and circumstances identified as relevant in the legislative history for purposes of applying section 707(a)(2)(A). The proposed regulations also add a sixth factor not specifically identified by Congress. The first of these six factors, the existence of significant entrepreneurial risk, is accorded more weight than the other factors, and arrangements that lack significant entrepreneurial risk are treated as disguised payments for services. The weight given to each of the other five factors depends on the particular case, and the absence of a particular factor (other than significant entrepreneurial risk) is not necessarily determinative of whether an arrangement is treated as a payment for services.

    A. Significant Entrepreneurial Risk

    As described in the Background section of this preamble, Congress indicated that the most important factor in determining whether or not an arrangement constitutes a payment for services is that the allocation and distribution is subject to significant entrepreneurial risk. S. Prt. at 227. Congress noted that partners extract the profits of the partnership based on the business success of the venture, while third parties generally receive payments that are not subject to this risk. Id.

    The proposed regulations reflect Congress's view that this factor is most important. Under the proposed regulations, an arrangement that lacks significant entrepreneurial risk constitutes a disguised payment for services. An arrangement in which allocations and distributions to the service provider are subject to significant entrepreneurial risk will generally be recognized as a distributive share but the ultimate determination depends on the totality of the facts and circumstances. The Treasury Department and the IRS request comments on whether allocations to service providers that lack significant entrepreneurial risk could be characterized as distributive shares under section 704(b) in any circumstances.

    Whether an arrangement lacks significant entrepreneurial risk is based on the service provider's entrepreneurial risk relative to the overall entrepreneurial risk of the partnership. For example, a service provider who receives a percentage of net profits in each of a partnership that invests in high-quality debt instruments and a partnership that invests in volatile or unproven businesses may have significant entrepreneurial risk with respect to both interests.

    Section 1.707-2(c)(1)(i) through (v) of the proposed regulations set forth arrangements that presumptively lack significant entrepreneurial risk. These arrangements are presumed to result in an absence of significant entrepreneurial risk (and therefore, a disguised payment for services) unless other facts and circumstances can establish the presence of significant entrepreneurial risk by clear and convincing evidence. These examples generally describe facts and circumstances in which there is a high likelihood that the service provider will receive an allocation regardless of the overall success of the business operation, including (i) capped allocations of partnership income if the cap would reasonably be expected to apply in most years, (ii) allocations for a fixed number of years under which the service provider's distributive share of income is reasonably certain, (iii) allocations of gross income items, (iv) an allocation (under a formula or otherwise) that is predominantly fixed in amount, is reasonably determinable under all the facts and circumstances, or is designed to assure that sufficient net profits are highly likely to be available to make the allocation to the service provider (for example, if the partnership agreement provides for an allocation of net profits from specific transactions or accounting periods and this allocation does not depend on the overall success of the enterprise), and (v) arrangements in which a service provider either waives its right to receive payment for the future performance of services in a manner that is non-binding or fails to timely notify the partnership and its partners of the waiver and its terms.

    With respect to the fourth example, the presence of certain facts, when coupled with a priority allocation to the service provider that is measured over any accounting period of the partnership of 12 months or less, may create opportunities that will lead to a higher likelihood that sufficient net profits will be available to make the allocation. One fact is that the value of partnership assets is not easily ascertainable and the partnership agreement allows the service provider or a related party in connection with a revaluation to control the determination of asset values, including by controlling events that may affect those values (such as timing of announcements that affect the value of the assets). (See Example 3(iv).) Another fact is that the service provider or a related party controls the entities in which the partnership invests, including controlling the timing and amount of distributions by those controlled entities. (These two facts by themselves do not, however, necessarily establish the absence of significant entrepreneurial risk.) By contrast, certain priority allocations that are intended to equalize a service provider's return with priority allocations already allocated to investing partners over the life of the partnership (commonly known as “catch-up allocations”) typically will not fall within the types of allocations covered by the fourth example and will not lack significant entrepreneurial risk, although all of the facts and circumstances are considered in making that determination.

    With respect to the fifth example, the Treasury Department and the IRS request suggestions regarding fee waiver requirements that sufficiently bind the waiving service provider and that are administrable by the partnership and its partners.

    Congress's emphasis on entrepreneurial risk requires changes to existing regulations under section 707(c). Specifically, Example 2 of § 1.707-1(c) provides that if a partner is entitled to an allocation of the greater of 30 percent of partnership income or a minimum guaranteed amount, and the income allocation exceeds the minimum guaranteed amount, then the entire income allocation is treated as a distributive share under section 704(b). Example 2 also provides that if the income allocation is less than the guaranteed amount, then the partner is treated as receiving a distributive share to the extent of the income allocation and a guaranteed payment to the extent that the minimum guaranteed payment exceeds the income allocation. The treatment of the arrangements in Example 2 is inconsistent with the concept that an allocation must be subject to significant entrepreneurial risk to be treated as a distributive share under section 704(b). Accordingly, the proposed regulations modify Example 2 to provide that the entire minimum amount is treated as a guaranteed payment under section 707(c) regardless of the amount of the income allocation. Rev. Rul. 66-95, 1966-1 C.B. 169, and Rev. Rul. 69-180, 1969-1 C.B. 183, are also inconsistent with these proposed regulations. The Treasury Department and the IRS intend to obsolete Rev. Rul. 66-95 and revise Rev. Rul. 69-180, when these regulations are published in final form.

    B. Secondary Factors

    Section 1.707-2(c)(2) through (6) describes additional factors of secondary importance in determining whether or not an arrangement that gives the appearance of significant entrepreneurial risk constitutes a payment for services. The weight given to each of the other factors depends on the particular case, and the absence of a particular factor is not necessarily determinative of whether an arrangement is treated as a payment for services. Four of these factors, described by Congress in the legislative history to section 707(a)(2)(A), are (i) that the service provider holds, or is expected to hold, a transitory partnership interest or a partnership interest for only a short duration, (ii) that the service provider receives an allocation and distribution in a time frame comparable to the time frame that a non-partner service provider would typically receive payment, (iii) that the service provider became a partner primarily to obtain tax benefits which would not have been available if the services were rendered to the partnership in a third party capacity, and (iv) that the value of the service provider's interest in general and continuing partnership profits is small in relation to the allocation and distribution.

    To these four factors, the proposed regulations add a fifth factor. The fifth factor is present if the arrangement provides for different allocations or distributions with respect to different services received, where the services are provided either by a single person or by persons that are related under sections 707(b) or 267(b), and the terms of the differing allocations or distributions are subject to levels of entrepreneurial risk that vary significantly. For example, assume that a partnership receives services from both its general partner and from a management company that is related to the general partner under section 707(b). Both the general partner and the management company receive a share in future partnership net profits in exchange for their services. The general partner is entitled to an allocation of 20 percent of net profits and undertakes an enforceable obligation to repay any amounts distributed pursuant to its interest (reduced by reasonable allowance for tax payments made on the general partner's allocable shares of partnership income and gain) that exceed 20 percent of the overall net amount of partnership profits computed over the partnership's life and it is reasonable to anticipate that the general partner can and will comply fully with this obligation. The proposed regulations refer to this type of obligation and similar obligations, as a “clawback obligation.” In contrast, the management company is entitled to a preferred amount of net income that, once paid, is not subject to a clawback obligation. Because the general partner and the management company are service providers that are related parties under section 707(b), and because the terms of the allocations and distributions to the management company create a significantly lower level of economic risk than the terms for the general partner, the management company's arrangement might properly be treated as a disguised payment for services (depending on all other facts and circumstances, including amount of entrepreneurial risk).

    III. Examples

    Section 1.707-2(d) of the proposed regulations contains a number of examples illustrating the application of the factors described in § 1.707-2(c). The examples illustrate the application of these regulations to arrangements that contain certain facts and circumstances that the Treasury Department and the IRS believe demonstrate the existence or absence of significant entrepreneurial risk.

    Several of the examples consider arrangements in which a partner agrees to forgo fees for services and also receives a share of future partnership income and gains. The examples consider the application of section 707(a)(2)(A) based on the manner in which the service provider (i) forgoes its right to receive fees, and (ii) is entitled to share in future partnership income and gains. In Examples 5 and 6, the service provider forgoes the right to receive fees in a manner that supports the existence of significant entrepreneurial risk by forgoing its right to receive fees before the period begins and by executing a waiver that is binding, irrevocable, and clearly communicated to the other partners. Similarly, the service provider's arrangement in these examples include the following facts and circumstances that taken together support the existence of significant entrepreneurial risk: The allocation to the service provider is determined out of net profits and is neither highly likely to be available nor reasonably determinable based on all facts and circumstances available at the time of the arrangement, and the service provider undertakes a clawback obligation and is reasonably expected to be able to comply with that obligation. The presence of each fact described in these examples is not necessarily required to determine that section 707(a)(2)(A) does not apply to an arrangement. However, the absence of certain facts, such as a failure to measure future profits over at least a 12-month period, may suggest that an arrangement constitutes a fee for services.

    The proposed regulations also contain examples that consider arrangements to which section 707(a)(2)(A) applies. Example 1 concludes that an arrangement in which a service provider receives a capped amount of partnership allocations and distributions and the cap is likely to apply provides for a disguised payment for services under section 707(a)(2)(A). In Example 3(iii), a service provider is entitled to a share of future partnership net profits, the partnership can allocate net profits from specific transactions or accounting periods, those allocations do not depend on the long-term future success of the enterprise, and a party that is related to the service provider controls the timing of purchases, sales, and distributions. The example concludes that under these facts, the arrangement lacks significant entrepreneurial risk and provides for a disguised payment for services. Example 4 considers similar facts, but assumes that the partnership's assets are publicly traded and are marked-to-market under section 475(f)(1). Under these facts, the example concludes that the arrangement has significant entrepreneurial risk, and thus that section 707(a)(2)(A) does not apply.

    IV. Safe Harbor Revenue Procedures

    Rev. Proc. 93-27 provides that in certain circumstances if a person receives a profits interest for the provision of services to or for the benefit of a partnership in a partner capacity or in anticipation of becoming a partner, the IRS will not treat the receipt of such interest as a taxable event for the partner or the partnership. The revenue procedure does not apply if (1) the profits interest relates to a substantially certain and predictable stream of income from partnership assets, such as income from high-quality debt securities or a high-quality net lease; (2) within two years of receipt, the partner disposes of the profits interest; or (3) the profits interest is a limited partnership interest in a “publicly traded partnership” within the meaning of section 7704(b).

    Rev. Proc. 2001-43 provides that, for purposes of Rev. Proc. 93-27, if a partnership grants a substantially nonvested profits interest in the partnership to a service provider, the service provider will be treated as receiving the interest on the date of its grant, provided that: (i) The partnership and the service provider treat the service provider as the owner of the partnership interest from the date of its grant, and the service provider takes into account the distributive share of partnership income, gain, loss, deduction and credit associated with that interest in computing the service provider's income tax liability for the entire period during which the service provider has the interest; (ii) upon the grant of the interest or at the time that the interest becomes substantially vested, neither the partnership nor any of the partners deducts any amount (as wages, compensation, or otherwise) for the fair market value of the interest; and (iii) all other conditions of Rev. Proc. 93-27 are satisfied.

    The Treasury Department and the IRS are aware of transactions in which one party provides services and another party receives a seemingly associated allocation and distribution of partnership income or gain. For example, a management company that provides services to a fund in exchange for a fee may waive that fee, while a party related to the management company receives an interest in future partnership profits the value of which approximates the amount of the waived fee. The Treasury Department and the IRS have determined that Rev. Proc. 93-27 does not apply to such transactions because they would not satisfy the requirement that receipt of an interest in partnership profits be for the provision of services to or for the benefit of the partnership in a partner capacity or in anticipation of being a partner, and because the service provider would effectively have disposed of the partnership interest (through a constructive transfer to the related party) within two years of receipt.

    Further, the Treasury Department and the IRS plan to issue a revenue procedure providing an additional exception to the safe harbor in Rev. Proc. 93-27 in conjunction with the publication of these regulations in final form. The additional exception will apply to a profits interest issued in conjunction with a partner forgoing payment of an amount that is substantially fixed (including a substantially fixed amount determined by formula, such as a fee based on a percentage of partner capital commitments) for the performance of services, including a guaranteed payment under section 707(c) or a payment in a non-partner capacity under section 707(a).

    In conjunction with the issuance of proposed regulations (REG-105346-03; 70 FR 29675-01; 2005-1 C.B. 1244) relating to the tax treatment of certain transfers of partnership equity in connection with the performance of services, the Treasury Department and the IRS issued Notice 2005-43, 2005-24 I.R.B. 1221. Notice 2005-43 includes a proposed revenue procedure regarding partnership interests transferred in connection with the performance of services. In the event that the proposed revenue procedure provided for in Notice 2005-43 is finalized, it will include the additional exception referenced.

    Effective Dates

    The proposed regulations would be effective on the date the final regulations are published in the Federal Register and would apply to any arrangement entered into or modified on or after the date of publication of the final regulations. In the case of any arrangement entered into or modified before the final regulations are published in the Federal Register, the determination of whether an arrangement is a disguised payment for services under section 707(a)(2)(A) is made on the basis of the statute and the guidance provided regarding that provision in the legislative history of section 707(a)(2)(A). Pending the publication of final regulations, the position of the Treasury Department and the IRS is that the proposed regulations generally reflect Congressional intent as to which arrangements are appropriately treated as disguised payments for services.

    Effect on Other Documents

    The following publication is obsolete as of July 23, 2015:

    Rev. Rul. 81-300 (1981-2 C.B. 143).

    The following publications will be obsolete as of the date of a Treasury decision adopting these rules as final regulations in the Federal Register:

    Rev. Rul. 66-95 (1966-1 C.B. 169); and

    Rev. Rul. 69-180 (1969-1 C.B. 183).

    Special Analyses

    It has been determined that this notice of proposed rulemaking is not a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Therefore, a regulatory assessment is not required. It has also been determined that section 553(b) of the Administrative Procedure Act (5 U.S.C. chapter 5) does not apply to these regulations, and because the regulation does not impose a collection of information on small entities, the Regulatory Flexibility Act (5 U.S.C. chapter 6) does not apply. Pursuant to section 7805(f) of the Code, this notice of proposed rulemaking will be submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

    Comments and Requests for Public Hearing

    The Treasury Department and the IRS invite public comment on these proposed regulations. The legislative history supporting section 707(a)(2)(A) indicates that an arrangement that lacks significant entrepreneurial risk is generally treated as a disguised payment for services. The Treasury Department and the IRS have concluded that the presence of significant entrepreneurial risk in an arrangement is necessary for the arrangement to be treated as occurring between a partnership and a partner acting in a partner capacity. Nonetheless, the Treasury Department and the IRS request comments on, and examples of, whether arrangements could exist that should be treated as a distributive share under section 704(b) despite the absence of significant entrepreneurial risk. In addition, the Treasury Department and the IRS request comments on sufficient notification requirements to effectively render a fee waiver binding upon the service provider and the partnership.

    The Treasury Department and the IRS have become aware that some partnerships that assert reliance on § 1.704-1(b)(2)(ii)(i) (the economic effect equivalence rule) have expressed uncertainty on the proper treatment of partners who receive an increased right to share in partnership property upon a partnership liquidation without respect to the partnership's net income. These partnerships typically set forth each partner's distribution rights upon a liquidation of the partnership and require the partnership to allocate net income annually in a manner that causes partners' capital accounts to match partnership distribution rights to the extent possible. Such agreements are commonly referred to as “targeted capital account agreements.” Some taxpayers have expressed uncertainty whether a partnership with a targeted capital account agreement must allocate income or a guaranteed payment to a partner who has an increased right to partnership assets determined as if the partnership liquidated at the end of the year even in the event that the partnership recognizes no, or insufficient, net income. The Treasury Department and the IRS generally believe that existing rules under §§ 1.704-1(b)(2)(ii) and 1.707-1(c) address this circumstance by requiring partner capital accounts to reflect the partner's distribution rights as if the partnership liquidated at the end of the taxable year, but request comments on specific issues and examples with respect to which further guidance would be helpful. No inference is intended as to whether and when targeted capital account agreements could satisfy the economic effect equivalence rule.

    Before these proposed regulations are adopted as final regulations, consideration will be given to any written (a signed original and eight (8) copies) or electronic comments that are submitted timely to the IRS. The Treasury Department and the IRS request comments on all aspects of the proposed regulations. All comments will be available for public inspection and copying upon request. A public hearing will be scheduled if requested in writing by any person that timely submits written or electronic comments. If a public hearing is scheduled, notice of the date, time, and place for the public hearing will be published in the Federal Register.

    Drafting Information

    The principal author of these proposed regulations is Jaclyn M. Goldberg of the Office of Assistant Chief Counsel (Passthroughs and Special Industries). However, other personnel from the Internal Revenue Service and the Treasury Department participated in their development.

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Proposed Amendment to the Regulations

    Accordingly, 26 CFR part 1 is proposed to be amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by adding entries in numerical order to read in part as follows: Authority:

    26 U.S.C. 7805 * * *

    Section 1.707-0 also issued under 26 U.S.C. 707(a).

    Section 1.707-2 also issued under 26 U.S.C. 707(a).

    Section 1.707-9 also issued under 26 U.S.C. 707(a). * * *

    Section 1.736-1 also issued under 26 U.S.C. 736(a). * * *

    Par. 2. Section 1.707-0 is amended by revising § 1.707-2 to read as follows:
    § 1.707-0. Table of contents.
    § 1.707-2. Disguised payments for services.

    (a) In general.

    (b) Elements necessary to characterize arrangements as disguised payments for services.

    (1) In general.

    (2) Application and timing.

    (i) Timing and effect of the determination.

    (ii) Timing of inclusion.

    (3) Application of disguised payment rules.

    (c) Factors considered.

    (d) Examples.

    Par. 3. Section 1.707-1 is amended by adding a sentence at the end of paragraph (a) and revising paragraph (c) Example 2 to read as follows.
    § 1.707-1. Transactions between partner and partnership.

    (a) * * * For arrangements pursuant to which a purported partner performs services for a partnership and the partner receives a related direct or indirect allocation and distribution from the partnership, see § 1.707-2 to determine whether the arrangement should be treated as a disguised payment for services.

    (c) * * *

    Example 2. Partner C in the CD partnership is to receive 30 percent of partnership income, but not less than $10,000. The income of the partnership is $60,000, and C is entitled to $18,000 (30 percent of $60,000). Of this amount, $10,000 is a guaranteed payment to C. The $10,000 guaranteed payment reduces the partnership's net income to $50,000 of which C receives $8,000 as C's distributive share.

    Par. 4. Section 1.707-2 is added to read as follows:
    § 1.707-2 Disguised payments for services.

    (a) In general. This section prescribes rules for characterizing arrangements as disguised payments for services. Paragraph (b) of this section outlines the elements necessary to characterize an arrangement as a payment for services, and it provides operational rules regarding application and timing of this section. Paragraph (c) of this section identifies the factors that weigh in the determination of whether an arrangement includes the elements described in paragraph (b) of this section that make it appropriate to characterize the arrangement as a payment for services. Paragraph (d) of this section provides examples applying these rules to determine whether an arrangement is a payment for services.

    (b) Elements necessary to characterize arrangements as disguised payments for services—(1) In general. An arrangement will be treated as a disguised payment for services if—

    (i) A person (service provider), either in a partner capacity or in anticipation of becoming a partner, performs services (directly or through its delegate) to or for the benefit of a partnership;

    (ii) There is a related direct or indirect allocation and distribution to such service provider; and

    (iii) The performance of such services and the allocation and distribution, when viewed together, are properly characterized as a transaction occurring between the partnership and a person acting other than in that person's capacity as a partner.

    (2) Application and timing.—(i) Timing and effect of the determination. Whether an arrangement is properly characterized as a payment for services is determined at the time the arrangement is entered into or modified and without regard to whether the terms of the arrangement require the allocation and distribution to occur in the same taxable year. An arrangement that is treated as a payment for services under this paragraph (b) is treated as a payment for services for all purposes of the Internal Revenue Code, including for example, sections 61, 409A, and 457A (as applicable). The amount paid to a person in consideration for services under this section is treated as a payment for services provided to the partnership, and, when appropriate, the partnership must capitalize these amounts (or otherwise treat such amounts in a manner consistent with their recharacterization). The partnership must also treat the arrangement as a payment to a non-partner in determining the remaining partners' shares of taxable income or loss.

    (ii) Timing of inclusion. The inclusion of income by the service provider and deduction (if applicable) by the partnership of amounts paid pursuant to an arrangement that is characterized as a payment for services under paragraph (b)(1) of this section is taken into account in the taxable year as required under applicable law by applying all relevant sections of the Internal Revenue Code, including for example, sections 409A and 457A (as applicable), to the allocation and distribution when they occur (or are deemed to occur under all other provisions of the Internal Revenue Code).

    (3) Application of disguised payment rules. If a person purports to provide services to a partnership in a capacity as a partner or in anticipation of becoming a partner, the rules of this section apply for purposes of determining whether the services were provided in exchange for a disguised payment, even if it is determined after applying the rules of this section that the service provider is not a partner. If after applying the rules of this section, no partnership exists as a result of the service provider failing to become a partner under the arrangement, then the service provider is treated as having provided services directly to the other purported partner.

    (c) Factors considered. Whether an arrangement constitutes a payment for services (in whole or in part) depends on all of the facts and circumstances. Paragraphs (c)(1) through (6) of this section provide a non-exclusive list of factors that may indicate that an arrangement constitutes in whole or in part a payment for services. The presence or absence of a factor is based on all of the facts and circumstances at the time the parties enter into the arrangement (or if the parties modify the arrangement, at the time of the modification). The most important factor is significant entrepreneurial risk as set forth in paragraph (c)(1) of this section. An arrangement that lacks significant entrepreneurial risk constitutes a payment for services. An arrangement that has significant entrepreneurial risk will generally not constitute a payment for services unless other factors establish otherwise. For purposes of making determinations under this paragraph (c), the weight to be given to any particular factor, other than entrepreneurial risk, depends on the particular case and the absence of a factor is not necessarily indicative of whether or not an arrangement is treated as a payment for services.

    (1) The arrangement lacks significant entrepreneurial risk. Whether an arrangement lacks significant entrepreneurial risk is based on the service provider's entrepreneurial risk relative to the overall entrepreneurial risk of the partnership. Paragraphs (c)(1)(i) through (v) of this section provide facts and circumstances that create a presumption that an arrangement lacks significant entrepreneurial risk and will be treated as a disguised payment for services unless other facts and circumstances establish the presence of significant entrepreneurial risk by clear and convincing evidence:

    (i) Capped allocations of partnership income if the cap is reasonably expected to apply in most years;

    (ii) An allocation for one or more years under which the service provider's share of income is reasonably certain;

    (iii) An allocation of gross income;

    (iv) An allocation (under a formula or otherwise) that is predominantly fixed in amount, is reasonably determinable under all the facts and circumstances, or is designed to assure that sufficient net profits are highly likely to be available to make the allocation to the service provider (e.g. if the partnership agreement provides for an allocation of net profits from specific transactions or accounting periods and this allocation does not depend on the long-term future success of the enterprise); or

    (v) An arrangement in which a service provider waives its right to receive payment for the future performance of services in a manner that is non-binding or fails to timely notify the partnership and its partners of the waiver and its terms.

    (2) The service provider holds, or is expected to hold, a transitory partnership interest or a partnership interest for only a short duration.

    (3) The service provider receives an allocation and distribution in a time frame comparable to the time frame that a non-partner service provider would typically receive payment.

    (4) The service provider became a partner primarily to obtain tax benefits that would not have been available if the services were rendered to the partnership in a third party capacity.

    (5) The value of the service provider's interest in general and continuing partnership profits is small in relation to the allocation and distribution.

    (6) The arrangement provides for different allocations or distributions with respect to different services received, the services are provided either by one person or by persons that are related under sections 707(b) or 267(b), and the terms of the differing allocations or distributions are subject to levels of entrepreneurial risk that vary significantly.

    (d) Examples. The following examples illustrate the application of this section:

    Example 1. Partnership ABC constructed a building that is projected to generate $100,000 of gross income annually. A, an architect, performs services for partnership ABC for which A's normal fee would be $40,000 and contributes cash in an amount equal to the value of a 25 percent interest in the partnership. In exchange, A will receive a 25 percent distributive share for the life of the partnership and a special allocation of $20,000 of partnership gross income for the first two years of partnership's operations. The ABC partnership agreement satisfies the requirements for economic effect contained in § 1.704-1(b)(2)(ii), including requiring that liquidating distributions are made in accordance with the partners' positive capital account balances. Under paragraph (c) of this section, whether the arrangement is treated as a payment for services depends on the facts and circumstances. The special allocation to A is a capped amount and the cap is reasonably expected to apply. The special allocation is also made out of gross income. Under paragraphs (c)(1)(i) and (iii) of this section, the capped allocations of income and gross income allocations described are presumed to lack significant entrepreneurial risk. No additional facts and circumstances establish otherwise by clear and convincing evidence. Thus, the allocation lacks significant entrepreneurial risk. Accordingly, the arrangement provides for a disguised payment for services as of the date that A and ABC enter into the arrangement and, pursuant to paragraph (b)(2)(ii) of this section, should be included in income by A in the time and manner required under applicable law as determined by applying all relevant sections of the Internal Revenue Code to the arrangement.

    Example 2. A, a stock broker, agrees to effect trades for Partnership ABC without the normal brokerage commission. A contributes 51 percent of partnership capital and in exchange, receives a 51 percent interest in residual partnership profits and losses. In addition, A receives a special allocation of gross income that is computed in a manner which approximates its foregone commissions. The special allocation to A is computed by means of a formula similar to a normal brokerage fee and varies with the value and amount of services rendered rather than with the income of the partnership. It is reasonably expected that Partnership ABC will have sufficient gross income to make this allocation. The ABC partnership agreement satisfies the requirements for economic effect contained in § 1.704-1(b)(2)(ii), including requiring that liquidating distributions are made in accordance with the partners' positive capital account balances. Under paragraph (c) of this section, whether the arrangement is treated as a payment for services depends on the facts and circumstances. Under paragraphs (c)(1)(iii) and (iv) of this section, because the allocation is an allocation of gross income and is reasonably determinable under the facts and circumstances, it is presumed to lack significant entrepreneurial risk. No additional facts and circumstances establish otherwise by clear and convincing evidence. Thus, the allocation lacks significant entrepreneurial risk. Accordingly, the arrangement provides for a disguised payment for services as of the date that A and ABC enter into the arrangement and, pursuant to paragraph (b)(2)(ii) of this section, should be included in income by A in the time and manner required under applicable law as determined by applying all relevant sections of the Internal Revenue Code to the arrangement.

    Example 3. (i) M performs services for which a fee would normally be charged to new partnership ABC, an investment partnership that will acquire a portfolio of investment assets that are not readily tradable on an established securities market. M will also contribute $500,000 in exchange for a one percent interest in ABC's capital and profits. In addition to M's one percent interest, M is entitled to receive a priority allocation and distribution of net gain from the sale of any one or more assets during any 12-month accounting period in which the partnership has overall net gain in an amount intended to approximate the fee that would normally be charged for the services M performs. A, a company that controls M, is the general partner of ABC and directs all operations of the partnership consistent with the partnership agreement, including causing ABC to purchase or sell an asset during any accounting period. A also controls the timing of distributions to M including distributions arising from M's priority allocation. Given the nature of the assets in which ABC will invest and A's ability to control the timing of asset dispositions, the amount of partnership net income or gains that will be allocable to M under the ABC partnership agreement is highly likely to be available and reasonably determinable based on all facts and circumstances available upon formation of the partnership. A will be allocated 10 percent of any net profits or net losses of ABC earned over the life of the partnership. A undertakes an enforceable obligation to repay any amounts allocated and distributed pursuant to this interest (reduced by reasonable allowances for tax payments made on A's allocable shares of partnership income and gain) that exceed 10 percent of the overall net amount of partnership profits computed over the life of the partnership (a “clawback obligation”). It is reasonable to anticipate that A could and would comply fully with any repayment responsibilities that arise pursuant to this obligation. The ABC partnership agreement satisfies the requirements for economic effect contained in § 1.704-1(b)(2)(ii), including requiring that liquidating distributions are made in accordance with the partners' positive capital account balances.

    (ii) Under paragraph (c) of this section, whether A's arrangement is treated as a payment for services in directing ABC's operations depends on the facts and circumstances. The most important factor in this facts and circumstances determination is the presence or absence of significant entrepreneurial risk. The arrangement with respect to A creates significant entrepreneurial risk under paragraph (c)(1) of this section because the allocation to A is of net profits earned over the life of the partnership, the allocation is subject to a clawback obligation and it is reasonable to anticipate that A could and would comply with this obligation, and the allocation is neither reasonably determinable nor highly likely to be available. Additionally, other relevant factors do not establish that the arrangement should be treated as a payment for services. Thus, the arrangement with respect to A does not constitute a payment for services for purposes of paragraph (b)(1) of this section.

    (iii) Under paragraph (c) of this section, whether M's arrangement is treated as a payment for services depends on the facts and circumstances. The most important factor in this facts and circumstances determination is the presence or absence of entrepreneurial risk. The priority allocation to M is an allocation of net profit from any 12-month accounting period in which the partnership has net gain, and thus it does not depend on the overall success of the enterprise. Moreover, the sale of the assets by ABC, and hence the timing of recognition of gains and losses, is controlled by A, a company related to M. Taken in combination, the facts indicate that the allocation is reasonably determinable under all the facts and circumstances and that sufficient net profits are highly likely to be available to make the priority allocation to the service provider. As a result, the allocation presumptively lacks significant entrepreneurial risk. No additional facts and circumstances establish otherwise by clear and convincing evidence. Accordingly, the arrangement provides for a disguised payment for services as of the date M and ABC enter into the arrangement and, pursuant to paragraph (b)(2)(ii) of this section, should be included in income by M in the time and manner required under applicable law as determined by applying all relevant sections of the Internal Revenue Code to the arrangement.

    (iv) Assume the facts are the same as paragraph (i) of this example, except that the partnership can also fund M's priority allocation and distribution of net gain from the revaluation of any partnership assets pursuant to § 1.704-1(b)(2)(iv)(f). As the general partner of ABC, A controls the timing of events that permit revaluation of partnership assets and assigns values to those assets for purposes of the revaluation. Under paragraph (c) of this section, whether M's arrangement is treated as a payment for services depends on the facts and circumstances. The most important factor in this facts and circumstances determination is the presence or absence of entrepreneurial risk. Under this arrangement, the valuation of the assets is controlled by A, a company related to M, and the assets of the company are difficult to value. This fact, taken in combination with the partnership's determination of M's profits by reference to a specified accounting period, causes the allocation to be reasonably determinable under all the facts and circumstances or to ensure that net profits are highly likely to be available to make the priority allocation to the service provider. No additional facts and circumstances establish otherwise by clear and convincing evidence. Accordingly, the arrangement provides for a disguised payment for services as of the date M and ABC enter into the arrangement and, pursuant to paragraph (b)(2)(ii) of this section, should be included in income by M in time and manner required under applicable law as determined by applying all relevant sections of the Internal Revenue Code to the arrangement.

    Example 4. (i) The facts are the same as in Example 3, except that ABC's investment assets are securities that are readily tradable on an established securities market, and ABC is in the trade or business of trading in securities and has validly elected to mark-to-market under section 475(f)(1). In addition, M is entitled to receive a special allocation and distribution of partnership net gain attributable to a specified future 12-month taxable year. Although it is expected that one or more of the partnership's assets will be sold for a gain, it cannot reasonably be predicted whether the partnership will have net profits with respect to its entire portfolio in that 12-month taxable year.

    (ii) Under paragraph (c) of this section, whether the arrangement is treated as a payment for services depends on the facts and circumstances. The most important factor in this facts and circumstances determination is the presence or absence of entrepreneurial risk. The special allocation to M is allocable out of net profits, the partnership assets have a readily ascertainable market value that is determined at the close of each taxable year, and it cannot reasonably be predicted whether the partnership will have net profits with respect to its entire portfolio for the year to which the special allocation would relate. Accordingly, the special allocation is neither reasonably determinable nor highly likely to be available because the partnership assets have a readily ascertainable fair market value that is determined at the beginning of the year and at the end of the year. Thus, the arrangement does not lack significant entrepreneurial risk under paragraph (c)(1) of this section. Additionally, the facts and circumstances do not establish the presence of other factors that would suggest that the arrangement is properly characterized as a payment for services. Accordingly, the arrangement does not constitute a payment for services under paragraph (b)(1) of this section.

    Example 5. (i) A is a general partner in newly-formed partnership ABC, an investment fund. A is responsible for providing management services to ABC, but has delegated that management function to M, a company controlled by A. Funds that are comparable to ABC commonly require the general partner to contribute capital in an amount equal to one percent of the capital contributed by the limited partners, provide the general partner with an interest in 20 percent of future partnership net income and gains as measured over the life of the fund, and pay the fund manager annually an amount equal to two percent of capital committed by the partners.

    (ii) Upon formation of ABC, the partners of ABC execute a partnership agreement with terms that differ from those commonly agreed upon by other comparable funds. The ABC partnership agreement provides that A will contribute nominal capital to ABC, that ABC will annually pay M an amount equal to one percent of capital committed by the partners, and that A will receive an interest in 20 percent of future partnership net income and gains as measured over the life of the fund. A will also receive an additional interest in future partnership net income and gains determined by a formula (the “Additional Interest”). The parties intend that the estimated present value of the Additional Interest approximately equals the present value of one percent of capital committed by the partners determined annually over the life of the fund. However, the amount of net profits that will be allocable to A under the Additional Interest is neither highly likely to be available nor reasonably determinable based on all facts and circumstances available upon formation of the partnership. A undertakes a clawback obligation, and it is reasonable to anticipate that A could and would comply fully with any repayment responsibilities that arise pursuant to this obligation. The ABC partnership agreement satisfies the requirements for economic effect contained in § 1.704-1(b)(2)(ii), including requiring that liquidating distributions are made in accordance with the partners' positive capital account balances.

    (iii) Under paragraph (c) of this section, whether the arrangement relating to the Additional Interest is treated as a payment for services depends on the facts and circumstances. The most important factor in this facts and circumstances determination is the presence or absence of significant entrepreneurial risk. The arrangement with respect to A creates significant entrepreneurial risk under paragraph (c)(1) of this section because the allocation to A is of net profits, the allocation is subject to a clawback obligation over the life of the fund and it is reasonable to anticipate that A could and would comply with this obligation, and the allocation is neither reasonably determinable nor highly likely to be available. Additionally, the facts and circumstances do not establish the presence of other factors that would suggest that the arrangement is properly characterized as a payment for services. Accordingly, the arrangement does not constitute a payment for services under paragraph (b)(1) of this section.

    Example 6. (i) A is a general partner in limited partnership ABC, an investment fund. A is responsible for providing management services to ABC, but has delegated that management function to M, a company controlled by A. The ABC partnership agreement provides that A must contribute capital in an amount equal to one percent of the capital contributed by the limited partners, that A is entitled to an interest in 20 percent of future partnership net income and gains as measured over the life of the fund, and that M is entitled to receive an annual fee in an amount equal to two percent of capital committed by the partners. The amount of partnership net income or gains that will be allocable to A under the ABC partnership agreement is neither highly likely to be available nor reasonably determinable based on all facts and circumstances available upon formation of the partnership. A also undertakes a clawback obligation, and it is reasonable to anticipate that A could and would comply fully with any repayment responsibilities that arise pursuant to this obligation.

    (ii) ABC's partnership agreement also permits M (as A's appointed delegate) to waive all or a portion of its fee for any year if it provides written notice to the limited partners of ABC at least 60 days prior to the commencement of the partnership taxable year for which the fee is payable. If M elects to waive irrevocably its fee pursuant to this provision, the partnership will, immediately following the commencement of the partnership taxable year for which the fee would have been payable, issue to M an interest determined by a formula in subsequent partnership net income and gains (the “Additional Interest”). The parties intend that the estimated present value of the Additional Interest approximately equals the estimated present value of the fee that was waived. However, the amount of net income or gains that will be allocable to M is neither highly likely to be available nor reasonably determinable based on all facts and circumstances available at the time of the waiver of the partnership. The ABC partnership agreement satisfies the requirements for economic effect contained in § 1.704-1(b)(2)(ii), including requiring that liquidating distributions are made in accordance with the partners' positive capital account balances. The partnership agreement also requires ABC to maintain capital accounts pursuant to § 1.704-1(b)(2)(iv) and to revalue partner capital accounts under § 1.704-1(b)(2)(iv)(f) immediately prior to the issuance of the partnership interest to M. M undertakes a clawback obligation, and it is reasonable to anticipate that M could and would comply fully with any repayment responsibilities that arise pursuant to this obligation.

    (iii) Under paragraph (c) of this section, whether the arrangements relating to A's 20 percent interest in future partnership net income and gains and M's Additional Interest are treated as payment for services depends on the facts and circumstances. The most important factor in this facts and circumstances determination is the presence or absence of significant entrepreneurial risk. The allocations to A and M do not presumptively lack significant entrepreneurial risk under paragraph (c)(1) of this section because the allocations are based on net profits, the allocations are subject to a clawback obligation over the life of the fund and it is reasonable to anticipate that A and M could and would comply with this obligation, and the allocations are neither reasonably determinable nor highly likely to be available. Additionally, the facts and circumstances do not establish the presence of other factors that would suggest that the arrangement is properly characterized as a payment for services. Accordingly, the arrangements do not constitute payment for services under paragraph (b)(1) of this section.

    Par. 5. Section 1.707-9 is amended by:

    a. Redesignating paragraph (b) as paragraph (c);

    b. Redesignating paragraph (a) as paragraph (b); and

    c. Adding new paragraph (a).

    The addition reads as follows:

    § 1.707-9. Effective dates and transitional rules.

    (a) Section 1.707-2—(1) In general. Section 1.707-2 applies to all arrangements entered into or modified after the date of publication of the Treasury decision adopting that section as final regulations in the Federal Register. To the extent that an arrangement permits a service provider to waive all or a portion of its fee for any period subsequent to the date the arrangement is created, then the arrangement is modified for purposes of this paragraph on the date or dates that the fee is waived.

    (2) Arrangements entered into or modified before final regulations are published in the Federal Register. In the case of any arrangement entered into or modified that occurs on or before final regulations are published in the Federal Register, the determination of whether the arrangement is a disguised fee for services under section 707(a)(2)(A) is to be made on the basis of the statute and the guidance provided regarding that provision in the legislative history of section 73 of the Tax Reform Act of 1984 (Pub. L. 98-369, 98 Stat. 494). See H.R. Rep. No. 861, 98th Cong., 2d Sess. 859-2 (1984); S. Prt. No. 169 (Vol. I), 98th Cong., 2d Sess. 223-32 (1984); H.R. Rep. No. 432 (Pt. 2), 98th Cong., 2d Sess. 1216-21 (1984).

    Par. 6. Section 1.736-1 is amended by adding a sentence at the end of paragraph (a)(1)(i) to read as follows:
    § 1.736-1. Payments to a retiring partner or a deceased partner's successor in interest.

    (a) * * *

    (1)(i) * * * Section 736 does not apply to arrangements treated as disguised payments for services under § 1.707-2.

    John Dalrymple, Deputy Commissioner for Services and Enforcement.
    [FR Doc. 2015-17828 Filed 7-22-15; 8:45 am] BILLING CODE 4830-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2015-0189; FRL-9931-02-Region 6] Approval and Promulgation of Implementation Plans; Arkansas; Regional Haze and Interstate Visibility Transport Federal Implementation Plan; Reopening of Comment Period AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule, reopening of comment period.

    SUMMARY:

    The Environmental Protection Agency (EPA) is reopening the comment period for a proposed rule to establish a Clean Air Act (CAA) Federal Implementation Plan (FIP) to address regional haze and visibility transport requirements for the State of Arkansas. The EPA is reopening the public comment period for the proposed rule for an additional 15 days from the date of today's publication. The reopening of the comment period is in response to a request submitted by the Domtar Ashdown Mill to extend the comment period.

    DATES:

    The comment period for the proposed rule published on April 8, 2015 (80 FR 18944), extended on May 1, 2015 (80 FR 24872), is reopened. Written comments must be received on or before August 7, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket No. EPA-R06-OAR-2015-0189, by one of the following methods:

    Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.

    Email: [email protected]

    Mail: Guy Donaldson, Chief, Air Planning Section (6PD-L), Environmental Protection Agency, 1445 Ross Avenue, Suite 1200, Dallas, Texas 75202-2733.

    Hand or Courier Delivery: Guy Donaldson at the address above. Such deliveries are accepted only between the hours of 8 a.m. and 4 p.m. weekdays, and not on legal holidays. Special arrangements should be made for deliveries of boxed information.

    Fax: Guy Donaldson at (214) 665-7263.

    Instructions: Direct your comments to Docket No. EPA-R06-OAR-2015-0189. Our policy is that all comments received will be included in the public docket without change and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means we will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to us without going through www.regulations.gov your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, we recommend that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If we cannot read your comment due to technical difficulties and cannot contact you for clarification, we may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

    Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI).

    FOR FURTHER INFORMATION CONTACT:

    Dayana Medina, (214) 665-7241; [email protected] To inspect the hard copy materials, please schedule an appointment with Ms. Medina.

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA.

    On April 8, 2015, we published in the Federal Register a proposal to establish a FIP for the State of Arkansas addressing regional haze and visibility transport (80 FR 18944). Comments on the proposed rule were required to be received by May 16, 2015. On May 1, 2015 (80 FR 24872), we published in the Federal Register a document that announced the availability in the docket of supplemental modeling performed by us and extended the comment period until July 15, 2015, to allow interested persons additional time to prepare and submit comments.

    On July 6, 2015, we received a request from the Domtar Ashdown Mill to extend the comment period for an additional 45 days for the purpose of allowing it to complete modeling work and submit to us information it believes to be essential and related to a significant aspect of the proposed FIP requirements for the Domtar Ashdown Mill. On July 13, 2015, we received a renewed and revised request from the Domtar Ashdown Mill to extend the comment period until August 4, 2015. Given that the comment period closed on July 15, 2015, we are unable to extend the comment period, but will reopen the comment period for 15 days from the date of today's publication. We will also consider any comments submitted to us in the interim period following the close of the public comment period on July 15, 2015, and prior to today's publication. This reopening will allow the Domtar Ashdown Mill and other interested persons additional time to submit comments to us.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Best available control technology, Incorporation by reference, Intergovernmental relations, Interstate transport of pollution, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxides, Regional haze, Visibility.

    Dated: July 15, 2015. Wren Stenger, Multimedia Planning and Permitting Division Director, Region 6.
    [FR Doc. 2015-17990 Filed 7-22-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2010-0460; A-1-FRL-9930-93-Region 1] Approval and Promulgation of Air Quality Implementation Plans; Rhode Island; Control of Volatile Organic Compounds from Adhesives and Sealants AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Rhode Island. This revision includes a regulation adopted by Rhode Island that establishes and requires Reasonably Available Control Technology (RACT) for volatile organic compound (VOC) sources of emissions from miscellaneous adhesives and sealants. The intended effect of this action is to propose to approve Rhode Island's Air Pollution Control Regulation No. 44, “Control of Volatile Organic Compounds from Adhesives and Sealants,” into the Rhode Island SIP. This action is being taken in accordance with the Clean Air Act.

    DATES:

    Written comments must be received on or before August 24, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R01-OAR-2010-0460 by one of the following methods:

    1. www.regulations.gov: Follow the on-line instructions for submitting comments.

    2. Email: [email protected]. Fax: (617) 918-0047.

    3. Mail: EPA-R01-OAR-2010-0460, Anne Arnold, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912. Hand Delivery or Courier. Deliver your comments to: Anne Arnold, Manager, Air Quality Planning Unit, Office of Ecosystem Protection, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912. Such deliveries are only accepted during the Regional Office's normal hours of operation. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays.

    Please see the direct final rule which is located in the Rules Section of this Federal Register for detailed instructions on how to submit comments.

    FOR FURTHER INFORMATION CONTACT:

    David Mackintosh, Air Quality Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912, telephone number (617) 918-1584, fax number (617) 918-0584, email [email protected]

    SUPPLEMENTARY INFORMATION:

    In the Rules and Regulations section of this Federal Register, EPA is approving the State's SIP submittal as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule. If no adverse comments are received in response to the rule, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of the rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

    For additional information, see the direct final rule which is located in the Rules and Regulations section of this Federal Register.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: June 18, 2015. H. Curtis Spalding, Regional Administrator, EPA New England.
    [FR Doc. 2015-17851 Filed 7-22-15; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2014-0759; FRL-9930-95-Region-3] Approval and Promulgation of Air Quality Implementation Plans; District of Columbia, Maryland, and Virginia; 2011 Base Year Emissions Inventories for the Washington, DC-MD-VA Nonattainment Area for the 2008 Ozone National Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) proposes to approve State Implementation Plan (SIP) revisions submitted by the District of Columbia, the State of Maryland, and the Commonwealth of Virginia (collectively, the States). The submittals are comprised of the 2011 base year carbon monoxide (CO) emissions inventories for the Washington, DC-MD-VA nonattainment area for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS). In the Rules and Regulations section of this Federal Register, EPA is approving the States' SIP submittals as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. A detailed rationale for the approval is set forth in the direct final rule and EPA's Technical Support Document (TSD) prepared in support of this rulemaking action. The TSD is available in the Docket for this rulemaking action. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

    DATES:

    Comments must be received in writing by August 24, 2015.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R03-OAR-2014-0759 by one of the following methods:

    A. www.regulations.gov. Follow the on-line instructions for submitting comments.

    B. Email: [email protected]

    C. Mail: EPA-R03-OAR-2014-0759, Cristina Fernandez, Associate Director, Office of Air Program Planning, Mailcode 3AP30, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103.

    D. Hand Delivery: At the previously-listed EPA Region III address. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

    Instructions: Direct your comments to Docket ID No. EPA-R03-OAR-2014-0759. EPA's policy is that all comments received will be included in the public docket without change, and may be made available online at www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through www.regulations.gov or email. The www.regulations.gov Web site is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the Internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

    Docket: All documents in the electronic docket are listed in the www.regulations.gov index. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically in www.regulations.gov or in hard copy during normal business hours at the Air Protection Division, U.S. Environmental Protection Agency, Region III, 1650 Arch Street, Philadelphia, Pennsylvania 19103. Copies of the State submittal are available at the District of Columbia Department of the Environment, Air Quality Division, 1200 1st Street NE., 5th Floor, Washington, DC 20002; the Maryland Department of the Environment, 1800 Washington Boulevard, Suite 705, Baltimore, Maryland 21230; and the Virginia Department of Environmental Quality, 629 East Main Street, Richmond, Virginia 23219.

    FOR FURTHER INFORMATION CONTACT:

    Marilyn Powers, (215) 814-2308, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    For further information, please see the information provided in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this Federal Register publication.

    Dated: July 10, 2015. William C. Early, Acting Regional Administrator, Region III.
    [FR Doc. 2015-17976 Filed 7-22-15; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 571 [Docket No. NHTSA-2015-0070] RIN 2127-AL57 Rear Impact Protection, Lamps, Reflective Devices, and Associated Equipment, Single Unit Trucks AGENCY:

    National Highway Traffic Safety Administration (NHTSA), Department of Transportation.

    ACTION:

    Advance notice of proposed rulemaking (ANPRM).

    SUMMARY:

    NHTSA is issuing this ANPRM following a July 10, 2014 grant of a petition for rulemaking from Ms. Marianne Karth and the Truck Safety Coalition (petitioners) regarding possible amendments to the Federal motor vehicle safety standards (FMVSSs) relating to rear impact (underride) guards. The petitioners request that NHTSA require underride guards on vehicles not currently required by the FMVSSs to have guards, notably, single unit trucks, and improve the standards' requirements for all guards, including guards now required for heavy trailers and semitrailers. Today's ANPRM requests comment on NHTSA's estimated cost and benefits of requirements for underride guards on single unit trucks, and for retroreflective material on the rear and sides of the vehicles to improve the conspicuity of the vehicles to other motorists. Separately, NHTSA plans to issue a notice of proposed rulemaking proposing to upgrade the requirements for all guards.

    DATES:

    You should submit your comments early enough to ensure that the docket receives them not later than September 21, 2015.

    ADDRESSES:

    You may submit comments to the docket number identified in the heading of this document by any of the following methods:

    • Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting comments.

    • Mail: Docket Management Facility, M-30, U.S. Department of Transportation, West Building, Ground Floor, Rm. W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

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    • Fax: (202) 493-2251.

    Regardless of how you submit your comments, please mention the docket number of this document.

    You may also call the Docket at 202-366-9324.

    Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading of the Supplementary Information section of this document. Note that all comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

    Privacy Act: Please see the Privacy Act heading under Rulemaking Analyses and Notices.

    FOR FURTHER INFORMATION CONTACT:

    For technical issues, you may contact Robert Mazurowski, Office of Crashworthiness Standards (telephone: 202-366-1012) (fax: 202-493-2990). For legal issues, you may contact Deirdre Fujita, Office of Chief Counsel (telephone: 202-366-2992) (fax: 202-366-3820). The address for these officials is: National Highway Traffic Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building, Washington, DC 20590.

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Introduction II. Overview III. Extending FMVSS No. 224, “Rear Impact Protection,” to SUTs a. 2013 NHTSA/UMTRI Study b. NHTSA's Cost-Benefit Analysis (Overview) IV. Request for Comment on Extension of FMVSS No. 224 V. Amending FMVSS No. 108, “Lamps, Reflective Devices, and Associated Equipment,” To Improve the Conspicuity of SUTs a. 2001 NHTSA Evaluation b. NHTSA's Preliminary Estimate of Cost and Benefits of Requiring Tape on SUTs VI. Request for Comment on Requiring Retroreflective Tape on SUTs VII. Rulemaking Analyses VIII. Submission of Comments

    Appendix A to Preamble: Cost-Benefit Evaluation of Requiring Single Unit Trucks (SUTs) To Have CMVSS No. 223 Guards

    Appendix B to Preamble: Summary of IIHS's Evaluation of Rear Impact Guards

    I. Introduction

    NHTSA is issuing this ANPRM following a July 10, 2014 grant 1 of a petition for rulemaking from petitioners Ms. Marianne Karth and the Truck Safety Coalition regarding possible amendments to the FMVSSs regulating underride guards. The petitioners request that NHTSA require underride guards on vehicles not currently required by the FMVSSs to have guards, notably, single unit trucks (SUTs),2 and improve the standards' requirements for all guards, including guards now required for heavy trailers and semitrailers.

    1 79 FR 39362.

    2 SUTs are trucks with a gross vehicle weight rating (GVWR) greater than 4,536 kilograms (kg) (10,000 pounds (lb)) with no trailer. They are primarily straight trucks, in which the engine, cab, drive train, and cargo area are mounted on one chassis. SUTs are the most commonly used truck, and are used extensively in all urban areas for short-haul operation, generally 321.87 kilometers (km) (200 miles) or less. SUTs are often designed to perform a specific task. Common examples of SUTs are dump trucks, garbage haulers, concrete mixers, tank trucks, trash trucks, and local delivery trucks.

    The July 10, 2014 grant document announced that NHTSA would be pursuing possible rulemaking through two separate actions. The first action would be an ANPRM pertaining to rear impact guards for SUTs and other safety strategies not currently required for those vehicles. Today's ANPRM completes that step, requesting comment on NHTSA's estimated cost and benefits of requiring underride guards and estimated cost and benefits of requiring retroreflective material on the rear and sides of the vehicles to improve the conspicuity of the vehicles to other motorists. In the near future, NHTSA will be issuing the second action, a notice of proposed rulemaking (NPRM) to upgrade the FMVSSs for underride guards for vehicles subject to the current standards.3

    3 NHTSA is in the process of evaluating petitioners' request to require side guards and front override guards by way of research and will issue a separate decision on those aspects of the petitions at a later date.

    II. Overview

    NHTSA is undertaking rulemaking to upgrade FMVSS No. 223, “Rear impact guards,” and FMVSS No. 224, “Rear impact protection,” which together establish rear underride protection for vehicles subject to the standards. This ANPRM comprises the first step of a larger agency initiative to upgrade the standards.

    Rear underride crashes are those in which the front end of a vehicle impacts the rear of a generally larger vehicle, and slides under the chassis of the rear-impacted vehicle. Underride may occur to some extent in collisions in which a small passenger vehicle crashes into the rear end of a large SUT or trailer because the SUT or trailer bed is higher than the hood of the passenger vehicle. In passenger compartment intrusion (PCI) crashes, the passenger vehicle underrides so far that the rear end of the struck vehicle strikes and enters the passenger compartment. PCI crashes can result in passenger vehicle occupant injuries and fatalities caused by occupant contact with the rear end of the struck vehicle.

    FMVSS Nos. 223 and 224 were issued in 1996 to prevent PCI by upgrading then-existing underride guards to make them stronger but energy-absorbing as well. The agency was concerned that overly rigid guards may prevent PCI but could stop the passenger vehicle too suddenly, resulting in excessive occupant compartment deceleration forces which could harm passenger vehicle occupants.

    NHTSA established the two-standard approach to underride protection to reduce test burdens on small trailer manufacturers. FMVSS No. 223, an “equipment standard,” specifies performance requirements that rear impact guards must meet to be sold for installation on new trailers and semitrailers. The guard may be tested for compliance while mounted to a test fixture or to a complete trailer. FMVSS No. 224, a “vehicle standard,” requires most new trailers and semitrailers with a gross vehicle weight rating of 4,536 kilograms (kg) (10,000 pounds (lb)) or more to be equipped with a rear impact guard meeting FMVSS No. 223. The vehicle standard requires that the guard be mounted on the trailer or semitrailer in accordance with the instructions provided with the guard by the guard manufacturer. Under this approach, a small manufacturer that produces relatively few trailers can certify its trailers to FMVSS No. 224 without feeling compelled to undertake destructive testing of what could be a substantial portion of its production. The two-standard approach provides a practicable and reasonable means of meeting the safety need served by an underride guard requirement.

    FMVSS No. 224 only applies to trailers and semitrailers with GVWR greater than 4,536 kg (10,000 lb).4 The agency excluded SUTs from FMVSS No. 224 requirements because it was concerned that the variety, complexity, and relatively lower weight and chassis strength of many SUTs would require guards that are substantially more costly than the guards for trailers. Additionally, field data indicated that the rear end fatality problem was more prominent in trailers than in SUTs. While SUTs represented 72 percent of the registered heavy vehicle fleet, they only represented 27 percent of the rear end fatalities.

    4 Excluded from FMVSS No. 224 are pole trailers, logging trailers, low chassis trailers (trailers where the ground clearance of the chassis is no more than 560 mm (22 inches)), wheels back trailers (trailers with rearmost point of rear wheels within 305 mm (12 inches) of the rear extremity of the trailer), and special purpose trailers (trailers with equipment in the rear and those intended for certain special operations). The exclusions are based on practical problems with meeting the standard or an absence of a need to meet the standard due to vehicle configuration.

    However, there are Federal requirements now in place ensuring that SUTs provide some degree of rear impact protection. Federal Motor Carrier Safety Regulation (FMCSR) No. 393.86(b), “Rear impact guards and rear end protection,” (49 CFR 393.86(b), “FMCSR 393.86(b)”) has rear impact protection requirements for certain SUTs utilized in interstate commerce.5 The regulation requires that the horizontal member of the rear impact guard be located such that its bottom surface is not more than 760 millimeters (mm) (30 inches) vertically above ground level (ground clearance), its rear surface is not more than 610 mm (24 inches) forward of the rear extremity of the vehicle, and that it laterally extends to within 460 mm (18 inches) of each side of the vehicle. The regulation requires the guard to be “substantially constructed and attached by means of bolts, welding, or other comparable means.” FMCSA's regulation also ensures that carriers maintain the mandated device throughout the life of the vehicle.

    5 FMCSR 393.86(b) excludes SUTs in driveaway-towaway operations, low chassis vehicles (vertical distance between the rear bottom edge of the body and the ground is 762 mm or lower), wheels back vehicles (the rear of tires is less than 610 mm forward of the rear extremity of the vehicle), special purpose vehicles, and vehicles with equipment that reside in the area of the guard and provide the rear impact protection comparable to rear impact guards.

    Current Work

    NHTSA's interest in this rulemaking originated from the findings of a 2009 NHTSA study 6 to evaluate why fatalities were still occurring in frontal crashes despite high rates of seat belt use and the presence of air bags and other advanced safety features. NHTSA reviewed all cases of frontal crash fatalities to belted drivers or right-front passengers in model year (MY) 2000 or newer vehicles in the Crashworthiness Data System of the National Automotive Sampling System (NASS-CDS) through calendar year 2007. Among the 122 fatalities examined in this review, 49 (40 percent) were in exceedingly severe crashes that were not survivable, 29 (24 percent) were in oblique or corner impact crashes where there was low engagement of the striking vehicle's structural members (a factor which would have resulted in the striking vehicle absorbing more of the crash energy), and 17 (14 percent) were underrides into SUTs and trailers (14 were rear underride and 3 were side underride).7 In survivable frontal crashes of newer vehicle models resulting in fatalities to belted vehicle occupants, rear underrides into large SUTs and trailers were the second highest cause of fatality.

    6 Kahane, et al. “Fatalities in Frontal Crashes Despite Seat Belts and Air Bags—Review of All CDS Cases—Model and Calendar Years 2000-2007-122 Fatalities,” September 2009, DOT-HS-811102.

    7 In addition, 15 (12 percent) were fatalities to vulnerable occupants (occupants 75 years and older), 4 (3.3 percent) were narrow object impacts, and 8 (6.6 percent) were other types of impact conditions.

    In 2010, NHTSA analyzed several data sources to determine the effectiveness of trailer rear impact guards compliant with FMVSS Nos. 223 and 224 in preventing fatalities and serious injuries.8 While the agency's analysis of the Fatality Analysis Reporting System (FARS) could not establish a nationwide downward trend in fatalities to passenger vehicle occupants in impacts with the rear of trailers subsequent to the implementation of FMVSS Nos. 223 and 224, supplemental data collected in Florida and North Carolina showed decreases in fatalities and serious injuries. However, the observed decrease in fatalities in these two States was not statistically significant, possibly due to small sample sizes of the data.

    8 Allen, Kirk “The Effectiveness of Underride Guards for Heavy Trailers,” October, 2010, DOT HS 811 375.

    Following these studies, NHTSA undertook research to examine the agency's underride protection requirements, highlighting this program as a significant one in the “NHTSA Vehicle Safety and Fuel Economy Rulemaking and Research Priority Plan 2011-2013 (March 2011).”

    One of the resulting research projects began in 2009, as NHTSA initiated research with the University of Michigan Transportation Research Institute (UMTRI) to gather data on the rear geometry of SUTs and trailers, the configuration of rear impact guards on SUTs and trailers, and the incidence and extent of underride and fatalities in rear impacts with SUTs and trailers. UMTRI collected the supplemental information as part of its Trucks Involved in Fatal Accidents (TIFA) survey for the years 2008 and 2009.9 10 These data enabled NHTSA to obtain national estimates of rear impact crashes into heavy vehicles that resulted in PCI. Details of the UMTRI study, completed in 2013, are discussed in detail below in the next section of this preamble. The findings with regard to SUTs particularly pertain to this ANPRM.

    9 Analysis of Rear Underride in Fatal Truck Crashes, 2008, DOT HS 811 652, August 2012.

    10 Heavy-Vehicle Crash Data Collection and Analysis to Characterize Rear and Side Underride and Front Override in Fatal Truck Crashes, DOT HS 811 725, March 2013.

    More data were obtained in 2011 from the Insurance Institute for Highway Safety (IIHS), which had petitioned NHTSA to upgrade FMVSS No. 223 and FMVSS No. 224 to improve the strength and energy-absorbing capabilities of rear impact guards. IIHS provided analyses of data from DOT's Large Truck Crash Causation Study (LTCCS) and from a series of 56 kilometers per hour (km/h) (35 miles per hour (mph)) impact speed passenger car-to-trailer rear impact crash tests IIHS conducted. (We provide a discussion of the IIHS tests in Appendix B to this preamble.) 11 IIHS believes that trailers with rear impact guards compliant with the Canada Motor Vehicle Safety Standard (CMVSS) for underride guards (CMVSS No. 223) were significantly superior to FMVSS No. 224 in mitigating PCI of the striking passenger car. The information submitted by IIHS is particularly pertinent to the upcoming NPRM which will propose upgrades to FMVSS No. 223 and 224.

    11 Details of the tests are in Brumbelow, M.L., “Crash Test Performance of Large Truck Rear Impact Guards,” 22nd International Conference on the Enhanced Safety of Vehicles (ESV), 2011. http://www-nrd.nhtsa.dot.gov/pdf/esv/esv22/22ESV-000074.pdf.

    Purpose of This ANPRM

    In this ANPRM, the agency requests comments that would help NHTSA assess and make judgments on the benefits, costs and other impacts of strategies that increase the crash protection to occupants of vehicles crashing into the rear of SUTs and/or that increase the likelihood of avoiding a crash into SUTs. Strategies discussed in this ANPRM are possible amendments to the FMVSSs to: (a) Expand FMVSS Nos. 223 and 224, to require upgraded guards on SUTs; and (b) amend FMVSS No. 108, “Lamps, reflective devices, and associated equipment,” to require the type of retroreflective material on the rear and sides of SUTs that is now required to be placed on the rear and sides of trailers to improve the conspicuity of the vehicles to other motorists.

    III. Extending FMVSS No. 224, Rear Impact Protection, to SUTs a. 2013 NHTSA/UMTRI Study

    In 2009, the agency initiated an in-depth field analysis to obtain a greater understanding of the characteristics of underride events and factors contributing to such crashes. NHTSA sought this information to assess the need for and impacts of possible amendments to the FMVSSs to reduce severe passenger vehicle underride in truck/trailer rear end impacts.

    NHTSA published the first phase of the field analysis in 2012,12 and published the final report in March 2013. The reports analyze 2008-2009 data collected as a supplement to UMTRI's TIFA survey.13 The TIFA survey contains data for all the trucks with a GVWR greater than 4,536 kg (10,000 lb) (“medium and heavy trucks”) that were involved in fatal traffic crashes in the 50 U.S. States and the District of Columbia. TIFA data contains additional detail beyond the information contained in NHTSA's Fatality Analysis Reporting System (FARS).

    12 Analysis of Rear Underride in Fatal Truck Crashes, DOT HS 811 725, August 2012. Also available at http://www.nhtsa.gov/Research/Crashworthiness/Truck%20Underride, last accessed on November 24, 2014.

    13 Heavy-Vehicle Crash Data Collection and Analysis to Characterize Rear and Side Underride and Front Override in Fatal Truck Crashes, DOT HS 811 725, March 2013. Also available at http://www.nhtsa.gov/Research/Crashworthiness/Truck%20Underride, last accessed on July 24, 2014.

    NHTSA contracted UMTRI to collect supplemental data for 2008 and 2009 as part of the TIFA survey. The supplemental data included the rear geometry of the SUTs and trailers; type of equipment at the rear of the trailer, if any; whether a rear impact guard was present; the type of rear impact guard; and, the standards the guard was manufactured to meet. For SUTs and trailers involved in fatal rear impact crashes, additional information was collected on: the extent of underride; damage to the rear impact guard; estimated impact speeds; and whether the collision was offset or had fully engaged the guard.

    NHTSA derived average annual estimates from the 2008 and 2009 TIFA data files and the supplemental information collected in the 2013 UMTRI study. The agency's review of these files found that there are 3,762 SUTs and trailers involved in fatal accidents annually, among which trailers accounted for 2521 (67 percent), SUTs for 1080 (29 percent), tractor alone for 66 (1.5 percent), and unknown for the remaining 95 (2.5 percent).14 About 489 SUTs and trailers are struck in the rear in fatal crashes annually, constituting about 13 percent of all SUTs and trailers in fatal crashes. Among rear impacted SUTs and trailers in fatal crashes, 331 (68 percent) are trailers, 151 (31 percent) are SUTs, and 7 (1 percent) are tractors alone.

    14 “Bobtail” and “tractor/other” configurations were combined into “others” category and “tractor/trailer” and “straight trucks with trailer” were combined into “trailers” category.

    Presence of Rear Impact Guard on Heavy Vehicles

    UMTRI evaluated 2008 and 2009 TIFA data regarding the rear geometry of the trailers and SUTs involved in all fatal crashes (not just those rear-impacted) to assess whether the vehicle had to have a guard under FMVSS No. 224 (regarding trailers) or the Federal Motor Carrier Safety Administration's (FMCSA's) Federal Motor Carrier Safety Regulation (FMCSR) No. 393.86(b) (49 CFR 393.86(b), “FMCSR 393.86(b)”) (regarding SUTs).15 Based on this evaluation, UMTRI estimated that 38 percent of the SUTs involved in fatal crashes were required to have rear impact guards (based on the truck rear geometry according to FMCSR 393.86(b)) (Table 1). However, only 18 percent of SUTs were equipped with rear impact guards (Table 1). It is likely that the remaining 20 percent of the SUTs that were configured such that they would be subject to FMCSR 393.86(b) based on vehicle design, but that did not have a guard, were not used in interstate commerce. Among the 62 percent of SUTs that were excluded from installing rear impact guards by the FMCSR, 27 percent were wheels back SUTs,16 9 percent were low chassis SUTs,17 2 percent were wheels back and low chassis SUTs, and 16 percent had equipment in the rear that interfered with rear impact guard installation (see Table 1). UMTRI also estimated that 65 percent of trailers had to have a rear impact guard per FMVSS No. 224 and the remaining were excluded because of their rear geometry, equipment in the rear, or type of cargo or operation.

    15 UMTRI only evaluated the rear geometry to determine whether a SUT's configuration qualified the vehicle as subject to FMCSR 393.86(b). It did not determine how the truck was operated and whether it was used in interstate commerce.

    16 Wheels back SUTs according to FMCSR 393.86(b) is where the rearmost axle is permanently fixed and is located such that the rearmost surface of tires is not more than 610 mm forward of the rear extremity of the vehicle.

    17 Low chassis SUTs according FMCSR 393.86(b) is where the rearmost part of the vehicle includes the chassis and the vertical distance between the rear bottom edge of the chassis assembly and the ground is less than or equal to 762 mm (30 inches).

    Table 1—Percentage of SUTs by Their Rear Geometry and Whether a Rear Impact Guard Was Required According to UMTRI's Evaluation of SUTs Involved in Fatal Crashes in the 2008-2009 TIFA Data Files Type of rear geometry Percentage of SUTs Rear Impact Guard Required: Guard present 18 Guard not present 20 Rear Impact Guard Not Required: Excluded vehicle 8 Wheels back vehicle 27 Low chassis vehicle 9 Wheels back and low chassis vehicle 2 Equipment 16

    Since the data presented in Table 1 takes into consideration all SUTs involved in all types of fatal crashes in 2008 and 2009 (total of 2,159 SUTs), we assume that the percentage of SUTs with and without rear impact guards in Table 1 is representative of that in the SUT fleet.

    Light Vehicle Fatal Crashes Into the Rear of Trailers and SUTs

    Among the types of vehicles that impacted the rear of trailers and SUTs, 73 percent were light vehicles,18 18 percent were large trucks, 7.4 percent were motorcycles, and 1.7 percent were other/unknown vehicle types. Since we do not expect trucks and buses to underride other trucks in rear impacts, the data presented henceforth only apply to light vehicles impacting the rear of trailers and SUTs.

    18 UMTRI categorized passenger cars, compact and large sport utility vehicles, minivans, large vans (e.g. Econoline and E150-E350), compact pickups (e.g., S-10, Ranger), and large pickups (e.g Ford F100-350, Ram, Silverado) as light vehicles.

    Underride Extent in Fatal Crashes of Light Vehicles Into the Rear of SUTs

    In the UMTRI study of 2008 and 2009 TIFA data, survey respondents estimated the amount of underride in terms of the amount of the striking vehicle that went under the rear of the struck vehicle and/or the extent of deformation or intrusion of the vehicle. The categories were “no underride,” “less than halfway up the hood,” “more than halfway but short of the base of the windshield,” and “at or beyond the base of the windshield.” When the extent of underride is “at or beyond the base of the windshield,” there is PCI that could result in serious injury to occupants in the vehicle. Rear impacts into heavy vehicles could result in some level of underride without PCI when the rear impact guard prevents the impacting vehicle from traveling too far under the heavy vehicle during impact. Such impacts into the rear of heavy vehicles without PCI may not pose additional crash risk to light vehicle occupants than that in crashes with another light vehicle at similar crash speeds.

    The data show that about 319 light vehicle fatal crashes into the rear of trailers and trucks occur annually. UMTRI determined that about 36 percent (121) of light vehicle impacts into the rear of trailers and trucks resulted in PCI. Among fatal light vehicle impacts, the frequency of PCI was greatest for passenger cars and sport utility vehicles (SUVs) (40 and 41.5 percent, respectively) and lowest for large vans and large pickups (25 and 26 percent respectively), as shown in Figure 1 below. Since the extent of underride was also determined by the extent of deformation and intrusion of the vehicle, it was observed in a number of TIFA cases that large vans and large pickups did not actually underride the truck or trailer but sustained PCI because of the high speed of the crash and/or because of the very short front end of the vehicle.

    EP23JY15.000

    Fatal light vehicle crashes into the rear of trucks and trailers were further examined by the type of truck and trailer struck and whether a guard was required (according to FMCSR 393.86(b) for SUTs and FMVSS No. 224 for trailers) (Figure 2 and Figure 3).

    19 The extent of underride in this and subsequent figures and tables means the following: None means “no underride”; less than halfway means “underride extent of less than halfway up the hood”; halfway+ means “underride extent at or more than halfway up the hood but short of the base of the windshield”; windshield+ means “extent of underride at or beyond the base of the windshield” or PCI.

    Among the 319 fatal light vehicle crashes into the rear of SUTs and trailers, 79 (25 percent) are into SUTs without any guards, 23 (7 percent) are into SUTs with guards, 115 (36 percent) are into trailers with guards, and 102 (32 percent) are into excluded trailers without guards and other truck/trailer type. (Figure 2).

    EP23JY15.001

    Among these annual light vehicle fatal crashes, 121 result in PCI, among which 23 (19 percent) occur in impacts with SUTs without guards, 8 (7 percent) in impacts with SUTs with guards, 62 (51 percent) in impacts with trailers with guards, and 28 (23 percent) with excluded trailers and other truck/trailer type (Figure 3).20

    20 Underride extent was determined for 303 light vehicles, about 95 percent of the 319 light vehicle impacts into the rear of trailers and trucks. Unknown underride extent was distributed among known underride levels.

    EP23JY15.002

    It is noteworthy that trailers with guards represent 36 percent of annual light vehicle fatal rear impacts but represent 51 percent of annual light vehicle fatal rear impacts with PCI. On the other hand, SUTs (with and without guards) represent 32 percent of annual light vehicle fatal rear impacts but represent 26 percent of annual light vehicle fatal rear impacts with PCI. The field data suggest that there are more light vehicle fatal impacts into the rear of trailers than SUTs and a higher percentage of fatal light vehicle impacts into the rear of trailers involve PCI than those into the rear of SUTs.

    Relative Speed of Light Vehicle Fatal Crashes Into the Rear of SUTs

    Using information derived by reviewing police crash reports,21 UMTRI estimated the relative velocity of fatal light vehicle crashes into the rear of SUTs and trailers. Relative velocity was computed as the resultant of the difference in the truck velocity and the striking vehicle velocity and could only be estimated for about 30 percent of light vehicle fatal crashes into the rear of trailers and SUTs. Most of the crashes (with known relative velocity) were at a very high relative velocity and many were not survivable. The mean relative velocity at impact into the rear of trailers and SUTs was estimated at 44 mph. Among fatal light vehicle impacts into the rear of SUTs that resulted in PCI, 70 percent were with relative velocity greater than 56 km/h (35 mph). Among the remaining 30 percent fatal light vehicle impacts into the rear of SUTs, 3 percent of the SUTs had rear impact guards, 10 percent of the SUTs could be required to have a guard based on rear geometry but did not have a guard, 3 percent were excluded from requiring a guard (wheels back, low chassis vehicles), and 14 percent had equipment in the rear precluding rear impact guards.

    21 Information included police estimates of travel speed, crash narrative, crash diagram, and witness statements. The impact speed was estimated from the travel speed, skid distance, and an estimate of the coefficient of friction.

    EP23JY15.003 Fatalities Associated With Light Vehicle Crashes Into the Rear of SUTs and Trailers

    There are about 362 light vehicle occupant fatalities annually due to impacts into the rear of SUTs and trailers.22 Of these fatalities, 104 (29 percent) are in impacts with SUTs, 125 (35 percent) are in impacts with trailers with guards, and 133 (37 percent) are in impacts with excluded trailers and other truck/trailer type (Figure 5).

    22 Thus, the 319 fatal crashes result in 362 fatalities, or 1.13 fatalities per fatal crash.

    Among the 104 light vehicle occupant fatalities resulting from impacts with the rear of SUTs, 80 occurred in impacts with SUTs without rear impact guards while the remaining 24 were in impacts to SUTs with guards. PCI was associated with 33 annual light vehicle occupant fatalities resulting from impacts into the rear of SUTs; 25 of these fatalities were in impacts with SUTs without rear impact guards and 8 with SUTs with guards (see Figure 5).

    EP23JY15.004

    Among light vehicle occupant fatalities in impacts into the rear of SUTs, approximately 70 percent were in vehicles with no underride, underride less than halfway or underride up to the hood without PCI. The agency found that in a number of TIFA cases reviewed, fatalities occurred due to occupants being unrestrained, other occupant characteristics (e.g. age), and other crash circumstances. Additionally, as shown in Figure 4, only 30 percent of light vehicle impacts with PCI into the rear of SUTs had a relative velocity less than or equal to 56 km/h (35 mph). Since currently manufactured light vehicles are subject to FMVSS No. 208 requirements that ensure adequate occupant crash protection to restrained occupants in a 56 km/h (35 mph) rigid barrier frontal crash test, some light vehicle occupant fatalities in impacts into the rear of SUTs and trailers at speeds less than or equal to 56 km/h (35 mph) that resulted in PCI may be preventable if intrusion into the passenger compartment were mitigated.24

    23 This figure presents the target population for SUTs and trailers for use in determining benefits. The data in this figure cannot be used to determine effectiveness of the current rear impact guards on SUTs since many SUTs that do not have guards have equipment in the rear, or are low chassis or wheels back vehicles. Such rear configurations would limit underride without the need for a guard. In other words, this table in itself does not provide sufficient information to conclude that current rear impact guards on SUTs are not effective in preventing PCI. There are no data that would enable us to compare fatality rates in crashes into the rear of SUTs with guards and crashes into the rear of SUTs that would have needed guards per rear geometry but didn't have them. For this reason we did not make any inferences on the effectiveness of the current guards based on the data in Figure 5.

    24 Some of the fatalities associated with PCI shown in Figure 2 may also be due to unrestrained status of the occupant.

    b. NHTSA's Cost-Benefit Analysis (Overview)

    As part of its evaluation of whether an underride guard requirement should apply to SUTs, NHTSA conducted a cost-benefit analysis of equipping SUTs with rear impacts guards. The analysis is set forth in Appendix A of this preamble, and an overview is provided below. We are requesting comments on the analysis.

    Preliminary Estimate of Cost of Requiring CMVSS No. 223 Guards

    FMVSS Nos. 223 and 224 requirements were developed to prevent PCI in 48 km/h (30 mph) impacts of compact and subcompact passenger cars into the rear of trailers. CMVSS No. 223 performance requirements were developed to prevent PCI in 56 km/h (35 mph) impacts. The crash tests conducted by IIHS (see Appendix B) indicated the improved performance of rear impact guards designed to CMVSS No. 223 compared to guards designed to FMVSS No. 223. The rear impact guard geometric specifications in CMVSS No. 223 cover a larger portion of the truck rear extremity than those specified in FMCSR 393.86(b). Additionally, there are no strength specifications for rear impact guards in FMCSR 393.86(b). Since a high percentage of crashes into the rear of SUTs are at high speeds, it is unlikely that equipping all SUTs with FMCSR 393.86(b) would sufficiently mitigate light vehicle occupant fatalities in PCI crashes into the rear of SUTs. For these reasons, NHTSA estimated the cost and benefits of requiring SUTs to comply with the requirements of CMVSS No. 223.

    We estimate 25 that currently 18 percent of SUTs in the fleet are equipped with rear impact guards meeting the FMCSR regulation, 49 CFR 393.86(b). A requirement for SUTs to comply with CMVSS No. 223, though, would require 59 percent of newly manufactured SUTs to be equipped with CMVSS No. 223 rear impact guards due to that regulation's greater coverage.26 The estimated incremental minimum to average cost of equipping new covered SUTs with CMVSS No. 223 guards ranges from $307 to $453 per vehicle (See Table A-7 in Appendix A for details). The total annual fleet cost of equipping new SUTs with CMVSS No. 223 guards ranges from $105 million to $155 million. The estimate of minimum to average additional weight of equipping SUTs with CMVSS No. 223 guards is 76.8 kg (169 lb) to 95.5 kg (210 lb) per vehicle. The estimate of minimum to average additional fuel cost during the lifetime of the vehicle due to the additional weight of the guard ranges from $924.7 to $1,505.3. Therefore, the total minimum to average annual cost (including fuel costs) of requiring SUTs to have CMVSS No. 223 rear impact guards is estimated to be $421 million to $669 million.

    25 Using the 2008-2009 TIFA data files from the 2013 UMTRI study, it is estimated that 38 percent of the SUTs were configured so as not to be considered among the vehicles excluded from FMCSA 393.86(b) based on vehicle design. However, UMTRI estimated that only 18 percent of these SUTs were equipped with rear impact guards. The remaining 20 percent of SUTs that appeared, based on vehicle design, not to be excluded from the requirement to have a guard but did not have one, was likely comprised of vehicles that were not used in interstate commerce.

    26 Since the definition of wheels back and low chassis vehicles in 393.86(b) allows more vehicles to be excluded from requiring rear impact guards than CMVSS No. 223, when SUTs are required to comply with CMVSS No. 223, a larger percentage would need to have rear impact guards. This is further explained in Appendix A.

    Preliminary Estimate of Benefits of Requiring CMVSS No. 223 Guards

    For estimating the benefits of requiring SUTs to have CMVSS No. 223 guards, NHTSA estimated the annual number of fatalities and injuries in light vehicle rear impact crashes with PCI into the rear of SUTs. Non-PCI crashes were not considered as part of the target population for estimating benefits. This is because the IIHS test data (see Appendix B to this preamble) show that when PCI was prevented, the dummy injury measures were significantly below the injury assessment reference values specified in FMVSS No. 208. In non-PCI crashes into the rear of SUTs and trailers, the IIHS test data indicated that the passenger vehicle's restraint system would mitigate injury.

    Although CMVSS No. 223's requirements are intended to mitigate PCI in light vehicle rear impacts at speeds less than or equal to 56 km/h (35 mph),27 we note that CMVSS No. 223 guards may not be able to mitigate all fatalities in such crashes because some of the crashes may be low overlap (30 percent or less),28 and because some fatalities are not as a result of PCI but are due to other circumstances (e.g. unrestrained status of occupants, elderly and other vulnerable occupants). In those circumstances, we believe that a rear impact guard would not prevent the fatality.29

    27 Transport Canada testing of minimally compliant CMVSS No. 223 rear impact guards indicated that such guards could prevent PCI in light vehicle impacts with full overlap with the guard at crash speeds up to 56 km/h. See Boucher D., Davis D., “Trailer Underride Protection—A Canadian Perspective,” SAE Paper No. 2000-01-3522, Truck and Bus Meeting and Exposition, December 2000, Society of Automotive Engineers.

    28 Overlap refers to the percentage of impacting vehicle front end width that engages the rear impact guard. IIHS's test data showed that 8 of the 9 rear impact guards tested by IIHS could not prevent PCI in a 56 km/h crash with 30 percent overlap of the Chevrolet Malibu.

    29 CMVSS No. 223 compliant rear impact guards may mitigate the severity of impact into the rear of SUTs at speeds greater than 56 km/h, but NHTSA is unable to quantify this possible benefit at this time. We seek comment on this issue.

    Preventing Fatalities

    For the purpose of this analysis, NHTSA assumed that CMVSS No. 223 compliant guards on SUTs would be able to prevent about 85 percent of light vehicle occupant fatalities with PCI in impacts into the rear of SUTs with crash speeds less or equal to 56 km/h.30 However, since only 30 percent of the target population of light vehicle crashes with PCI into the rear of SUTs are at speeds less than or equal to 56 km/h, CMVSS No. 223 compliant guards would only be effective for a portion of the target population. Therefore, NHTSA estimated an overall effectiveness of 25 percent (approximately 30% x 85%) for CMVSS No. 223 rear impact guards in preventing fatalities in light vehicle crashes into the rear of SUTs with PCI.31 We believe this is an upper estimate of CMVSS No. 223 guard effectiveness in preventing fatalities, because (1) there will be real-world crashes of light passenger vehicles into the rear of SUTs at low overlap (30 percent or less) for which IIHS test data indicates that the CMVSS No. 223 compliant guards would not be able to prevent PCI, (2) some restrained occupants of light passenger vehicles would be killed even if PCI were prevented due to other circumstances (e.g. elderly and other vulnerable occupants), and (3) our review of 2009 TIFA data files of light vehicle impacts with PCI into the rear of SUTs indicated that only 55 percent of the fatally injured occupants were restrained.32

    30 This effectiveness estimate is based on current estimates of seat belt use in light passenger vehicles (about 87% per 2014 National Occupant Protection Use Survey (NOPUS)) and on the IIHS test data which indicated that belted occupants of light passenger vehicles in 35 mph impacts into the rear of trailers with CMVSS No. 223 guards with 100 percent and 50 percent overlap would experience similar injury risk as that in 35 mph frontal crashes of two light passenger vehicles of similar size.

    31 In the final regulatory evaluation for the January 24, 1996 final rule establishing FMVSS Nos. 223 and 224 (61 FR 2004), NHTSA assumed an effectiveness range of 10 to 25 percent for rear impact guards in preventing fatalities in crashes with PCI (all speeds) into the rear of trailers. The 25 percent effectiveness estimated for the current analysis (based on 2008-2009 TIFA data and the IIHS crash test data) is the same as the higher value of the assumed effectiveness range of rear impact guards in the 1996 final rule. CMVSS No. 223 requires a higher level of performance than that required by the 1996 final rule, so NHTSA assumes the CMVSS will have an effectiveness level at least as high as our highest assumed rate for the FMVSSs.

    32 The agency's 2010 study—“The Effectiveness of Underride Guards for Heavy Trailers,” October 2010, DOT HS 811 375—estimated an effectiveness of 27 percent from data collected in Florida and 83 percent from data collected in North Carolina for FMVSS No. 223 compliant rear impact guards in preventing fatalities. These two estimates are considerably different and not statistically significant, possibly due to small sample size, and so associated with some uncertainty. Therefore, these effectiveness estimates were not utilized in the current analysis. Instead, the agency relied on real world crash data and the test data to estimate rear impact guard effectiveness.

    The real world data indicated that there are annually 31 light vehicle crashes with PCI into the rear of SUTs resulting in 33 light vehicle occupant fatalities. Since only 59 percent of SUTs would require rear impact guards, the target population is reduced to approximately 20 (=33 x 59%). Applying 25 percent effectiveness of CMVSS compliant guards, the upper bound on lives saved by CMVSS No. 223 compliant rear impact guards on SUTs is about 5.

    Preventing Nonfatal Injuries

    In our current analysis, we also assumed 20 percent effectiveness of CMVSS No. 223 compliant guards in preventing nonfatal injuries in light vehicle crashes with PCI into the rear of SUTs. CMVSS No. 223 guards are effective in mitigating PCI in light vehicle impacts into the rear of SUTs at speeds less or equal to 56 km/h (35 mph), which is about 30 percent of all such impacts with PCI.33 Additionally, we expect the effectiveness of rear impact guards for preventing injuries to be lower than that for fatalities since occupant injuries could occur from interior vehicle contacts even if PCI were prevented. The 20 percent effectiveness estimate takes into consideration that some injuries are due to factors such as the unrestrained status of the occupants. An improved rear impact guard would not prevent such injuries.

    33 As noted earlier, CMVSS No. 223 compliant rear impact guards may mitigate the severity of impact into the rear of SUTs at speeds greater than 56 km/h, but NHTSA is unable to quantify this possible benefit at this time. We seek comment on this issue.

    The agency analyzed the National Accident Sampling System—Crashworthiness Data System (NASS-CDS) data files for the year 1999-2012 and estimated a total of 151—291 MAIS 34 1 to 5 severity nonfatal injuries to light vehicle occupants in PCI crashes into the rear of SUTs. Applying a 20 percent effectiveness of rear impact guards in preventing nonfatal injuries, we estimate that 30—58 nonfatal injuries would be prevented annually.

    34 MAIS is the maximum severity injury for an occupant according to the Abbreviated Injury Scale (AIS). MAIS 1 are minor injuries, MAIS 2 are moderate injuries, MAIS 3-5 are serious to critical injuries.

    Cost Per Equivalent Lives Saved

    The benefits analysis in Appendix A estimates the equivalent lives saved (ELS) from a requirement for SUTs to have CMVSS No. 223 guards. The ELS are approximately 5.7 to 6.3 lives. The cost per ELS (3 and 7 percent discounted) is $106.7 million to $164.7 million, for each equivalent life saved. A summary of the analysis estimating incremental costs using low and average estimates, benefits using average and high estimates, and cost per equivalent lives saved is shown below in Table 2.

    Table 2—Estimates of Material, Installation, and Fuel Costs of Equipping Applicable SUTs (Class 3-8) With CMVSS Rear Impact Guards, Resulting Incremental Benefits of Lives Saved and Injuries Prevented, and Cost per Equivalent Lives Saved Material + Installation + Fuel Costs Minimum to average incremental cost of CMVSS guard per SUT $307-$453 Number of SUTs needing guards annually 341,392 Total minimum to average incremental cost of CMVSS guards in SUT fleet $104.9M-$154.6M Minimum to average incremental weight of CMVSS guard per SUT 169 lb-210 lb Minimum to average incremental lifetime fuel cost per SUT $924.7-$1,505.3 Minimum to average incremental fuel cost for SUT fleet $316M-$514M Total minimum to average incremental cost of CMVSS guards +fuel for SUT fleet $421M-$669M Benefits Estimates Target Population (light vehicle occupant fatalities in crashes with PCI into the rear of applicable SUTs) average to high injury estimates 20 lives; 99-182 MAIS 1 injuries; 33-82 MAIS 2 and 17-27 MAIS 3-5 injuries Estimated effectiveness of CMVSS guards 0.25 for fatalities, 0.2 for injuries Equivalent lives saved (undiscounted) average to high estimates 5.7-6.3 Equivalent lives saved (3% discounted) average to high estimates 4.4-4.9 Equivalent lives saved (7% discounted) average to high estimates 3.3-3.7 Cost/Benefit Analysis Cost per equivalent lives saved (3% discount) $106.7M-$152.9M Cost per equivalent lives saved (7% discount) $113.9M-$164.7M

    Guidance from the U.S. Department of Transportation 35 identifies $9.1 million as the value of a statistical life (VSL) to be used for Department of Transportation analyses assessing the benefits of preventing fatalities for the base year of 2012. Per this guidance, VSL in 2014 is $9.2 million. While not directly comparable, the preliminary estimates for rear impact guards on SUTs (minimum of $106.7 million per equivalent lives saved) is a strong indicator that these systems will not be cost effective (current VSL $9.2 million).

    35 See http://www.dot.gov/sites/dot.dev/files/docs/VSL%20Guidance_2013.pdf. The guidance starts with a $9.1 million VSL in the base year of 2012 and then estimates a 1.07 percent increase in VSL each year after the base year to reflect the estimated growth rate in median real wages for the next 30 years.

    Alternatives

    NHTSA further considered whether excluding Class 3 SUTs (GVWR 10,000 lb to 14,000 lb) from a requirement to have CMVSS No. 223 guards would make the requirement more cost effective (see Table 3, below). (An exclusion of Class 3 SUTs may also be based on a practical matter, as the vehicles may be too small to withstand the loads imparted from impacts to CMVSS No. 223 guards.) NHTSA analyzed the cost and benefits of a requirement that would require only Class 4-8 SUTs to have CMVSS No. 223 guards. Class 4-8 SUTs comprise approximately 60 percent of annual sales of SUTs. The total annual cost of CMVSS No. 223 compliant rear impact guards on Class 4 -8 SUTs is estimated to be $218 million to $348.5 million. The analysis was conducted with a conservative assumption of no reduction in benefits by not requiring Class 3 SUTs to have the rear impact guards. Even with such a conservative assumption, the cost per ELS (3 and 7 percent discounted) was $55.2 million to $85.9 million, respectively.

    Table 3—Estimates of Material, Installation, and Fuel Costs of Equipping Applicable SUTs (Class 4-8) With CMVSS Rear Impact Guards, Resulting Incremental Benefits of Lives Saved and Injuries Prevented, and Cost per Equivalent Lives Saved Material + Installation + Fuel Costs Minimum to average incremental cost of CMVSS guard per SUT $307-$453 Number of SUTs needing guards annually 204,246 Total incremental cost of CMVSS guards in SUT fleet $62.7M-$92.4M Minimum to average incremental weight of CMVSS guard per SUT 169 lb-210 lb Minimum to average incremental lifetime fuel cost per SUT $759.9-$1,253.8 Minimum to average incremental fuel cost for SUT fleet $155M-$256M Total minimum to average incremental cost of CMVSS guards +fuel for SUT fleet $218M-$348.5M Benefits Estimates Target Population (light vehicle occupant fatalities in crashes with PCI into the rear of applicable SUTs) average to high injury estimates 20 lives; 99-182 MAIS 1 injuries; 33-82 MAIS 2 and 17-27 MAIS 3-5 injuries Estimated effectiveness of CMVSS guards 0.25 for fatalities, 0.2 for injuries Equivalent lives saved (undiscounted) average to high estimates 5.7-6.3 Equivalent lives saved (3% discounted) average to high estimates 4.4-4.9 Equivalent lives saved (7% discounted) average to high estimates 3.3-3.7 Cost/Benefit Analysis Cost per equivalent lives saved (3% discount) $55.2M-$79.7M Cost per equivalent lives saved (7% discount) $59.0M-$85.9M

    As in the analysis for Class 3-8 SUTs shown in Table 2, the preliminary estimates for rear impact guards on Class 4-8 SUTs (minimum of $55.2 million per equivalent lives saved) is a strong indicator that these systems will not be cost effective (current VSL $9.2 million).

    IV. Request for Comment on Extension of FMVSS No. 224

    NHTSA requests comments that would help the agency assess and make judgments on the benefits, costs and other impacts of requiring SUTs to have underride guards. In providing a comment on a particular matter or in responding to a particular question, interested persons are asked to provide any relevant factual information to support their opinions, including, but not limited to, statistical and cost data and the source of such information. For easy reference, the questions below are numbered consecutively.

    1. The injury target population was obtained from weighted NASS-CDS data files (1999-2012). Analysis was conducted with not only the weighted average estimates but also with the upper bound of the injury estimates. We seek comment on the estimated injury target population resulting from underride crashes with PCI into the rear of SUTs.

    2. The agency assumed 25 percent effectiveness of CMVSS No. 223 rear impact guards in preventing fatalities in light vehicle crash with PCI into the rear of SUTs. We seek comment on this effectiveness estimate.

    3. The agency assumed 20 percent effectiveness of CMVSS No. 223 guards in preventing injuries in light vehicle crashes with PCI into the rear of SUTs. We seek comment on this effectiveness estimate.

    4. In estimating benefits, the agency assumed that rear impact guards would mitigate fatalities and injuries in light vehicle impacts with PCI into the rear of SUTs at impact speeds up to 56 km/h (35 mph), since the requirements of CMVSS No. 223 are intended to prevent PCI in impacts with speeds up to 56 km/h (35 mph). We recognize, however, that benefits may accrue from underride crashes at speeds higher than 56 km/h (35 mph), if, e.g., a vehicle's guard exceeded the minimum performance requirements of the FMVSS. NHTSA requests information that would assist the agency in quantifying the possible benefits of CMVSS No. 223 rear impact guards in crashes with speeds higher than 56 km/h (35 mph).

    5. The percentage of SUTs requiring rear impact guards was determined by obtaining details of the rear extremity of SUTs involved in fatal crashes in the 2008-2009 TIFA data files. We seek any other information to corroborate these estimates.

    6. The cost-benefit analysis showed that requiring CMVSS No. 223 guards on SUTs would cost more than $100 million per equivalent life saved. The following information was not included in the analysis. NHTSA seeks the information so that the analysis is more complete.

    a. The additional cost to install CMVSS No. 223 compliant rear impact guards did not include the cost of strengthening the rear beams, frame rails, and floor of the vehicle. We seek information on the changes to SUTs to accommodate the CMVSS No. 223 rear impact guard and the additional costs resulting from these changes.

    b. The additional weight to install CMVSS No. 223 compliant rear impact guards did not include the weight of additional material needed to strengthen the rear beams, frame rails, and floor of the vehicle. We seek information on the changes to SUTs to accommodate the CMVSS No. 223 rear impact guard and the additional weight resulting from these changes.

    c. The cost-benefit analysis did not take into consideration the reduction in payload resulting from increased weight of the SUT due to installation of a CMVSS No. 223 guard. We seek comment on what type of SUT operations are affected by the increased weight and the associated cost impacts.

    d. The cost-benefit analysis did not take into consideration the aerodynamic effects of rear impact guards on fuel consumption due to paucity of information on this matter. We seek comment on whether aerodynamic effects due to the presence of a rear impact guard would increase or decrease fuel consumption and by how much.

    7. The fuel economy for SUTs was obtained from a 2012 market report by Oakridge National Laboratories. However, this report did not distinguish the miles per gallon for different classes of SUTs. We seek more refined information on the fuel economy for different class SUTs so as to refine the cost-benefit analysis.

    8. SUTs with equipment in the rear (in the zone where the guard would be located) were excluded from the cost-benefit analysis of a requirement for the guard. We seek comment on whether rear impact guards can be accommodated in such SUTs.

    9. We seek information that would help us determine the feasibility, benefits, and costs associated with improving the performance of CMVSS No. 223 guards in low overlap crashes. “Overlap” refers to the portion of the striking passenger vehicle's width overlapping the underride guard.

    V. Amending FMVSS No. 108, “Lamps, Reflective Devices, and Associated Equipment,” to Improve the Conspicuity of SUTs

    NHTSA seeks to improve safety not just when there is a crash but by reducing the likelihood of a crash occurring in the first place. This is especially important in preventing the types of fatal crashes that NHTSA is addressing in this ANPRM, where most of the fatalities occur in crashes that are either at high speeds that render the crash unsurvivable, or, conversely, involve comparatively minor to no underride but are nevertheless fatal because of other factors, most prominently the presence of unbelted occupants. One strategy relevant to the crashes addressed in today's ANPRM, NHTSA has for years mandated that heavy trailers and truck tractors be equipped with red-and-white tape (“retroreflective tape,” “conspicuity tape,” or “tape”) under FMVSS No. 108. In this ANPRM, the agency requests comments that would help NHTSA assess and make judgments on the benefits, costs and other impacts of amending FMVSS No. 108 to require retroreflective material on the rear and sides of SUTs to improve the conspicuity of the vehicles to other motorists. The retroreflective material would be the same as tape now placed on the rear and sides of heavy trailers 36 and the rear of truck tractors pursuant to FMVSS No. 108 (S8.2.3). This ANPRM is consistent with the National Transportation Safety Board recommendation (H-13-017) 37 that the agency amend FMVSS No. 108 to include a conspicuity tape requirement for SUTs with a GVWR greater than 10,000 lb.

    36 “Heavy trailers” are at least 2032 mm (80 inches (in)) wide and have a GVWR greater than 4,536 kg (10,000 lb).

    37http://www.ntsb.gov/safety/safety-recs/_layouts/ntsb.recsearch/Recommendation.aspx?Rec=H-13-017. Last accessed on March 24, 2015.

    The purpose of retroreflective tape is to increase the visibility of heavy trailers and truck tractors to other motorists, especially in the dark. At those times, the tape brightly reflects other motorists' headlights and warns them that they are closing on a large vehicle. In the dark, without the tape, many trailers and truck tractors do not become visible to other road users until motorists are dangerously close. The alternating red-and-white pattern identifies the vehicle as a large vehicle and at the same time helps other road users gauge their distance and rate of approach.

    FMVSS No. 108's conspicuity requirement for heavy trailers applies to vehicles manufactured on or after December 1, 1993. Two types of material are permitted by the standard: (a) retroreflective sheeting, or tape; and (b) reflex reflectors. A combination of the two types is also permissible. Retroreflective tape has been used almost exclusively for meeting the standard.38 Essentially, the retroreflective tape must outline the bottom of the sides of the trailers and the top corners, bottom and underride guard of the rear of the trailers. When the agency issued the final rule adopting the requirement, NHTSA estimated the requirement would be 15 percent effective in preventing nighttime fatalities and injuries resulting from crashes to the sides and rear of trailers.

    38 This ANPRM assumes that tape would be used as the countermeasure on SUTs.

    In 1996, NHTSA amended FMVSS No. 108 to extend the conspicuity requirements to truck tractors manufactured on or after July 1, 1997.39 Because truck tractors riding bobtail (without pulling a trailer) have poorer rear-end conspicuity compared to trailers, NHTSA used a 15 to 25 percent range to estimate fatality and injury-prevention effectiveness for truck tractors to reflect a potentially greater effectiveness of a conspicuity countermeasure on the vehicles compared to trailers.

    39 The requirement was not applied retroactively to vehicles manufactured before July 1, 1997.

    In the first part of this section, the agency discusses a 2001 NHTSA evaluation that found conspicuity tape to be “quite effective” in reducing side and rear impacts by other vehicles into heavy trailers in dark conditions. In the second part, based on the findings of effectiveness of the 2001 evaluation and certain assumptions, NHTSA provides preliminary estimates of the cost and benefits of requiring new SUTs to have conspicuity tape. In the third part, the agency requests comments on the data collection techniques used in the 2001 evaluation, NHTSA's assumptions in applying the findings of that evaluation to SUTs, and other issues.

    a. 2001 NHTSA Evaluation

    In 2001, NHTSA issued an evaluation of the effectiveness of retroreflective tape in reducing side and rear impacts by other vehicles into heavy trailers during dark conditions. (“The Effectiveness of Retroreflective Tape on Heavy Trailers,” March 2001, NHTSA Technical Report, DOT HS 809 222.40 ) Because the crash data at the time (FARS, NASS, or State files) did not identify whether crash-involved heavy trailers had retroreflective tape, NHTSA entered into arrangements with the Florida Highway Patrol and the Pennsylvania State Police to collect data for an analysis. For a two-year period, each time these State agencies investigated a crash involving a tractor-trailer combination 41 and filed a crash report, they also filled out an “Investigator's Supplementary Truck-Tractor Trailer Accident Report” on every trailer in the crash.

    40 The document is available to the public through the National Technical Information Service, Springfield, Virginia, 22161.

    41 A tractor-trailer combination was defined as a truck tractor pulling one or more trailers, i.e., tractor with semi-trailer, full trailer, or two trailers.

    The Florida Highway Patrol collected 6,095 crash cases from June 1, 1997, through May 31, 1999. The Pennsylvania State Police collected 4,864 crash cases from December 1, 1997, through November 30, 1999. NHTSA's analysis estimated the reduction of side and rear impacts by other vehicles into conspicuity tape-equipped trailers in dark conditions, relative to the number that would have been expected if the trailers had not been equipped. The analysis tabulated and statistically analyzed crash involvements of tractor-trailers by three critical parameters: (1) whether the trailer was tape-equipped; (2) the light condition, i.e., dark (comprising “dark-not-lighted,” “dark-lighted,” “dawn” and “dusk”) versus daylight; and (3) relevant versus control-group crash involvements.

    Given that the tape can help the other driver see and possibly avoid hitting the trailer, NHTSA determined that relevant crash involvements were those in which another vehicle crashed into the side or rear of a tractor-trailer combination. The control group consisted of single-vehicle crashes of tractor-trailers (where visibility of the tractor-trailer to other road users is not an issue at all) and impacts of the front of the tractor into other vehicles (where conspicuity of the side and rear of the trailer is also not an issue).

    The principal conclusion of the study was that retroreflective tape is quite effective, and that it significantly reduces side and rear impacts into heavy trailers in the dark.

    Other findings and conclusions are as follows:

    • Annual benefits: When all heavy trailers have conspicuity tape, the tape will be saving an estimated 191 to 350 lives per year, preventing approximately 3,100 to 5,000 injuries per year, and preventing approximately 7,800 crashes per year, relative to a hypothetical fleet in which none of the trailers have the tape.

    • Crash reductions by lighting conditions: In dark conditions (combining the subsets of “dark-not-lighted,” “dark-lighted,” “dawn,” and “dusk”), the tape reduces side and rear impacts into heavy trailers by 29 percent. The reduction is statistically significant (confidence bounds: 19 to 39 percent).

    • The tape is by far the most effective in dark-not-lighted conditions. The tape reduces side and rear impacts into heavy trailers by 41 percent. The reduction is statistically significant (confidence bounds: 31 to 51 percent).

    • In dark-lighted, dawn, and dusk conditions, the tape did not significantly reduce crashes. The tape also did not significantly reduce crashes during daylight.

    The following effectiveness estimates are the percentage reductions of various subgroups of the side and rear impacts into heavy trailers in dark conditions. As stated above, tape reduces these crash involvements by 29 percent, overall.

    • Conspicuity tape is especially effective in preventing the more severe crashes, specifically, injury crashes. Impacts resulting in fatal or nonfatal injuries to at least one driver are reduced by 44 percent.

    • The tape is more effective when the driver of the impacting vehicle is under 50. The crash reduction is 44 percent when the driver of the impacting vehicle is 15 to 50 years old, but only 20 percent when that driver is more than 50 years old. A possible explanation of this difference is that older drivers are less able to see, recognize and/or react to the tape in time to avoid hitting the trailer.

    • The tape may be somewhat more effective in preventing rear impacts (43 percent) than side impacts (17 percent) into trailers; however, this difference is not consistent in the two States.

    • The tape is effective in both clear (28 percent) and rainy/foggy weather conditions (31percent).

    • The tape is especially effective on flatbed trailers (55 percent). It could be that these low-profile vehicles were especially difficult to see in the dark before they were treated with tape.

    • Dirt on the tape significantly diminished tape effectiveness in rear impacts. Clean tapereduces rear impacts by 53 percent but dirty tape by only 27 percent.

    These findings are evidence that large trailers are difficult to see in dark not lighted conditions and that conspicuity tape improves their visibility and reduces crashes in a dramatic way. Large trailers and large SUTs share a common general appearance and standard lighting requirements (with the exception of tape, which is required on large trailers, but is optional on SUTs). As such, the agency believes that the dramatic increase in safety that has been observed in trailers because of conspicuity tape may also be realized for SUTs. However, while the general appearance and standard lighting equipment is similar for large trailers and large SUTs, the agency recognizes that differences in visibility may exist between the two vehicle types that could result in a different effectiveness for tape applied to SUTs than has been observed thus far in large trailers. The agency seeks comment on such potential differences and the best way to accurately estimate the effectiveness that tape can be expected to have on SUT crash risk.

    b. NHTSA's Preliminary Estimate of Cost and Benefits of Requiring Tape on SUTs

    NHTSA has preliminarily examined the cost and benefits of requiring new SUTs (SUTs with a GVWR greater than 4,536 kg (10,000 lb)) to have and maintain retroreflective tape on the sides, rear, and upper corners of the vehicles, based on the findings of the agency's 2001 evaluation 42 of the effectiveness of retroreflective tape on heavy trailers. In our analysis, we only considered vehicle crashes into the rear and side of SUTs in dark-not-lighted conditions and used the same effectiveness (41 percent) of retroreflective tape in dark-not-lighted conditions for heavy trailers. Our analysis is discussed in this section.

    42 “The Effectiveness of Retroreflective Tape on Heavy Trailers,” March 2001, NHTSA Technical Report, DOT HS 809 222, supra.

    To obtain a preliminary look at the potential value of conspicuity tape on SUTs, the agency examined fatal crashes involving SUTs over a four-year period (2010 through 2013). We estimate that there was an average of 34 fatalities annually in crashes into SUTs for which conspicuity tape could be an effective countermeasure in terms of assisting to avoid or mitigate these crashes. The 34 fatalities occurred in vehicle crashes in dark not lighted conditions into the rear and sides 43 of SUTs. These are the conditions for which conspicuity tape was shown to be 41 percent effective in mitigating crashes into trailers. Among these 34 fatalities, 21 occurred in crashes where the front end of a vehicle impacted the rear end of an SUT.

    43 Crashes into the rear and side of SUTs were identified by initial contact point (values ranging from 2 o'clock to 10 o'clock) and damaged area (left, right, and/or back) field in FARS data files.

    As described above, conspicuity systems on trailers were most effective in dark-not-lighted condition for side and rear impacts. The target population for the conspicuity systems can be established considering dark-not-lighted crashes for which the SUT is struck in the sides or rear. If we assume an effectiveness of 41 percent (based on the observed effectiveness of these systems on heavy trailers) to these fatalities, we can establish a rough estimate of 14 fatalities annually could be prevented by the application of conspicuity systems to SUTs.

    Preliminary Estimate of Cost

    NHTSA made a preliminary estimate of the cost of requiring new SUTs to have conspicuity tape. The cost of installing the tape was calculated based on the cost of the material itself and the cost to install the tape.

    The cost of the material depends on the length of tape needed for SUTs, which depends on the vehicles' size. NHTSA evaluated data from a U.S. Department of Commerce “Vehicle Inventory and Use Survey” (VIUS),44 which is a random sample survey of physical and operational characteristics of private and commercial trucks and truck-tractors registered or licensed in the 50 States and the District of Columbia.

    44 U.S. Department of Commerce, Economics and Statistics Administration, U.S. Census Bureau. The survey sample includes about 131,000 trucks surveyed to measure the characteristics of nearly 73 million trucks registered in the U.S.

    The 1997 VIUS survey data, which is the most recent data available, indicates that the weighted average length of SUTs from the front bumper to the rear of the vehicle is 1029 cm (33 feet (ft), 9 inches (in)). A survey of SUTs by NHTSA indicates that the average length from the front bumper to the end of the cab is 229 cm (7 ft, 6 in). Assuming a requirement would not apply conspicuity tape to the front cab length of SUTs, the average length that would be covered by conspicuity tape is 800 cm (26 ft, 3 in). In addition, 244 cm (8 ft) of tape would be applied along the width of the SUT at the rear of the vehicle, and two pairs of 30 cm (1 ft) strips would be applied to outline the upper rear of the SUT. The total length of tape applied to an average SUT is estimated to be 1164 cm (38 ft, 2 in).

    We estimate that the 2-inch wide conspicuity tape can be purchased by SUT single-stage manufacturers for about $0.53 per linear foot. The distributors that sell the tape to smaller fleets mark up the cost of the tape from about 15 percent to 30 percent, which amounts to $0.61 to $0.69 per linear foot. NHTSA used $0.61 per linear foot for the cost (the average of $0.53 and $0.69) of the conspicuity tape.

    As for the cost to apply the tape, NHTSA estimated in the final regulatory evaluation for the FMVSS No. 108 conspicuity rulemaking that 30 minutes is needed to apply conspicuity tape on all categories of trailers. NHTSA has also assumed that it would take 30 minutes to apply the tape to SUTs at an hourly rate of $22.20 per hour.

    This yields labor costs of $11.10 (for 30 minutes labor) to apply tape to 50 percent of the length of the sides and the entire rear width and upper rear corners of an average SUT (a total of 1164 cm (38 ft, 2 in) of tape. Tape cost is estimated at $0.61 per linear foot (or per 30.48 cm), resulting in an estimated cost of tape at $23.28 per SUT. The total cost for labor and materials is estimated at ($23.28 + $11.10) x 1.51 consumer markup = $51.91 per SUT. (1.51 is the standard markup NHTSA uses to go from variable costs (labor and material) to consumer costs. The 1.51 markup includes fixed costs, manufacturer profit and dealer markups.)

    NHTSA estimates that 578,631 new Class 3-8 trucks (GVWR greater than 4,536 kg (10,000 lb) are sold annually. Thus, the total consumer costs required for applying conspicuity tape to new SUTS is estimated to be approximately $30.0 million annually ($51.91 x 578,631 = $30,036,735).

    Table 4—Annual Cost of Applying Retroreflective Tape to the Sides, Rear, and Upper Corners of New SUTs Cost Per Vehicle $51.91 Annual sales of Class 3-8 SUTs in 2012 578,631 Total Cost All applicable new SUTs $30.0 million Preliminary Estimate of Benefits

    NHTSA made a preliminary estimate of the benefits of requiring new SUTs to have conspicuity tape. The benefit of the tape is a reduction in the number of crashes and severity of injuries, although in this preliminary analysis we examined fatal crashes only. While any future analysis by the agency would include injuries and property damage, our preliminary evaluation demonstrates the potential for conspicuity tape to be a cost effective solution in preventing and/or mitigating crashes involving SUTs.

    NHTSA analyzed the Fatality Analysis Reporting System (FARS) data files for the years 2010 through 2013. The analysis determined that on average 34 lives per year are lost annually in vehicles striking the sides or rear of SUTs in dark-not-lighted conditions (see Table 5). If conspicuity systems are as effective in these crashes as they have been on heavy trailer crashes, there is a potential to prevent 14 fatalities a year.

    Table 5—Preliminary Benefits of Conspicuity Systems on SUTs Target Population 34 Effectiveness 41% Fatalities Prevented 14 Estimated Cost Per Fatality Prevented

    The estimated costs per fatality prevented for a retroreflective tape requirement for SUTs are shown in Table 6.

    Table 6—Cost per Fatality Prevented 3 percent Total Cost $30 Million Fatality Prevented 14 Cost/Fatality Prevented $2.1 million

    Guidance from the U.S. Department of Transportation 45 identifies $9.1 million as the value of a statistical life (VSL) to be used for Department of Transportation analyses assessing the benefits of preventing fatalities for the base year of 2012. Per this guidance, VSL in 2014 is $9.2 million. While not directly comparable, the preliminary estimates for conspicuity systems on SUTs ($2.1 million per fatality prevented) is a strong indicator that these systems will be cost effective (current VSL $9.2 million).

    45 See http://www.dot.gov/sites/dot.dev/files/docs/VSL%20Guidance_2013.pdf. The guidance starts with a $9.1 million VSL in the base year of 2012 and then estimates a 1.07 percent increase in VSL each year after the base year to reflect the estimated growth rate in median real wages for the next 30 years.

    VI. Request for Comment on Requiring Retroreflective Tape on SUTs

    NHTSA requests comments that would help the agency assess and make judgments on the benefits, costs and other impacts of requiring SUTs to have retroreflective tape. In providing a comment on a particular matter or in responding to a particular question, interested persons are asked to provide any relevant factual information to support their opinions, including, but not limited to, statistical and cost data and the source of such information. For easy reference, the questions below are numbered consecutively.

    1. The agency assumed retroreflective tape would be 41 percent effective in preventing side and rear crashes into SUTs in dark-not-lighted conditions, based on the effectiveness NHTSA found for the tape in reducing side and rear impacts into heavy trailers. We seek comment on this effectiveness estimate. How effective are conspicuity systems at reducing crashes when applied to SUTs? Are there effectiveness studies specific to SUTs or statistical methods that could provide evidence that the effectiveness will be similar to that observed on heavy trailers?

    2. While some fleet operations may be voluntarily applying conspicuity tape to their SUTs, our current crash databases do not include information on whether an SUT involved in a crash has conspicuity tape. The agency seeks input on ways that our analysis can better account for the voluntary installation of tape on SUTs.

    3. Should all types of SUTs (box trucks, tow trucks, dual-wheeled pickups, etc.) be required to have conspicuity tape or only particular types of SUTs? What are the distinguishing characteristics of an SUT that make conspicuity tape needed?

    4. What would be the cost of applying conspicuity tape on SUTs, including installation and materials?

    5. Does conspicuity tape need to be replaced during the lifetime of the vehicle? How often and what sections of the vehicle need reapplication of conspicuity tape?

    6. Are there any reasons that the agency should consider different patterns of application for SUTs as compared to trailers (different colors or locations)?

    7. Should conspicuity tape be required on both the sides and the rear of the applicable SUTs, or should the agency consider application of the tape on the rear only?

    8. Should NHTSA consider requiring current vehicles to be retrofitted with conspicuity tape? In March 1999, the Federal Highway Administration (FHWA) directed motor carriers engaged in interstate commerce to retrofit heavy trailers manufactured before December 1993 with some form of conspicuity treatment by June 1, 2001. In 2000, the Federal Motor Carrier Safety Administration (FMCSA) was established to perform motor carrier safety functions and operations, and authority for issuing and enforcing Federal Motor Carrier Safety Regulations was transferred to FMCSA. In 2000, NHTSA was delegated authority to promulgate safety standards for commercial motor vehicles and equipment already in use when the standards are based upon and similar to an FMVSS. See 49 CFR 1.95.46

    46 FMCSA is delegated the authority to promulgate safety standards for commercial motor vehicles and equipment already in use when the standards are not based upon and similar to an FMVSS. 49 CFR 1.87.

    VII. Rulemaking Analyses Executive Orders 12866 and 13563 and DOT Regulatory Policies and Procedures

    The agency has considered the impact of this ANPRM under Executive Orders (E.O.) 12866 and 13563 and the Department of Transportation's regulatory policies and procedures.

    In this ANPRM, the agency requests comments that would help NHTSA assess and make judgments on the benefits, costs and other impacts, of strategies that increase the crash protection to occupants of vehicles crashing into the rear of SUTs and/or that increase the likelihood of avoiding a crash into SUTs. Strategies discussed in this ANPRM are possible amendments to the FMVSSs to: (a) expand FMVSS Nos. 223 and 224, to require upgraded guards on SUTs; and (b) amend FMVSS No. 108, to require the type of retroreflective material on the rear and sides of SUTs that is now required to be placed on the rear and sides of heavy trailers to improve the conspicuity of the vehicles to other motorists.

    The agency has made preliminary estimates of the costs and benefits of the two above strategies. NHTSA requests comments on these estimates. Information from the commenters will help the agency further evaluate the course of action NHTSA should pursue in this rulemaking on SUTs.

    On Requiring SUTs to Have Underride Guards

    A requirement for SUTs to comply with CMVSS No. 223 would require 59 percent of newly manufactured SUTs to be equipped with CMVSS No. 223 rear impact guards.47 The estimated incremental minimum to average cost of equipping newly covered SUTs with CMVSS No. 223 guards ranges from $307 to $453 per vehicle. The total annual fleet cost of equipping new SUTs with CMVSS No. 223 guards ranges from $105 million to $155 million. The estimate of minimum to average additional weight of equipping SUTs with CMVSS No. 223 guards is 76.8 kg (169 lb) to 95.5 kg (210 lb) per vehicle. The estimate of minimum additional fuel cost during the lifetime of the vehicle due to the additional weight of the guard ranges from $316 million to $514 million. Therefore, the total minimum to average annual cost (including fuel costs) of requiring SUTs to have CMVSS No. 223 rear impact guards is estimated to be $421 million to $669 million.

    47 Since the definition of wheels back and low chassis vehicles in 393.86(b) allows more vehicles to be excluded from requiring rear impact guards than CMVSS No. 223, when SUTs are required to comply with CMVSS No. 223, a larger percentage would need to have rear impact guards. This is further explained in Appendix A.

    For estimating the benefits of requiring SUTs to have CMVSS No. 223 guards, NHTSA estimated the annual number of fatalities in light vehicle rear impact crashes with PCI into the rear of SUTs. The real world data indicated that there are annually 33 light vehicle occupant fatalities in impacts into the rear of SUTs that resulted in PCI. Only 30 percent of these impacts are at closing speeds less than or equal to 56 km/h (35 mph) for which CMVSS No. 223 compliant rear impact guards could prevent PCI.

    The benefits analysis also included an estimate of the annual number of injuries in light vehicle crashes with PCI into the rear of SUTs. Non-PCI crashes were not considered as part of the target population for estimating benefits. This is because the IIHS test data (see Appendix B to this preamble) show that when PCI was prevented, the dummy injury measures were significantly below the injury assessment reference values specified in FMVSS No. 208. In non-PCI crashes into the rear of SUTs and trailers, the IIHS test data indicated that the passenger vehicle's restraint system would mitigate injury.

    The benefits analysis in Appendix A estimates the equivalent lives saved (ELS) from a requirement for SUTs to have CMVSS No. 223 guards. The ELS are approximately 5.7 to 6.3 lives. The cost per ELS (3 and 7 percent discounted) is $106.7 million to $164.7 million, for each equivalent life saved. A summary of the analysis estimating incremental costs, benefits, and cost per equivalent lives saved is shown below in Table 7.

    Table 7—Estimates of Material, Installation, and Fuel Costs of Equipping Applicable SUTs (Class 3-8) With CMVSS Rear Impact Guards, Resulting Incremental Benefits of Lives Saved and Injuries Prevented, and Cost Per Equivalent Lives Saved Material + Installation + Fuel Costs Minimum to average incremental cost of CMVSS guard per SUT $307-$453. Number of SUTs needing guards annually 341,392. Total incremental cost of CMVSS guards in SUT fleet $104.9M-$154.6M. Minimum to average incremental weight of CMVSS guard per SUT 169 lb-210 lb. Minimum to average incremental lifetime fuel cost per SUT $924.7-$1,505.3. Minimum to average incremental fuel cost for SUT fleet $316M-$514M. Total minimum to average incremental cost of CMVSS guards +fuel for SUT fleet $421M-$669M. Benefits Estimates Target Population (light vehicle occupant fatalities in crashes with PCI into the rear of applicable SUTs) average to high injury estimates 20 lives; 99-182 MAIS 1 injuries; 33-82 MAIS 2 and 17-27 MAIS 3-5 injuries. Estimated effectiveness of CMVSS guards 0.25 for fatalities, 0.2 for injuries. Equivalent lives saved (undiscounted) average to high estimates 5.7-6.3. Equivalent lives saved (3% discounted) average to high estimates 4.4-4.9. Equivalent lives saved (7% discounted) average to high estimates 3.3-3.7. Cost/Benefit Analysis Cost per equivalent lives saved (3% discount) $106.7M-$152.9M. Cost per equivalent lives saved (7% discount) $113.9M-$164.7M. On Requiring SUTs to Have Retroreflective (Conspicuity) Tape

    NHTSA made a preliminary estimate of the cost of requiring new SUTs to have conspicuity tape. The cost of installing the tape was calculated based on the cost of the material itself and the cost to install the tape. The total cost for labor and materials is estimated at $23.28 + $11.10 x 1.51 consumer markup = $51.91 per SUT. NHTSA estimates that 578,631 new Class 3-8 trucks (GVWR > 10,000 lb) are sold annually. Thus, the total consumer costs required for applying conspicuity tape to new SUTs is estimated to be approximately $30.0 million annually ($51.91 x 578,631 = $30,036,735).

    NHTSA made a preliminary estimate of the benefits of requiring new SUTs to have conspicuity tape. The agency estimates that a requirement would prevent 14 fatalities. The estimated costs per fatality prevented for a retroreflective tape requirement for SUTs are shown in Table 8.

    Table 8—Cost per Fatality Prevented 3 percent discounted Fatality Prevented 14 Cost/Fatality Prevented $2.1 million Regulation Identifier Number

    The Department of Transportation assigns a regulation identifier number (RIN) to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. You may use the RIN contained in the heading at the beginning of this document to find this action in the Unified Agenda.

    Plain Language

    Executive Order 12866 requires each agency to write all rules in plain language. Application of the principles of plain language includes consideration of the following questions:

    • Have we organized the material to suit the public's needs?

    • Are the requirements in the rule clearly stated?

    • Does the rule contain technical language or jargon that isn't clear?

    • Would a different format (grouping and order of sections, use of headings, paragraphing) make the rule easier to understand?

    • Would more (but shorter) sections be better?

    • Could we improve clarity by adding tables, lists, or diagrams?

    • What else could we do to make the rule easier to understand?

    If you have any responses to these questions, please write to us with your views.

    Privacy Act

    In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

    VIII. Submission of Comments How can I influence NHTSA's thinking on this rulemaking?

    In developing this ANPRM, we tried to address the concerns of all our stakeholders. Your comments will help us improve this rulemaking. We invite you to provide different views on options we discuss, new approaches we have not considered, new data, descriptions of how this ANPRM may affect you, or other relevant information. We welcome your views on all aspects of this ANPRM, but request comments on specific issues throughout this document. Your comments will be most effective if you follow the suggestions below:

    —Explain your views and reasoning as clearly as possible.

    —Provide solid technical and cost data to support your views.

    —If you estimate potential costs, explain how you arrived at the estimate.

    —Tell us which parts of the ANPRM you support, as well as those with which you disagree.

    —Provide specific examples to illustrate your concerns.

    —Offer specific alternatives.

    —Refer your comments to specific sections of the ANPRM, such as the units or page numbers of the preamble.

    Your comments must be written and in English. To ensure that your comments are correctly filed in the docket, please include the docket number of this document in your comments.

    Your comments must not be more than 15 pages long (49 CFR 553.21). We established this limit to encourage you to write your primary comments in a concise fashion. However, you may attach necessary additional documents to your comments. There is no limit on the length of the attachments.

    Please submit your comments to the docket electronically by logging onto http://www.regulations.gov or by the means given in the ADDRESSES section at the beginning of this document.

    Please note that pursuant to the Data Quality Act, in order for substantive data to be relied upon and used by the agency, it must meet the information quality standards set forth in the OMB and DOT Data Quality Act guidelines. Accordingly, we encourage you to consult the guidelines in preparing your comments. OMB's guidelines may be accessed at http://www.whitehouse.gov/omb/fedreg/reproducible.html.

    How do I submit confidential business information?

    If you wish to submit any information under a claim of confidentiality, you should submit three copies of your complete submission, including the information you claim to be confidential business information, to the Chief Counsel, NHTSA, at the address given in the FOR FURTHER INFORMATION CONTACT section. In addition, you should submit a copy from which you have deleted the claimed confidential business information to the docket. When you send a comment containing information claimed to be confidential business information, you should include a cover letter setting forth the information specified in our confidential business information regulation. (49 CFR part 512.)

    Will the agency consider late comments?

    We will consider all comments that the docket receives before the close of business on the comment closing date indicated in the DATES section. To the extent possible, we will also consider comments that the docket receives after that date. If the docket receives a comment too late for us to consider it in developing the next step in this rulemaking, we will consider that comment as an informal suggestion for future rulemaking action.

    How can I read the comments submitted by other people?

    You may read the comments received by the docket at the address given in the ADDRESSES section. You may also see the comments on the Internet (http://regulations.gov).

    Please note that even after the comment closing date, we will continue to file relevant information in the docket as it becomes available. Further, some people may submit late comments. Accordingly, we recommend that you periodically check the docket for new material.

    Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the Federal Register published on April 11, 2000 (65 FR 19476 at 19477-78).

    Note:

    the following appendices will not appear in the CFR.

    Appendix A to Preamble—Cost-Benefit Evaluation of Requiring Single Unit Trucks (SUTs) to Have CMVSS No. 223 Guards Introduction

    This appendix provides NHTSA's analysis of the cost and benefits of requiring new SUTs to have CMVSS No. 223 rear impact guards. The analysis's findings, which are discussed in detail in this appendix, are summarized in the following Table A-1.48

    48 Earlier in the preamble, NHTSA requested comment on this analysis and posed a series of questions seeking information to help make the analysis more complete. For example, the agency noted that this analysis did not include the cost of changes to SUTs to accommodate CMVSS No. 223 guards, such as strengthening of rear beams, frame rails, and the floor of vehicles, or cost resulting from the reduction in payload resulting from increased weight of the SUT due to installation of a CMVSS No. 223 guard.

    Table A-1—Estimates of Material, Installation, and Fuel Costs of Equipping Applicable SUTs With CMVSS Rear Impact Guards, Resulting Incremental Benefits of Lives Saved and Injuries Prevented, and Cost Per Equivalent Lives Saved Material + Installation + Fuel Costs Minimum to average incremental cost of CMVSS guard per SUT $307-$453. Number of SUTs needing guards annually 341,392. Total incremental cost of CMVSS guards in SUT fleet $104.9M-$154.6M. Minimum to average incremental weight of CMVSS guard per SUT 169 lb-210 lb. Minimum to average incremental lifetime fuel cost per SUT $924.7-$1,505.3. Minimum to average incremental fuel cost for SUT fleet $316M-$514M. Total minimum to average incremental cost of CMVSS guards + fuel for SUT fleet $421M-$669M. Benefits Estimates Target Population (light vehicle occupant fatalities in crashes with PCI into the rear of applicable SUTs) average to high injury estimates 20 lives; 99-182 MAIS 1 injuries; 33-82 MAIS 2 and 17-27 MAIS 3-5 injuries. Estimated effectiveness of CMVSS guards 0.25 for fatalities, 0.2 for injuries. Equivalent lives saved (undiscounted) average to high estimates 5.7-6.3. Equivalent lives saved (3% discounted) average to high estimates 4.4-4.9. Equivalent lives saved (7% discounted) average to high estimates 3.3-3.7. Cost Per Equivalent Lives Saved Cost per equivalent lives saved (3% discount) $106.7M-$152.9M. Cost per equivalent lives saved (7% discount) $113.9M-$164.7M. Estimating the Population of Covered SUTs

    Currently, rear impact protection for SUTs is regulated by FMCSR regulation 49 CFR 393.86(b), which requires that certain SUTs used in interstate commerce have a guard if there is no vehicle parts or equipment within the area where the rear impact guard location is prescribed. (The bottom plane of the area is not more than 762 mm (30 inches) above the ground, the forward-most plane of the area is not more than 610 mm (24 inches) forward of the rear extremity, and the lateral planes of the area are not more than 457 mm (18 inches) from the side extremity of the SUT.)

    CMVSS No. 223 requires rear impact guards on trailers 49 that do not have equipment or vehicle parts within the area where the rear impact guard is prescribed to be located. (The bottom plane of the area is not more than 560 mm (22 inches) above the ground, the forward-most plane of the area is not more than 305 mm (12 inches) forward of the rear extremity, and the lateral planes of the area are not more than 100 mm (4 inches) from the side extremity of the trailer.)

    49 Pole trailers, pulpwood trailers, horizontal discharge trailers, and some other types of trailers are excluded.

    The geometric requirements for the guards in CMVSS No. 223 are similar to that in FMVSS No. 224. The contrast between the geometric requirements of the guards in FMCSR 393.86(b) and CMVSS No. 223 is shown in Figure A-1.

    EP23JY15.005

    The various underride guard standards exclude certain vehicles from their requirements due to reasons such as impediments to equipping a guard in a specified area or because the design of the vehicle renders a guard unnecessary to prevent underride. FMVSS No. 224 and CMVSS No. 223 have similar exclusions of vehicles, in contrast to FMCSA 393.86(b). For example, in FMCSR 393.86(b), a “wheels back vehicle” is one where the vehicle's rearmost axle is not more than 610 mm forward of the rear extremity of the vehicle, while in FMVSS No. 224 and CMVSS No. 223, a “wheels back” trailer is one where the rearmost axle is not more than 305 mm forward of the rear extremity of the vehicle. Another example is definitions of a “low chassis” vehicle. In FMCSR 393.86(b), a “low chassis vehicle” is one where the ground clearance of the bottom edge of the chassis which extends to the rearmost part of the vehicle is less than or equal to 762 mm, while in FMVSS No. 224 and CMVSS No. 223, a low chassis trailer is one where the ground clearance of the bottom edge of the chassis which extends to the rearmost part of the vehicle is less than or equal to 560 mm. If NHTSA were to require SUTs to comply with CMVSS No. 223, then some SUTs that were previously excluded by the FMCSR from having guards because they were considered wheels back or low chassis vehicles under FMCSR 393.86(b) would no longer qualify as wheels back or low chassis vehicles under CMVSS No. 223. These vehicles therefore would have to be equipped with rear impact guards in accordance with CMVSS No. 223.

    UMTRI 50 evaluated the rear geometry of SUTs involved in fatal crashes in the 2008 and 2009 TIFA data files and estimated that 38 percent of SUTs were configured so as to be included under FMCSA 393.86(b) based on vehicle design, as shown below in Table A-2. However, UMTRI estimated that only 18 percent of SUTs were equipped with rear impact guards. The remaining 20 percent of the SUTs that appeared, based on vehicle design, to be included in the requirement to have a guard but did not have one, likely were not used in interstate commerce and so not covered by FMCSR 393.86(b).

    50 Heavy-Vehicle Crash Data Collection and Analysis to Characterize Rear and Side Underride and Front Override in Fatal Truck Crashes, DOT HS 811 725, March 2013.

    Table A-2—Percentage of SUTs by Their Rear Geometry and Whether a Rear Impact Guard Was Required According to UMTRI's Evaluation of SUTs Involved in Fatal Crashes in the 2008-2009 TIFA Data Files Type of rear geometry Percentage of SUTs Rear Impact Guard Required: Guard present 18 Guard not present 20 Rear Impact Guard Not Required: Excluded vehicle 8 Wheels back vehicle 27 Low chassis vehicle 9 Wheels back and low chassis vehicle 2 Equipment 16

    NHTSA examined the rear geometry of SUTs in the 2008 and 2009 TIFA data files from the 2013 UMTRI study to determine the vehicles that would need to have rear impact guards in accordance with CMVSS No. 223 and the vehicles that would be excluded (as within an excluded type of vehicle, i.e., wheels back, low chassis, rear equipment, special vehicles). The examination (Table A-3) shows that 59 percent of SUTs would need rear impact guards according to CMVSS No. 223.

    Since UMTRI's evaluation (Table A-2) indicates that only 18 percent of SUTs that had a rear geometry that did not outwardly qualify as an excluded vehicle under FMCSR 393.86(b) had guards,51 18 percent of SUTs (those now with guards meeting FMCSR 393.86(b)) would need upgraded CMVSS No. 223 guards, and 41 percent (= 59 -18) of SUTs now without rear impact guards would need CMVSS No. 223 guards.

    51 UMTRI estimated that although 38 percent of the SUTs involved in fatal crashes were required to have rear impact guards (based on the truck rear geometry according to FMCSR 393.86(b)), only 18 percent were equipped with them. It is likely that the remaining 20 percent of the SUTs that were configured so as not to be considered among the vehicles excluded from FMCSA 393.86(b) based on vehicle design, but that did not have a guard, were not used in interstate commerce.

    Table A-3—Percentage of SUTs by Their Rear Geometry in the 2008-2009 TIFA Data Files and Whether a Guard Would Be Required According to Current FMCSR 393.86(b) Specifications and to CMVSS No. 223 Specifications Type of rear geometry Classification per FMCSR 393.86(b)
  • (percent)
  • Classification per CMVSS No. 223
  • (percent)
  • Rear impact guard required 38 59 Wheels back and/or low chassis vehicle 38 20 Equipment in rear and/or excluded vehicle 24 21

    The agency evaluated SUTs of Classes 3 to 8 (SUTs with a GVWR greater than 10,000 lb) as shown in Table A-4 for upgrading to CMVSS No. 223 requirements. The annual truck sales for 2012 were obtained from the Ward's Automotive Yearbook 2013 by the Ward's Automotive Group 52 and are presented in Table A-5.

    52 Ward's Automotive group, ISBN Number 978-0-910589-31-4, Southfield, MI 2013. http://wardsauto.com/.

    Table A-4—SUT Classification and Examples 53—Weight Category Definitions From 49 CFR 565, “Vehicle Identification Number (VIN) Requirements” Vehicle class Weight range
  • (lb)
  • Examples
    3 10,000-14,000 Walk-In, Box Truck, City Delivery, Heavy-Duty Pickup. 4 14,001-16,000 Large Walk-In, Box Truck, City Delivery. 5 16,001-19,500 Bucket Truck, Large Walk-In, City Delivery. 6 19,501-26,000 Beverage Truck, Rack Truck. 7 26,001-33,000 Refuse truck, Furniture truck. 8 33,001 and over Cement Truck, Dump Truck.

    53 Source: Oak Ridge National Laboratory, Center for Transportation Analysis, Oak Ridge, TN http://cta.ornl.gov/vtmarketreport/heavy_trucks.shtml.

    Table A-5—Annual Sales of SUTs in 2012 SUT Class Sales in 2012 3 232,755 4 9,431 5 54,898 6 39,978 7 46,854 8 194,715 Total Class 3-8 truck sales in 2012 = 578,631

    The total sales volume of SUTs of Class 3-8 in 2012 was 578,631. Assuming that the classification of SUTs in the 2008-2009 TIFA data files as shown in Table A-3 is representative of the SUT fleet, then 59 percent of the SUTs sold annually would require CMVSS No. 223 guards. Therefore, applying CMVSS No. 223 to SUTs would affect approximately 341,692 (= 0.59 × 578,631) SUTs sold annually.54

    54 I.e., these vehicles would be required to be equipped with rear impact guards meeting CMVSS No. 223.

    Costs Cost of Rear Impact Guards

    In 2013, NHTSA conducted a study to develop cost and weight estimates for rear impact guards on heavy trailers.55 Using the cost estimates for rear impact guards obtained from this study, in this section we estimate the cost of equipping SUTs with the guards.

    55 Cost and weight analysis for rear impact guards on heavy trucks, Docket No. NHTSA-2011-0066-0086, June 2013.

    In the 2013 study, the researchers estimated the cost and weight of FMCSR 393.86(b) rear impact guards, FMVSS No. 223 rear impact guards, and CMVSS No. 223 rear impact guards (Table A-6). All costs are presented in 2012 dollars. In estimating the cost and weight of guards, an engineering analysis of the guard system for each trailer was conducted, including material composition, manufacturing and construction methods and processes, component size, and attachment methods. We note, however, that the authors did not take into account the construction, costs, and weight changes in the trailer structure that would be needed to withstand loads from the stronger guards. Thus, a limitation of this analysis is the fact that the authors did not evaluate the changes in design of the rear beam, frame rails, and floor of the trailer when replacing a rear impact guard compliant with FMCSR 393.86(b) with an FMVSS No. 224 compliant guard and then to a CMVSS No. 223 compliant guard.

    Table A-6—Cost (2012 Dollars) and Weight of Different Types of Rear Impact Guards Type of rear impact guard Trailer model year/Make Guard
  • assembly
  • Installation
  • cost
  • Total
  • cost
  • Weight
  • (lb)
  • FMCSR 393.86(b) 1993 Great Dane $64.35 $41.31 $105.66 78 FMVSS No. 224 2001 Great Dane 150.97 108.14 259.11 172 CMVSS No. 223 2012 Great Dane 188.36 151.00 339.36 193 2012 Manac 297.62 245.09 542.72 307 2012 Stoughton 244.38 219.11 463.49 191 2012 Wabash 440.49 152.93 593.42 243

    The average cost of a CMVSS rear impact guard is $485, which is $226 more than an FMVSS No. 224 guard and $379 more than an FMCSR 393.86(b) guard. In comparing the Great Dane rear impact guards, the 2012 Great Dane guard (the least expensive CMVSS No. 223 guard studied) is $234 more expensive than the 1993 guard (FMCSR 393.86(b) guard).

    NHTSA used the incremental cost of $234 to $379 56 (from Table A-6) to estimate costs of upgrading SUTs presently with FMCSR 393.86(b) guards to CMVSS No. 223 guards. The agency used the incremental cost of $339 to $485 57 (from Table A-6) to estimate costs of equipping SUTs presently without guards with CMVSS No. 223 guards. These incremental costs do not take into account additional construction, costs, and weight changes needed in the SUT structure to withstand loads from the upgraded guards. Thus, the agency believes that the lower cost estimates may not represent the true incremental cost of equipping SUTs with rear impact guards. An analysis was therefore also conducted using the average incremental costs.

    56 $234 is the lowest incremental cost to upgrade from an FMCSR 393.86(b) guard to a CMVSS No. 223 guard and $379 represents the average incremental cost.

    57 $339 is the lowest incremental cost to upgrade from no guard to a CMVSS No. 223 guard and $485 represents the average incremental cost.

    In the new SUT fleet, 18 percent of the fleet now equipped with FMCSR guards would be upgraded to CMVSS guards, and 41 percent of the fleet now without guards would need CMVSS guards. Therefore, the weighted incremental cost of CMVSS guards for applicable SUTs is $307 to $453, as shown in Table A-7.

    Table A-7—Estimating the Weighted Incremental Cost of Equipping CMVSS No. 223 Guards on Applicable SUTs Cost Minimum cost of CMVSS No. 223 compliant guard (a1) = $339 Average cost of CMVSS No. 223 compliant guard (a2) = 485 Incremental minimum cost of CMVSS guard over FMCSR guard (b1) = 234 Incremental average cost of CMVSS guard over FMCSR guard (b2) = 379 Percentage of SUTs that have FMCSR guards and would need CMVSS guards (c1) = 18% Percentage of SUTs that do not have guards and would need CMVSS guards (c2) = 41% Weighted minimum cost per SUT to equip Canadian guard (c1*b1+c2*a1)/(c1+c2) = 307 Weighted average cost per SUT to equip Canadian guard (c1*b2+c2*a2)/(c1+c2) = 453

    Based on these data, the agency estimated the total annual incremental material and installation cost of requiring new applicable SUTs to be equipped with CMVSS No. 223 rear impact guards (shown in Table A-8).

    Table A-8—Annual Incremental Material and Installation Cost of Requiring CMVSS No. 223 Guards on New SUTs Lower bound Average Total Number of SUTs Needing CMVSS Guards (a) 341,692 Incremental Cost of CMVSS Guard (b) $307 $453 Total cost for truck fleet (a × b) $104,942,055 $154,619,794 Lifetime Fuel Costs

    Using the data in Table A-6, the average weight of a CMVSS No. 223 compliant guard is 234 lb, which is 156 lb greater than an FMCSR 393.86(b) guard. In comparing the Great Dane rear impact guards, the 2012 Great Dane guard is 115 lb heavier than the 1993 Great Dane guard.

    In the new SUT fleet, 18 percent equipped with FMCSR guards would be upgraded to CMVSS guards and 41 percent without any guards would need CMVSS guards. The weighted incremental increase in the weight of SUTs was obtained in a similar manner as the weight incremental cost shown in Table A-9.

    Table A-9—Estimating the Weighted Incremental Weight Increase of Equipping CMVSS No. 223 Compliant Guards on Applicable SUTs Weight (lb) Minimum weight of CMVSS No. 223 compliant guard (a1) = 193 Average weight of CMVSS No. 223 compliant guard (a2) = 234 Incremental minimum weight of CMVSS guard over FMCSR guard (b1) = 115 Incremental average weight of CMVSS guard over FMCSR guard (b2) = 156 Percentage of SUTs that have FMCSR guards and would need CMVSS guards (c1) = 18% Percentage of SUTs that don't have guards and would need CMVSS guards (c2) = 41% Weighted minimum weight increase per SUT to equip Canadian guard (c1*b1+c2*a1)/(c1+c2) = 169 Weighted average weight increase per SUT to equip Canadian guard (c1*b2+c2*a2)/(c1+c2) = 210

    Therefore, the minimum to average increased weight of equipping CMVSS guards for applicable SUTs is 169 lb to 210 lb. The added weight would increase the fuel consumption costs during the lifetime of the vehicle, costs that have to be discounted to present rate to determine the total present value annual cost of equipping SUTs with CMVSS No. 223 rear impact guards.

    The vehicle miles of travel and the fuel economy for heavy vehicles is shown in Table A-10.

    Table A-10—Annual Vehicle Miles of Travel and Fuel Economy per SUT (2008 to 2011) 58 2008 2009 2010 2011 Average miles traveled per SUT 15,306 14,386 13,469 13,239 Average fuel economy per SUT (mpg) 7.4 7.4 7.3 7.3

    Using the base fuel economy of 7.3 miles per gallon (mpg) shown in Table A-10 for the year 2011, the reduced new fuel economy for Class 3-8 SUTs due to the minimum to average added weight of 169 lb-210 lb (for CMVSS No. 223 guards) was computed (as shown in Table A-11) using the standard formula: 59

    58 Data from Oakridge National Laboratories (ORNL) market report at http://cta.ornl.gov/vtmarketreport/pdf/chapter3_heavy_trucks.pdf (see Figure 78 on page 100).

    59 This standard formula for estimating the impact of marginal weight increases on fuel economy is based on light vehicle data. However, it is the best available method for estimating changes in fuel economy due to weight increases at this time and so is used here for heavy vehicles.

    New fuel economy = (base vehicle weight/[base vehicle weight + added weight]) ^0.8* (base fuel economy)

    The average weight of Class 3, Class 4-6, Class 7, and Class 8 SUTs (shown in Table A-11) was estimated from Table A-4. The average weight of Class 4-6 SUTs was weighted by their respective sales volume shown in Table A-5. The average weight of Class 8 (weight range 33,001 and over) trucks was assumed to be 40,000 lb.

    Table A-11—Estimating New Fuel Economy (mpg) Using the Standard Formula SUT Class Average
  • weight
  • (lb)
  • Average
  • weight + 169 lb
  • Average
  • weight + 210 lb
  • Base fuel
  • economy (mpg)
  • New fuel
  • economy
  • (+169 lb) (mpg)
  • New fuel
  • economy
  • (+210 lb) (mpg)
  • 3 12,000 12169 12210 7.3 7.218686 7.199288 4-6 19418 19587 19628 7.3 7.249507 7.237390 7 29500 29669 29710 7.3 7.266675 7.258652 8 40000 40169 40210 7.3 7.275390 7.269455

    The method of deriving discount rates is presented in Table A-12 for Class 3 SUTs as an example. The 3 percent and 7 percent discount rates for Class 3, Class 4-6, Class 7, and Class 8 SUTs are summarized in Table A-13.

    EP23JY15.008

    The overall discount rate for Class 3-8 SUTs was determined as the weighted average of the discount rates shown in Table A-13 (weighted by the sales volume shown in Table A-5).

    Table A-13—Discount Rates for Class 3, Class 4-6, Class 7, and Class 8 SUTs and the Discount Rates for the Aggregate Class 3-8 [Weighted by sales volume] Discount rate Class 3 Class 4-6 Class 7 Class 8 Overall discount rate
  • (Class 3-8 weighted
  • average)
  • 3 Percent 0.79165 0.78643 0.77162 0.74705 0.77408 7 Percent 0.61196 0.60759 0.58533 0.54827 0.58758

    The cost of diesel fuel during the lifetime of an SUT (2017 to 2051) was obtained from the Annual Energy Outlook 2014 AEO2014 worksheet in 2012 dollars.60 The tax for diesel fuel (estimated at $0.54 per gallon) was obtained from the American Petroleum Institute (API).61 The calculation for the incremental lifetime cost of fuel due to minimum increase in weight of the vehicle (169 lb) due to installing CMVSS No. 223 compliant guards is shown in Table A-14 for Class 3 SUTs as an example.

    60 Annual Energy Outlook 2014, U.S. Energy Information Administration, http://www.eia.gov/forecasts/aeo/.

    61http://www.api.org/statistics/fueltaxes/upload/State_Motor_Fuel_Excise_Tax_Update.pdf.

    EP23JY15.009

    Tables A-15(a) and A-15(b) present the summary analysis for determining the total incremental lifetime fuel cost of equipping Class 3-8 SUTs with CMVSS No. 223 guards that results in increase in SUT weight by a minimum of 169 lb to an average of 210 lb. The discounted incremental lifetime fuel cost per SUT for the different class SUTs shown in columns 2 and 3 of Table A-15(a) and Table A-15(b) was obtained as shown in Table A-14 for Class 3 SUTs. The annual number of SUTs in each class requiring CMVSS No. 223 guards was estimated to be 59 percent (as shown in Table A-3) of the annual sales volume. The total minimum incremental fuel cost for each SUT class (last two columns of Table A-15(a)) is the product of the number of SUTs of the class requiring CMVSS No. 223 guards and the increased fuel cost per SUT for that Class of SUTs (e.g. for Class 3 SUTs with 169 lb weight increase, 3 percent discounted total minimum incremental fuel costs = $1,513.02 × 137,446). A similar analysis of total average incremental fuel cost for average weight increase of 210 lb is shown in Table A-15(b).

    The total minimum incremental fuel cost for all SUTs (second to last row in Table A-15(a)) is the sum of the total minimum incremental fuel cost for each SUT class shown in the last two columns of Table A-15(a). The average incremental fuel cost per SUT for all Class 3-8 SUTs (last row in Table A-15(a)) with 169 lb weight increase is obtained by dividing the total minimum incremental fuel cost for the annual SUT fleet by the total number of SUTs with CMVSS guards (e.g. for 3 percent discount, average incremental fuel cost per SUT (Class 3-8) = $1,212 = $414,129,456/341,692). The average incremental fuel cost per SUT for all Class 3-8 SUTs with 210 lb weight increase is shown in Table A-15(b).

    Table A-15—Incremental Lifetime Fuel Costs per SUT, Sales Volume per SUT Class, Annual Number of SUTs Requiring CMVSS No. 223 Guards, Total Incremental Fuel Costs by Class of SUT and for All SUTs Requiring CMVSS Guards, and the Incremental Fuel Cost per Class 3-8 SUTs [(a) (For weight increase = 169 lb)] Class Increased minimum lifetime fuel cost per SUT (169 lb weight increase) 3 percent 7 percent Annual sales volume SUTs that would have CMVSS No. 223 guards Total minimum incremental lifetime fuel costs (169 lb weight increase) 3 percent 7 percent 3 $1,513.02 $1,169.59 232,755 137,446 $207,958,428 $160,754,780 4-6 1,345.48 1,039.50 104,307 61,595 82,875,115 64,028,366 7 1,004.81 762.22 46,854 27,668 27,801,137 21,089,132 8 830.51 609.53 194,715 114,983 95,494,776 70,085,316 Total Number of SUTs with CMVSS guards = 341,692 Total minimum incremental fuel cost for Class 3-8 SUTs proposed to have CMVSS guards = 414,129,456 315,957,594 Average minimum incremental fuel cost per Class 3-8 SUTs proposed to have CMVSS guards = 1,212.00 924.69 [(b) (For weight increase = 210 lb)] Class Increased average lifetime fuel cost per SUT (210 lb weight increase) 3 percent 7 percent Annual sales volume SUTs that would have CMVSS No. 223 guards Total average incremental lifetime fuel costs (210 lb weight increase) 3 percent 7 percent 3 $1,879.01 $1,452.50 232,755 137,446 $258,261,947 $199,640,105 4-6 1,671.16 1,291.12 104,307 61,595 102,935,155 79,526,524 7 1,248.11 946.78 46,854 27,668 34,532,905 26,195,655 8 1,031.65 757.15 194,715 114,983 118,622,180 87,058,930 Total Number of SUTs with CMVSS guards= 341,692 Total average incremental fuel cost for Class 3-8 SUTs proposed to have CMVSS guards= 514,352,187 392,421,214 Average incremental fuel cost per Class 3-8 SUTs 1,505.31 1,148.46

    The weighted minimum incremental increase in lifetime fuel cost per SUT (for Class 3-8 SUTs) at 3 percent discounting is $1,212 and that at 7 percent discounting is $924.7.62 The weighted average incremental increase in lifetime fuel cost per SUT (for Class 3-8 SUTs) at 3 percent discounting is $1,505 and that at 7 percent discounting is $1,148.5. The total minimum incremental increase in lifetime fuel cost in the Class 3-8 SUT fleet is $414.1M a 3 percent discount rate and $315.9M at 7 percent discount rate. The total average incremental increase in lifetime fuel cost in the Class 3-8 SUT fleet is $514.3M a 3 percent discount rate and $392.4M at 7 percent discount rate.

    62 The incremental fuel costs at 3 percent and 7 percent discounting include tax for diesel fuel.

    Table A-16 presents the total fleet incremental cost (sum of incremental equipment and installation cost in Table A-8 and fuel cost in Table A-15) to the new applicable SUTs to be equipped with CMVSS No. 223 compliant rear impact guards.

    Table A-16—Total Incremental Fleet Cost of Equipping Applicable New SUTs With CMVSS No. 223 Rear Impact Guards (Equipment/Installation Cost in Table A-8 + Minimum Fuel Cost in Table A-15) Equipment + installation costs Fuel cost 3% 7% Total costs 3% 7% Low Estimate $104,942,055 $414,129,456 $315,957,594 $519,071,511 $420,899,649 Average Estimate 154,619,794 514,352,187 392,421,214 668,971,981 547,041,007

    NHTSA estimated an average maintenance and repair expense for a rear impact guard over the vehicle's lifetime of $15.63 This maintenance and repair cost is relatively small compared to the lifetime fuel cost and was not taken into consideration in the present analysis. Reduced revenue from reduced payload of commercial operations due to increase in vehicle weight was not taken into consideration because the percentage of SUTs that are currently operating at their GVWR limit is not known. Taking into consideration the reduced revenue that could result from increase in vehicle weight would further increase the cost of requiring rear impact guards on SUTs. Therefore, this analysis is a conservative estimate of the cost.

    63 Allen, Kirk, “An In-Service Analysis of Maintenance and Repair Expenses for the Anti-Lock Brake System and Underride Guard for Tractors and Trailer,” March 2009, DOT HS 811 109.

    Benefits

    For estimating the benefits of requiring covered SUTs to be equipped with CMVSS No. 223 guards, NHTSA estimated the annual number of fatalities in light vehicle rear impact crashes with PCI into the rear of SUTs. Additionally, NHTSA estimated the annual number of injuries in light vehicle crashes with PCI into the rear of SUTs. Non-PCI crashes were not considered as part of the target population for estimating benefits. This is because the IIHS test data (see Appendix B to the preamble) show that when PCI was prevented, the dummy injury measures were significantly below the injury assessment reference values specified in occupant crash protection standards. In non-PCI crashes into the rear of SUTs and trailers, the IIHS test data indicated that the passenger vehicle's restraint system would mitigate injury.

    Among the 104 light vehicle occupant fatalities resulting from impacts with the rear of SUTs, 80 occurred in impacts with SUTs without rear impact guards while the remaining 24 were in impacts to SUTs with guards. PCI was associated with 33 annual light vehicle occupant fatalities resulting from impacts into the rear of SUTs; 25 of these fatalities were in impacts with SUTs without rear impact guards and 8 with SUTs with guards (see Figure A-2 below).

    EP23JY15.006

    As explained earlier in this analysis, if CMVSS No. 223 were to apply to SUTs, 59 percent of new SUTs would be required to have a CMVSS No. 223 guard (see Table A-3, supra). The 41 percent of SUTs that would be excluded from meeting CMVSS No. 223 requirements would be wheels back and low chassis vehicles that have vehicle structure in the rear that could prevent PCI or vehicles with equipment in the rear for which installing rear impact guards may not be practicable and may interfere with equipment operation. Since the extent of underride was determined by the extent of deformation and intrusion of the vehicle, based on our examination of TIFA cases it is likely that some light vehicle crashes into the rear of excluded SUTs that resulted in PCI did not actually underride the truck but sustained PCI because of other circumstances such as crash speed or short front end of the vehicle. Therefore, the target population of light vehicle occupant fatalities with PCI which may be addressed by equipping SUTs with CMVSS No. 223 compliant rear impact guards is estimated to be 19.5 (=33 × 0.59).

    Approximately 30 percent of the impacts into the rear of SUTs with PCI are less than or equal to 56 km/h (35 mph) (See Figure A-3 below).

    EP23JY15.007

    While CMVSS No. 223 requirements are intended for mitigating PCI in light vehicle rear impacts at speeds less than or equal to 56 km/h (35 mph),64 CMVSS No. 223 rear impact guards may not be able to mitigate all fatalities in such crashes because some of the crashes may be low overlap (30 percent or less).65 The IIHS data indicated that 8 of the 9 CMVSS No. 223 guards were not able to prevent PCI in a 56 km/h crash with 30 percent overlap of a Chevrolet Malibu. Also, the guards may not be able to prevent fatalities even if PCI is prevented because some fatalities may not be a result of PCI but are due to other circumstances (e.g. unrestrained status of occupants, elderly and other vulnerable occupants) which would be unaffected by an improved rear impact guard.66

    64 Transport Canada testing of minimally compliant CMVSS No. 223 rear impact guards indicated that such guards could prevent PCI in light vehicle impacts with full overlap of the guard at crash speeds up to 56 km/h. See Boucher D., David D., “Trailer Underride Protection—A Canadian Perspective,” SAE Paper No. 2000-01-3522.

    65 Overlap refers to the percentage of impacting vehicle front end width that engages the rear impact guard.

    66 CMVSS No. 223 compliant rear impact guards may mitigate the severity of impact into the rear of SUTs at speeds greater than 56 km/h, but NHTSA is unable to quantify this possible benefit at this time. We seek comment on this issue.

    For the purpose of this analysis, NHTSA assumed that CMVSS No. 223 compliant guards on SUTs would be able to prevent about 85% of light vehicle occupant fatalities with PCI in impacts into the rear of SUTs at crash speeds less than or equal to 35 mph. However, since only 30 percent of the target population of light vehicle crashes with PCI into the rear of SUTs are at speeds less than or equal to 56 km/h, CMVSS No. 223 compliant guards would only be effective for a portion of the target population. Therefore NHTSA estimated an overall effectiveness of 25 percent (≉30% × 85%) for CMVSS No. 223 rear impact guards in preventing fatalities in light vehicle crashes into the rear of SUTs.67 We believe this is an upper estimate of CMVSS No. 223 guard effectiveness in preventing fatalities.68

    67 The agency's 2010 study—“The Effectiveness of Underride Guards for Heavy Trailers,” October, 2010, DOT HS 811 375—estimated an effectiveness of 27 percent from data collected in Florida and 83 percent from data collected in North Carolina for FMVSS No. 223 compliant rear impact guards in preventing fatalities. These two estimates are considerably different and not statistically significant, possibly due to small sample size, and so associated with some uncertainty. Therefore, these effectiveness estimates were not utilized in the current analysis. Instead the agency relied on real world crash data and the test data to estimate rear impact guard effectiveness.

    68 Review of 2009 TIFA data files of light vehicle impacts with PCI into the rear of SUTs indicated that only 55 percent of the fatally injured occupants were restrained.

    In the final regulatory evaluation for the January 24, 1996 final rule establishing FMVSS Nos. 223 and 224 (61 FR 2004), NHTSA assumed an effectiveness range of 10 to 25 percent for rear impact guards in preventing fatalities in crashes with PCI (all speeds) into the rear of trailers. The 25 percent effectiveness estimated for the current analysis (based on 2008-2009 TIFA data and the IIHS crash test data) is the higher value of the assumed effectiveness range of rear impact guards in the 1996 final rule.

    To estimate the incidence and characteristics of nonfatal injuries to light vehicle occupants in impacts to the rear of SUTs resulting in underride, the agency analyzed the NASS-CDS data files for the years 1999-2012. Specifically, the cases examined were light vehicle frontal impacts into the rear of SUTs with a GVWR greater than or equal to 10,000 lb, where the light vehicle underrides the SUT resulting in PCI of the windshield or A-pillar of the light vehicle.

    The analysis showed that rear underride crashes of a light vehicle into the rear of SUTs with a non-fatal injury to light vehicle occupants represent only 0.3 percent of the population of all crashes involving SUTs. The analysis estimated annualized weighted injuries of different severity levels in light vehicle impacts into the rear of SUTs resulting in underride with PCI. Table A-17 presents the results of this analysis of 1999-2012 NASS-CDS data files. There were a total of 150 injuries of MAIS 1-5 severity.

    Table A-17—MAIS 69 Injury Distribution and Annualized Weighted Estimates of Injuries to Light Vehicle Occupants in Frontal Impacts Into the Rear of SUTs With Underride Resulting PCI. (1999-2012 NASS-CDS Data Files) MAIS level Occupant count Weighted count Annualized weighted count 95% confidence interval for annualized weighted count Percent of total 1 13 1,398 99 (17, 182) 66 2 5 459 33 (0, 82) 21.7 3 9 145 10 (1, 20) 6.8 4 2 105 7 sample too small 5 5 0 0 0 sample too small 0 7 1 11 1 sample too small 0.5 Total 30 2,118 151 (57, 245) 100

    69 MAIS is the maximum severity injury for an occupant according to the Abbreviated Injury Scale (AIS). MAIS 1 is of minor severity, MAIS 2 of moderate severity, MAIS 3-5 are serious to critical injuries, MAIS 7 are injuries of unknown severity.

    NHTSA examined each case individually to obtain more information about the injuries. The files showed that many of the injuries shown in Table A-17 were not directly attributable to PCI resulting from underride. For example, one case involved a passenger van with six separate injured occupants. Only two of these injured passengers were seated in the front row were subject to possible injury from PCI. Thus, we believe that Table A-17 likely provides an overestimate of the number of annual light vehicle occupant injuries resulting from SUT underride with PCI.

    NHTSA assumed 20 percent effectiveness in preventing injuries in light vehicle crashes with PCI into the rear of SUTs. CMVSS No. 223 guards are effective in mitigating PCI in light vehicle impacts into the rear of SUTs at speeds less or equal to 56 km/h (35 mph), which is about 30 percent of all such impacts with PCI.70 Additionally, we expect the effectiveness of rear impact guards for preventing injuries to be lower than that for fatalities since occupant injuries could occur from interior vehicle contacts even if PCI is prevented. The 20 percent effectiveness estimate takes into consideration that CMVSS No. 223 requirements are intended for mitigating PCI in light vehicle rear crashes (with greater than 30 percent overlap) at speeds less than or equal to 56 km/h (35 mph). It also takes into account that some injuries are due to circumstances (e.g. unrestrained status of occupants, elderly and other vulnerable occupants) which would not be affected by an improved rear impact guard.

    70 As noted earlier, CMVSS No. 223 compliant rear impact guards may mitigate the severity of impact into the rear of SUTs at speeds greater than 56 km/h, but NHTSA is unable to quantify this possible benefit at this time. We seek comment on this issue.

    Table A-18 presents the target population (estimated fatalities and injuries addressable by CMVSS No. 223 guards on applicable SUTs), the effectiveness estimates, and the estimated benefits of equipping applicable SUTs with CMVSS No. 223 guards.

    Table A-18—Target Population, Effectiveness, and Benefits Estimates Fatality MAIS 1 MAIS 2 MAIS 3 MAIS 4 MAIS 5 Target population (a) 19.5 99 33 10 7 0 Effectiveness (b) 0.25 0.2 0.2 0.2 0.2 0.2 Benefits (a × b) 4.9 19.8 6.6 2 1.4 0

    NHTSA monetized the benefits, converting nonfatal injuries into portions of a fatality to calculate the number of equivalent fatalities (equivalent lives saved) (ELS) that are prevented by SUTs with CMVSS No. 223 guards. This involves dividing the value of each injury severity category by the value of fatality to determine how many injuries equal a fatality. Comprehensive values, which include both economic impacts and loss of quality (or value) of life considerations, developed by NHTSA 71 were used to determine the relative value of nonfatal injuries to fatalities. The comprehensive costs and the relative fatality ratio developed by NHTSA for each injury severity are listed in Table A-19. The reported costs are in 2000 dollars, but the relative values between injuries and fatalities would not change if costs are adjusted to present value.

    71 Blincoe, L., et al., The Economic Impact of Motor Vehicle Crashes, 2000, Washington, DC, DOT HS 809 446, May 2002

    Table A-19—Comprehensive Costs and Relative Fatality Ratios Injury severity Comprehensive costs
  • (2000 $)
  • Relative
  • fatality ratio
  • MAIS 1 15,017 0.0028 MAIS 2 157,958 0.0436 MAIS 3 314,204 0.0804 MAIS 4 731,580 0.1998 MAIS 5 2,402,997 0.6656 Fatality 3,366,388 1.0000

    Table A-20 presents the undiscounted ELS using the relative fatality ratios shown in Table A-19.

    Table A-20—Undiscounted Equivalent Lives Saved (ELS) Using Average Number of Annualized Injuries in Table A-15 Fatality MAIS 1 MAIS 2 MAIS 3 MAIS 4 MAIS 5 Fatality/injury reduced 4.9 19.8 6.6 2 1.4 0 Relative fatality ratio 1 0.0028 0.0436 0.0804 0.1998 0.6656 ELS 4.9 0.0554 0.2878 0.1608 0.2797 0.0000 Total ELS 5.65

    Since there is some uncertainty in the target population of injuries, the upper bound 95 percent confidence interval estimates of the weighted injury counts shown in Table A-17 were also considered in estimating benefits and total equivalent lives as shown in Table A-21.

    Table A-21—Target Population, Benefits, and Undiscounted Equivalent Lives Saved Using the Upper Bound of Injury Estimates in Table A-17. Fatality AIS 1 AIS 2 AIS 3 AIS 4 AIS 5 Fatality+max injury (a) 19.5 182 82 20 7 0 Effectiveness (b) 0.25 0.2 0.2 0.2 0.2 0.2 Benefits (a x b) 4.9 36.4 16.4 4 1.4 0 Relative fatality ratio 1 0.0028 0.0436 0.0804 0.1998 0.6656 ELS 4.9 0.1019 0.7150 0.3216 0.2797 0.0000 Total ELS 6.29

    Since fatalities and injuries occur during the lifetime of the vehicle, they are discounted to present value using the discount rates determined in Table A-13. The 3 percent and 7 percent discounted benefits in terms of ELS are presented in Table A-22.

    Table A-22—3 and 7 Percent Discounted ELS Discount rate Undiscounted 3% 7% Discount Factors (from Table A-10) 0.7741 0.5876 Total ELS from Table A-18 (using average injury estimates) 5.65 4.37 3.32 Total ELS from Table A-19 (using upper bound of injury estimates) 6.29 4.87 3.69

    The cost per equivalent lives saved was determined using the total costs in Table A-16 and the discounted ELS in Table A-22 and is presented in Table A-23. The cost per ELS is in the range of $106.7 million to $164.7 million.72

    72 Note that this analysis uses low and average estimates of the costs, and average and high estimates of the benefits of equipping CMVSS No. 223 compliant guards on applicable SUTs.

    Table A-23—Costs per ELS at 3 Percent and 7 Percent Discount Rates Benefits (average) Benefits (high) 3 percent discount rate Total cost (low estimate) $118,658,542 $106,679,764 Total cost (average estimate) 152,925,441 137,487,362 7 percent discount rate Total cost (low estimate) 126,755,433 113,959,260 Total cost (average estimate) 164,743,353 148,112,236

    Guidance from the U.S. Department of Transportation 73 identifies $9.1 million as the value of a statistical life (VSL) to be used for Department of Transportation analyses assessing the benefits of preventing fatalities for the base year of 2012. Per this guidance, VSL in 2014 is $9.2 million. The cost per ELS of a rule to require SUTs to have CMVSS No. 223 guards ($106.7 million to $164.7 million) is far greater than the current VSL ($9.2 million).

    73 See http://www.dot.gov/sites/dot.dev/files/docs/VSL%20Guidance_2013.pdf. The guidance starts with a $9.1 million VSL in the base year of 2012 and then estimates a 1.07 percent increase in VSL each year after the base year to reflect the estimated growth rate in median real wages for the next 30 years.

    Appendix B to Preamble—Summary of IIHS's Evaluation of Rear Impact Guards

    In 2011, IIHS published results of crash tests in which the front of a model year (MY) 2010 Chevrolet Malibu (a midsize sedan) impacted the rear of trailers equipped with a rear impact guard (full overlap of the rear impact guard with the front end of the Sedan).74 A 50th percentile male Hybrid III dummy (HIII 50M) was in each of the front outboard seating positions of the Malibu. Two trailer/guard designs (2007 Hyundai and 2011 Wabash trailers) were evaluated. The two guard designs were certified to FMVSS No. 223 requirements, and the Wabash also met the more stringent CMVSS No. 223 requirements. A 2010 Chevrolet Malibu was crashed into a trailer at 56 km/h (35 mph).

    74 Details of the tests and test results are available at Brumbelow, M.L., “Crash Test Performance of Large Truck Rear Impact Guards,” 22nd International Conference on the Enhanced Safety of Vehicles (ESV), 2011. http://www-nrd.nhtsa.dot.gov/pdf/esv/esv22/22ESV-000074.pdf.

    The test results showed that the full overlap 56 km/h (35 mph) crash test of the Malibu with the guard of the Hyundai trailer (built to only FMVSS No. 223 requirements) resulted in catastrophic underride (underride almost to the B-pillar) with PCI of the Chevrolet Malibu. On the other hand, the rear impact guard on the Wabash trailer, also certified to meet CMVSS No. 223 requirements, prevented PCI in 35 mph crash tests.

    Table B-1 summarizes the results of the initial two IIHS 56 km/h (35 mph) full-width crash tests. In the first test, the 2007 Hyundai guard was ripped from the trailer's rear cross member early in the crash, allowing the Malibu to underride the trailer almost to the B-pillar. The heads of both dummies were struck by the hood of the Malibu as it deformed against the rear surface of the trailer. Under the same test conditions, the main horizontal member of the 2011 Wabash guard bent forward in the center but remained attached to the vertical support members, which showed no signs of separating from the trailer chassis.

    Table B-1—Results of IIHS Initial Round of 56 km/h Crash Tests of the 2010 Chevrolet Malibu Into the Rear of Trailers Conditions Trailer Guard performance Underride Max. longitudinal A-pillar deformation (cm) 100% overlay 2007 Hyundai Attachments failed Catastrophic 80 2011 Wabash Good None 0

    Table B-2 summarizes the peak injury measures 75 of the HIII 50M dummies in the front seating positions of the Malibu. For comparison purposes, Table B-2 also presents the HIII 50M dummy injury measures in the full frontal 56 km/h rigid barrier crash test of the 2010 Chevrolet Malibu conducted as part of NHTSA's New Car Assessment Program (NCAP). Head injury measures recorded by the dummies in the tests with severe underride were much higher than those reported for the Malibu's NCAP rigid wall test at the same speed. Chest acceleration and deflection measures were generally higher in tests without PCI than those with PCI.76 The driver and passenger injury measures in the Malibu full overlap crash test with the Wabash trailer (where the guard prevented PCI) was similar to the injury measures in the Malibu NCAP frontal crash test.

    75 HII 50M dummy injury measures are those applicable to current model passenger vehicles as specified in FMVSS No. 208, see http://www.ecfr.gov/cgi-bin/text-idx?SID=77e2aab5d088f2e9b46d15606090f9b0&node=se49.6.571_1208&rgn=div8.

    76 When PCI was prevented by the rear impact guard, the accelerations on the vehicle are higher which results in higher chest injury measures.

    Table B-2—IIHS Initial Round of Testing—Injury Measures of Dummies in Front Seating Positions of the Malibu Test Head resultant acceleration (g) Head injury criterion (15 ms) Chest resultant acceleration (3 ms clip, g) Chest displacement (mm) Left femur force (kN) Right femur force (kN) Injury Assessment Reference Values 700 60 g 63 mm 10(kN) 10(kN) Full-width Hyundai Driver 128 754 21 19 0.3 0.3 Passenger 107 557 14 20 0.1 0.1 Wabash Driver 54 328 36 38 2.2 1.2 Passenger 50 319 36 37 2.3 1.8 NCAP (rigid wall) Driver
  • Passenger
  • 49
  • 55
  • 330
  • 389
  • 43
  • 42
  • 40
  • 32
  • 2.0
  • 0.5
  • 1.2
  • 0.8
  • Authority:

    49 U.S.C. 322, 30111, 30115, 30117, and 30166; delegation of authority at 49 CFR 1.95.

    Raymond R. Posten, Associate Administrator for Rulemaking.
    [FR Doc. 2015-17973 Filed 7-22-15; 8:45 am] BILLING CODE 4910-59-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 150122068-5068-01] RIN 0648-BE84 International Fisheries; Western and Central Pacific Fisheries for Highly Migratory Species; Fishing Effort and Catch Limits and Other Restrictions and Requirements AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Proposed rule; proposed specifications.

    SUMMARY:

    NMFS proposes and seeks comments on a proposed rule and proposed specifications to be issued under authority of the Western and Central Pacific Fisheries Convention Implementation Act (WCPFC Implementation Act). The proposed rule would establish a framework under which NMFS would specify limits on fishing effort and catches, as well as spatial and temporal restrictions on particular fishing activities and other requirements, in U.S. fisheries for highly migratory fish species in the western and central Pacific Ocean (WCPO). NMFS would issue the specifications as needed to implement conservation and management measures adopted by the Commission for the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Commission or WCPFC). The proposed rule also would require that certain U.S. fishing vessels operating in the WCPO obtain “IMO numbers.” The proposed rule also includes changes to regulations regarding tuna catch retention requirements for purse seine vessels, requirements to install and carry vessel monitoring system (VMS) units, daily reporting requirements, and other changes that are administrative in nature.

    Using the proposed regulatory framework described above, NMFS proposes restrictions on the use of fish aggregating devices by purse seine vessels in 2015.

    These actions are necessary to satisfy the obligations of the United States under the Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean, to which it is a Contracting Party.

    DATES:

    Comments on the proposed rule or proposed specifications must be submitted in writing by August 7, 2015.

    ADDRESSES:

    You may submit comments on the proposed rule, proposed specifications, and the regulatory impact review (RIR) prepared for the proposed rule and proposed specifications, identified by NOAA-NMFS-2015-0072, by either of the following methods:

    Electronic submission: Submit all electronic public comments via the Federal e-Rulemaking Portal.

    1. Go to www.regulations.gov/#!docketDetail;D=NOAA-NMFS-2015-0072,

    2. Click the “Comment Now!” icon, complete the required fields, and

    3. Enter or attach your comments.

    —OR—

    Mail: Submit written comments to Michael D. Tosatto, Regional Administrator, NMFS, Pacific Islands Regional Office (PIRO), 1845 Wasp Blvd., Building 176, Honolulu, HI 96818.

    Instructions: Comments sent by any other method, to any other address or individual, or received after the end of the comment period, might not be considered by NMFS. All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name and address), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. NMFS will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    An initial regulatory flexibility analysis (IRFA) prepared under authority of the Regulatory Flexibility Act is included in the Classification section of the SUPPLEMENTARY INFORMATION section of this document.

    Copies of the RIR and the programmatic environmental assessment (PEA) prepared for National Environmental Policy Act (NEPA) purposes are available at www.regulations.gov or may be obtained from Michael D. Tosatto, Regional Administrator, NMFS PIRO (see address above).

    Written comments regarding the burden-hour estimates or other aspects of the collection-of-information requirements contained in this proposed rule may be submitted to Michael D. Tosatto, Regional Administrator, NMFS PIRO (see address above) and by email to [email protected] or fax to 202-395-7285.

    FOR FURTHER INFORMATION CONTACT:

    Tom Graham, NMFS PIRO, 808-725-5032.

    SUPPLEMENTARY INFORMATION: Background on the Convention

    The Convention on the Conservation and Management of Highly Migratory Fish Stocks in the Western and Central Pacific Ocean (Convention) focuses on the conservation and management of highly migratory species (HMS) and the management of fisheries for HMS. The objective of the Convention is to ensure, through effective management, the long-term conservation and sustainable use of HMS in the WCPO. To accomplish this objective, the Convention established the Commission, which includes Members, Cooperating Non-members, and Participating Territories. The United States of America is a Member. American Samoa, Guam, and the Commonwealth of the Northern Mariana Islands are Participating Territories.

    As a Contracting Party to the Convention and a Member of the Commission, the United States is obligated to implement conservation and management measures adopted by the Commission and other decisions of the Commission. The WCPFC Implementation Act (16 U.S.C. 6901 et seq.), authorizes the Secretary of Commerce, in consultation with the Secretary of State and the Secretary of the Department in which the United States Coast Guard is operating (currently the Department of Homeland Security), to promulgate such regulations as may be necessary to carry out the obligations of the United States under the Convention, including the decisions of the Commission. The WCPFC Implementation Act further provides that the Secretary of Commerce shall ensure consistency, to the extent practicable, of fishery management programs administered under the WCPFC Implementation Act and the Magnuson-Stevens Fishery Conservation and Management Act (MSA; 16 U.S.C. 1801 et seq.), as well as other specific laws (see 16 U.S.C. 6905(b)). The Secretary of Commerce has delegated the authority to promulgate regulations under the WCPFC Implementation Act to NMFS. A map showing the boundaries of the area of application of the Convention (Convention Area), which comprises the majority of the WCPO, can be found on the WCPFC Web site at: www.wcpfc.int/doc/convention-area-map.

    Implementation of Commission Decisions

    To date NMFS has implemented the Commission's decisions through regulations establishing specific requirements, restrictions, and prohibitions. This proposed rule includes several such specific regulations, and it also includes more general regulations that would establish a framework within which NMFS could establish specific requirements and restrictions. Under the framework, NMFS would issue and seek public comment on proposed specifications through announcements in the Federal Register, and subsequently issue final specifications through announcements in the Federal Register. The specifications would be designed to satisfy the obligations of the United States with respect to particular provisions of conservation and management measures adopted by the Commission. The specifications could include fishing effort limits, catch limits, and other restrictions on particular fishing activities during specific periods and/or in specific areas.

    This proposed action is described in the following sections under four categories. The first three categories are regulatory changes, and include: (1) Framework to implement Commission decisions; (2) requirement to obtain IMO number; and (3) other regulatory changes. The last category proposes specifications for the purse seine fishery for 2015; specifically: (4) purse seine fish aggregation device (FAD) restrictions.

    Regulatory Changes

    This proposed rule includes several elements, described in detail below, that would be included in the regulations at 50 CFR part 300 Subpart O under three categories. The first would establish a framework to implement Commission decisions, the second would require that certain fishing vessels be issued IMO numbers, and the third would make changes to several existing regulations to implement Commission decisions, some of which are administrative in nature.

    1. Framework To Implement Commission Decisions

    The proposed rule would establish a framework under which NMFS would specify fishing effort limits, catch limits, and other restrictions and requirements in U.S. fisheries for HMS in the Convention Area to implement particular decisions of the Commission. The framework would not be used to implement all Commission decisions, but rather those that are amenable to the framework process, such as quantitative fishing effort limits and catch limits, and spatial and/or temporal restrictions on specific fishing activities. For the purpose of describing the proposed framework, all such restrictions and requirements are called “limits.”

    Purpose of framework: The purpose of a framework is to make it possible to manage fisheries more responsively under conditions requiring “real time” management. Such conditions exist in the context of the Convention because the Commission makes decisions that must be implemented by its members quickly—often within 60 days of the decision. The framework proposed here would allow NMFS to implement Commission decisions more rapidly than it would be able to without such a framework. The proposed framework, which would be codified at 50 CFR part 300, subpart O, contains the parameters within which NMFS could take specific actions, including the types of actions it could take, as well as the procedures for doing so. Limits implemented by NMFS under the proposed framework, called “specifications,” would be announced in the Federal Register. Except when warranted and allowed by law, specifications would be subject to prior public notice and comment. The limits specified under the framework would likely, but not always, be time-limited.

    Types and details of limits: The types of limits that would be specified under the framework include quantitative limits on the weight or number of fish that may be caught, retained, transshipped, landed, and/or sold; quantitative limits on the amount of fishing effort that may be expended, such as in terms of amounts of time vessels spend at sea or engaged in fishing or engaged in particular fishing activities or other measures of fishing effort, such as the number of gear sets or deployments of gear; and restrictions or prohibitions on particular fishing activities in certain areas and/or periods.

    Most recent Commission decisions do not apply in territorial seas or archipelagic waters. Accordingly, the framework regulations would state that any specified limit would not—unless otherwise indicated in the specification—apply in the territorial seas or archipelagic waters of the United States or any other nation, as defined by the domestic laws and regulations of that nation and recognized by the United States. If a Commission decision does apply in territorial seas and/or archipelagic waters, the specification issued by NMFS to implement that decision would specify that it does apply in those areas.

    For each limit specified under the framework, NMFS would identify the area and period in which it applies, and as appropriate, the vessel types, gear types, species, fish sizes, and any other relevant attributes to which it applies. For spatial or temporal limits, NMFS would also specify the specific activities that would be restricted in the area or period, and for quantitative limits, NMFS would specify the restrictions and requirements that would go into effect after the limit is reached and the applicable dates of those restrictions and requirements. These restrictions and requirements could include a prohibition on the catch, retention, transshipment and/or landing of specific species or specific sizes of specific species, a prohibition on the use of specific fishing gears or methods, restrictions on specific fishing activities, and reporting or other requirements.

    Fisheries affected: In the decisions of the Commission, the three Participating Territories of the United States—American Samoa, the Commonwealth of the Northern Mariana Islands, and Guam—often are treated separately from the United States. For example, the fisheries of the territories often are subject to different controls and limits than are the fisheries of the United States. Therefore, to implement the Commission decisions, it is necessary to distinguish the fisheries from each other because fishing vessels from the Participating Territories are flagged vessels of the United States. The proposed regulatory framework would include criteria to distinguish the fisheries from each other, for the purpose of attributing fishing effort and catch among the fisheries, and determining to which vessels a given restriction applies. The proposed criteria mirror those used in previous regulations issued under the WCPFC Implementation Act. Under the proposed criteria, all fishing activities by U.S. fishing vessels would be considered to be part of a fishery of the United States except as follows:

    1. Except as provided under paragraphs 2 and 3 below, if catch is landed in American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands, the catch and associated fishing effort are considered part of a fishery of the territory in which it is landed, provided that: (a) It was not caught using purse seine gear; (b) it was not caught in any portion of the U.S. exclusive economic zone (EEZ) other than the portion of the U.S. EEZ surrounding the territory in which it was landed; and (c) it was landed by a fishing vessel operated in compliance with a valid permit issued under 50 CFR 660.707 or 665.801.

    2. Except as provided under paragraph 3 below, if catch is made by longline gear by a vessel registered for use under a valid American Samoa Longline Limited Access Permit issued under 50 CFR 665.801(c), the catch and associated fishing effort are considered part of a fishery of American Samoa, provided that: (a) It was not caught in any portion of the U.S. EEZ other than the portion of the U.S. EEZ surrounding American Samoa; and (b) it was landed by a fishing vessel operated in compliance with a valid permit issued under 50 CFR 660.707 or 665.801.

    3. If catch or fishing effort is made by a vessel that is included in a specified fishing agreement under 50 CFR 665.819(c), the catch and associated fishing effort are considered part of a fishery of American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands, according to the terms of the agreement to the extent the agreement is consistent with 50 CFR 665.819(c) and other applicable laws, provided that: (a) The start date specified in 50 CFR 665.819(c)(9)(i) has occurred or passed; and (b) NMFS has not made a determination under 50 CFR 665.819(c)(9)(iii) that the catch or fishing effort exceeds any limit allocated to the territory that is a party to the agreement.

    Allocation of limits: Under the proposed framework, NMFS could allocate a Commission-mandated limit among different fisheries sectors, such as among groups of fishing vessels that use different types of fishing gear. For example, given a Commission decision to limit catches of a particular species irrespective of the type of fishing gear used to catch it, NMFS could decide to allocate the limit between the longline and the purse seine fisheries, using the proposed framework to establish specific limits for each of the two fisheries. NMFS could also use the framework to specify limits for particular fisheries even when the Commission-mandated limit is not specific to particular fisheries.

    The proposed framework would not be used to allocate Commission-mandated limits among individual fishing vessels (except in the case where a single fishing vessel comprises an entire sector or fishery). This would not preclude NMFS from allocating Commission-mandated limits among individual fishing vessels through separate regulations.

    Framework procedures: The framework's procedures for specifying limits would be as follows: NMFS would publish in the Federal Register a notice of the proposed specification and a request for public comment on the proposed specification. The proposed specification would include all the relevant characteristics of the limit. After consideration of public comment received on the proposed specification, NMFS would publish in the Federal Register a notice of the final specification.

    Consequences of limits being reached: For quantitative limits, NMFS would monitor catch or fishing effort with respect to the specified limit using data submitted in vessel logbooks and other available information. When NMFS estimates or projects that the specified limit has been or will be reached, NMFS would publish a notification to that effect in the Federal Register. For quantitative limits, this notification would include an advisement that specific activities will be restricted, and/or that certain requirements will be in place, during a specific period. The notification would specify the restrictions and requirements and the specific activities to which they apply and the start and end dates and times of those restrictions. The start date of the restrictions and requirements would not be earlier than 7 days after the date of filing the closure notice for public inspection at the Office of the Federal Register.

    2. Requirement To Obtain IMO Number

    This element of the proposed rule would apply to all U.S. fishing vessels (including those participating in the fisheries of the U.S. Participating Territories) that are used for commercial fishing for highly migratory fish stocks in the Convention Area either on the high seas or in waters under the jurisdiction of a foreign nation, and the gross tonnage of which is at least 100 GRT (gross register tons) or 100 GT (gross tons) ITC. This requirement would implement a decision of the Commission made in 2013 as part of CMM 2013-10, “WCPFC Record of Fishing Vessels and Authorization to Fish.” CMM 2013-10 requires each member of the Commission, including the United States, to maintain a record of its fishing vessels that are authorized to fish in the Convention Area beyond its area of national jurisdiction, and to periodically share the information in its record with the Commission. As reflected in CMM 2013-10, in 2013 the Commission decided to require that an additional piece of information be included in members' records for fishing vessels whose gross tonnage is at least 100 GRT or 100 GT: The International Maritime Organization (IMO) number or Lloyd's Register number. An IMO number, also known as an IMO ship identification number, is the number issued for a ship or vessel under the ship identification number scheme established by the International Maritime Organization. An IMO number is unique and stays with the vessel for its life, regardless of changes in the vessel's flag, name, ownership, or other attributes. As used in CMM 2013-10, “Lloyd's Register number,” or “LR number,” has the same meaning as IMO number except that the former refers to the number issued for a vessel that is not required—under IMO agreements—to be issued an IMO number. The administrator of the IMO ship identification number scheme issues both types of numbers using the same numbering scheme. Hereafter in this proposed rule, “IMO number” is used to refer to both IMO numbers and Lloyd's Register numbers. Currently, IMO numbers are issued on behalf of the IMO by IHS Maritime, the current administrator of the IMO ship identification number scheme.

    For each of the subject fishing vessels described above, this proposed rule would require that the owner of the fishing vessel ensure that an IMO number has been issued for the vessel. Furthermore, satisfying this requirement, if applicable, would be made a prerequisite for eligibility to receive a WCPFC Area Endorsement. The WCPFC Area Endorsement is the endorsement required—along with a high seas fishing permit—for a U.S. fishing vessel to be used for commercial fishing for HMS on the high seas in the Convention Area (see 50 CFR 300.212).

    If not already issued, the vessel owner may request that an IMO number be issued by following the instructions given by IHS Maritime, available at: www.imonumbers.lrfairplay.com/default.aspx. There is no fee for making such a request or having an IMO number issued, but specific information about the fishing vessel and its ownership and management must be provided to the administrator of the scheme.

    Because IHS Maritime is not affiliated with the U.S. government and its actions are outside the control of NMFS and the U.S. government, the proposed rule includes a process for fishing vessel owners to claim to NMFS that they are unable—through no fault of their own—to obtain IMO numbers. NMFS would review the claim, assist the fishing vessel owner as appropriate, and if it determines that it is infeasible or impractical for the fishing vessel owner to comply with the requirement, NMFS would issue an exemption from the requirement for a specific or indefinite amount of time. The exemption would become void if ownership of the fishing vessel changes.

    3. Other Regulatory Changes

    The proposed rule includes several other changes to the existing regulations to enhance clarity and promote efficiency, some of which are administrative in nature.

    First, this rule proposes to remove the regulations requiring that U.S. purse seine vessels carry WCPFC observers on fishing trips in the Convention Area (50 CFR 300.223(e)) because the applicable dates of the requirements, which extended through December 31, 2014, have passed. NMFS emphasizes that U.S. purse seine vessels operating in the Convention Area are, and will likely continue to be, subject to requirements to carry WCPFC observers under the current regulations at 50 CFR 300.215. Under this section, U.S. fishing vessels operating in the Convention Area must carry a WCPFC observer when directed to do so by NMFS. NMFS has issued such directions to purse seine vessel owners for 2015, and anticipates doing so in subsequent years.

    Second, this rule proposes to revise the definition of “fishing day” to remove the reference to 50 CFR 300.223. As currently defined at 50 CFR 300.211, the term applies only to the regulations at 50 CFR 300.223, “Purse seine fishing restrictions,” which establish limits on purse seine fishing effort, restrictions on the use of FADs, and other restrictions that apply to purse seine fishing. Because under this proposed rule some restrictions of those types would be established under a new regulatory section devoted to the framework, NMFS proposes to revise the term “fishing day” to apply more broadly to all the regulations in 50 CFR part 300 subpart O, but it would continue to be limited to the activities of purse seine fishing vessels. Under this proposed rule, “fishing day” would mean, for fishing vessels equipped with purse seine gear, any day in which a fishing vessel searches for fish, deploys a FAD, services a FAD, or sets a purse seine, with the exception of setting a purse seine solely for the purpose of testing or cleaning the gear and resulting in no catch.

    Third, this rule proposes to remove certain elements of the existing regulations that require purse seine vessels in the Convention Area to retain on board all the catch of three species of tuna (bigeye tuna, yellowfin tuna, and skipjack tuna), with certain exceptions (50 CFR 300.223(d)), because they are obsolete. When the first version of these regulations was established in 2009 (final rule published August 4, 2009; 74 FR 38544), the catch retention requirements were made contingent on a continuing determination by NMFS that there are an adequate number of WCPFC observers available for the purse seine vessels of all members of the Commission as necessary to ensure compliance by such vessels with the catch retention requirements. This contingency was based on the provisions of the Commission decision being implemented at the time, CMM 2008-01, which included a qualifier that the catch retention requirements were subject to implementation by Commission members of 100 percent observer coverage for purse seine vessels. However, CMM 2014-01, a successor to CMM 2008-01, which is currently in effect, does not include any such qualifier for the catch retention requirements. Thus, this proposed rule would remove paragraphs (1) and (2) of 50 CFR 300.223(d), which contain the contingencies.

    Fourth, this rule proposes to make changes to the requirements related to the installation and operation of vessel monitoring system (VMS) units on fishing vessels that are used to fish commercially for HMS on the high seas in the Convention Area. The current regulations at 50 CFR 300.219 require the owner and the operator (i.e., the master or other individual aboard and in charge of the vessel) of any such vessel to expressly authorize NMFS and the Commission to receive and relay transmissions from the VMS unit. NMFS proposes to revise those regulations to provide NMFS and the Commission with an implicit authorization to receive and relay transmissions from the unit. In other words, under the proposed change, an explicit written authorization from the vessel owner and operator would not be needed for NMFS and the Commission to receive and relay transmissions from the VMS unit. NMFS recognizes this requirement is an unnecessary step and therefore is proposing to remove this requirement.

    Finally, this rule proposes changes to the requirement for the owners or operators of U.S. purse seine vessels to submit to NMFS daily reports on how many sets were made on FADs. These reports enable NMFS to monitor the number of purse seine sets on FADs (“FAD sets”) to determine if they are within the established limits. The existing requirement, at 50 CFR 300.218(g), only goes into effect when NMFS publishes a notice in the Federal Register announcing that it is in effect. NMFS has never issued such a notice because there is currently no limit on the number of FAD sets. NMFS expects that the proposed framework to implement Commission decisions, as described earlier in the preamble, could be used to establish limits on FAD sets in the future. NMFS proposes to revise the daily FAD reporting requirement to make the daily report process more efficient, if FAD limits are put in place. Under the proposed revisions, NMFS would remove the requirement for the publication of a Federal Register notice, and instead allow NMFS to contact vessel owners or operators directly with instructions on the timing and submission of the reports. This would give NMFS more flexibility in specifying when the reports are required. NMFS anticipates directing vessel owners or operators to submit the reports only in periods during which limits on FAD sets are in place. Under the proposed revised reporting requirement, if directed by NMFS, the owner or operator of any fishing vessel of the United States equipped with purse seine gear must report to NMFS, within 24 hours of the end of each day that the vessel is at sea in the Convention Area the number of purse seine sets that were made on FADs during the period and in the format and manner directed by the NMFS Pacific Islands Regional Administrator.

    Proposed Specifications

    Using the framework proposed to be established at 50 CFR 300.227, as described above, NMFS proposes specifications to implement particular provisions of CMM 2014-01, “Conservation and Management Measure for Bigeye, Yellowfin and Skipjack Tuna in the Western and Central Pacific Ocean,” adopted at the Commission's Eleventh Regular Session, in December 2014. CMM 2014-01 is a successor to, and is only slightly modified from, CMM 2013-01. These and other WCPFC conservation and management measures are available at: www.wcpfc.int/conservation-and-management-measures.

    The stated general objective of CMM 2014-01, and several of its predecessor CMMs, is to ensure that the stocks of bigeye tuna, yellowfin tuna, and skipjack tuna in the WCPO are, at a minimum, maintained at levels capable of producing their maximum sustainable yield as qualified by relevant environmental and economic factors. CMM 2014-01 includes specific objectives for each of the three stocks; the common objective is that the fishing mortality rate is to be reduced to or maintained at levels no greater than the fishing mortality rate associated with maximum sustainable yield.

    The provisions of CMM 2014-01 apply on the high seas and in EEZs in the Convention Area; that is, they do not apply in territorial seas or archipelagic waters.

    CMM 2014-01 went into effect February 3, 2015, and is generally applicable for the 2015-2017 period. The CMM includes provisions for purse seine vessels, longline vessels, and other types of vessels that fish for HMS.

    The specifications proposed here are for 2015 only. NMFS anticipates proposing specifications for subsequent years separately, and generally on a year-by-year basis.

    The only provisions of the CMM that would be implemented in the specifications proposed here are those related to restrictions on the use of FADs in purse seine fisheries. For reasons of timing, NMFS intends to implement the CMM's provisions for longline fisheries, specifically, the provisions requiring that longline catches of bigeye tuna in the Convention Area in 2015 be limited to specified levels, through a separate rulemaking that would not make use of the framework proposed in this document (the catch limit for 2015 would be established in regulations at 50 CFR 300.224, as done in previous years). However, for years subsequent to 2015, NMFS anticipates using the proposed framework to establish longline bigeye tuna catch limits, as well as to implement other Commission decisions.

    Below, the proposed specification related to purse seine FAD restrictions is introduced by describing the relevant provisions of CMM 2014-01, or the “Commission decision.” That description is followed by a description of the basis for NMFS' proposed specification, and the proposed specification itself.

    4. Purse Seine FAD Restrictions

    Commission decision: Paragraphs 14-19 of CMM 2014-01 require WCPFC members to implement certain restrictions on the use of FADs by purse seine fishing vessels. All the restrictions are to be applied in the Convention Area between the latitudes of 20° N. and 20° S.

    Paragraph 14 requires that WCPFC members prohibit specific activities related to FADs by their purse seine vessels during July through September (called a “FAD prohibition period” here) in each of 2015, 2016, and 2017. Paragraphs 15-18 require that WCPFC members impose additional restrictions on the use of FADs in 2015, 2016, and 2017, some of which are contingent on further Commission decision-making. Until those decisions are taken, paragraphs 15-18, read in combination, mean that the United States must either add a fourth month, October, to the July-September FAD prohibition period in each of 2015, 2016, 2017, or limit the number of FAD sets in each of those three years to 2,522. Finally, paragraph 18 also requires WCPFC members to prohibit setting on FADs on the high seas in the Convention Area in 2017.

    Basis for proposed specification: To implement paragraphs 14-19 of CMM 2014-01 for 2015, NMFS proposes restrictions on the use of FADs by U.S. purse seine vessels as follows.

    In accordance with paragraph 14 of the CMM, in 2015 there would be a FAD prohibition period from July through September. NMFS has already established this three-month FAD prohibition period in regulations at 50 CFR 300.223(b) (see final rule published December 2, 2014; 79 FR 71327). It would be reiterated in the specification proposed here. In addition, NMFS proposes to implement the first of the two FAD-related options in paragraphs 15-18; that is, adding October to the FAD prohibition period, because NMFS believes it is the more cost-effective of the two options, taking into account the objectives of the CMM, the expected economic impacts on U.S. fishing operations and the nation as a whole, and expected environmental and other effects. The expected environmental and economic effects of both options are described in the PEA, RIR, and IRFA prepared for this proposed specification.

    The specific activities that would be prohibited during the FAD prohibition period in 2015 are the same as those during FAD prohibition periods established by NMFS since 2009 (see proposed specifications below).

    NMFS does not propose changes to the definition of a FAD, and it would remain as currently defined at 50 CFR 300.211. Although the definition of a FAD does not include a vessel, the restrictions during the FAD prohibition periods would include certain activities related to fish that have aggregated in association with a vessel, or drawn by a vessel, as described below.

    Proposed specification for 2015: From July 1 through October 31, 2015, owners, operators, and crew of fishing vessels of the United States shall not do any of the following activities in the Convention Area in the area between 20° N. latitude and 20° S. latitude:

    (1) Set a purse seine around a FAD or within one nautical mile of a FAD.

    (2) Set a purse seine in a manner intended to capture fish that have aggregated in association with a FAD or a vessel, such as by setting the purse seine in an area from which a FAD or a vessel has been moved or removed within the previous eight hours, or setting the purse seine in an area in which a FAD has been inspected or handled within the previous eight hours, or setting the purse seine in an area into which fish were drawn by a vessel from the vicinity of a FAD or a vessel.

    (3) Deploy a FAD into the water.

    (4) Repair, clean, maintain, or otherwise service a FAD, including any electronic equipment used in association with a FAD, in the water or on a vessel while at sea, except that: (a) A FAD may be inspected and handled as needed to identify the FAD, identify and release incidentally captured animals, un-foul fishing gear, or prevent damage to property or risk to human safety; and (b) A FAD may be removed from the water and if removed may be cleaned, provided that it is not returned to the water.

    (5) From a purse seine vessel or any associated skiffs, other watercraft or equipment, do any of the following, except in emergencies as needed to prevent human injury or the loss of human life, the loss of the purse seine vessel, skiffs, watercraft or aircraft, or environmental damage: (a) Submerge lights under water; (b) suspend or hang lights over the side of the purse seine vessel, skiff, watercraft or equipment, or; (c) direct or use lights in a manner other than as needed to illuminate the deck of the purse seine vessel or associated skiffs, watercraft or equipment, to comply with navigational requirements, and to ensure the health and safety of the crew.

    Classification

    The Administrator, Pacific Islands Region, NMFS, has determined that this proposed rule and these proposed specifications are consistent with the WCPFC Implementation Act and other applicable laws, subject to further consideration after public comment.

    Executive Order 12866

    This proposed rule has been determined to be not significant for purposes of Executive Order 12866.

    Regulatory Flexibility Act (RFA)

    An initial regulatory flexibility analysis (IRFA) was prepared, as required by section 603 of the RFA. The IRFA describes the economic impact this proposed rule and specifications, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained in the SUMMARY section of the preamble and in other sections of this SUPPLEMENTARY INFORMATION section of the preamble. The analysis follows:

    Estimated Number of Small Entities Affected

    Small entities include “small businesses,” “small organizations,” and “small governmental jurisdictions.” The Small Business Administration (SBA) has established size standards for all major industry sectors in the United States, including commercial finfish harvesters (NAICS code 114111). A business primarily involved in finfish harvesting is classified as a small business if it is independently owned and operated, is not dominant in its field of operation (including its affiliates), and has combined annual receipts not in excess of $20.5 million for all its affiliated operations worldwide.

    The proposed rule and specifications would apply to owners and operators of U.S. fishing vessels used for commercial fishing for HMS in the Convention Area. With the exception of the requirement to obtain an IMO number, the substantive elements of the rule and specifications (i.e., those elements that could bring economic impacts to affected entities) would apply only to purse seine vessels. NMFS estimates that of all the U.S. fishing vessels to which the IMO number requirement would apply, only 7 do not already have an IMO number. Of the 7, 1 is a purse seine vessel, 4 are longline vessels, and 2 are troll vessels.

    The number of purse seine vessels that would be affected by the purse seine specifications is the number of vessels licensed under the Treaty on Fisheries between the Governments of Certain Pacific Island States and the Government of the United States of America (South Pacific Tuna Treaty, or SPTT). The current number of licensed vessels is 37. The maximum number allowed under the SPTT, apart from joint venture licenses, none of which have ever been issued, is 40.

    Thus, the fish harvesting entities that would be affected by the proposed rule and specifications include about 37 purse seine vessels, 4 longline vessels, and 2 troll vessels.

    Based on (limited) available financial information about the affected fishing vessels and the SBA's small entity size standards for commercial finfish harvesters, and using individual vessels as proxies for individual businesses, NMFS believes that all the affected fish harvesting businesses are small entities. NMFS used average per-vessel returns over recent years to estimate annual revenue because gross receipts and ex-vessel price information specific to the affected vessels are not available to NMFS. For the purse seine fishery, NMFS estimates that the average annual receipts over 2010-2012 for each purse seine vessel were less than the $20.5 million threshold for finfish harvesting businesses (the greatest was about $19 million) based on the catches of each vessel in the purse seine fleet during that period, and indicative regional cannery prices developed by the Pacific Islands Forum Fisheries Agency (available at https://www.ffa.int/node/425#attachments). Since 2012, cannery prices have declined dramatically, so the vessels' revenues in 2013 and 2014 have very likely declined as well. For the longline fishery, the ex-vessel value of catches by the Hawaii longline fleet in 2012 was about $87 million. With 129 active vessels in that year, per-vessel average revenues were about $0.7 million, well below the $20.5 million threshold for finfish harvesting businesses.

    Recordkeeping, Reporting, and Other Compliance Requirements

    The recordkeeping, reporting, and other compliance requirements are discussed below for each of the main elements of the proposed rule and proposed specifications, as described earlier in the SUPPLEMENTARY INFORMATION section of the preamble. Fulfillment of these requirements is not expected to require any professional skills that the affected vessel owners and operators do not already possess. The costs of complying with the proposed requirements are described below to the extent possible:

    1. Framework To Implement Commission Decisions

    The proposed framework would establish administrative procedures for implementing Commission decisions. It would not in itself establish any requirements for owners or operators of fishing vessels or other entities, so it is not discussed further in this IRFA.

    2. Requirement To Obtain IMO Number

    The requirement to obtain an IMO number would be a one-time requirement; once a number has been issued for a vessel, the vessel would be in compliance for the remainder of its life, regardless of changes in ownership. Most entities that would be required to obtain an IMO number already have them. NMFS estimates that 7 fishing vessels (that are currently in the fishery) would initially be subject to the requirement, and projects that as fishing vessels enter the fishery in the future, roughly two per year would be required to obtain IMO numbers. Completing and submitting the application form (which can be done online and requires no fees) would take about 30 minutes per applicant, on average. Assuming a value of labor of approximately $26 per hour and communication costs of about $1 per application, the (one-time) cost to each entity would be about $14.

    3. Other Regulatory Changes

    Among the proposed rule's other regulatory changes, only the change to the daily FAD reporting requirements has the potential to bring economic impacts to affected entities. Under the existing regulations, when NMFS triggers the daily FAD reporting requirement through an announcement in the Federal Register, the vessel owner or operator has to complete and submit the reports each day while the fishing vessel is at sea in the Convention Area. NMFS currently estimates this cost to be about $1,360 per vessel per year. Under the proposed change, the vessel owner or operator would have to complete and submit the reports only if and when directed by NMFS. Because the proposed purse seine FAD restrictions for 2015 do not include any FAD set limits, it is unlikely that NMFS would direct vessel operators to submit reports for 2015. Thus, the change would potentially reduce the reporting costs to affected purse seine entities during this period.

    4. Purse Seine FAD Restrictions

    The proposed FAD prohibition period in July-October in 2015 would substantially constrain the manner in which purse seine fishing could be conducted in that period in the Convention Area; vessels would be able to set only on free, or “unassociated,” schools.

    The costs associated with the FAD restrictions cannot be quantitatively estimated, but the fleet's historical use of FADs can give a qualitative estimate of the costs. In the years 1997-2013, the proportion of sets made on FADs in the U.S. purse seine fishery ranged from less than 30 percent in some years to more than 90 percent in others. Thus, the importance of FAD sets in terms of profits appears to be quite variable over time, and is probably a function of many factors, including fuel prices (unassociated sets involve more searching time and thus tend to bring higher fuel costs than FAD sets) and market conditions (e.g., FAD fishing, which tends to result in greater catches of lower-value skipjack tuna and smaller yellowfin tuna and bigeye tuna than unassociated sets, might be more attractive and profitable when canneries are not rejecting small fish). Thus, the costs of complying with the FAD restrictions would depend on a variety of factors.

    In 2010-2013, the last 4 years for which complete data are available and for which there was 100 percent observer coverage, the U.S. WCPO purse seine fleet made about 39 percent of its sets on FADs. During the months when setting on FADs was allowed, the percentage was about 58 percent. The fact that the fleet has made such a substantial portion of its sets on FADs indicates that prohibiting the use of FADs for four months each year could bring substantial costs and/or revenue losses.

    To mitigate these impacts, vessel operators might choose to schedule their routine vessel and equipment maintenance during the FAD prohibition periods. However, the limited number of vessel maintenance facilities in the region might constrain vessel operators' ability to do this. It also is conceivable that some vessels might choose not to fish at all during the FAD prohibition periods rather than fish without the use of FADs. Observations of the fleet's behavior in 2009-2013, when FAD prohibition periods were in effect, do not suggest that either of these responses occurred to an appreciable degree. The proportion of the fleet that fished during the two- and three-month FAD prohibition periods of 2009-2013 did not appreciably differ from the proportion that fished during the same months in the years 1997-2008, when no FAD prohibition periods were in place.

    In summary, the economic impacts of the FAD prohibition period in 2015 cannot be quantified, but they could be substantial. Their magnitude would depend in part on market conditions, ocean conditions and the magnitude of any limits on allowable levels of fishing effort in foreign EEZs and on the high seas in the Convention Area.

    Disproportionate Impacts

    As indicated above, all affected entities are believed to be small entities, thus small entities would not be disproportionately affected relative to large entities. Nor would there be disproportionate economic impacts based on home port.

    As indicted above, there could be disproportionate impacts according to vessel type and size and the types of fishing permits held.

    Duplicating, Overlapping, and Conflicting Federal Regulations

    NMFS has not identified any Federal regulations that duplicate, overlap with, or conflict with the proposed regulations, with the exception of a Federal regulation that duplicates to some extent the daily FAD reporting requirement that would be revised under the proposed rule. Existing regulations at 50 CFR 300.34 require that a record of catch, effort and other information must be maintained on board vessels licensed under the South Pacific Tuna Act, on catch report forms known as Regional Purse Seine Logsheets, or RPLs. The RPLs must be submitted to NMFS within two days of a vessel reaching port. The RPLs include the information that would be required to be reported under this proposed rule, such as, how many FAD sets were made on a given day. However, the timing of the RPL requirement is such that it would not provide NMFS with the information it needs to estimate and project FAD sets with respect to the proposed limit in a timely and reliable manner. For that reason, NMFS established the daily FAD reporting requirement that is duplicative in terms of the substance—but not the timing—of one element of the existing RPL reporting requirement. Under the revision proposed in this rule, that duplication would remain.

    Alternatives to the Proposed Provisions

    NMFS has sought to identify alternatives that would minimize the proposed provisions' economic impact on small entities (“significant alternatives”). Taking no action could result in lesser adverse economic impacts than the proposed action for many affected entities (but as described above, for some affected entities, the proposed provisions could be more economically beneficial than no-action), but NMFS has determined that the no-action alternative would fail to accomplish the objectives of the WCPFC Implementation Act, including satisfying the international obligations of the United States as a Contracting Party to the Convention, and NMFS does not prefer it for that reason. Alternatives identified for each of the main elements of the proposed rule and proposed specifications are discussed below:

    1. Framework To Implement Commission Decisions

    The proposed framework would not in itself establish any requirements for owners or operators of fishing vessels or other entities, so would not bring economic impacts. Thus, NMFS has not identified any significant alternatives.

    2. Requirement To Obtain IMO Number

    NMFS has not identified any significant alternatives to the IMO number requirement that would comport with U.S. obligations to implement the Commission decision regarding IMO numbers.

    3. Other Regulatory Changes

    None of the other proposed regulatory changes are expected to bring adverse economic impacts to affected entities, so NMFS has not identified any significant alternatives.

    4. Purse Seine FAD Restrictions

    NMFS considered in detail one alternative to the proposed restrictions on the use of FADs. Under the alternative, purse seine vessels would be subject to a three-month (July-September) FAD prohibition period in 2015, and a limit of 2,522 FAD sets for the year. This alternative would be consistent with the options available to the United States under CMM 2014-01. The impacts of this alternative relative to those of the proposed action would depend on the total amount of fishing effort available to the U.S. purse seine fleet in the Convention Area in 2015. If total available fishing effort is relatively high, the proposed action would likely allow for more FAD sets than would this alternative, and thus likely cause lesser adverse impacts. The reverse would be the case for relatively low levels of total available fishing effort. For example, given the fleet's historical average FAD set ratio of 58 percent, and assuming an even distribution of sets throughout the year, the estimated “breakeven” point between the two alternatives would be 6,502 total available sets for the year. Although the amount of fishing effort that will be available to the fleet in the future, particularly under the SPTT, cannot be predicted with any certainty, 6,502 sets is substantially less than the amounts of fishing effort that have been available to the fleet since it has been operating under the SPTT. For that reason, NMFS expects that the proposed action likely would cause less severe economic impacts on the purse seine fleet and its participants than would this alternative, and NMFS prefers the proposed action for that reason.

    Paperwork Reduction Act

    This proposed rule contains three collection-of-information requirements that are subject to review and approval by the Office of Management and Budget (OMB) under the Paperwork Reduction Act (PRA).

    The first collection has been submitted to OMB for review and approval under control number 0648-0595, “Western and Central Pacific Fisheries Convention Vessel Information Family of Forms.” This collection-of-information would be revised to include the requirement for the owners of certain fishing vessels to ensure that IMO numbers are issued for the vessels. This would be a one-time requirement; no renewals or updates would be required during the life of a vessel. A fishing vessel owner would request the issuance of an IMO number by submitting specific information about the vessel and its ownership and management to IHS Maritime, which issues IMO numbers on behalf of the International Maritime Organization. If a fishing vessel requires an exemption, the owner must provide the required information to NMFS. Providing the required information would bring a reporting burden of approximately 30 minutes per response.

    The second collection, requirements related to installing and operating vessel monitoring system units, has been approved by OMB under control number 0648-0596, “Vessel Monitoring System Requirements under the Western and Central Pacific Fisheries Convention.” Public reporting burden for the VMS requirements is estimated to average 5 minutes per response for the activation reports and on/off reports, 4 hours per response for VMS unit purchase and installation, and 1 hour per response for VMS unit maintenance.

    The third collection, the daily FAD reporting requirement, has been approved by OMB under control number 0648-0649, “Transshipment Requirements under the WCPFC.” Public reporting burden for the daily FAD report is estimated to average 10 minutes per response.

    These estimated response times include time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

    Send comments regarding these burden estimates, or any other aspect of the data collections, including whether the current and/or proposed collections are necessary for the performance of the functions of the agency, the accuracy of the agency's estimates of burden, ways to enhance the utility and clarity of information, and suggestions for reducing the burden, to Michael D. Tosatto, Regional Administrator, NMFS PIRO (see ADDRESSES) and by email to [email protected] or fax to 202-395-7285.

    Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number.

    List of Subjects in 50 CFR Part 300

    Administrative practice and procedure, Fish, Fisheries, Fishing, Marine resources, Reporting and recordkeeping requirements, Treaties.

    Dated: July 17, 2015. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 300 is proposed to be amended as follows:

    PART 300—INTERNATIONAL FISHERIES REGULATIONS Subpart O—Western and Central Pacific Fisheries for Highly Migratory Species 1. The authority citation for 50 CFR part 300, subpart O, continues to read as follows: Authority:

    16 U.S.C. 6901 et seq.

    2. In § 300.211, revise the definition of “Fishing day” to read as follows:
    § 300.211 Definitions.

    Fishing day means, for fishing vessels equipped with purse seine gear, any day in which a fishing vessel searches for fish, deploys a FAD, services a FAD, or sets a purse seine, with the exception of setting a purse seine solely for the purpose of testing or cleaning the gear and resulting in no catch.

    3. In § 300.217, add paragraph (c) to read as follows:
    § 300.217 Vessel identification.

    (c) IMO numbers. (1) For the purpose of this section, an IMO number is the unique number issued for a vessel under the ship identification number scheme established by the International Maritime Organization or, for vessels that are not strictly subject to that scheme, the unique number issued by the administrator of that scheme using the scheme's numbering format, sometimes known as a Lloyd's Register number or LR number.

    (2) The owner of a fishing vessel of the United States used for commercial fishing for HMS in the Convention Area, either on the high seas or in waters under the jurisdiction of any nation other than the United States, shall request and obtain an IMO number for the vessel if the gross tonnage of the vessel, as indicated on the vessel's current Certificate of Documentation issued under 46 CFR part 67, is at least 100 GRT or 100 GT ITC. An IMO number may be requested for a vessel by following the instructions given by the administrator of the IMO ship identification number scheme; those instructions are currently available on the Web site of IHS Maritime, at: www.imonumbers.lrfairplay.com/default.aspx.

    (3) In the event that the owner of a fishing vessel subject to the requirement of paragraph (c)(2) of this section, after following the instructions given by the administrator of the IMO ship identification number scheme, is unable to obtain an IMO number for the fishing vessel, the fishing vessel owner may request an exemption from the requirement from the Pacific Islands Regional Administrator. The request must be sent by mail to the Pacific Islands Regional Administrator or by email to [email protected] and must include the vessel's name, the vessel's official number, a description of the steps taken to request an IMO number, and a description of any responses from the administrator of the IMO ship identification number scheme.

    (4) Upon receipt of a request for an exemption under paragraph (c)(3) of this section, the Pacific Islands Regional Administrator will, to the extent he or she determines appropriate, assist the fishing vessel owner in requesting an IMO number. If the Pacific Islands Regional Administrator determines that it is infeasible or impractical for the fishing vessel owner to obtain an IMO number for the fishing vessel, he or she will issue an exemption from the requirements of paragraph (c)(2) of this section for the subject fishing vessel and its owner and notify the fishing vessel owner of the exemption. The Pacific Islands Regional Administrator may limit the duration of the exemption. The Pacific Islands Regional Administrator may rescind an exemption at any time. If an exemption is rescinded, the fishing vessel owner must comply with the requirements of paragraph (c)(2) of this section within 30 days of being notified of the rescission. If the ownership of a fishing vessel changes, an exemption issued to the former fishing vessel owner becomes void.

    4. In § 300.218, revise paragraph (g) to read as follows:
    § 300.218 Reporting and recordkeeping requirements.

    (g) Daily FAD reports. If directed by NMFS, the owner or operator of any fishing vessel of the United States equipped with purse seine gear must report to NMFS, for the period and in the format and manner directed by the Pacific Islands Regional Administrator, within 24 hours of the end of each day that the vessel is at sea in the Convention Area, the number of purse seine sets were made on FADs during that day.

    5. In § 300.219, revise paragraphs (c)(1) and (5) to read as follows:
    § 300.219 Vessel monitoring system.

    (c) * * *

    (1) VMS unit. The vessel owner and operator shall install and maintain on the fishing vessel, in accordance with instructions provided by the SAC and the VMS unit manufacturer, a VMS unit that is type-approved by NMFS for fisheries governed under the Act. The vessel owner and operator shall arrange for a NMFS-approved mobile communications service provider to receive and relay transmissions from the VMS unit to NMFS. NMFS makes available lists of type-approved VMS units and approved mobile communications service providers. NMFS and the Commission are authorized to receive and relay transmissions from the VMS unit.

    (5) Related VMS requirements. Installing, carrying and operating a VMS unit in compliance with the requirements in part 300 of this title, part 660 of this title, or part 665 of this title relating to the installation, carrying, and operation of VMS units shall be deemed to satisfy the requirements of paragraph (c) of this section, provided that the VMS unit is operated continuously and at all times while the vessel is at sea, the VMS unit is type-approved by NMFS for fisheries governed under the Act, and the specific requirements of paragraph (c)(4) of this section are complied with. If the VMS unit is owned by NMFS, the requirement under paragraph (c)(4) of this section to repair or replace the VMS unit will be the responsibility of NMFS, but the vessel owner and operator shall be responsible for ensuring that the VMS unit is operable before leaving port or starting the next trip.

    6. In § 300.222: a. Remove paragraphs (x) and (z); b. Redesignate paragraphs (y) and (aa) as paragraphs (x) and (y), respectively; c. Redesignate paragraphs (bb) through (ww) as (z) through (uu), respectively; and d. Add paragraphs (vv) and (ww) to read as follows:
    § 300.222 Prohibitions.

    (vv) Fail to obtain an IMO number for a fishing vessel as required in § 300.217(c).

    (ww) Fail to comply with any of the limits, restrictions, prohibitions, or requirements specified under § 300.227.

    7. In § 300.223, revise paragraph (d), and remove and reserve paragraph (e) to read as follows:
    § 300.223 Purse seine fishing restrictions.

    (d) Catch retention. An owner and operator of a fishing vessel of the United States equipped with purse seine gear must ensure the retention on board at all times while at sea within the Convention Area any bigeye tuna (Thunnus obesus), yellowfin tuna (Thunnus albacares), or skipjack tuna (Katsuwonus pelamis), except in the following circumstances and with the following conditions:

    (1) Fish that are unfit for human consumption, including but not limited to fish that are spoiled, pulverized, severed, or partially consumed at the time they are brought on board, may be discarded.

    (2) If at the end of a fishing trip there is insufficient well space to accommodate all the fish captured in a given purse seine set, fish captured in that set may be discarded, provided that no additional purse seine sets are made during the fishing trip.

    (3) If a serious malfunction of equipment occurs that necessitates that fish be discarded.

    (e) [Reserved]

    8. Add § 300.227 to subpart O to read as follows:
    § 300.227 Framework for catch and fishing effort limits.

    (a) General. To implement conservation and management measures adopted by the Commission, the Pacific Islands Regional Administrator may specify limits on catch or fishing effort by fishing vessels of the United States in the Convention Area, and other fishing-related restrictions and requirements (collectively called “limits”). The limits will be designed to satisfy the obligations of the United States with respect to particular provisions of Commission-adopted conservation and management measures. For each specified limit, the Pacific Islands Regional Administrator will specify the area and period in which it applies, and as appropriate, the vessel types, gear types, species, fish sizes, and any other relevant attributes to which it applies. In addition to quantitative limits on catches and fishing effort, the Pacific Islands Regional Administrator may specify areas or periods in which particular fishing activities are restricted or prohibited, and other fishing-related requirements. For each specified quantitative limit, the Pacific Islands Regional Administrator will also specify the prohibitions and requirements that would go into effect after the limit is reached and the applicable dates of those prohibitions.

    (b) Application in territorial seas and archipelagic waters. Unless stated otherwise in particular specifications, the limits specified under the framework shall not apply in the territorial seas or archipelagic waters of the United States or any other nation, as defined by the domestic laws and regulations of that nation and recognized by the United States.

    (c) Types of limits. The types of limits that may be specified under this section include, but are not limited to:

    (1) Limits on the weight or number of fish or other living marine resources of specific types and/or sizes that may be caught, retained, transshipped, landed, and/or sold;

    (2) Limits on the amount of fishing effort that may be expended, such as the amount of time vessels spend at sea (e.g., days at sea) or engaged in fishing (e.g., fishing days), the amount of time vessels spend engaged in particular fishing activities (e.g., trolling hours), and the quantity of specific fishing activities (e.g., number of hooks set; number of longline sets or purse seine sets; number of purse seine sets made on FADs; number of FADs deployed); and

    (3) Areas or periods in which particular activities are restricted or prohibited, such as periods during which it is prohibited to set purse seines on FADs or to use FADs in specific other ways.

    (d) U.S. and territorial fisheries. For the purpose of distinguishing the fisheries of the United States and the fisheries of the United States territories from each other under limits specified under this section, as needed to implement Commission conservation and management measures, such as to determine the vessels to which a specified limit applies or to attribute catch or fishing effort against a specified limit, all fishing activity of a fishing vessel of the United States, including its catch and fishing effort, is, for the purpose of this section, considered part of a fishery of the United States except as follows:

    (1) Except as provided in paragraphs (d)(2) and (d)(3) of this section, if catch is landed in American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands, the catch and associated fishing effort are considered part of a fishery of the territory in which it is landed, provided that:

    (i) It was not caught using purse seine gear;

    (ii) It was not caught in any portion of the EEZ other than the portion of the EEZ surrounding the territory in which it was landed; and

    (iii) It was landed by a fishing vessel operated in compliance with a valid permit issued under § 660.707 or § 665.801 of this title.

    (2) Except as provided in paragraph (d)(3) of this section, if catch is made by longline gear by a vessel registered for use under a valid American Samoa Longline Limited Access Permit issued under § 665.801(c) of this title, the catch and associated fishing effort are considered part of a fishery of American Samoa, provided that:

    (i) It was not caught in any portion of the EEZ other than the portion of the EEZ surrounding American Samoa; and

    (ii) It was landed by a fishing vessel operated in compliance with a valid permit issued under § 660.707 or § 665.801 of this title.

    (3) If catch or fishing effort is made by a vessel that is included in a specified fishing agreement under § 665.819(c) of this title, the catch and associated fishing effort are considered part of a fishery of American Samoa, Guam, or the Commonwealth of the Northern Mariana Islands, according to the terms of the agreement to the extent the agreement is consistent with § 665.819(c) of this title and other applicable laws, provided that:

    (i) The start date specified in § 665.819(c)(9)(i) of this title has occurred or passed; and

    (ii) NMFS has not made a determination under § 665.819(c)(9)(iii) of this title that the catch or fishing effort exceeds any limit allocated to the territory that is a party to the agreement.

    (e) Allocation of limits among sectors or vessels. (1) The Pacific Islands Regional Administrator may allocate a Commission-mandated limit among particular sectors or groups of fishing vessels of the United States, such as for vessels that use different types of fishing gear. In other words, the Pacific Islands Regional Administrator may specify separate limits for different sectors or groups of fishing vessels even when not required to do so under the Commission's conservation and management measures.

    (2) The Pacific Islands Regional Administrator may not, under this framework, allocate a Commission-mandated limit among individual fishing vessels of the United States. In other words, the Pacific Islands Regional Administrator may not, under this framework, specify limits for individual fishing vessels of the United States, except in the case where there is only one fishing vessel in a sector or group of fishing vessels that is subject to the limit. This does not preclude NMFS from allocating Commission-mandated limits among individual fishing vessels through other regulations.

    (f) Procedures for specifying limits. (1) For each specified limit, the Pacific Islands Regional Administrator will publish in the Federal Register a notice of the proposed catch or fishing effort limit specification and a request for public comment on the proposed specification, unless exempted under the Administrative Procedure Act, 5 U.S.C. 553. The specification will include the characteristics of the limit and the restrictions that will go into effect if the limit is reached.

    (2) For each specified limit that is subject to prior notice and public comment, the Pacific Islands Regional Administrator will consider any public comment received on the proposed specification, and publish in the Federal Register a notice of the final catch or fishing effort limit specification, if appropriate.

    (g) Notification of limits being reached. For quantitative limits, NMFS will monitor catch or fishing effort with respect to the specified limit using data submitted in vessel logbooks and other available information. When NMFS estimates or projects that the specified limit has or will be reached, the Pacific Islands Regional Administrator will publish notification to that effect in the Federal Register.

    (h) Prohibitions after limit is reached. For quantitative limits, the Federal Register notice published under paragraph (g) of this section will include an advisement that specific activities will be prohibited during a specific period. The notice will specify the prohibitions and their start and end dates. The start date of the prohibitions may not be earlier than 7 days after the date of filing for public inspection at the Office of the Federal Register the notice to be published under paragraph (g) of this section. The prohibited activities may include, but are not limited to, possessing, retaining on board, transshipping, landing, or selling specific types and/or sizes of fish or other living marine resources, and fishing with specified gear types or methods in specified areas. The Pacific Islands Regional Administrator may, based on revised estimates or projections of catch or fishing effort with respect to specified limits, rescind or modify the prohibitions specified under this section. The Pacific Islands Regional Administrator will publish notice of any such rescissions or modifications in the Federal Register.

    [FR Doc. 2015-18050 Filed 7-22-15; 8:45 am] BILLING CODE 3510-22-P
    80 141 Thursday, July 23, 2015 Notices DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request—WIC Federal and State Agreements (Form FNS-339) AGENCY:

    Food and Nutrition Service (FNS), USDA.

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on proposed information collections. The proposed information collection is a request for a revision of a currently approved collection of information relating to the reporting burden associated with completing and submitting form FNS-339, the Federal and State Agreement for the Special Supplemental Nutrition Program for Women, Infants and Children (WIC); the WIC Farmers' Market Nutrition Program (FMNP); and/or the Senior Farmers' Market Nutrition Program (SFMNP).

    DATES:

    Written comments on this notice must be received on or before September 21, 2015.

    ADDRESSES:

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Comments may be sent to: Julie Brewer, Chief, Policy Branch, Supplemental Food Programs Division, Food and Nutrition Service, U.S. Department of Agriculture, 3101 Park Center Drive, Room 520, Alexandria, VA 22302. Comments will also be accepted through the Federal eRulemaking Portal. Go to http://www.regulations.gov, and follow the online instructions for submitting comments electronically.

    All written comments will be open for public inspection at the office of the Food and Nutrition Service during regular business hours (8:30 a.m. to 5:00 p.m., Monday through Friday) at 3101 Park Center Drive, Room 520, Alexandria, Virginia 22302.

    All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of this information collection should be directed to Julie Brewer at 703-305-2746.

    SUPPLEMENTARY INFORMATION:

    Title: WIC Federal and State Agreements.

    Form Number: FNS-339.

    OMB Number: 0584-0332.

    Expiration Date: November 30, 2015.

    Type of Request: Revision of a currently approved collection.

    Abstract: The Federal-State Special Supplemental Nutrition Program Agreement (Form FNS-339) collects information that is used by the Special Supplemental Nutrition Program for Women, Infants, and Children (WIC), the WIC Farmers' Market Nutrition Program (FMNP), and the Senior Farmers' Market Nutrition Program (SFMNP). At the Federal level, the Food and Nutrition Service (FNS), U.S. Department of Agriculture (USDA), administers the WIC Program and the FMNP under Section 17 of the Child Nutrition Act (CNA) of 1966, as amended, and the SFMNP under 7 U.S.C. 3007. The Federal-State Agreement is the annual contract between USDA and each State agency seeking to operate one or more of the following programs: (1) WIC, (2) FMNP, and (3) SFMNP.

    The agreement requires the signature of the Chief State agency official and includes a certification/assurance regarding drug free workplace, a certification regarding lobbying, and a disclosure of lobbying activities. The signed agreement is the contract between USDA and each State agency that administers WIC, FMNP and/or SFMNP, thereby authorizing USDA to release funds to the State agencies for the administration of the Program(s) in the jurisdiction of the State in accordance with the provisions of 7 CFR parts 246, 248, and/or 249. The State agency agrees to accept Federal funds for expenditure in accordance with applicable statutes and regulations and to comply with all provisions of such statutes and regulations.

    The number of respondents (agencies administering WIC, FMNP and SFMNP) has decreased from 142 to 124, decreasing the total annual burden from 35.5 to 31 hours.

    Affected Public: State, Territorial and Tribal Agencies.

    Respondent Type: The Chief Health Officer of the WIC State agency, or the Chief Agency Official of the FMNP or SFMNP State agency (e.g., a State Commissioner of Agriculture or Agency on Aging), if not administered by the WIC State agency in that State.

    Estimated Number of Respondents: There will be an estimated 124 respondents. This includes an unduplicated count of respondents that are responsible for the operation of 90 WIC Programs, 48 FMNPs and 51 SFMNPs.

    Estimated Frequency of Responses per Respondent: 1. There is one response per agency for the Program(s) for which they are involved.

    Estimated Total Annual Responses: 124 responses.

    Estimated Time per Response: The estimated time of each response is 15 minutes (.25 hours).

    It takes respondents approximately 7.5 minutes (.125 hours) to read and sign the required form. Additionally, respondents spend another 7.5 minutes (.125 hours) making photocopies and filing each year. Therefore, the number of hours spent per each of the 124 reports per year is 0.25 hours totaling the requested 31 burden hours.

    Estimated Total Annual Burden on Respondents: The total estimated annual burden is 31 hours.

    Affected public Form Estimated number of
  • respondents
  • Number of
  • responses per
  • respondent
  • Total annual responses Estimated total hours per
  • response
  • Estimated total burden hours
    State, Territorial, and Tribal Governments FNS-339 124 1 124 .25 31 Total Burden 124 1 124 .25 31
    Dated: July 16, 2015. Audrey Rowe, Administrator, Food and Nutrition Service.
    [FR Doc. 2015-18063 Filed 7-22-15; 8:45 am] BILLING CODE 3410-30-P
    DEPARTMENT OF AGRICULTURE National Institute of Food and Agriculture Notice of Intent To Renew a Currently Approved Information Collection AGENCY:

    National Institute of Food and Agriculture (NIFA), USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Office of Management and Budget (OMB) regulations (5 CFR 1320) that implement the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), this notice announces the National Institute of Food and Agriculture's (NIFA) intention to request approval for the renewal of a currently approved information collection for Children, Youth, and Families at Risk (CYFAR).

    DATES:

    Written comments on this notice must be received by September 21, 2015 to be assured of consideration. Comments received after that date will be considered to the extent practicable.

    ADDRESSES:

    Written comments concerning this notice and requests for copies of the information collection may be submitted by any of the following methods: Email: [email protected]; Fax: 202-720-0857; Mail: Office of Information Technology (OIT), NIFA, USDA, STOP 2216, 1400 Independence Avenue SW., Washington, DC 20250-2216.

    FOR FURTHER INFORMATION CONTACT:

    Robert Martin, eGovernment Program Leader; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Title: Children, Youth, and Families at Risk (CYFAR) Year End Report.

    OMB Number: 0524-0043.

    Expiration Date of Current Approval: January 31, 2016.

    Type of Request: Intent to seek renewal of a currently approved information collection for three years.

    Abstract: Funding for the Children, Youth, and Families at Risk (CYFAR) community project grants is authorized under section 3(d) of the Smith-Lever Act (7 U.S.C. 341 et seq.), as amended, and other relevant authorizing legislation, which provides jurisdictional basis for the establishment and operation of Extension educational work for the benefit of youth and families in communities. The CYFAR funding program supports community-based programs serving children, youth, and families in at-risk environments. CYFAR funds are intended to support the development of high quality, effective programs based on research and to document the impact of these programs on intended audiences. The CYFAR Year End Report collects demographic and impact data from each community site to conduct impact evaluations of the programs on its intended audience.

    The collection of information serves several purposes. It allows NIFA staff to gauge if the program is reaching the target audience and make programmatic improvements. This collection also allows program staff to demonstrate the impacts and capacity that is developed in the locales where federal assistance is provided.

    The evaluation processes of CYFAR are consistent with the requirements of Congressional legislation and OMB. The Government Performance and Results Act (GPRA) of 1993 (Pub. L. 103-62), the Federal Activities Inventory Reform Act (FAIR) (Pub. L. 105-207), and the Agricultural, Research, Extension and Education Reform Act (AREERA) of 1998 (Pub. L. 105-185), together with OMB requirements, support the reporting requirements requested in this information collection. One of the five Presidential Management Agenda initiatives, Budget and Performance Integration, builds on GPRA and earlier efforts to identify program goals and performance measures, and link them to the budget process. The FAIR Act requires the development and implementation of a system to monitor and evaluate agricultural research and extension activities in order to measure the impact and effectiveness of research, extension, and education programs. AREERA requires a performance evaluation to be conducted to determine whether federally funded agricultural research, extension, and education programs result in public goods that have national or multi-state significance.

    The immediate need of this information collection is to provide a means for satisfying accountability requirements. The long term objective is to provide a means to enable the evaluation and assessment of the effectiveness of programs receiving federal funds and to fully satisfy requirements of performance and accountability legislation in GPRA, the FAIR Act, and AREERA.

    Estimate of Burden: There are currently CYFAR projects in 40 states. Each state and territory is required to submit an annual year end report which includes demographic and impact data on each of the community projects. NIFA estimates the burden of this collection to be 322 hours per response. There are currently 51 respondents, thus making the total annual burden of this collection an estimated 12,880 hours.

    Comments: Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (b) the accuracy of the Agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    All responses to this notice will be summarized and included in the request to OMB for approval. All comments will become a matter of public record.

    Done in Washington, DC, this 15 day of July, 2015. Ann Bartuska, Deputy Under Secretary, Research, Education, and Economics.
    [FR Doc. 2015-18104 Filed 7-22-15; 8:45 am] BILLING CODE 3410-22-P
    DEPARTMENT OF AGRICULTURE National Institute of Food and Agriculture Notice of Intent to Renew an Existing Information Collection AGENCY:

    National Institute of Food and Agriculture, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations, that implement the Paperwork Reduction Act of 1995, this notice announces the National Institute of Food and Agriculture's (NIFA) intention to request a renewal of an existing information collection.

    DATES:

    Written comments on this notice must be received on or before September 21, 2015 to be assured of having their full effect.

    ADDRESSES:

    You may submit comments by any of the following methods:

    Federal Rulemaking Portal: http://www.regulations.gov Follow the instructions for submitting comments.

    Email: [email protected] Fax: (202) 720-0857

    Mail: Office of Information Technology (OIT), NIFA, USDA, STOP 2216; 1400 Independence Avenue SW.; Washington, DC 20250-2216.

    FOR FURTHER INFORMATION CONTACT:

    Robert Martin; Records Officer; Email: [email protected].

    SUPPLEMENTARY INFORMATION: Proposed Collection

    Title: Veterinary Medicine Loan Repayment Program (VMLRP) Veterinarian Shortage Situation Nomination.

    OMB Number: 0524-0046.

    Type of Request: Request renewal of an existing information collection for three years.

    Abstract: NIFA established a process to designate veterinarian shortage situations for the VMLRP as authorized under section 1415A of the National Agricultural Research, Extension, and Teaching Policy Act of 1977 (NARETPA). This information collection applies to Subpart A of 7 CFR part 3431.

    Estimate of Burden: NIFA used burden estimates from the current REEPORT collection to estimate the burden, but anticipates the transactions for project initiation may be reduced because grant application information will be used to prepopulate many fields. The total annual burden for the non Research Performance Progress Report (RPPR) portion of this collection is 36,760 hours and 23,490 hours for the RPPR.

    Method of Collection: The information collection (nomination form) is available on the NIFA Web site and nominators are required to make submissions by emailing the completed forms to [email protected].

    Frequency of Response: Annual nominations.

    Type of Respondents: Animal Health Official of each state and insular area.

    Estimated Number of Respondents: 57 respondents.

    Estimated Number of Responses: 267 respondents (range of 1 to 8 for each nominating entity).

    Estimated Total Annual Burden on Respondents: 534 hours.

    Request for Comments: Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of the information collection. All comments will become a matter of public record. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the VMLRP, including whether the information will have practical utility; (b) the accuracy of the public burden estimate (the estimated amount of time needed for individual respondents to provide the requested information), including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the public burden through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Obtaining a Copy of the Information Collection: A copy of the information collection and related instructions may be obtained free of charge by contacting Robert Martin by telephone, (202) 401-5924, or by email, [email protected]. Information is also available at: http://www.nifa.usda.gov/vmlrp.

    Done in Washington, DC this 15 day of July, 2015. Ann Bartuska, Deputy Under Secretary Research, Education, and Economics.
    [FR Doc. 2015-18061 Filed 7-22-15; 8:45 am] BILLING CODE 3410-22-P
    DEPARTMENT OF AGRICULTURE Rural Utilities Service Information Collection Activity; Comment Request AGENCY:

    Rural Utilities Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35, as amended), the Rural Utilities Service, an agency of the U.S. Department of Agriculture (USDA) Rural Development mission area, invites comments on this information collection for which approval from the Office of Management and Budget (OMB) will be requested.

    DATES:

    Comments on this notice must be received by July 23, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Thomas P. Dickson, Acting Director, Program Development and Regulatory Analysis, USDA Rural Development, 1400 Independence Ave. SW., STOP 1522, Room 5162 South Building, Washington, DC 20250-1522. Telephone: (202) 690-4492. Fax: (202) 720-8435. Email: [email protected].

    SUPPLEMENTARY INFORMATION:

    The Office of Management and Budget's (OMB) regulation (5 CFR 1320) implementing provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) requires that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d)). This notice identifies an information collection that will be submitted to OMB for approval. Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. Comments may be sent to: Thomas P. Dickson, Acting Director, Program Development and Regulatory Analysis, USDA Rural Development, STOP 1522, 1400 Independence Ave. SW., Washington, DC 20250-1522. Fax: (202) 720-8435.

    Title: RUS Form 675, Certification of Authority.

    OMB Control Number: 0572-0074.

    Type of Request: Extension of a currently approved collection.

    Abstract: The Rural Utilities Service (RUS) manages loan programs in accordance with the Rural Electrification Act of 1936, as amended (7 U.S.C. 901 et seq.) (RE Act). A major factor in managing loan programs is controlling the advance funds, including assuring that actual borrowers receive their funds. OMB Circular A-123, Management Accountability and Control, provides that information should be maintained on a current basis and that funds should be protected from unauthorized use. The use of RUS Form 675 allows effective control against unauthorized release of funds by providing a list of authorized borrower signatures against which signatures requesting funds are compared. Form 675 allows borrowers to keep RUS up to-date of changes in signature authority and controls release of funds only to authorized borrower representatives.

    Estimate of Burden: Public reporting for this collection of information is estimated to average .10 hours per response.

    Respondents: Not-for-profit institutions; Business or other for-profit.

    Estimated Number of Respondents: 250.

    Estimated Number of Responses per Respondent: 1.

    Estimated Total Annual Burden on Respondents: 25.0 hours.

    Copies of this information collection can be obtained from Thomas P. Dickson, Program Development and Regulatory Analysis, at (202) 690-1078. Fax: (202) 720-3485. Email: Thomas [email protected].

    All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

    Dated: July 16, 2015. Brandon McBride, Administrator, Rural Utilities Service.
    [FR Doc. 2015-18109 Filed 7-22-15; 8:45 am] BILLING CODE
    DEPARTMENT OF AGRICULTURE Rural Utilities Service Information Collection Activity; Comment Request AGENCY:

    Rural Utilities Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended), the United States Department of Agriculture (USDA) Rural Utilities Service (RUS) invites comments on the following information collections for which the RUS intends to request approval from the Office of Management and Budget (OMB).

    DATES:

    Comments on this notice must be received by September 21, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Thomas P. Dickson, Acting Director, Program Development and Regulatory Analysis, USDA Rural Utilities Service, 1400 Independence Avenue SW., STOP 1522, Room 5164, South Building, Washington, DC 20250-1522. Telephone: (202) 690-4492. Fax: (202) 720-8435 or email [email protected].

    SUPPLEMENTARY INFORMATION:

    The Office of Management and Budget's (OMB) regulation (5 CFR 1320) implementing provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) requires that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities (see 5 CFR 1320.8(d)). This notice identifies information collections that USDA Rural Development is submitting to OMB for extension.

    Comments are invited on: (a) Whether this collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology. Comments may be sent to Thomas P. Dickson, Acting Director, Program Development and Regulatory Analysis, USDA Rural Utilities Service, 1400 Independence Avenue SW., STOP 1522, Room 5164, South Building, Washington, DC 20250-1522. Telephone: (202) 690-4492. Fax: (202) 720-8435 or email [email protected].

    Title: Mergers and Consolidations of Electric Borrowers, 7 CFR 1717, subpart D.

    OMB Control Number: 0572-0114.

    Type of Request: Extension of a currently approved collection.

    Abstract: The Rural Electrification Act of 1936 (7 U.S.C. 901 et seq.), as amended (RE Act) authorizes and empowers the administration of RUS to make and guarantee loans to furnish and improve electric service in rural areas. Due to deregulation and restructuring activities in the electric industry, RUS borrowers may find it advantageous to merge or consolidate to meet the challenges of industry change. This information collection addresses the requirements of RUS policies and procedures for mergers and consolidations of electric program borrowers.

    Estimate of Burden: Public reporting burden for this collection of information is estimated to average 1.32 hours per response.

    Respondents: Not for profit institutions; business or other for-profit entities.

    Estimated Number of Respondents: 10.

    Estimated Number of Responses per Respondent: 10.6.

    Estimated Total Annual Burden on Respondents: 140 hours.

    Copies of this information collection can be obtained from Rebecca Hunt, Program Development and Regulatory Analysis, at (202) 205-3660, Facsimile: (202) 720-8435, or email: [email protected] All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record

    Dated: July 17, 2015. Brandon McBride, Administrator, Rural Utilities Service.
    [FR Doc. 2015-18055 Filed 7-22-15; 8:45 am] BILLING CODE 3410-15-P
    DEPARTMENT OF AGRICULTURE Rural Utilities Service Information Collection Activity; Comment Request AGENCY:

    Rural Utilities Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35, as amended), the Rural Utilities Service (RUS) invites comments on the following information collections for which RUS intends to request approval from the Office of Management and Budget (OMB).

    DATES:

    Comments on this notice must be received by September 21, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Thomas P. Dickson, Acting Director, Program Development and Regulatory Analysis, Rural Utilities Service, 1400 Independence Ave. SW., STOP 1522, Room 5818, South Building, Washington, DC 20250-1522. Telephone: (202) 690-4492. Fax: (202) 720-8435. Email: [email protected].

    SUPPLEMENTARY INFORMATION:

    The Office of Management and Budget's (OMB) regulation (5 CFR 1320) implementing provisions of the Paperwork Reduction Act of 1995 (Pub. L. 104-13) requires that interested members of the public and affected agencies have an opportunity to comment on information collection and recordkeeping activities [see 5 CFR 1320.8(d)]. This notice identifies information collections that RUS is submitting to OMB for extension.

    Comments are invited on: (a) Whether this collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of appropriate automated, electronic, mechanical or other technological collection techniques or other forms of information technology. Comments may be sent to Thomas P. Dickson, Acting Director, Program Development and Regulatory Analysis, Rural Utilities Service, U.S. Department of Agriculture, STOP 1522, 1400 Independence Ave. SW., Washington, DC 20250-1522. Fax: (202) 690-4492.

    Title: Use of Consultants Funded by Borrowers, 7 CFR part 1789.

    OMB Control Number: 0572-0115.

    Type of Request: Extension of a currently approved collection.

    Abstract: Section 18(c) of the Rural Electrification Act of 1936 (RE Act), as amended (7 U.S.C. 901 et seq.) authorizes RUS to use consultants voluntarily funded by borrowers for financial, legal, engineering and other technical services. Consultants may be used to facilitate timely action on loan applications by borrowers for financial assistance and for approvals required by RUS, pursuant to the terms of outstanding loans, or other wise. RUS may not require borrowers to fund consultants. The provision of section 18(c) may be utilized only at the borrower's request. This collection of information implements RUS policies and procedures for use of consultants funded by RUS Borrowers to facilitate timely action on a borrower's loan application for financial assistance and for RUS approvals.

    Estimate of Burden: Public reporting burden for this collection of information is estimated to average 2 hours per response.

    Respondents: Not for profit institutions; business or other for-profit entities.

    Estimated Number of Respondents: 1.

    Estimated Number of Responses per Respondent: 1.

    Estimated Total Annual Burden on Respondents: 2 hours.

    Dated: July 16, 2015. Brandon McBride, Administrator, Rural Utilities Service.
    [FR Doc. 2015-18060 Filed 7-22-15; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration [C-489-502] Circular Welded Carbon Steel Pipes and Tubes From Turkey: Notice of Court Decision Not in Harmony With Final Results of Countervailing Duty Administrative Review and Notice of Amended Final Results of Countervailing Duty Administrative Review; 2011 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On April 1, 2015, the United States Court of International Trade (the Court) issued Toscelik II, 1 which sustained the Final Remand Results 2 that the Department of Commerce (the Department) issued in connection with Toscelik I, concerning the Department's final results of administrative review of the countervailing duty order on circular welded carbon steel pipes and tubes from Turkey covering the period of review January 1, 2011, through December 31, 2011 (POR).3 At issue were benefits that Toscelik Profil ve Sac Endustrisi AS (Toscelik) received in connection with land that Toscelik acquired from the Government of Turkey in 2008 and 2010. In the Final Remand Results, the Department restored the benchmark originally calculated for the 2008 land subsidy in the 2010 CVD Review4 and further explained aspects of the benchmark used to value the 2010 land subsidy. In addition, pursuant to a voluntary remand request, the Department examined and corrected, as necessary, duplication errors in the dataset used to calculate the land benchmark.5

    1See Toscelik Profil Ve SAC Endustrisi A.S. v. United States, Court No. 13-00371, Slip. Op. 15-28 (CIT April 1, 2015) (Toscelik II).

    2See Final Results Of Redetermination Pursuant To Court Remand, Court No. 13-00371, Slip Op. 15-28 (February 13, 2015) (Final Remand Results), which is available at http://enforcement.trade.gov/remands/index.html.

    3See Toscelik Profit ve Sac Endustrisi AS v. United States Court No. 13-00371; Slip Op. 14-126 (CIT October 29, 2014) (Toscelik I); Circular Welded Carbon Steel Pipes and Tubes from Turkey: Final Results of Countervailing Duty Administrative Review; Calendar Year 2011, 78 FR 64916 (October 30, 2013) (Final Results) and accompanying Issues and Decision Memorandum (Final IDM).

    4See Circular Welded Carbon Steel Pipes and Tubes From Turkey: Final Results of Countervailing Duty Administrative Review, 77 FR 46713 (August 6, 2012) (2010 CVD Review) and accompanying Issues and Decision Memorandum (2010 CVD Review IDM).

    5See Final Remand Results at 5-12.

    Consistent with the decision of the United States Court of Appeals for the Federal Circuit (CAFC) in Timken, 6 as clarified by Diamond Sawblades, 7 the Department is notifying the public that the final judgment in this case is not in harmony with the Department's Final Results. The Department is also amending the Final Results with respect to Toscelik.

    6See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken).

    7See Diamond Sawblades Mfrs. Coalition v. United States, 626 F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).

    DATES:

    Effective date: April 11, 2015

    FOR FURTHER INFORMATION CONTACT:

    John Conniff, AD/CVD Operations Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1009.

    SUPPLEMENTARY INFORMATION:

    Background

    On October 30, 2013, the Department issued the Final Results. 8 Toscelik challenged certain aspects of the Final Results at the Court. In Toscelik I, the Court held that the Department may not alter the nonrecurring benefit stream for the 2008 land parcel in a subsequent review—as the Department did in the Final Results when it changed the 2008 land subsidy benchmark—absent a demonstration that the original determination “is clearly erroneous and would work a manifest injustice.” 9 The Court also granted the Department's voluntary remand request to examine possible double-counting errors in the land benchmark dataset, and instructed the Department to supply additional explanation regarding the use of simple averaging, the expansion of the dataset with additional prices, and the use of different benchmark prices for the 2008 and 2010 parcels.10

    8See Circular Welded Carbon Steel Pipes and Tubes from Turkey: Final Results of Countervailing Duty Administrative Review; Calendar Year 2011, 78 FR 64916 (October 30, 2013) (Final Results) and accompanying Issues and Decision Memorandum (Final IDM).

    9See Toscelik I at 10.

    10Id. at 14-16.

    On February 13, 2015, the Department filed the Final Remand Results with the Court, in which it restored the benchmark originally calculated for the 2008 land subsidy in the 2010 CVD Review and further explained aspects of the benchmark used to value the 2010 land subsidy. In addition, the Department examined and corrected as necessary duplication errors in the dataset used to calculate the benchmark for the 2010 land subsidy.11 On April 1, 2015, the Court entered judgment sustaining the Final Remand Results.12

    11See Final Remand Results at 5-12.

    12See Toscelik II at 6.

    Timken Notice

    In Timken, 893 F.2d at 341, as clarified by Diamond Sawblades, 626 F.3d at 1381, the CAFC held that, pursuant to section 516A(e) of the Tariff Act of 1930, as amended (the Act), the Department must publish a notice of a court decision that is not “in harmony” with a Department determination and must suspend liquidation of entries pending a “conclusive” court decision. The Court's judgment in Toscelik II sustaining the Final Remand Results constitutes a final decision of the Court that is not in harmony with the Department's Final Results. This notice is published in fulfillment of the publication requirement of Timken.

    Amended Final Results

    Because there is now a final court decision, the Department is amending the Final Results with respect to Toscelik. The revised net subsidy rate for Toscelik during the period January 1, 2011, through December 31, 2011, is as follows:

    Producer/exporter Total net
  • subsidy rate
  • Toscelik Profil ve Sac Endustrisi A.S de minimis.

    Since the Court's ruling is final and no party has appealed, the Department will instruct U.S. Customs and Border Protection to assess without regard to countervailing duties unliquidated entries of subject merchandise for the producer/exporter listed above during the POR.

    Cash Deposit Requirements

    Since the Final Results, the Department has established a new cash deposit rate for Toscelik.13 Therefore, the cash deposit rate for Toscelik does not need to be updated as a result of these amended final results.

    13See Circular Welded Carbon Steel Pipes and Tubes From Turkey: Final Results of Countervailing Duty Administrative Review; Calendar Year 2012 and Rescission of Countervailing Duty Administrative Review, in Part, 79 FR 51140 (August 27, 2014).

    Notification to Interested Parties

    This notice is issued and published in accordance with sections 516A(e), 751(a)(1), and 777(i)(1) of the Act.

    Dated: July 16, 2015. Paul Piquado, Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2015-18087 Filed 7-22-15; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XD829 Taking of Marine Mammals Incidental to Specified Activities; Construction of the East Span of the San Francisco-Oakland Bay Bridge AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; issuance of an incidental harassment authorization.

    SUMMARY:

    In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that we have issued an incidental harassment authorization (IHA) to California Department of Transportation (CALTRANS) to incidentally harass, by Level B harassment only, four species of marine mammals during activities related to the construction of Pier 3 of the East Span of the San Francisco-Oakland Bay Bridge (SF-OBB) in California

    DATES:

    This authorization is effective from July 15, 2015 through July 14, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Availability

    An electronic copy of CALTRANS' application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT).

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for an authorization to incidentally take small numbers of marine mammals by harassment. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS' review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as “any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”

    Summary of Request

    On December 15, 2014, CALTRANS submitted its most recent request to NOAA requesting an IHA for the possible harassment of small numbers of California sea lions (Zalophus californianus), Pacific harbor seals (Phoca vitulina richardsii), harbor porpoises (Phocoena phocoena), and gray whales (Eschrichtius robustus) incidental to construction associated with a replacement bridge for the East Span of the SF-OBB, in San Francisco Bay (SFB, or Bay), California.

    An IHA was previously issued to CALTRANS for this activity on January 8, 2014 (79 FR 2421; January 14, 2014), based on activities described on CALTRANS' IHA application dated April 13, 2013. That IHA expired on January 7, 2015. Since the construction activity would continue for another two years, CALTRANS requests to renew its IHA. In its IHA renewal request, CALTRANS also states that there has been no change in the scope of work for the SF-OBB Project from what was outlined in its April 13, 2013, IHA application project description, the Federal Register notice for the proposed IHA (78 FR 60852; October 2, 2013), and the Federal Register notice for the issuance of that IHA (79 FR 2421; January 14, 2014). On November 10, 2003, NMFS issued the first project-related IHA authorizing the take of small numbers of marine mammals incidental to the construction of the SFOBB Project. CALTRANS has been issued a total of seven subsequent IHAs for the SF-OBB Project to date, excluding the application currently under review.

    Description of the Specified Activity Overview

    Construction activities for the replacement of the SF-OBB East Span commenced in 2002 and are expected to be completed in 2016 with the completion of the bike/pedestrian path and eastbound on ramp from Yerba Buena Island. The new east span is now open to traffic.

    This stage of the project covered under the IHA will include the mechanical dismantling of marine foundations of the East Span of the bridge as well as the installation of approximately 200 steel piles.

    Dates and Duration

    In-water activities are expected to begin in July 2015. Up to 128 days of pile driving may occur under the IHA. However, the schedule for this project is highly variable. As such, activities covered under this IHA may occur anytime between July 15, 2015 and July 14, 2016 which are the effective dates of the IHA.

    Specific Geographic Region

    The project site is located in San Francisco Bay around the east span of the SFOBB.

    Detailed Description of Activities

    We provided a description of the proposed action in our Federal Register notice announcing the proposed authorization (80 FR 23774; April 29, 2015). Please refer to that document; we provide only summary information here.

    The proposed action would involve the mechanical dismantling of marine foundations and superstructure components of the East Span of the bridge as well as the installation of approximately 200 steel piles. These piles include 0.45-meter, 0.61-meter, 0.91-meter (18-inch, 24-inch, and 36-inch) diameter pipe piles, and 0.34 meter (14-inch) H-piles on up to 128 days. These piles will be installed in the water to construct temporary supports between Piers E4-E8, which will help with the dismantling process by providing support to the original bridge superstructure as it is taken down. Both vibratory and impact hammers could be used to install pipe piles depending on the substrate. In addition, CALTRANS would remove various bridge superstructures including trusses, road decks, and steel and concrete support towers. The concrete foundation of the bridge would be removed using various mechanical means including saw cutting, flame cutting, mechanical splitting, drilling, pulverizing, and/or hydrocutting. Some of the installed piles may be removed under this IHA, but the contractor has until 2018 to remove all 200 piles.

    Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the Federal Register on April 29, 2015 (80 FR 23774). During the 30-day public comment period, the Marine Mammal Commission submitted a letter. The letter is available on the Internet www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. All comments specific to CALTRANS' application that address the statutory and regulatory requirements or findings NMFS must make to issue an IHA are addressed in this section of the Federal Register notice.

    Comment 1: The Commission noted that during the last authorization marine mammal monitoring did not occur 100 percent of time spent on activities authorized under the IHA. The Commission believes that this results in underestimates the number of takes of marine mammals known to occur in the project area. Monitoring during all in-water sound-producing activities is the only way for CALTRANS and NMFS to be confident that the numbers of marine mammals taken are within the limits authorized and the least practicable impact occurs. For these reasons, the Commission recommended that NMFS require CALTRANS to implement full-time monitoring of Level A and B harassment zones during all in- water sound-producing activities (i.e., pile driving and dismantling activities).

    Response 1: NMFS does not agree with the Commission's recommendation. NMFS had discussed with CALTRANS specific protocols concerning marine mammal monitoring during its proposed in-water construction activities. As described in detail in the Federal Register notice for the previous proposed IHA (79 FR 2421; January 14, 2014) and in CALTRANS' IHA application, CALTRANS' planned construction includes installation of up to 635 temporary falsework piles, 1,925 steel sheet piles, and various mechanical dismantling activities over several years. The extent of the work made it infeasible and costly to implement marine mammal monitoring for Level A and B harassment zones at all times, particularly since some of the Level B harassment zones for vibratory pile driving extend to a radius of 2 km. CALTRANS will monitor the 180 and 190 dB exclusion zones and 160 dB behavioral harassment zone for all unattenuated impact pile driving of H-piles, and the 180 and 190 dB exclusion zones for attenuated impact pile driving and mechanical dismantling, thereby minimizing the possibility of injury. Further, for the purposes of better understand behavioral efforts, CALTRANS will also monitor the 160 dB behavioral harassment zone for 20% of the attenuated impact pile driving, and 120 dB behavioral harassment zone for 20% of vibratory pile driving and mechanic dismantling. Results have been extrapolated in past monitoring reports and will continue to be extrapolated in the future reports. Results of past monitoring reports are discussed later in this notice in the section in Monitoring and reporting. CALTRANS, however, will not monitor the unattenuated impact pile proofing, which only lasts for less than one minute. Proposed proofing of piles will be limited to a maximum of two piles per day, and for less than 1 minute per pile, administering a maximum of twenty blows per pile. CALTRANS states, and NMFS agrees, that the logistics of scheduling and mobilizing a monitoring team for activities that will last less than one minute is not practical.

    Comment 2: The Commission noted that each authorization under section 101(a)(5)(D) is a separate undertaking and should contain sufficient information to allow for meaningful public review and comment. The Commission recommended in 2013 that NMFS include in each proposed incidental harassment authorization it publishes in the Federal Register a detailed description of the proposed activities rather than referring to previous documents. NMFS agreed and stated that it would provide such detailed descriptions in the Federal Register notices moving forward (see 79 FR 2422). However, NMFS' current notice did not include such a description. The Commission again recommends that NMFS include in each proposed incidental harassment authorization published in the Federal Register a detailed description of the proposed activities rather than referring to previous documents.

    Response 2: The CALTRANS bridge project is a multi-year, multi-stage construction initiative. The schedule and scope of this project have undergone multiple revisions. NMFS felt that it captured the essential elements of what is proposed to occur under the proposed authorization under review. NMFS has added additional information to the Detailed Description of Activity section of this Federal Register Notice. NMFS will include a comprehensive description of proposed activities in future proposed notices.

    Description of Marine Mammals in the Area of the Specified Activity

    There are four marine mammal species known to occur in the vicinity of the SF-OBB in California which may be subjected to Level B harassment. These are the Pacific harbor seal, California sea lion, gray whale, and harbor porpoise.

    We have reviewed CALTRANS' detailed species descriptions, including life history information, for accuracy and completeness and refer the reader to Section 3 of CALTRANS' application as well as the proposed incidental harassment authorization published in the Federal Register (80 FR 23774) instead of reprinting the information here. Please also refer to NMFS' Web site (www.nmfs.noaa.gov/pr/species/mammals) for generalized species accounts which provide information regarding the biology and behavior of the marine resources that occur in SE Alaska. We provided additional information for the potentially affected stocks, including details of stock-wide status, trends, and threats, in our Federal Register notice of proposed authorization (80 FR 23774).

    Table 1 lists marine mammal stocks that could occur in the vicinity of the SFOBB project that may be subject to Level B harassment and summarizes key information regarding stock status and abundance. Taxonomically, we follow Committee on Taxonomy (2014). Please see NMFS' Stock Assessment Reports (SAR), available at www.nmfs.noaa.gov/pr/sars, for more detailed accounts of these stocks' status and abundance.

    Table 1—List of Marine Mammal Species Under NMFS Jurisdiction That Occur in the Vicinity of SF-OBB Project Area * Common name Stock Scientific name ESA Status Stock
  • abundance
  • Population trend
    Harbor Seal California Phoca vitulina Not listed 30,196 Decreasing. California sea lion United States Zalophus californianus Not listed 296,750 Increasing. Gray whale Eastern North Pacific Stock Eschrichtius robustus Not listed 19,126 Increasing. Harbor porpoise San Francisco-Russian River Phocoena phocoena Not listed 9,886 Stable. * Estimated abundance numbers come primarily from NMFS 2014 Pacific Marine Mammal Stock Assessment Report (Carretta et al. 2014).
    Potential Effects of the Specified Activity on Marine Mammals

    The Federal Register notice of proposed authorization (80 FR 23744), incorporated here by reference, provides a general background on sound relevant to the specified activity as well as a detailed description of marine mammal hearing and of the potential effects of these construction activities on marine mammals.

    Anticipated Effects on Habitat

    We described potential impacts to marine mammal habitat in detail in our Federal Register notice of proposed authorization. In summary, the project activities would not modify existing marine mammal habitat. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences for individual marine mammals or their populations

    Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses.

    Measurements from similar pile driving events were coupled with practical spreading loss to estimate zones of influence (ZOI; see “Estimated Take by Incidental Harassment”). ZOIs are often used to establish a mitigation zone around each pile (when deemed practicable) to prevent Level A harassment to marine mammals, and also provide estimates of the areas within which Level B harassment might occur. ZOIs may vary between different diameter piles and types of installation methods. CALTRANS will employ the following mitigation measures:

    (a) Conduct briefings between construction supervisors and crews, marine mammal monitoring team, and CALTRANS staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

    (b) For in-water heavy machinery work other than pile driving (using, e.g., standard barges, tug boats, barge-mounted excavators, or clamshell equipment used to place or remove material), if a marine mammal comes within 10 m, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions. This type of work could include the following activities: (1) Movement of the barge to the pile location or (2) positioning of the pile on the substrate via a crane (i.e., stabbing the pile).

    Monitoring and Shutdown for Pile Driving

    The following measures apply to CALTRANS' mitigation through shutdown and disturbance zones:

    Shutdown Zone—For all pile driving activities, CALTRANS will establish shutdown zones in which SPLs equal or exceed the 180/190 dB rms acoustic injury criteria to define the areas where shutdown of activity will occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area), thus preventing injury of marine mammals. For impact driving this is 235 meters. For vibratory driving, CALTRANS's activities are not expected to produce sound at or above the 180 dB rms injury criterion. Before the sizes of actual zones are determined based on hydroacoustic measurements, CALTRANS shall establish this zone based on prior measurements conducted during SF-OBB constructions, as described in Table 1 of this document. CALTRANS will also implement a minimum shutdown zone of 10 m radius for all marine mammals around all vibratory pile driving and removal activity and 100 m radius around any dismantling activity. These precautionary measures are intended to further reduce the unlikely possibility of injury from direct physical interaction with construction operations.

    Disturbance Zone—Disturbance zones are the areas in which SPLs equal or exceed 120 dB rms (for continuous sound) for pile driving installation and removal. This is 2,000 meters for vibratory driving and 1,000 meters for impact driving. Disturbance zones provide utility for monitoring conducted for mitigation purposes (i.e., shutdown zone monitoring) by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring of disturbance zones enables observers to be aware of and communicate the presence of marine mammals in the project area but outside the shutdown zone and thus prepare for potential shutdowns of activity. However, the primary purpose of disturbance zone monitoring is for documenting incidents of Level B harassment; disturbance zone monitoring is discussed in greater detail later (see “Monitoring and Reporting”). Nominal radial distances for disturbance zones are shown in Table 1.

    Table 1—Temporary exclusion and Level B Harassment Zones for Various Pile Driving and Dismantling Activities Pile driving/dismantling activities Pile size (m) Distance to 120
  • dB re 1 µPa
  • (rms) (m)
  • Distance to 160
  • dB re 1 µPa
  • (rms) (m)
  • Distance to 180
  • dB re 1 µPa
  • (rms) (m)
  • Distance to 190
  • dB re 1 µPa
  • (rms) (m)
  • Vibratory Driving 24 2,000 NA NA NA 36 2,000 NA NA NA Sheet pile 2,000 NA NA NA Attenuated Impact Driving 24 NA 1,000 235 95 36 NA 1,000 235 95 Unattenuated Proofing 24 NA 1,000 235 95 36 NA 1,000 235 95 Unattenuated Impact Driving H-pile NA 1,000 235 95 Dismantling 2,000 NA 100 100

    Once hydroacoustic measurements of pile driving and mechanical dismantling activities have been conducted, CALTRANS shall revise the sizes of the zones based on actual measurements.

    Use of Noise Attenuation Devices—To reduce impact on marine mammals, CALTRANS shall use a marine pile driving energy attenuator (i.e., air bubble curtain system), or other equally effective sound attenuation method (e.g., dewatered cofferdam) for all impact pile driving, with the exception of pile proofing or impact driving of H-piles.

    In order to document observed incidents of harassment, observers record all marine mammal observations, regardless of location. The observer's location, as well as the location of the pile being driven, is known from a GPS. The location of the animal is estimated as a distance from the observer, which is then compared to the location from the pile and the estimated ZOIs for relevant activities (i.e., pile installation and removal). This information may then be used to extrapolate observed takes to reach an approximate understanding of actual total takes.

    Time Restrictions—Work will occur only during daylight hours, when visual monitoring of marine mammals can be conducted. In addition, all in-water construction will be limited to the period between July 15, 2015 and July 14, 2016.

    Soft Start—The use of a soft start procedure is believed to provide additional protection to marine mammals by warning or providing a chance to leave the area prior to the hammer operating at full capacity, and typically involves a requirement to initiate sound from the hammer at reduced energy followed by a waiting period. This procedure is repeated two additional times. It is difficult to specify the reduction in energy for any given hammer because of variation across drivers and, for impact hammers, the actual number of strikes at reduced energy will vary because operating the hammer at less than full power results in “bouncing” of the hammer as it strikes the pile, resulting in multiple “strikes.” The project will utilize soft start techniques for both impact and vibratory pile driving. We require CALTRANS to initiate sound from vibratory hammers for fifteen seconds at reduced energy followed by a thirty-second waiting period, with the procedure repeated two additional times. For impact driving, we require an initial set of three strikes from the impact hammer at reduced energy, followed by a thirty-second waiting period, then two subsequent three strike sets. Soft start will be required at the beginning of each day's pile driving work and at any time following a cessation of pile driving of 20 minutes or longer (specific to either vibratory or impact driving).

    Power Down and Shut-down—Although power down and shut-down measures will not be required for impact pile driving and removal activities due to the nature of sediments in the Bay, these measures will be required for mechanical dismantling activities. The contractor performing mechanical dismantling work will stop in-water noise generation.

    Monitoring

    Monitoring Protocols—Monitoring would be conducted before, during, and after pile driving, pile and mechanical dismantling. In addition, observers shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven. Observations made outside the shutdown zone will not result in shutdown and that pile segment would be completed without cessation, unless the animal approaches or enters the shutdown zone, at which point all pile driving activities would be halted, except in the case of impact driving when driving will be allowed to continue. Monitoring will take place from thirty minutes prior to initiation through thirty minutes post-completion of pile driving activities. Pile driving activities include the time to remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes.

    The following additional measures apply to visual monitoring:

    (1) Monitoring will be conducted by qualified observers, who will be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. Qualified observers are trained biologists, with the following minimum qualifications:

    (a) Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;

    (b) Advanced education in biological science or related field (undergraduate degree or higher required);

    (c) Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience);

    (d) Experience or training in the field identification of marine mammals, including the identification of behaviors;

    (e) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;

    (f) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior; and

    (g) Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.

    (2) Prior to the start of pile driving activity, the shutdown zone will be monitored for 30 minutes to ensure that it is clear of marine mammals. Pile driving will only commence once observers have declared the shutdown zone clear of marine mammals; animals will be allowed to remain in the shutdown zone (i.e., must leave of their own volition) and their behavior will be monitored and documented. The shutdown zone may only be declared clear, and pile driving started, when the entire shutdown zone is visible (i.e., when not obscured by dark, rain, fog, etc.).

    If a marine mammal approaches or enters the shutdown zone during the course of vibratory pile driving operations, activity will be halted and delayed until he animal has voluntarily left and been visually confirmed beyond the shutdown zone. If a marine mammal is seen above water and then dives below, the contractor would wait 15 minutes for pinnipeds and harbor porpoise and 30 minutes for gray whale. If no marine mammals are seen by the observer in that time it will be assumed that the animal has moved beyond the exclusion zone.

    Monitoring will be conducted throughout the time required to drive a pile. In impact driving situations, once the pile driving of a segment begins it will not be stopped until that segment has reached its predetermined depth due to the nature of the sediments underlying the Bay. If impact pile driving were to stop and then resumes, it would potentially have to occur for a longer time and at increased energy levels. If marine mammals enter the safety zone after pile driving of a segment has begun, pile driving will continue and marine mammal observers will monitor and record marine mammal numbers and behavior.

    (3) The area within the Level B harassment zone shall be conducted by a minimum of three qualified NMFS-approved marine mammal observers (MMOs) placed in strategic locations that will afford visual coverage of these zones. Observers may be stationed on boats, Yerba Buena Island and/or Treasure Island, the new bridge or construction barges. Marine mammal presence within the Level B harassment zone will be monitored, but vibratory and impact pile driving as well as dismantling activity will not be stopped if marine mammals are found to be present. Any marine mammal documented within the Level B harassment zone during vibratory and impact driving or mechanical dismantling activities would constitute a Level B take (harassment), and will be recorded and reported as such.

    Mitigation Conclusions

    We have carefully evaluated CALTRANS' proposed mitigation measures and considered their effectiveness in past implementation to determine whether they are likely to effect the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another: (1) The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals, (2) the proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and (3) the practicability of the measure for applicant implementation.

    Any mitigation measure(s) we prescribe should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:

    (1) Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).

    (2) A reduction in the number (total number or number at biologically important time or location) of individual marine mammals exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).

    (3) A reduction in the number (total number or number at biologically important time or location) of times any individual marine mammal would be exposed to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing takes by behavioral harassment only).

    (4) A reduction in the intensity of exposure to stimuli expected to result in incidental take (this goal may contribute to 1, above, or to reducing the severity of behavioral harassment only).

    (5) Avoidance or minimization of adverse effects to marine mammal habitat, paying particular attention to the prey base, blockage or limitation of passage to or from biologically important areas, permanent destruction of habitat, or temporary disturbance of habitat during a biologically important time.

    (6) For monitoring directly related to mitigation, an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

    Based on our evaluation of CALTRANS' proposed measures, including information from monitoring of implementation of mitigation measures very similar to those described here under previous IHAs from other marine construction projects, we have determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking”. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.

    Any monitoring requirement we prescribe should improve our understanding of one or more of the following:

    (1) An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;

    (2) An increase in our understanding of how many marine mammals are likely to be exposed to levels of pile driving that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS;

    (3) An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:

    Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);

    Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);

    Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;

    (4) An increased knowledge of the affected species; and

    (5) An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.

    CALTRANS has submitted monitoring reports for each of the IHAs that have been issued to them for this project. NMFS received the most recent report on April 28, 2015 covering the IHA issued for the period between January 8, 2014 and January 7, 2015. CALTRANS observed all required monitoring and mitigation protocols during this period. Recorded takes were below permitted levels for all species except for harbor seals. After extrapolating observed numbers during 30 percent of driving activities, CALTRANS determined that 130 harbor seals were taken. This exceeded the allowable take limit of 50 stated in the IHA. CALTRANS reported that most of these seals were within the ZOI in Coast Guard Cove and Clipper Cove north of Yurba Buena Island (YBI) as well as an area 200-400 m off the southeast shore of YBI. Most seals appeared to be foraging and none showed any response to pile driving noise and continued to forage in those areas for up to several hours during pile driving. Based on the high number of harbor seal takes recorded, CALTRANS has requested an increase in takes under the IHA discussed in this Federal Register Notice. NMFS has approved an increase in harbor seal takes, which is discussed in a following section.

    CALTRANS consulted with NMFS to create a marine mammal monitoring plan as part of the IHA application for this project.

    Visual Marine Mammal Observations

    • CALTRANS will implement onsite marine mammal monitoring for 100% of all unattenuated impact pile driving of H-piles for 180- and 190-dB re 1 μPa exclusion zones (235 meter radius) and 160-dB re 1 μPa Level B harassment zone, attenuated impact pile driving (except pile proofing) and mechanical dismantling for 180- and 190-dB re 1 μPa exclusion zones. CALTRANS will also monitor 20% of the attenuated impact pile driving for the 160-dB re 1 μPa Level B harassment zone (1,000 meter radius), and 20% of vibratory pile driving and mechanic dismantling for the 120-dB re 1 μPa Level B harassment zone (2,000 meter radius).

    • Three individuals meeting the minimum qualification previously identified will monitor the Level A and B harassment zones during impact pile driving and the Level B harassment zone during vibratory pile driving and dismantling. Monitors may be stationed on boats, Yerba Buena Island and/or Treasure Island, the new bridge or construction barges.

    • During impact pile driving, the area within 235 meters of pile driving activity will be monitored and maintained as marine mammal buffer area in which pile installation will not commence if any marine mammals are observed within or approaching the area of potential disturbance. If a marine mammal approaches or appears within the zone, pile driving of a segment will continue until that segment has reached its predetermined depth due to the nature of the sediments underlying the Bay.

    • The area within the Level B harassment threshold for impact driving will be monitored by three field monitors stationed in a positon permitting visual access to the 1,000 meter limit of the Level B harassment zone. Marine mammal presence within this Level B harassment zone, if any, will be monitored, but impact pile driving activity will not be stopped if marine mammals are found to be present. Any marine mammal documented within the Level B harassment zone during impact driving would constitute a Level B take (harassment), and will be recorded and reported as such.

    • During vibratory pile driving, the area within 10 meters of pile driving activity will be monitored and maintained as a marine mammal buffer area in which pile installation will not commence or will be suspended temporarily if any marine mammals are observed within or approaching the area of potential disturbance. The Level B harassment area with a 2,000 meter radius will be monitored by three qualified observers stationed at strategic locations that provide adequate visual coverage of the disturbance zone. The monitoring staff will record any presence of marine mammals by species, will document any behavioral responses noted, and record Level B takes when sightings overlap with pile installation activities.

    • During mechanical dismantling activities a 100 meters radius will be monitored and maintained as a marine mammal buffer area in which pile installation will not commence or will be suspended temporarily if any marine mammals are observed within or approaching the area.

    • The individuals will scan the waters within each monitoring zone activity using binoculars (Vector 10X42 or equivalent), spotting scopes (Swarovski 20-60 zoom or equivalent), and visual observation.

    • The area within which the Level B harassment thresholds could be exceeded during impact pile driving and vibratory pile driving will be monitored for the presence of marine mammals during all impact and vibratory pile driving. Marine mammal presence within these zones, if any, will be monitored but pile driving activity will not be stopped if marine mammals were found to be present. Any marine mammal documented within the Level B harassment zone will constitute a Level B take, and will be recorded and used to document the number of take incidents.

    • If waters exceed a sea-state which restricts the observers' ability to make observations within the marine mammal buffer zone (the 235 meter radius) (e.g., excessive wind or fog), impact pile installation will cease until conditions allow the resumption of monitoring.

    • The waters will be scanned for 30 minutes before, during, and 30 minutes after any and all pile driving and removal activities.

    • If marine mammals enter or are observed within the designated marine mammal buffer zone (the 235m radius) during or 30 minutes prior to pile driving, the monitors will notify the on-site construction manager to not begin until the animal has moved outside the designated radius.

    • If a marine mammal approaches the Level A harassment zone prior to initiation of pile driving, CALTRANS cannot commence activities until the marine mammal (a) is observed to have left the Level A harassment zone or (b) has not been seen or otherwise detected within the Level A harassment zone for 30 minutes.

    • The waters will continue to be scanned for at least 30 minutes after pile driving has completed each day, and after each stoppage of 30 minutes or greater.

    Data Collection

    We require that observers use approved data forms. Among other pieces of information, CALTRANS will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. In addition, CALTRANS will attempt to distinguish between the number of individual animals taken and the number of incidents of take. We require that, at a minimum, the following information be collected on the sighting forms:

    • Date and time that monitored activity begins or ends;

    • Construction activities occurring during each observation period;

    • Weather parameters (e.g., percent cover, visibility);

    • Water conditions (e.g., sea state, tide state);

    • Species, numbers, and, if possible, sex and age class of marine mammals;

    • Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;

    • Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;

    • Locations of all marine mammal observations; and

    • Other human activity in the area.

    Reporting

    CALTRANS will notify NMFS prior to the initiation of the pile driving and dismantling activities for the removal of the existing east span. NMFS will be informed of the initial sound pressure level measurements for both pile driving and foundation dismantling activities, including the final exclusion zone and Level B harassment zone radii established for impact and vibratory pile driving and marine foundation dismantling activities.

    Monitoring reports will be posted on the SF-OBB Project's biological mitigation Web site (www.biomitigation.org) on a weekly basis if in-water construction activities are conducted. Marine mammal monitoring reports will include species and numbers of marine mammals observed, time and location of observation and behavior of the animal. In addition, the reports will include an estimate of the number and species of marine mammals that may have been harassed as a result of activities.

    CALTRANS will provide NMFS with a draft monitoring report within 90 days of the conclusion of the proposed construction work. This report will detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report must be submitted within 30 days after receipt of comments.

    Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”

    All anticipated takes would be by Level B harassment resulting from impact and vibratory pile driving/removal and involving temporary changes in behavior. Injurious or lethal takes are not expected due to the expected source levels and sound source characteristics associated with the activity, and the planned mitigation and monitoring measures are expected to further minimize the possibility of such take.

    Given the many uncertainties in predicting the quantity and types of impacts of sound in every given situation on marine mammals, it is common practice to estimate how many animals are likely to be present within a particular distance of a given activity, or exposed to a particular level of sound, based on the available science.

    This practice potentially overestimates the numbers of marine mammals taken for stationary activities, as it is likely that some smaller number of individuals may accrue a number of incidences of harassment per individual than for each incidence to accrue to a new individual, especially if those individuals display some degree of residency or site fidelity and the impetus to use the site (e.g., because of foraging opportunities) is stronger than the deterrence presented by the harassing activity.

    CALTRANS has requested authorization for the incidental taking of small numbers of California sea lions (Zalophus californianus), Pacific harbor seals (Phoca vitulina richardsii), harbor porpoises (Phocoena phocoena), and gray whales (Eschrichtius robustus) incidental to construction associated with a replacement bridge for the East Span of the SF-OBB, in San Francisco Bay (SFB, or Bay), California.

    In order to estimate the potential incidents of take that may occur incidental to the specified activity, we must first estimate the extent of the sound field that may be produced by the activity and then consider in combination with information about marine mammal density or abundance in the project area. We provided detailed information on applicable sound thresholds for determining effects to marine mammals as well as describing the information used in estimating the sound fields, the available marine mammal density or abundance information, and the method of estimating potential incidences of take, in our Federal Register notice of proposed authorization (80 FR 23744; March 20, 2015).

    Table 1 illustrated the 190 dB rms Level A harassment (injury) threshold for underwater noise for pinniped species could be exceeded at a distance of up to approximately 95 meters during impact pile driving activities, and the 180 dB rms Level A harassment (injury) threshold for cetacean species could be exceeded at a distance of up to approximately 235 meters during impact pile driving activities. Additionally, the 160 dB rms Level B harassment (behavioral disruption) threshold for impulsive source underwater noise for pinniped and cetacean species could be exceeded at a distance of up to approximately 1,000 meters during impact pile driving and the 120 dB Level B harassment threshold could be exceeded at 2,000 meters. Note that the actual area insonified by pile driving activities is significantly constrained by local topography relative to the identified threshold radii.

    Marine mammal density estimates were based on marine mammal monitoring reports and marine mammal observations made during pile driving activities associated with the SF-OBB construction work authorized under prior IHAs. Pacific harbor seal densities were calculated and described in the Federal Register notice of proposed authorization (80 FR 23744; March 20, 2015). During monitoring for the East Span of the SF-OBB, there were 657 observations of harbor seals made during over 210 days from 2000 to 2014. Two densities were calculated because of the higher density of seals observed foraging near YBI and Treasure Island. Foraging seals tended to remain in the area for several hours while transiting seals passing under the SF-OBB were only observed 1-2 times. Therefore, densities east of Pier E3-E8 are much lower than the density than west of Pier E3.

    The area of 2,000-meter threshold for the Level B behavioral harassment zone is 12.57 km2 (12,570,000 m2). Half of that area to the west of Piers E3-E8 (6.29 km2) would have a higher density of harbor seals which are frequently observed in the three foraging areas. The range of seals observed within the foraging areas is 0-8 seals and the mean is 3.6 seals per day (combined for all three areas). The other half of the Level B harassment zone would have a lower density due to the infrequent observations of seals moving through the area. In addition the density of seals will vary with season therefore a density for the spring-summer season when seals spend more time onshore as they are pupping and molting and the fall/winter season.

    This estimate of 460 harbor seal takes is above the number of seals that have been permitted for take in previous IHAs that have been issued related to this project. However, the estimate presented here represents a more complete picture of the marine mammal density in the project area and the potential for exposure to project activities.

    California sea lions are based on CALTRANS observations over 15 years of monitoring on the Bay Bridge, 2000 to 2014, including baseline monitoring in 2003 before bridge construction began. It should be noted that monitoring was not year round and there was little monitoring required during the period of mid-2010 to mid-2013 due to no pile driving. During 2013 and 2014, there was a large increase in pile driving to construct temporary falsework and for mechanical dismantling so the current estimates of animals do include recent monitoring. California sea lion numbers fluctuate from year to year. For example, in 2014 no sea lions were observed in the harassment zone while in 2004, 36 sea lions were recorded near the Bay Bridge construction areas during pile driving. The larger number of sea lions in 2004 was probably related to a run of herring that was near the Bay Bridge and sea lions were observed feeding on dense aggregations of herring in the area. Therefore, an allowed take 50 sea lions is considered a conservative estimate.

    Harbor porpoises were observed near the tower of the new Bay Bridge in 2013 and 2014. Each of those was a single animal and far out of their normal range for the Bay. If 1 or 2 pods of porpoises were to enter the construction area, then there might be up to 6 takes (pod size of 2-3 porpoises). Based on this NMFS believes that an allowed take of up to 10 harbor porpoises is conservative, but reasonable.

    Gray whale take estimates were based on sighting reports collected by the Marine Mammal Center in Sausalito (the NMFS stranding facility for northern California). The Center collects whale sightings information from the general public, researchers, and the U.S. Coast Guard. For the gray whale, 5 permitted takes is likely to be a conservative, but reasonable, estimate as they have never been observed within any of the behavioral zones during monitoring. Additionally, there has only been one report of a gray whale swimming under the original East Span of the Bay Bridge a number of years ago.

    Based on these results, and accounting for a certain level of uncertainty regarding the next phase of construction, NMFS concludes that at maximum 460 harbor seals, 50 California sea lions, 10 harbor porpoises, and 5 gray whales could be exposed to noise levels that could cause Level B harassment as a result of the CALTRAN' SF-OBB construction activities. These numbers represent 1.5%, <0.01%, <0.01% and 0.10% of the California stock harbor seal, the U.S. stock California sea lion, the Eastern North Pacific stock gray whale, and the San Francisco-Russian River stock harbor porpoise, respectively (Table 2).

    Table 2—Estimates of the Possible Maximum Numbers of Marine Mammals Taken by Level B Harassment as a Result of the Proposed CALTRANS' SF-OBB Construction Activities Species Stocks Level B takes Percent
  • population
  • Pinnipeds Harbor seal California 460 1.5 California sea lion U.S. 50 <0.01 Cetaceans Gray whale Eastern North Pacific 5 <0.01 Harbor porpoise San Francisco-Russian River 10 0.10
    Analyses and Determinations Negligible Impact Analysis

    Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, effects on habitat, and the status of the species.

    To avoid repetition, the discussion of our analyses applies to all the species listed in Table 2, given that the anticipated effects of this pile driving project on marine mammals are expected to be relatively similar in nature. There is no information about the size, status, or structure of any species or stock that would lead to a different analysis for this activity.

    Pile driving, pile removal and mechanical dismantling activities associated with the construction of a replacement bridge for the East Span of the SF-OBB, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only, from underwater sounds generated from pile driving. Potential takes could occur if individuals of these species are present in the ensonified zone when pile driving and removal are happening.

    No injury, serious injury, or mortality is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to marine mammals. The known potential for serious injury or mortality is minimized through the construction method and the implementation of the planned mitigation measures. Both vibratory hammers and impact hammers will be utilized based on local substrate conditions. Vibratory driving will be used wherever conditions are favorable for this technique. Vibratory driving does not have significant potential to cause injury to marine mammals due to the relatively low source levels produced and the lack of potentially injurious source characteristics. Impact pile driving produces short, sharp pulses with higher peak levels and much sharper rise time to reach those peaks. When impact driving is necessary, required measures (implementation of shutdown zones) significantly reduce any possibility of injury. Given sufficient “notice” through use of soft start (for impact driving), marine mammals are expected to move away from a sound source that is annoying prior to its becoming potentially injurious. The likelihood that marine mammal detection ability by trained observers is high under the environmental conditions described for this area of San Francisco Bay further enables the implementation of shutdowns to avoid injury, serious injury, or mortality.

    Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (e.g., Thorson and Reyff, 2006; HDR, 2012; Lerma, 2014). Most likely, individuals will simply move away from the sound source and be temporarily displaced from the areas of pile driving, although even this reaction has been observed primarily only in association with impact pile driving. In response to vibratory driving, pinnipeds (which may become somewhat habituated to human activity in industrial or urban waterways) have been observed to orient towards and sometimes move towards the sound. The pile driving activities analyzed here are similar to, or less impactful than, numerous construction activities conducted in other similar locations, which have taken place with no reported injuries or mortality to marine mammals, and no known long-term adverse consequences from behavioral harassment. Repeated exposures of individuals to levels of sound that may cause Level B harassment are unlikely to result in hearing impairment or to significantly disrupt foraging behavior. Thus, even repeated Level B harassment of some small subset of the overall stock is unlikely to result in any significant realized decrease in fitness for the affected individuals, and thus would not result in any adverse impact to the stock as a whole. Level B harassment will be reduced to the level of least practicable impact through use of mitigation measures described herein and, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the project area while the activity is occurring.

    CALTRANS' proposed activities are localized and of short duration. The entire project area is limited to the East Span of the bridge and its immediate surroundings. The project will require the installation of a total of approximately 200 piles. Impact driving of pipe piles will be limited to a maximum of 20 piles per day and proofing of the pipe piles will not exceed a maximum of 2 piles per day—each pile would be driven with no more than 20 blows during a one-minute period. Total hammer time is scheduled to occur over 128 days between July 15, 2015 and July 14, 2016. These localized and short-term noise exposures may cause brief startle reactions or short-term behavioral modification by the animals. These reactions and behavioral changes are expected to subside quickly when the exposures cease. Moreover, the proposed mitigation and monitoring measures are expected to reduce potential exposures and behavioral modifications even further. Additionally, no important feeding and/or reproductive areas for marine mammals are known to be near the proposed action area. Therefore, the take resulting from this CALTRANS project is not reasonably expected to and is not reasonably likely to adversely affect the marine mammal species or stocks through effects on annual rates of recruitment or survival and, therefore, will have a negligible impact on the affected species or stocks.

    The project also is not expected to have significant adverse effects on affected marine mammals' habitat, as analyzed in detail in the “Anticipated Effects on Marine Mammal Habitat” section. The project activities would not modify existing marine mammal habitat. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences.

    In summary, this negligible impact analysis is founded on the following factors: (1) The possibility of injury, serious injury, or mortality may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior with no significant adverse impacts on habitat and; (3) the presumed efficacy of the proposed mitigation measures in reducing the effects of the specified activity to the level of least practicable impact. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activity will have only short-term effects on individuals. The specified activity is not expected to impact rates of recruitment or survival and will therefore not result in population-level impacts.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS finds that the total marine mammal take from CALTRANS' construction of a replacement bridge for the East Span of the SF-OBB will have a negligible impact on the affected marine mammal species or stocks.

    Small Numbers Analysis

    Table 2 demonstrates the number of animals that could be exposed to received noise levels that could cause Level B behavioral harassment for the proposed work associated with the replacement bridge construction. These numbers represent 1.5%, <0.01%, <0.01% and 0.10% of the California stock harbor seal, the U.S. stock California sea lion, the Eastern North Pacific stock gray whale, and the San Francisco-Russian River stock harbor porpoise, respectively (Table 3).

    The numbers of animals authorized to be taken for all species are small relative to the relevant stocks or populations even if each estimated taking occurred to a new individual—an extremely unlikely scenario. For pinnipeds occurring in the vicinity of the SF-OBB project, there will almost certainly be some overlap in individuals present day-to-day, and these takes are likely to occur only within some small portion of the overall regional stock, such as the number of harbor seals that regularly use nearby haul-out rocks.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, which are expected to reduce the number of marine mammals potentially affected by the proposed action, NMFS finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.

    Impact on Availability of Affected Species for Taking for Subsistence Uses

    There are no subsistence uses of marine mammals in the proposed project area; and, thus, no subsistence uses impacted by this action.

    Endangered Species Act (ESA)

    No marine mammal species listed under the ESA are expected to be affected by these activities. Therefore, we have determined that a section 7 consultation under the ESA is not required.

    National Environmental Policy Act (NEPA)

    NMFS' prepared an Environmental Assessment (EA) for the take of marine mammals incidental to construction of the East Span of the SF-OBB and made a Finding of No Significant Impact (FONSI) on November 4, 2003. Due to the modification of part of the construction project and the mitigation measures, NMFS reviewed additional information from CALTRANS regarding empirical measurements of pile driving noises for the smaller temporary piles without an air bubble curtain system and the use of vibratory pile driving. NMFS prepared a Supplemental Environmental Assessment (SEA) and analyzed the potential impacts to marine mammals that would result from the modification of the action. A Finding of No Significant Impact (FONSI) was signed on August 5, 2009. A copy of the SEA and FONSI is available upon request.

    Authorization

    As a result of these determinations, we have issued an IHA to CALTRANS for conducting the described activities related to the construction of the East Span of the San Francisco-Oakland Bay Bridge, from July 15, 2015 through July 14, 2016 provided the previously described mitigation, monitoring, and reporting requirements are incorporated.

    Dated: July 16, 2015. Perry Gayaldo, Deputy Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2015-18021 Filed 7-22-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XE040 Atlantic Coastal Fisheries Cooperative Management Act Provisions; General Provisions for Domestic Fisheries; Application for Exempted Fishing Permits AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; request for comments.

    SUMMARY:

    The NMFS Assistant Regional Administrator for Sustainable Fisheries, Greater Atlantic Region, has made a preliminary determination that an Exempted Fishing Permit renewal application from the Commercial Fisheries Research Foundation contains all of the required information and warrants further consideration; and that the activities authorized under the Exempted Fishing Permit would be consistent with the goals and objectives of the Interstate Fisheries Management Plan for American lobster. Regulations under the Magnuson-Stevens Fishery Conservation and Management Act and the Atlantic Coastal Fisheries Cooperative Management Act require publication of this notification to provide interested parties the opportunity to comment on Exempted Fishing Permit applications.

    DATES:

    Comments must be received on or before August 7, 2015.

    ADDRESSES:

    Written comments on this notice may be submitted by the following methods:

    Email to: [email protected] Include in the subject line “Comments on CFRF Lobster EFP.”

    Mail to: John K. Bullard, Regional Administrator, NMFS, Greater Atlantic Regional Fisheries Office, 55 Great Republic Drive, Gloucester, MA 01930. Mark the outside of the envelope “Comments on CFRF Lobster EFP.”

    FOR FURTHER INFORMATION CONTACT:

    Cynthia Hanson, NOAA Affiliate, 978-281-9180.

    SUPPLEMENTARY INFORMATION:

    The Commercial Fisheries Research Foundation (CFRF) submitted a complete application for a 2-year renewal to an existing Exempted Fishing Permit (EFP) on June 25, 2015. The purpose of this study is to test electronic data collection while conducting research on the abundance and distribution of juvenile American lobster. Funding for this study will be provided through a NOAA grant, as part of the Saltonstall-Kennedy Grant Program. The EFP proposes to use a total of 36 ventless, untagged traps in Lobster Management Areas 2 and 3; covering statistical areas 464, 465, 512, 515, 522, 525, 526, 537, 561, 562, 613, 615, and 616. Maps depicting these areas are available on request.

    The study would take place during regular fishing activity on 12 federally permitted commercial fishing vessels; 6 vessels in each of the two management areas. Sampling would occur during scheduled fishing trips on each vessel once per week in Area 2, and once every 10 days in Area 3. If an EFP extension is granted, there would be an additional 36 modified, untagged traps in the water during any given time, for a period of two years. Each participating vessel would have up to three modified traps attached to a regular trap trawl. Modifications to a conventional lobster trap would include a closed escape vent, single parlor, and smaller mesh size and entrance head.

    The CFRF is requesting exemptions from the following Federal lobster regulations:

    • Gear specifications in 50 CFR 697.21(c) to allow for closed escape vents, and smaller mesh and entrance heads;

    • Trap limits as listed in 50 CFR 697.19(b) for Area 2, and 50 CFR 697.19(c) for Area 3, to be exceeded by 3 additional traps per fishing vessel for a total of 36 additional traps;

    • Trap tag requirements, as specified in 50 CFR 697.19(i), to allow for the use of untagged traps; and

    • Possession restrictions in 50 CFR 697.20(a), to allow for onboard biological sampling of juvenile, v-notched, and egg-bearing lobsters.

    All lobsters caught by modified gear would remain onboard for a short period of time to allow for biological sampling and data collection, after which they would be returned to the water. Biological information will be collected on both kept and discarded lobsters, including: Carapace length; sex; and presence of eggs, v-notches, and shell disease. This study would use several data recording devices, including electronic calipers for length measurements, video cameras, and waterproof tablets. Once the vessels return to shore, data would be relayed to a central database and made available via the Atlantic Coastal Cooperative Statistic Program.

    If approved, CFRF may request minor modifications and extensions to the EFP throughout the study period. EFP modifications and extensions may be granted without further notice if they are deemed essential to facilitate completion of the proposed research and have minimal impacts that do not change the scope or impact of the initially approved EFP request. Any fishing activity conducted outside the scope of the exempted fishing activity would be prohibited.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: July 17, 2015. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2015-18054 Filed 7-22-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XD977 Taking of Marine Mammals Incidental to Specified Activities: Mukilteo Multimodal Project Tank Farm Pier Removal AGENCY:

    National Marine Fisheries Service, National Oceanic and Atmospheric Administration, Commerce.

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments and information.

    SUMMARY:

    Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an authorization to WSF to incidentally take, by harassment, small numbers of marine mammals for a period of 1 year.

    DATES:

    Comments and information must be received no later than August 24, 2015.

    ADDRESSES:

    Comments on the application should be addressed to Robert Pauline, Office of Protected Resources, National Marine Fisheries Service, 1315 East-West Highway, Silver Spring, MD 20910. The mailbox address for providing email comments is [email protected] NMFS is not responsible for email comments sent to addresses other than the one provided here. Comments sent via email, including all attachments, must not exceed a 25-megabyte file size.

    Instructions: All comments received are a part of the public record and will generally be posted to http://www.nmfs.noaa.gov/pr/permits/incidental.htm without change. All Personal Identifying Information (for example, name, address, etc.) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information.

    A copy of the application may be obtained by writing to the address specified above or visiting the internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. Documents cited in this notice may also be viewed, by appointment, during regular business hours, at the aforementioned address.

    FOR FURTHER INFORMATION CONTACT:

    Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Section 101(a)(5)(D) of the MMPA established an expedited process by which citizens of the U.S. can apply for a one-year authorization to incidentally take small numbers of marine mammals by harassment, provided that there is no potential for serious injury or mortality to result from the activity. Section 101(a)(5)(D) establishes a 45-day time limit for NMFS review of an application followed by a 30-day public notice and comment period on any proposed authorizations for the incidental harassment of marine mammals. Within 45 days of the close of the comment period, NMFS must either issue or deny the authorization.

    Summary of Request

    On November 6, 2014, Washington State Department of Transportation Ferries System (WSF) submitted a request to NOAA requesting an IHA for the possible harassment of small numbers of eight marine mammal species incidental to construction work associated with the Mukilteo Ferry Terminal replacement project in Mukilteo, Snohomish County, Washington. The new terminal will be located to the east of the existing location at the site of the former U.S. Department of Defense Fuel Supply Point facility, known as the Tank Farm property, which includes a large pier extending into Possession Sound (Figure 1-2 and 1-3 of the WSF IHA application which may be found at URL: http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm). Completion of the entire project will occur over 4 consecutive years. WSF plans to submit an IHA request for each consecutive year of construction. WSF previously received an IHA on July 25, 2014 (79 FR 43424) which was active from September 1, 2014 through August 31, 2015. However, the project was delayed for one year. The IHA application currently under review would cover work from September 1, 2015 through August 31, 2016. All existing pile work will be done under these two successive permits. Due to NMFS, U.S. Fish and Wildlife Service (USFWS), and Washington State Department of Fish and Wildlife (WDFW) in-water work timing restrictions to protect salmonids listed under the Endangered Species Act (ESA), planned WSF in-water construction is limited each year to August 1 through February 15. For removal of the Tank Farm Pier, in-water construction is planned to take place between August 1, 2015 and February 15, 2016; and continue in August 1, 2016 to February 15, 2017 if pier removal and dredging is not completed during the 2015/16 work window. A new MMPA IHA application will be submitted for subsequent construction years for this project.

    The action discussed in this document is based on WSF's November 6, 2014 IHA application. NMFS is proposing to authorize the Level B harassment of the following marine mammal species: Pacific harbor seal (Phoca vitulina richardsi), California sea lion (Zalophus californianus), Steller sea lion (Eumetopias jubatus), harbor porpoise (Phocoena phocoena), Dall's porpoise (Phocoenoides dalli), killer whale (Orcinus orca), gray whale (Eschrichtius robustus), and humpback whale (Megaptera novaeangliae)

    Specific Geographic Region

    The Mukilteo Tank Farm is located within the city limits of Mukilteo and Everett, Snohomish County, Washington. The property is located on the shore of Possession Sound, an embayment of the inland marine waters of Puget Sound (see Figures 1-1 and 1-2 in the Application).

    Description of the Specified Activity

    The Mukilteo Tank Farm Pier, which has not been used for fuel transfers since the late 1970s, covers approximately 138,080 ft2 (3.17 acres) over-water and contains approximately 3,900 12-inch diameter creosote-treated piles. Demolition of the pier will remove approximately 7,300 tons of creosote-treated timber from the aquatic environment. Demolition will take approximately ten months over two in-water work windows. Removal of the pier will occur from land and from a barge containing a derrick, crane and other necessary equipment.

    Piles will be removed with a vibratory hammer or by direct pull using a chain wrapped around the pile. The crane operator will take measures to reduce turbidity, such as vibrating the pile slightly to break the bond between the pile and surrounding soil, and removing the pile slowly; or if using direct pull, keep the rate at which piles are removed low enough to meet regulatory turbidity limit requirements. If piles are so deteriorated they cannot be removed using either the vibratory or direct pull method, the operator will use a clamshell to pull the piles from below the mudline, or cut at or just below the mudline (up to one foot) using a hydraulic saw.

    Pile removal and demolition of creosote-treated timber elements of the Tank Farm Pier will take place between August 1 and February 15. All work will occur in water depths between 0 and −30 feet mean lower-low water.

    The first year of construction activities for the Mukilteo Multimodal Project is limited to removing the Tank Farm Pier. The noise produced by the proposed vibratory pile extraction may impact marine mammals. Direct pull and clamshell removal are not expected to exceed noise levels that would injure or harass marine mammals. These extraction methods are described below.

    Vibratory Hammer Removal

    Vibratory hammer extraction is a common method for removing timber piling. A vibratory hammer is suspended by cable from a crane and derrick, and positioned on the top of a pile. The pile is then unseated from the sediments by engaging the hammer, creating a vibration that loosens the sediments binding the pile, and then slowly lifting up on the hammer with the aid of the crane. Once unseated, the crane continues to raise the hammer and pulls the pile from the sediment.

    When the pile is released from the sediment, the vibratory hammer is disengaged and the pile is pulled from the water and placed on a barge for transfer upland. Vibratory removal will take approximately 10 to 15 minutes per pile, depending on sediment conditions.

    Direct Pull and Clamshell Removal

    Older timber pilings are particularly prone to breaking at the mudline because of damage from marine borers and vessel impacts. In some cases, removal with a vibratory hammer is not possible if the pile is too fragile to withstand the hammer force. Broken or damaged piles may be removed by wrapping the piles with a cable and pulling them directly from the sediment with a crane. If the piles break below the waterline, the pile stubs will be removed with a clamshell bucket, a hinged steel apparatus that operates like a set of steel jaws. The bucket will be lowered from a crane and the jaws will grasp the pile stub as the crane pulled up. The broken piling and stubs will be loaded onto the barge for off-site disposal. Clamshell removal will be used only if necessary, as it will produce temporary, localized turbidity impacts. Turbidity will be kept within required regulatory limits. Direct pull and clamshell removal do not produce noise that could impact marine mammals.

    Dates and Duration

    The subject IHA application addresses Year One and a first month of Year Two. The first month of the project is covered by the existing IHA permit (expiring in August 2015). The new IHA would be active from September 1, 2015 through August 31, 2016, which allows for one month of pier removal if necessary in Year Two. If the rate of pier removal in Year One is slow enough to suggest that pier removal will continue beyond the first month (August) of Year Two, an additional IHA request will be submitted to ensure that pier removal can be completed.

    The daily construction window for pile removal will begin no sooner than 30 minutes after sunrise to allow for initial marine mammal monitoring, and will end at sunset (or soon after), when visibility decreases to the point that effective marine mammal monitoring is not possible.

    Vibratory pile removal will take approximately 10 to 15 minutes per pile. Assuming the worst case of 15 minutes per pile (with no direct pull or clamshell removal), removal of 3,900 piles will take and estimated 675-975 hours over 140-180 days of pile removal (Table 2-2 in the Application). The estimate of 180 days provides for some shorter pile pulling days during winter, transition time to dig out broken piles, and removal of decking. The actual number of days may be closer to 140 for pile work.

    It is likely that the actual hours of vibratory pile removal will be less, as the duration conservatively assumes that every pile will be removed with a vibratory hammer. It is likely that many will be require direct pull or clamshell removal if necessary, both of which are quicker than vibratory extraction.

    Description of Marine Mammals in the Area of the Specified Activity

    The marine mammal species under NMFS jurisdiction most likely to occur in the proposed construction area include Pacific harbor seal (Phoca vitulina richardsi), California sea lion (Zalophus californianus), Steller sea lion (Eumetopias jubatus), harbor porpoise (Phocoena phocoena), Dall's porpoise (P. dalli), killer whale (Orcinus orca), gray whale (Eschrichtius robustus), and humpback whale (Megaptera novaeangliae).

    General information on the marine mammal species found in California waters can be found in Carretta et al. (2013), which is available at the following URL: http://www.nmfs.noaa.gov/pr/sars/pdf/pacific2013_final.pdf and in Table 1 below. Refer to that document for information on these species. Specific information concerning these species in the vicinity of the proposed action area is provided below.

    Table 1—List of Marine Species Under NMFS Jurisdiction That Occur in the Vicinity of the Mukilteo Tank Farm Pier Project Species ESA Status MMPA Status Timing of occurrence Frequency of
  • occurrence
  • Harbor Seal Unlisted Non-depleted Year-round Common. California Sea Lion Unlisted Non-depleted August-April Common. Steller Sea Lion Delisted Strategic/Depleted October-May Rare. Harbor Porpoise Unlisted Non-depleted Year-round Occasional. Dall's Porpoise Unlisted Non-depleted Year-round (more common in winter) Occasional. Killer Whale
  • (Southern Resident)
  • Endangered Strategic/Depleted October-March Occasional.
    Killer Whale
  • (Transient)
  • Unlisted Strategic/Depleted March-May (intermittently year-round) Occasional.
    Gray Whale Delisted Non-depleted January-May Occasional. Humpback Whale Endangered Strategic/Depleted April-June Occasional.
    Harbor Seal

    Harbor seals are members of the true seal family (Phocidae). For management purposes, differences in mean pupping date (Temte 1986), movement patterns (Brown 1988), pollutant loads (Calambokidis et al. 1985), and fishery interactions have led to the recognition of three separate harbor seal stocks along the west coast of the continental U.S. (Boveng 1988). The three distinct stocks are: (1) Inland waters of Washington State (including Hood Canal, Puget Sound, Georgia Basin and the Strait of Juan de Fuca out to Cape Flattery), (2) outer coast of Oregon and Washington, and (3) California (Carretta et al. 2011).

    The Washington Inland Waters stock (which includes Hood Canal, Puget Sound, Georgia Basin and the Strait of Juan de Fuca out to Cape Flattery) may be present near the project site. Pupping seasons vary by geographic region. For the northern Puget Sound region, pups are born from late June through August (WDFW 2012a). After October 1 all pups in the inland waters of Washington are weaned. Of the three pinniped species that commonly occur within the region of activity, harbor seals are the most numerous and the only one that breeds in the inland marine waters of Washington (Calambokidis and Baird, 1994).

    In 1999, Jeffries et al. (2003) recorded a mean count of 9,550 harbor seals in Washington's inland marine waters, and estimated the total population to be approximately 14,612 animals (including the Strait of Juan de Fuca). According to the 2014 Stock Assessment Report (SAR), the most recent estimate for the Washington Northern Inland Waters Stock is 11,036 (Carretta et al. 2014). No minimum population estimate is available. However, there are an estimated 32,000 harbor seals in Washington today, and their population appears to have stabilized (Jeffries 2013), so the estimate of 11,036 may be low.

    Harbor seals are the most numerous marine mammal species in Puget Sound. Harbor seals are non-migratory; their local movements are associated with such factors as tides, weather, season, food availability and reproduction (Scheffer and Slipp 1944; Fisher 1952; Bigg 1969, 1981). They are not known to make extensive pelagic migrations, although some long-distance movements of tagged animals in Alaska (174 km) and along the U.S. west coast (up to 550 km) have been recorded (Pitcher and McAllister 1981; Brown and Mate 1983; Herder 1983).

    Harbor seals haul out on rocks, reefs and beaches, and feed in marine, estuarine and occasionally fresh waters. Harbor seals display strong fidelity for haul-out sites (Pitcher and Calkins 1979; Pitcher and McAllister 1981). The closest documented harbor seal haul-out sites to the Tank Farm Pier are the Naval Station Everett floating security fence, and the Port Gardner log booms, both approximately 4.5 miles northeast of the project site. Harbor seals may also haul-out on undocumented sites in the area, such as beaches.

    Since June 2012, Naval Station Everett personnel have been conducting counts of the number of harbor seals that use the in-water security fence floats as haul-outs. As of April 18, 2013, the highest count was 343 seals observed during one day in October 2012 (U.S. Navy 2013). The average number of seals hauled out for the 8 days of monitoring falling within the Tank Farm Pier removal work window (July 15-February 15) was 117 (U.S. Navy 2013). However, given the distance from the haul-out to the Tank Farm Pier, the number of affected seals would be less.

    Since 2007, the Everett Community College Ocean Research College Academy (ORCA) has conducted quarterly cruises that include monitoring stations within the ZOI. Marine mammal sightings data were collected during these cruises. During 24 cruises within the ZOI falling within the Tank Farm Pier removal window (July 15-February 15), the highest count was 13 seals observed during one day in November of 2012. The average number of seals observed during these cruises was 2.4 (ORCA 2013).

    According to the NMFS National Stranding Database (2007-2013), there were 7 confirmed harbor seal strandings within 0.5 miles of Tank Farm Pier (NMFS 2013b).

    California Sea Lion

    Washington California sea lions are part of the U.S. stock, which begins at the U.S./Mexico border and extends northward into Canada. The U.S. stock was estimated at 296,750 in the 2012 Stock Assessment Report (SAR) and may be at carrying capacity, although more data are needed to verify that determination (Carretta et al. 2013). Some 3,000 to 5,000 animals are estimated to move into northwest waters (both Washington and British Columbia) during the fall (September) and remain until the late spring (May) when most return to breeding rookeries in California and Mexico (Jeffries et al. 2000). Peak counts of over 1,000 animals have been made in Puget Sound (Jeffries et al. 2000).

    California sea lions breed on islands off Baja Mexico and southern California with primarily males migrating to feed in the northern waters (Everitt et al. 1980). Females remain in the waters near their breeding rookeries off California and Mexico. All age classes of males are seasonally present in Washington waters (WDFW 2000).

    California sea lions do not avoid areas with heavy or frequent human activity, but rather may approach certain areas to investigate. This species typically does not flush from a buoy or haulout if approached.

    California sea lions were unknown in Puget Sound until approximately 1979 (Steiger and Calambokidis 1986). Everitt et al. (1980) reported the initial occurrence of large numbers at Port Gardner, Everett (northern Puget Sound) in the spring of 1979. The number of California sea lions using the Everett haul-out at that time numbered around 1,000. Similar sightings and increases in numbers were documented throughout the region after the initial sighting in 1979 (Steiger and Calambokidis 1986), including urbanized areas such as Elliot Bay near Seattle and heavily used areas of central Puget Sound (Gearin et al. 1986). In Washington, California sea lions use haul-out sites within all inland water regions (WDFW 2000). The movement of California sea lions into Puget Sound could be an expansion in range of a growing population (Steiger and Calambokidis 1986).

    The closest documented California sea lion haul-out sites to the Tank Farm Pier are the Everett Harbor navigation buoys (3.0/3.5 miles NE), and the Naval Station Everett floating security fence and Port Gardner log booms (both 4.5 miles NE).

    Since June 2012, Naval Station Everett personnel have been conducting counts of the number of sea lions that use the in-water security fence floats as haul-outs. As of April 18, 2013, the highest count has been 123 California sea lions observed during one day in November 2012. The average number of California sea lions hauled out for the 8 days of monitoring falling within the Tank Farm Pier removal work window (July 15-February 15) is 61 (U.S. Navy 2013). However, given the distance from the haul-out to the Tank Farm Pier, it is not expected that the same numbers would be present in the ZOI.

    Since 2007, the Everett Community College ORCA has conducted quarterly cruises that include monitoring stations within the ZOI. Marine mammal sightings data were collected during these cruises. During 10 cruises within the ZOI falling within the Tank Farm Pier removal window (July 15-February 15), the highest count was 6 California sea lions observed during one day in October of 2008. The average number of sea lions observed during these cruises was 2.8 (ORCA 2013).

    According to the NMFS National Stranding Database (2007-2013), there was one confirmed California sea lion stranding within 0.5 miles of the Tank Farm Pier (NMFS 2013b).

    Steller Sea Lion

    The Eastern stock of Steller sea lion may be present near the project site. The eastern stock of Steller sea lions is estimated at 63,160 with a Washington minimum population estimate of 1,749 (Carretta et al., 2013). For Washington inland waters, Steller sea lion abundances vary seasonally with a minimum estimate of 1,000 to 2000 individuals present or passing through the Strait of Juan de Fuca in fall and winter months.

    Steller sea lion numbers in Washington State decline during the summer months, which correspond to the breeding season at Oregon and British Columbia rookeries (approximately late May to early June) and peak during the fall and winter months (WDFW 2000). A few Steller sea lions can be observed year-round in Puget Sound although most of the breeding age animals return to rookeries in the spring and summer.

    The eastern stock of Steller sea lions are “depleted/strategic” under the MMPA and were “delisted” as a distinct population segment under the ESA on November 4, 2013 (78 FR 66140). On August 27, 1993, NMFS published a final rule designating critical habitat for the Steller sea lion associated with breeding and haul-out areas in Alaska, California, and Oregon (58 FR 45269). That critical habitat remains in effect for the western DPS of Steller sea lions, which remain listed under the ESA. No critical habitat has been designated in Washington.

    Breeding rookeries for the eastern stock are located along the California, Oregon, British Columbia, and southeast Alaska coasts, but not along the Washington coast or in inland Washington waters (Angliss and Outlaw 2007). Adult Steller sea lions congregate at rookeries in Oregon, California, and British Columbia for pupping and breeding from late May to early June (Gisiner 1985).

    Steller sea lions primarily use haul-out sites on the outer coast of Washington and in the Strait of Juan de Fuca along Vancouver Island in British Columbia. Only sub-adults or non-breeding adults may be found in the inland waters of Washington (Pitcher et al. 2007). However, the number of inland waters haul-out sites has increased in recent years.

    Since June 2012, Naval Station Everett personnel have been conducting counts of the number of sea lions that use the in-water security fence floats as haul-outs. No Steller sea lions have been observed using the security barrier floats haul-out to date (U.S Navy. 2013).

    Since 2007, the Everett Community College ORCA has conducted quarterly cruises that include monitoring stations within the ZOI. No Steller sea lions have been observed in the ZOI during these cruises (ORCA 2013).

    The closest documented Steller Sea lion haul-outs to the Tank Farm Pier are the Orchard Rocks and Rich Passage buoys near S. Bainbridge Island (19 miles SW), and Craven Rock near Marrowstone Island (23 miles NW). Haul-outs are generally occupied from October through May, which overlaps with the in-water work window. Any Steller sea lions near the Tank Farm Pier would be transiting through the area.

    There is no data available on the number of Steller sea lions that use the Orchard Rocks. Up to 12 Steller sea lions have been observed using the Craven Rock haul-out off of Marrowstone Island in northern Puget Sound (WSF 2010). However, given the distance from this haul-out to the Tank Farm Pier, it is not expected that the same numbers would be present in the ZOI.

    Harbor Porpoise

    The Washington Inland Waters Stock of harbor porpoise may be found near the project site. The Washington Inland Waters Stock occurs in waters east of Cape Flattery (Strait of Juan de Fuca, San Juan Island Region, and Puget Sound).

    The Washington Inland Waters Stock mean abundance estimate based on 2002 and 2003 aerial surveys conducted in the Strait of Juan de Fuca, San Juan Islands, Gulf Islands, and Strait of Georgia is 10,682 harbor porpoises (Carretta et al. 2011). No minimum population estimate is available.

    No harbor porpoise were observed within Puget Sound proper during comprehensive harbor porpoise surveys (Osmek et al. 1994) or Puget Sound Ambient Monitoring Program (PSAMP) surveys conducted in the 1990s (WDFW 2008). Declines were attributed to gill-net fishing, increased vessel activity, contaminants, and competition with Dall's porpoise.

    However, populations appear to be rebounding with increased sightings in central Puget Sound (Carretta et al. 2007b) and southern Puget Sound (D. Nysewander pers. comm. 2008; WDFW 2008). Recent systematic boat surveys of the main basin indicate that at least several hundred and possibly as many as low thousands of harbor porpoise are now present. While the reasons for this recolonization are unclear, it is possible that changing conditions outside of Puget Sound, as evidenced by a tripling of the population in the adjacent waters of the Strait of Juan de Fuca and San Juan Islands since the early 1990s, and the recent higher number of harbor porpoise mortalities in coastal waters of Oregon and Washington, may have played a role in encouraging harbor porpoise to explore and shift into areas like Puget Sound (Hanson, et. al. 2011).

    The Washington Inland Waters Stock of harbor porpoise is “non-depleted” under MMPA, and “unlisted” under the ESA.

    Harbor porpoises are common in the Strait of Juan de Fuca and south into Admiralty Inlet, especially during the winter, and are becoming more common south of Admiralty Inlet. Little information exists on harbor porpoise movements and stock structure near the Mukilteo area, although it is suspected that in some areas harbor porpoises migrate (based on seasonal shifts in distribution). For instance Hall (2004; pers. comm. 2008) found harbor porpoises off Canada's southern Vancouver Island to peak during late summer, while the Washington State Department of Fish and Wildlife's (WDFW) Puget Sound Ambient Monitoring Program (PSAMP) data show peaks in Washington waters to occur during the winter.

    Hall (2004) found that the frequency of sighting of harbor porpoises decreased with increasing depth beyond 150 m with the highest numbers observed at water depths ranging from 61 to 100 m. Although harbor porpoises have been spotted in deep water, they tend to remain in shallower shelf waters (<150 m) where they are most often observed in small groups of one to eight animals (Baird 2003). Water depths within the Tank Farm Pier ZOI range from 0 to 192 m.

    Since 2007, the Everett Community College Ocean Research College Academy (ORCA) has conducted quarterly cruises that include monitoring stations within the ZOI. No harbor porpoise have been observed within the ZOI during these cruises (ORCA 2013). According to the NMFS National Stranding Database, there was one confirmed harbor porpoise stranding within 0.5 miles of the Tank Farm Pier from 2007 to 2013 (NMFS 2013b).

    Dall's Porpoise

    The California, Oregon, and Washington Stock of Dall's porpoise may be found near the project site. Dall's porpoise are high-frequency hearing range cetaceans (Southall et al. 2007).

    The most recent estimate of Dall's porpoise stock abundance is 42,000, based on 2005 and 2008 summer/autumn vessel-based line transect surveys of California, Oregon, and Washington waters (Carretta et al. 2011). Within the inland waters of Washington and British Columbia, this species is most abundant in the Strait of Juan de Fuca east to the San Juan Islands. The most recent Washington's inland waters estimate is 900 animals (Calambokidis et al. 1997). Prior to the 1940s, Dall's porpoises were not reported in Puget Sound.

    The California, Oregon, and Washington Stock of Dall's porpoise is “non-depleted” under the MMPA, and “unlisted” under the ESA. Dall's porpoises are migratory and appear to have predictable seasonal movements driven by changes in oceanographic conditions (Green et al. 1992, 1993), and are most abundant in Puget Sound during the winter (Nysewander et al. 2005; WDFW 2008). Despite their migrations, Dall's porpoises occur in all areas of inland Washington at all times of year (Calambokidis pers. comm. 2006), but with different distributions throughout Puget Sound from winter to summer. The average winter group size is three animals (WDFW 2008).

    Since 2007, the Everett Community College Ocean Research College Academy (ORCA) has conducted quarterly cruises that include monitoring stations within the ZOI. No Dall's porpoise have been observed within the ZOI during these cruises (ORCA 2013). According to the NMFS National Stranding Database (2007-2013), there were no Dall's porpoise strandings in the area of the Tank Farm Pier (NMFS 2013b).

    Killer Whale

    The Eastern North Pacific Southern Resident and West Coast Transient stocks of killer whale may be found near the project site.

    A. Southern Resident Stock

    The Southern Residents live in three family groups known as the J, K and L pods. As of July 15, 2014, the stock collectively numbers 82 individuals (Carretta et al. 2014).

    Southern Residents are documented in coastal waters ranging from central California to the Queen Charlotte Islands, British Columbia (NMFS 2008). They occur in all inland marine waters. SR killer whales generally spend more time in deeper water and only occasionally enter water less than 15 feet deep (Baird 2000). Distribution is strongly associated with areas of greatest salmon abundance, with heaviest foraging activity occurring over deep open water and in areas characterized by high-relief underwater topography, such as subsurface canyons, seamounts, ridges, and steep slopes (Wiles 2004).

    Sightings compiled by the Orca Network from 1990-2013 show that SR killer whale occurs most frequently in the general area of the Tank Farm Pier in the fall and winter, and are far less common from April through September (Osborne 2008; Orca Network 2013). Since 2007, the Everett Community College ORCA has conducted quarterly cruises that include monitoring stations within the ZOI. No killer whales have been observed within the ZOI during these cruises (ORCA 2013).

    Records from 1976 through 2013 document Southern Residents in the inland waters of Washington during the months of March through June and October through December, with the primary area of occurrence in inland waters north of Admiralty Inlet, located in north Puget Sound (Osborne 2008; Orca Network 2013).

    Beginning in May or June and through the summer months, all three pods (J, K, and L) of Southern Residents are most often located in the protected inshore waters of Haro Strait (west of San Juan Island), in the Strait of Juan de Fuca, and Georgia Strait near the Fraser River.

    Historically, the J pod also occurred intermittently during this time in Puget Sound; however, records from 1997-2007 show that J pod did not enter Puget Sound south of the Strait of Juan de Fuca from approximately June through August (Osborne 2008).

    In fall, all three pods occur in areas where migrating salmon are concentrated such as the mouth of the Fraser River. They may also enter areas in Puget Sound where migrating chum and Chinook salmon are concentrated (Osborne 1999). In the winter months, the K and L pods spend progressively less time in inland marine waters and depart for coastal waters in January or February. The J pod is most likely to appear year-round near the San Juan Islands, and in the fall/winter, in the lower Puget Sound and in Georgia Strait at the mouth of the Fraser River.

    According to the NMFS National Stranding Database (2007-2013), there were no killer whale strandings in the area of the Tank Farm Pier (NMFS 2013b).

    The SR killer whale stock was declared “depleted/strategic” under the MMPA in May 2003 (68 FR 31980). On November 18, 2005, the SR stock was listed as “endangered” under the ESA (70 FR 69903). On November 29, 2006, NMFS published a final rule designating critical habitat for the SR killer whale DPS. Both Puget Sound and the San Juan Islands are designated as core areas of critical habitat under the ESA, excluding areas less than 20 feet deep relative to extreme high water are not designated as critical habitat (71 FR 69054). A final recovery plan for Southern Residents was published in January of 2008 (NMFS 2008).

    B. West Coast Transient Stock

    Transient killer whales generally occur in smaller (1-5 individuals), less structured pods (Allen and Angliss. 2013). According to the Center for Whale Research (CWR 2014), they tend to travel in small groups of one to five individuals, staying close to shorelines, often near seal rookeries when pups are being weaned.

    The West Coast Transient stock, which includes individuals from California to southeastern Alaska, is estimated to have a minimum number of 243 (Allen and Angliss, 2013).

    The West Coast Transient stock occurs in California, Oregon, Washington, British Columbia, and southeastern Alaskan waters. Within the inland waters, they may frequent areas near seal rookeries when pups are weaned (Baird and Dill 1995).

    Sightings compiled by the Orca Network from 1990-2013 show that transient killer whale occurs most frequently in the general area of the Mukilteo Tank Farm Pier in the spring and summer, and are far less common from September through February (Orca Network 2013). However, transient killer whale occurrence is less predictable than SR killer whale occurrence, and they may be present at any time of the year. Since 2007, the Everett Community College ORCA has conducted quarterly cruises that include monitoring stations within the ZOI. No killer whales have been observed within the ZOI during these cruises (ORCA 2013).

    Gray Whale

    Gray whales are recorded in Washington waters during feeding migrations between late spring and autumn with occasional sightings during winter months (Calambokidis et al. 1994, 2002; Orca Network 2013). The Eastern North Pacific stock of gray whale may be found near the project site. Gray whales are low-frequency hearing range cetaceans (Southall et al. 2007).

    The Eastern North Pacific stock of gray whales is “non-depleted” under the MMPA, and was “delisted” under the ESA in 1994 after a 5-year review by NOAA Fisheries. In 2001 NOAA Fisheries received a petition to relist the stock under the ESA, but it was determined that there was not sufficient information to warrant the petition (Angliss and Outlaw 2007).

    Although typically seen during their annual migrations on the outer coast, a regular group of gray whales annually comes into the inland waters at Saratoga Passage and Port Susan (7.5 miles north) from March through May to feed on ghost shrimp (Weitkamp et al. 1992; Calambokidis pers. comm. 2006). During this time frame they are also seen in the Strait of Juan de Fuca, the San Juan Islands, and areas of Puget Sound, although the observations in Puget Sound are highly variable between years (Calambokidis et al. 1994). The average tenure within Washington inland waters is 47 days and the longest stay was 112 days (J. Calambokidis pers. comm. 2007).

    Sightings compiled by the Orca Network from 1990-2013 show that gray whales are most frequently in the general area of the Mukilteo Tank Farm Pier from January through May, and are far less common from June through September (Orca Network 2013). Table 3-6 in the Application presents total gray whale sightings (individual) per month in the area between 1990 and 2013. Sightings in Puget Sound are usually of a single individual, so Table 3-6 sightings are likely of the same individual or low number of individuals over a number of days that month.

    Since 2007, the Everett Community College Ocean Research College Academy (ORCA) has conducted quarterly cruises that include monitoring stations within the ZOI. No gray whales have been observed within the ZOI during these cruises (ORCA 2013).

    Humpback Whale

    The California-Oregon-Washington (CA-OR-WA) stock of humpback whale may be found near the project site. Humpback whales are low-frequency hearing range cetaceans (Southall et al. 2007). The SAR abundance estimate is 1,918 individuals. (Carretta et al. 2014).

    The humpback whale was listed as “endangered” throughout its range under the Endangered Species Conservation Act of 1969. This protection was transferred to the ESA in 1973. A recovery plan was adopted in 1991 (NMFS 1991). The humpback whale is also listed as “depleted/strategic” under the MMPA.

    Historically, humpback whales were common in inland waters of Puget Sound and the San Juan Islands (Calambokidis et al. 2004b). In the early part of this century, there was a productive commercial hunt for humpbacks in Georgia Strait that was probably responsible for their long disappearance from local waters (Osborne et al. 1988). Commercial hunts ended in the 1960's. Since the mid-1990s, sightings in Puget Sound have increased.

    This stock calves and mates in coastal Central America and Mexico and migrates up the coast from California to southern British Columbia in the summer and fall to feed (NMFS 1991; Marine Mammal Commission 2003; Carretta et al. 2007b). Few humpback whales are seen in Puget Sound, but more frequent sightings occur in the Strait of Juan de Fuca and near the San Juan Islands. Most sightings are in spring and summer.

    Sightings compiled by the Orca Network from 1990-2013 show that humpback whales are most frequently in the general area of the Tank Farm Pier from April through June, and are far less common from July to March (Orca Network 2013). Table 3-7 presents total humpback whale sightings (individual) per month in the area between 1990 and 2013. Sightings in Puget Sound are usually of a single individual.

    Since 2007, the Everett Community College Ocean Research College Academy (ORCA) has conducted quarterly cruises that include monitoring stations within the ZOI. No humpback whales have been observed within the ZOI during these cruises (ORCA 2013).

    Potential Effects of the Specified Activity on Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that stressors, (e.g. vibratory hammer pile extraction) and potential mitigation activities, associated with the Mukilteo Tank Farm Pier Removal project may impact marine mammals and their habitat. The “Estimated Take by Incidental Harassment” section later in this document will include a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis” section will include the analysis of how this specific activity will impact marine mammals and will consider the content of this section, the “Estimated Take by Incidental Harassment” section, and the “Proposed Mitigation” section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks. In the following discussion, we provide general background information on sound and marine mammal hearing before considering potential effects to marine mammals from sound produced by vibratory pile driving.

    Description of Sound Sources

    Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks of a sound wave; lower frequency sounds have longer wavelengths than higher frequency sounds and attenuate (decrease) more rapidly in shallower water. Amplitude is the height of the sound pressure wave or the `loudness' of a sound and is typically measured using the decibel (dB) scale. A dB is the ratio between a measured pressure (with sound) and a reference pressure (sound at a constant pressure, established by scientific standards). It is a logarithmic unit that accounts for large variations in amplitude; therefore, relatively small changes in dB ratings correspond to large changes in sound pressure. When referring to sound pressure levels (SPLs; the sound force per unit area), sound is referenced in the context of underwater sound pressure to 1 microPascal (μPa). One pascal is the pressure resulting from a force of one newton exerted over an area of one square meter. The source level (SL) represents the sound level at a distance of 1 m from the source (referenced to 1 μPa). The received level is the sound level at the listener's position. Note that all underwater sound levels in this document are referenced to a pressure of 1 μPa and all airborne sound levels in this document are referenced to a pressure of 20 μPa.

    Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Rms is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1983). Rms accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.

    When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in all directions away from the source (similar to ripples on the surface of a pond), except in cases where the source is directional. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.

    Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson et al., 1995), and the sound level of a region is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (e.g., waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds produced by marine mammals, fish, and invertebrates), and anthropogenic sound (e.g., vessels, dredging, aircraft, construction). A number of sources contribute to ambient sound, including the following (Richardson et al., 1995):

    Wind and waves: The complex interactions between wind and water surface, including processes such as breaking waves and wave-induced bubble oscillations and cavitation, are a main source of naturally occurring ambient noise for frequencies between 200 Hz and 50 kHz (Mitson, 1995). In general, ambient sound levels tend to increase with increasing wind speed and wave height. Surf noise becomes important near shore, with measurements collected at a distance of 8.5 km from shore showing an increase of 10 dB in the 100 to 700 Hz band during heavy surf conditions.

    Precipitation: Sound from rain and hail impacting the water surface can become an important component of total noise at frequencies above 500 Hz, and possibly down to 100 Hz during quiet times.

    Biological: Marine mammals can contribute significantly to ambient noise levels, as can some fish and shrimp. The frequency band for biological contributions is from approximately 12 Hz to over 100 kHz.

    Anthropogenic: Sources of ambient noise related to human activity include transportation (surface vessels and aircraft), dredging and construction, oil and gas drilling and production, seismic surveys, sonar, explosions, and ocean acoustic studies. Shipping noise typically dominates the total ambient noise for frequencies between 20 and 300 Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz and, if higher frequency sound levels are created, they attenuate rapidly (Richardson et al., 1995). Sound from identifiable anthropogenic sources other than the activity of interest (e.g., a passing vessel) is sometimes termed background sound, as opposed to ambient sound.

    The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson et al., 1995). The result is that, depending on the source type and its intensity, sound from the specified activity may be a negligible addition to the local environment or could form a distinctive signal that may affect marine mammals.

    Table 2—Representative Sound Levels of Anthropogenic Sources Sound source Frequency range
  • (Hz)
  • Underwater sound level References
    Small vessels 250-1,000 151 dB rms at 1 m Richardson et al., 1995. Tug docking gravel barge 200-1,000 149 dB rms at 100 m Blackwell and Greene, 2002. Vibratory driving of 72-in steel pipe pile 10-1,500 180 dB rms at 10 m Reyff, 2007. Impact driving of 36-in steel pipe pile 10-1,500 195 dB rms at 10 m Laughlin, 2007. Impact driving of 66-in cast-in-steel-shell (CISS) pile 10-1,500 195 dB at rms 10 m Reviewed in Hastings and Popper, 2005.

    In-water construction activities associated with the project would consist mainly of vibratory pile extraction and direct pull of piles using a chain wrapped around the pile. The latter activity is not expected to produce sound that would approach Level B harassment. There are two general categories of sound types: Impulse and non-pulse (defined in the following). Vibratory pile driving is considered to be continuous or non-pulsed while impact pile driving is considered to be an impulse or pulsed sound type. The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (Southall et al., 2007). Please see Southall et al., (2007) for an in-depth discussion of these concepts.

    Pulsed sound sources (e.g., explosions, gunshots, sonic booms, impact pile driving) produce signals that are brief (typically considered to be less than one second), broadband, atonal transients (ANSI, 1986; Harris, 1998; NIOSH, 1998; ISO, 2003; ANSI, 2005) and occur either as isolated events or repeated in some succession. Pulsed sounds are all characterized by a relatively rapid rise from ambient pressure to a maximal pressure value followed by a rapid decay period that may include a period of diminishing, oscillating maximal and minimal pressures, and generally have an increased capacity to induce physical injury as compared with sounds that lack these features. Note that there is no impact driving planned as part of this project.

    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous (ANSI, 1995; NIOSH, 1998). Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (e.g., rapid rise time). Examples of non-pulsed sounds include those produced by vessels, aircraft, machinery operations such as drilling or dredging, vibratory pile driving and removal, and active sonar systems (such as those used by the U.S. Navy). The duration of such sounds, as received at a distance, can be greatly extended in a highly reverberant environment.

    The likely or possible impacts of the proposed vibratory hammer pile extraction at the MukilteoTank Farm Pier on marine mammals could involve both non-acoustic and acoustic stressors. Potential non-acoustic stressors could result from the physical presence of the equipment and personnel. Any impacts to marine mammals, however, are expected to primarily be acoustic in nature.

    Marine Mammal Hearing

    When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data, Southall et al. (2007) designate “functional hearing groups” for marine mammals and estimate the lower and upper frequencies of functional hearing of the groups. The functional groups and the associated frequencies are indicated below (though animals are less sensitive to sounds at the outer edge of their functional range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their functional hearing range):

    • Low frequency cetaceans (13 species of mysticetes): Functional hearing is estimated to occur between approximately 7 Hz and 30 kHz;

    • Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): Functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;

    • High frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): Functional hearing is estimated to occur between approximately 200 Hz and 180 kHz;

    • Phocid pinnipeds in Water: Functional hearing is estimated to occur between approximately 75 Hz and 100 kHz; and

    • Otariid pinnipeds in Water: Functional hearing is estimated to occur between approximately 100 Hz and 40 kHz.

    As mentioned previously in this document, eight marine mammal species (seven cetacean and two pinniped) may occur in the Icy Strait project area. Of the five cetacean species likely to occur in the proposed project area and for which take is requested, two are classified as low-frequency cetaceans (i.e., humpback and gray whales), one is classified as a mid-frequency cetacean (i.e., killer whale), and two are classified as high-frequency cetaceans (i.e., harbor and Dall's porpoises) (Southall et al., 2007). Additionally, harbor seals are classified as members of the phocid pinnipeds in water functional hearing group while California and Stellar sea lions are grouped under the Otariid pinnipeds in water functional hearing group. A species' functional hearing group is a consideration when we analyze the effects of exposure to sound on marine mammals.

    Acoustic Impacts

    Potential Effects of Pile Driving and Removal Sound—The effects of sounds from pile driving might result in one or more of the following: Temporary or permanent hearing impairment, non-auditory physical or physiological effects, behavioral disturbance, and masking (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007). The effects of pile driving and removal on marine mammals are dependent on several factors, including the size, type, and depth of the animal; the depth, intensity, and duration of the pile driving sound; the depth of the water column; the substrate of the habitat; the standoff distance between the pile and the animal; and the sound propagation properties of the environment. Impacts to marine mammals from pile driving and removal activities are expected to result primarily from acoustic pathways. As such, the degree of effect is intrinsically related to the received level and duration of the sound exposure, which are in turn influenced by the distance between the animal and the source. The further away from the source, the less intense the exposure should be. The substrate and depth of the habitat affect the sound propagation properties of the environment. Shallow environments are typically more structurally complex, which leads to rapid sound attenuation. In addition, substrates that are soft (e.g., sand) would absorb or attenuate the sound more readily than hard substrates (e.g., rock) which may reflect the acoustic wave. Soft porous substrates would also likely require less time to drive the pile, and possibly less forceful equipment, which would ultimately decrease the intensity of the acoustic source.

    In the absence of mitigation, impacts to marine species would be expected to result from physiological and behavioral responses to both the type and strength of the acoustic signature (Viada et al., 2008). The type and severity of behavioral impacts are more difficult to define due to limited studies addressing the behavioral effects of impulse sounds on marine mammals. Potential effects from impulse sound sources can range in severity from effects such as behavioral disturbance or tactile perception to physical discomfort, slight injury of the internal organs and the auditory system, or mortality (Yelverton et al., 1973).

    Hearing Impairment and Other Physical Effects—Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak et al., 1999; Schlundt et al., 2000; Finneran et al., 2002, 2005). TS can be permanent (PTS), in which case the loss of hearing sensitivity is not recoverable, or temporary (TTS), in which case the animal's hearing threshold would recover over time (Southall et al., 2007). Marine mammals depend on acoustic cues for vital biological functions, (e.g., orientation, communication, finding prey, avoiding predators); thus, TTS may result in reduced fitness in survival and reproduction. However, this depends on the frequency and duration of TTS, as well as the biological context in which it occurs. TTS of limited duration, occurring in a frequency range that does not coincide with that used for recognition of important acoustic cues, would have little to no effect on an animal's fitness. Repeated sound exposure that leads to TTS could cause PTS. The following subsections discuss in somewhat more detail the possibilities of TTS, PTS, and non-auditory physical effects.

    Temporary Threshold Shift—TTS is the mildest form of hearing impairment that can occur during exposure to a strong sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises, and a sound must be stronger in order to be heard. In terrestrial mammals, TTS can last from minutes or hours to days (in cases of strong TTS). For sound exposures at or somewhat above the TTS threshold, hearing sensitivity in both terrestrial and marine mammals recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals, and none of the published data concern TTS elicited by exposure to multiple pulses of sound. Available data on TTS in marine mammals are summarized in Southall et al. (2007). TTS is not currently classified as an injury (Southall et al., 2007).

    Given the available data, the received level of a single pulse (with no frequency weighting) might need to be approximately 186 dB re 1 μPa 2-s (i.e., 186 dB sound exposure level [SEL] or approximately 221-226 dB p-p [peak]) in order to produce brief, mild TTS. Exposure to several strong pulses that each have received levels near 190 dB rms (175-180 dB SEL) might result in cumulative exposure of approximately 186 dB SEL and thus slight TTS in a small odontocete, assuming the TTS threshold is (to a first approximation) a function of the total received pulse energy.

    The above TTS information for odontocetes is derived from studies on the bottlenose dolphin (Tursiops truncatus) and beluga whale (Delphinapterus leucas). There is no published TTS information for other species of cetaceans. However, preliminary evidence from a harbor porpoise exposed to pulsed sound suggests that its TTS threshold may have been lower (Lucke et al., 2009). As summarized above, data that are now available imply that TTS is unlikely to occur unless odontocetes are exposed to pile driving pulses stronger than 180 dB re 1 μPa rms.

    Permanent Threshold Shift—When PTS occurs, there is physical damage (injury) to the sound receptors in the ear. In severe cases, there can be total or partial deafness, while in other cases the animal has an impaired ability to hear sounds in specific frequency ranges (Kryter, 1985). There is no specific evidence that exposure to pulses of sound can cause PTS in any marine mammal. However, given the possibility that mammals close to a sound source can incur TTS, it is possible that some individuals might incur PTS. Single or occasional occurrences of mild TTS are not indicative of permanent auditory damage, but repeated or (in some cases) single exposures to a level well above that causing TTS onset might elicit PTS.

    Relationships between TTS and PTS thresholds have not been studied in marine mammals but are assumed to be similar to those in humans and other terrestrial mammals, based on anatomical similarities. PTS might occur at a received sound level at least several decibels above that inducing mild TTS if the animal were exposed to strong sound pulses with rapid rise time. Based on data from terrestrial mammals, a precautionary assumption is that the PTS threshold for impulse sounds (such as pile driving pulses as received close to the source) is at least 6 dB higher than the TTS threshold on a peak-pressure basis and probably greater than 6 dB (Southall et al., 2007). On an SEL basis, Southall et al. (2007) estimated that received levels would need to exceed the TTS threshold by at least 15 dB for there to be risk of PTS. Thus, for cetaceans, Southall et al. (2007) estimate that the PTS threshold might be an M-weighted SEL (for the sequence of received pulses) of approximately 198 dB re 1 μPa2-s (15 dB higher than the TTS threshold for an impulse). Given the higher level of sound necessary to cause PTS as compared with TTS, it is considerably less likely that PTS could occur.

    Measured source levels from impact pile driving can be as high as 214 dB rms. Although no marine mammals have been shown to experience TTS or PTS as a result of being exposed to pile driving activities, captive bottlenose dolphins and beluga whales exhibited changes in behavior when exposed to strong pulsed sounds (Finneran et al., 2000, 2002, 2005). The animals tolerated high received levels of sound before exhibiting aversive behaviors. Experiments on a beluga whale showed that exposure to a single watergun impulse at a received level of 207 kPa (30 psi) p-p, which is equivalent to 228 dB p-p, resulted in a 7 and 6 dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. Thresholds returned to within 2 dB of the pre-exposure level within four minutes of the exposure (Finneran et al., 2002). Although the source level of pile driving from one hammer strike is expected to be much lower than the single watergun impulse cited here, animals being exposed for a prolonged period to repeated hammer strikes could receive more sound exposure in terms of SEL than from the single watergun impulse (estimated at 188 dB re 1 μPa 2-s) in the aforementioned experiment (Finneran et al., 2002). However, in order for marine mammals to experience TTS or PTS, the animals have to be close enough to be exposed to high intensity sound levels for a prolonged period of time. Based on the best scientific information available, these SPLs are far below the thresholds that could cause TTS or the onset of PTS.

    Non-auditory Physiological Effects—Non-auditory physiological effects or injuries that theoretically might occur in marine mammals exposed to strong underwater sound include stress, neurological effects, bubble formation, resonance effects, and other types of organ or tissue damage (Cox et al., 2006; Southall et al., 2007). Studies examining such effects are limited. In general, little is known about the potential for pile driving to cause auditory impairment or other physical effects in marine mammals. Available data suggest that such effects, if they occur at all, would presumably be limited to short distances from the sound source and to activities that extend over a prolonged period. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall et al., 2007) or any meaningful quantitative predictions of the numbers (if any) of marine mammals that might be affected in those ways. Marine mammals that show behavioral avoidance of pile driving, including some odontocetes and some pinnipeds, are especially unlikely to incur auditory impairment or non-auditory physical effects.

    Disturbance Reactions

    Disturbance includes a variety of effects, including subtle changes in behavior, more conspicuous changes in activities, and displacement. Behavioral responses to sound are highly variable and context-specific and reactions, if any, depend on species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day, and many other factors (Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007).

    Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok et al., 2003). Animals are most likely to habituate to sounds that are predictable and unvarying. The opposite process is sensitization, when an unpleasant experience leads to subsequent responses, often in the form of avoidance, at a lower level of exposure. Behavioral state may affect the type of response as well. For example, animals that are resting may show greater behavioral change in response to disturbing sound levels than animals that are highly motivated to remain in an area for feeding (Richardson et al., 1995; NRC, 2003; Wartzok et al., 2003).

    Controlled experiments with captive marine mammals showed pronounced behavioral reactions, including avoidance of loud sound sources (Ridgway et al., 1997; Finneran et al., 2003). Observed responses of wild marine mammals to loud pulsed sound sources (typically seismic guns or acoustic harassment devices, but also including pile driving) have been varied but often consist of avoidance behavior or other behavioral changes suggesting discomfort (Morton and Symonds, 2002; Thorson and Reyff, 2006; see also Gordon et al., 2004; Wartzok et al., 2003; Nowacek et al., 2007). Responses to continuous sound, such as vibratory pile installation and removal, have not been documented as well as responses to pulsed sounds.

    With both types of pile driving, it is likely that the onset of pile driving could result in temporary, short term changes in an animal's typical behavior and/or avoidance of the affected area. These behavioral changes may include (Richardson et al., 1995): Changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where sound sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haul-outs or rookeries). Pinnipeds may increase their haul-out time, possibly to avoid in-water disturbance (Thorson and Reyff, 2006).

    The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could include effects on growth, survival, or reproduction. Significant behavioral modifications that could potentially lead to effects on growth, survival, or reproduction include:

    • Drastic changes in diving/surfacing patterns;

    • Habitat abandonment due to loss of desirable acoustic environment; and

    • Cessation of feeding or social interaction.

    The onset of behavioral disturbance from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall et al., 2007).

    Auditory Masking—Natural and artificial sounds can disrupt behavior by masking, or interfering with, a marine mammal's ability to hear other sounds. Masking occurs when the receipt of a sound is interfered with by another coincident sound at similar frequencies and at similar or higher levels. Chronic exposure to excessive, though not high-intensity, sound could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions. Masking can interfere with detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. Therefore, under certain circumstances, marine mammals whose acoustical sensors or environment are being severely masked could also be impaired from maximizing their performance fitness in survival and reproduction. If the coincident (masking) sound were anthropogenic, it could be potentially harassing if it disrupted hearing-related behavior. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs only during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.

    Masking occurs at the frequency band which the animals utilize so the frequency range of the potentially masking sound is important in determining any potential behavioral impacts. Because sound generated from in-water vibratory pile driving and removal is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds made by porpoises. However, lower frequency man-made sounds are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey sound. It may also affect communication signals when they occur near the sound band and thus reduce the communication space of animals (e.g., Clark et al., 2009) and cause increased stress levels (e.g., Foote et al., 2004; Holt et al., 2009).

    Masking has the potential to impact species at the population or community levels as well as at individual levels. Masking affects both senders and receivers of the signals and can potentially have long-term chronic effects on marine mammal species and populations. Recent research suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, and that most of these increases are from distant shipping (Hildebrand, 2009). All anthropogenic sound sources, such as those from vessel traffic, pile driving, and dredging activities, contribute to the elevated ambient sound levels, thus intensifying masking.

    Vibratory pile driving and removal is relatively short-term, with rapid oscillations occurring for 10 to 30 minutes per installed or removed pile. It is possible that vibratory driving and removal resulting from this proposed action may mask acoustic signals important to the behavior and survival of marine mammal species, but the short-term duration and limited affected area would result in insignificant impacts from masking. Any masking event that could possibly rise to Level B harassment under the MMPA would occur concurrently within the zones of behavioral harassment already estimated for vibratory pile driving, and which have already been taken into account in the exposure analysis.

    Acoustic Effects, Airborne—Marine mammals that occur in the project area could be exposed to airborne sounds associated with pile removal that have the potential to cause harassment, depending on their distance from pile driving activities. Airborne pile removal sound would have less impact on cetaceans than pinnipeds because sound from atmospheric sources does not transmit well underwater (Richardson et al., 1995); thus, airborne sound would only be an issue for pinnipeds either hauled-out or looking with heads above water in the project area. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled-out pinnipeds to exhibit changes in their normal behavior, such as reduction in vocalizations, or cause them to temporarily abandon their habitat and move further from the source. Studies by Blackwell et al. (2004) and Moulton et al. (2005) indicate a tolerance or lack of response to unweighted airborne sounds as high as 112 dB peak and 96 dB rm.

    Vessel Interaction

    Besides being susceptible to vessel strikes, cetacean and pinniped responses to vessels may result in behavioral changes, including greater variability in the dive, surfacing, and respiration patterns; changes in vocalizations; and changes in swimming speed or direction (NRC 2003). There will be a temporary and localized increase in vessel traffic during construction. At least one work barge will be present at any time during the in-water and over water work.

    Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory pile removal. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.

    Potential Pile Driving and Removal Effects on Prey—With regard to fish as a prey source for cetaceans and pinnipeds, fish are known to hear and react to sounds and to use sound to communicate (Tavolga et al., 1981) and possibly avoid predators (Wilson and Dill, 2002). Experiments have shown that fish can sense both the strength and direction of sound (Hawkins, 1981). Primary factors determining whether a fish can sense a sound signal, and potentially react to it, are the frequency of the signal and the strength of the signal in relation to the natural background noise level.

    The level of sound at which a fish will react or alter its behavior is usually well above the detection level. Fish have been found to react to sounds when the sound level increased to about 20 dB above the detection level of 120 dB; however, the response threshold can depend on the time of year and the fish's physiological condition (Engas et al., 1996). In general, fish react more strongly to pulses of sound rather than non-pulse signals (such as noise from vessels) (Blaxter et al., 1981), and a quicker alarm response is elicited when the sound signal intensity rises rapidly compared to sound rising more slowly to the same level.

    Further, during the coastal construction only a small fraction of the available habitat would be ensonified at any given time. Disturbance to fish species would be short-term and fish would return to their pre-disturbance behavior once the pile driving activity ceases. Thus, the proposed construction would have little, if any, impact on the abilities of marine mammals to feed in the area where construction work is planned.

    Finally, the time of the proposed construction activity would avoid the spawning season of the ESA-listed salmonid species.

    Effects to Foraging Habitat—Short-term turbidity is a water quality effect of most in-water work, including pile removal. WSF must comply with state water quality standards during these operations by limiting the extent of turbidity to the immediate project area. Roni and Weitkamp (1996) monitored water quality parameters during a pier replacement project in Manchester, Washington. The study measured water quality before, during and after pile removal and driving. The study found that construction activity at the site had “little or no effect on dissolved oxygen, water temperature and salinity”, and turbidity (measured in nephelometric turbidity units [NTU]) at all depths nearest the construction activity was typically less than 1 NTU higher than stations farther from the project area throughout construction.

    Similar results were recorded during pile removal operations at two WSF ferry facilities. At the Friday Harbor terminal, localized turbidity levels within the regulatory compliance radius of 150 feet (from three timber pile removal events) were generally less than 0.5 NTU higher than background levels and never exceeded 1 NTU. At the Eagle Harbor maintenance facility, within 150 feet, local turbidity levels (from removal of timber and steel piles) did not exceed 0.2 NTU above background levels (WSF 2012). In general, turbidity associated with pile installation is localized to about a 25-foot radius around the pile (Everitt et al., 1980).

    Cetaceans are not expected to be close enough to the Tank Farm Pier to experience turbidity, and any pinnipeds will be transiting the area and could avoid localized turbidity. Therefore, the impact from increased turbidity levels is expected to be discountable to marine mammals.

    Removal of the Tank Farm Pier will result in 3,900 creosote-treated piles (~7,300 tons) removed from the marine environment. This will result in temporary and localized sediment re-suspension of some of the contaminants associated with creosote, such as polycyclic aromatic hydrocarbons.

    However, the removal of the creosote-treated wood piles from the marine environment will result in a long-term improvement in water and sediment quality, meeting the goals of WSF's Creosote Removal Initiative started in 2000. The net impact is a benefit to marine organisms, especially toothed whales and pinnipeds that are high on the food chain and bioaccumulate these toxins. This is especially a concern for long-lived species that spend much of their life in Puget Sound, such as Southern Resident killer whales (NMFS 2008).

    Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses. For the proposed project, WSF worked with NMFS and proposed the following mitigation measures to minimize the potential impacts to marine mammals in the project vicinity. The primary purposes of these mitigation measures are to minimize sound levels from the activities, and to monitor marine mammals within designated zones of influence corresponding to NMFS' current Level A and B harassment thresholds which are depicted in Table 3 found later in the Estimated Take by Incidental Harassment section.

    Monitoring and Shutdown for Pile Driving

    The following measures would apply to WSF's mitigation through shutdown and disturbance zones:

    Shutdown Zone—For all pile driving activities, WSF will establish a shutdown zone. Shutdown zones are typically used to contain the area in which SPLs equal or exceed the 180/190 dB rms acoustic injury criteria for cetaceans and pinnipeds, respectively, with the purpose being to define an area within which shutdown of activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area), thus preventing injury of marine mammals. For vibratory driving, WSF's activities are not expected to produce sound at or above the 180 dB rms injury criterion (see “Estimated Take by Incidental Harassment”). WSF would, however, implement a minimum shutdown zone of 10 m radius for all marine mammals around all vibratory extraction activity. This precautionary measure is intended to further reduce the unlikely possibility of injury from direct physical interaction with construction operations.

    Disturbance Zone Monitoring—WSF will establish disturbance zones corresponding to the areas in which SPLs equal or exceed 122 dB rms (Level B harassment threshold for continuous sound) for pile driving installation and removal. The disturbance zones will provide utility for monitoring conducted for mitigation purposes (i.e., shutdown zone monitoring) by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring of disturbance zones will enable observers to be aware of and communicate the presence of marine mammals in the project area but outside the shutdown zone and thus prepare for potential shutdowns of activity. However, the primary purpose of disturbance zone monitoring will be to document incidents of Level B harassment; disturbance zone monitoring is discussed in greater detail later (see “Proposed Monitoring and Reporting

    Ramp Up (Soft Start)—Vibratory hammer use for pile removal and pile driving shall be initiated at reduced power for 15 seconds with a 1 minute interval, and be repeated with this procedure for an additional two times. This will allow marine mammals to move away from the sound source.

    Time Restrictions—Work would occur only during daylight hours, when visual monitoring of marine mammals can be conducted. In addition, all in-water construction will be limited to the period between August 1, 2015 and February 15, 2016; and continue in August 1, 2016 until IHA expires on August 31, 2016.

    Southern Resident Killer Whale—The following steps will be implemented for southern resident killer whales to avoid or minimize take (see Appendix B of the application—Monitoring Plan):

    If Southern Residents approach the zone of influence (ZOI) during vibratory pile removal, work will be paused until the Southern Residents exit the ZOI. The ZOI is the area co-extensive with the Level A and Level B harassment zones.

    If killer whales approach the ZOI during vibratory pile removal, and it is unknown whether they are Southern Resident killer whales or transients, it shall be assumed they are Southern Residents and work will be paused until the whales exit the ZOI.

    If Southern Residents enter the ZOI before they are detected, work will be paused until the Southern Residents exit the ZOI to avoid further Level B harassment take.

    Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation in the context of ensuring that NMFS prescribes the means of effecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

    • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals.

    • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned.

    • The practicability of the measure for applicant implementation.

    Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:

    1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).

    2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of pile driving, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of pile removal, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of pile driving, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).

    5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.

    6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

    Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for ITAs must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.

    Proposed Monitoring Measures

    The monitoring plan proposed by WSF can be found in its IHA application. The plan may be modified or supplemented based on comments or new information received from the public during the public comment period. A summary of the primary components of the plan follows.

    (1) Marine Mammal Monitoring Coordination

    WSF would conduct briefings between the construction supervisors and the crew and protected species observers (PSOs) prior to the start of pile-driving activity, marine mammal monitoring protocol and operational procedures.

    Prior to the start of pile driving, the Orca Network and/or Center for Whale Research would be contacted to find out the location of the nearest marine mammal sightings. The Orca Sightings Network consists of a list of over 600 (and growing) residents, scientists, and government agency personnel in the U.S. and Canada. Sightings are called or emailed into the Orca Network and immediately distributed to other sighting networks including: The NMFS Northwest Fisheries Science Center, the Center for Whale Research, Cascadia Research, the Whale Museum Hotline and the British Columbia Sightings Network.

    Sighting information collected by the Orca Network includes detection by hydrophone. The SeaSound Remote Sensing Network is a system of interconnected hydrophones installed in the marine environment of Haro Strait (west side of San Juan Island) to study killer whale communication, in-water noise, bottom fish ecology and local climatic conditions. A hydrophone at the Port Townsend Marine Science Center measures average in-water sound levels and automatically detects unusual sounds. These passive acoustic devices allow researchers to hear when different marine mammals come into the region. This acoustic network, combined with the volunteer (incidental) visual sighting network allows researchers to document presence and location of various marine mammal species.

    With this level of coordination in the region of activity, WSF will be able to get real-time information on the presence or absence of whales before starting any pile removal or driving.

    (2) Protected Species Observers (PSOs)

    WSF will employ qualified PSOs to monitor the 122 dBrms re 1 μPa for marine mammals. Qualifications for marine mammal observers include:

    • Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance. Use of binoculars will be necessary to correctly identify the target.

    • Advanced education in biological science, wildlife management, mammalogy or related fields (Bachelor's degree or higher is preferred), but not required.

    • Experience or training in the field identification of marine mammals (cetaceans and pinnipeds).

    • Sufficient training, orientation or experience with the construction operation to provide for personal safety during observations.

    • Ability to communicate orally, by radio or in person, with project personnel to provide real time information on marine mammals observed in the area as necessary.

    • Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience).

    • Writing skills sufficient to prepare a report of observations that would include such information as the number and type of marine mammals observed; the behavior of marine mammals in the project area during construction, dates and times when observations were conducted; dates and times when in-water construction activities were conducted; and dates and times when marine mammals were present at or within the defined ZOI.

    (3) Monitoring Protocols

    PSOs would be present on site at all times during pile removal and driving. Marine mammal behavior, overall numbers of individuals observed, frequency of observation, and the time corresponding to the daily tidal cycle would be recorded.

    WSF proposes the following methodology to estimate marine mammals that were taken as a result of the proposed Mukilteo Multimodal Tank Farm Pier removal project:

    • During vibratory pile removal, two land-based biologists will monitor the area from the best observation points available. If weather conditions prevent adequate land-based observations, boat-based monitoring may be implemented.

    • To verify the required monitoring distance, the vibratory Level B behavioral harassment ZOI will be determined by using a range finder or hand-held global positioning system device.

    • The vibratory Level B acoustical harassment ZOI will be monitored for the presence of marine mammals 30 minutes before, during, and 30 minutes after any pile removal activity.

    • Monitoring will be continuous unless the contractor takes a significant break, in which case, monitoring will be required 30 minutes prior to restarting pile removal.

    • If marine mammals are observed, their location within the ZOI, and their reaction (if any) to pile-driving activities will be documented.

    NMFS has reviewed the WSF's proposed marine mammal monitoring protocol, and has preliminarily determined the applicant's monitoring program is adequate, particularly as it relates to assessing the level of taking or impacts to affected species. The land-based PSO is expected to be positioned in a location that will maximize his/her ability to detect marine mammals and will also utilize binoculars to improve detection rates. NMFS has reviewed the WSF's proposed marine mammal monitoring protocol, and has determined the applicant's monitoring program is adequate, particularly as it relates to assessing the level of taking or impacts to affected species. The land-based PSO is expected to be positioned in a location that will maximize his/her ability to detect marine mammals and will also utilize binoculars to improve detection rates.

    Proposed Reporting Measures

    WSF would provide NMFS with a draft monitoring report within 90 days of the conclusion of the proposed construction work. This report will detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed.

    If comments are received from the NMFS Northwest Regional Administrator or NMFS Office of Protected Resources on the draft report, a final report will be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft report will be considered to be the final report.

    Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”

    All anticipated takes would be by Level B harassment resulting from vibratory pile removal and are likely to involve temporary changes in behavior. Injurious or lethal takes are not expected due to the expected source levels and sound source characteristics associated with the activity, and the proposed mitigation and monitoring measures are expected to further minimize the possibility of such take.

    If a marine mammal responds to a stimulus by changing its behavior (e.g., through relatively minor changes in locomotion direction/speed or vocalization behavior), the response may or may not constitute taking at the individual level, and is unlikely to affect the stock or the species as a whole. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on animals or on the stock or species could potentially be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). Given the many uncertainties in predicting the quantity and types of impacts of sound on marine mammals, it is common practice to estimate how many animals are likely to be present within a particular distance of a given activity, or exposed to a particular level of sound.

    WSF has requested authorization for the incidental taking of small numbers of humpback whale, Steller sea lion, California sea lion, Dall's porpoise, gray whale, harbor porpoise and killer whale near the Mukilteo Tank Farm Pier that may result from vibratory pile extraction activities.

    In order to estimate the potential incidents of take that may occur incidental to the specified activity, we must first estimate the extent of the sound field that may be produced by the activity and then consider in combination with information about marine mammal density or abundance in the project area. We first provide information on applicable sound thresholds for determining effects to marine mammals before describing the information used in estimating the sound fields, the available marine mammal density or abundance information, and the method of estimating potential incidences of take.

    Sound Thresholds

    We use generic sound exposure thresholds to determine when an activity that produces sound might result in impacts to a marine mammal such that a take by harassment might occur. To date, no studies have been conducted that explicitly examine impacts to marine mammals from pile driving sounds or from which empirical sound thresholds have been established. These thresholds (Table 3) are used to estimate when harassment may occur (i.e., when an animal is exposed to levels equal to or exceeding the relevant criterion) in specific contexts; however, useful contextual information that may inform our assessment of behavioral effects is typically lacking and we consider these thresholds as step functions. NMFS is working to revise these acoustic guidelines; for more information on that process, please visit www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

    Table 3—Underwater Injury and Disturbance Threshold Decibel Levels for Marine Mammals Criterion Criterion definition Threshold Level A harassment PTS (injury) conservatively based on TTS 190 dB RMS for pinnipeds. 180 dB RMS for cetaceans. Level B harassment Behavioral disruption for impulse noise (e.g., impact pile driving) 160 dB RMS. Level B harassment Behavioral disruption for non-pulse noise (e.g., vibratory pile driving, drilling) 120 dB RMS. Distance to Sound Thresholds

    WSF and NMFS have determined that open-water vibratory pile extraction during the Mukilteo Tank Farm Pier Removal project has the potential to result in behavioral harassment of marine mammal species and stocks in the vicinity of the proposed activity.

    As Table 3 shows, under current NMFS guidelines, the received exposure level for Level A harassment is defined at ≥180 dB (rms) re 1 μPa for cetaceans and ≥190 dB (rms) re 1 μPa for pinnipeds. The measured source levels from vibratory removal of 12-inch timber piles are between 149 and 152 dB (rms) re 1 μPa at 16 m from the hammer (Laughlin 2011a). Therefore, the proposed Mukilteo Tank Farm Pier Removal construction project is not expected to cause Level A harassment or TTS to marine mammals.

    Masking affects both senders and receivers of the signals and therefore can have consequences at the population level. Recent science suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than 3 times in terms of SPL) in the world's ocean from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand 2009). All anthropogenic noise sources, such as those from vessel traffic, pile driving, dredging, and dismantling existing bridge by mechanic means, contribute to the elevated ambient noise levels, thus intensify masking.

    Nevertheless, the levels of noise from the proposed WSF construction activities are relatively low and are blocked by landmass southward. Therefore, the noise generated is not expected to contribute to increased ocean ambient noise in a manner that will notably increase the ability of marine mammals in the vicinity to detect critical acoustic cues. Due to shallow water depths near the ferry terminals, underwater sound propagation for low-frequency sound (which is the major noise source from pile driving) is expected to be poor.

    Currently NMFS uses 120 dBrms re 1 μPa received level for non-impulse noises (such as vibratory pile driving, saw cutting, drilling, and dredging) for the onset of marine mammal Level B behavioral harassment. However, since the ambient noise level at the vicinity of the proposed project area is between 122 to 124 dB re 1 μPa, depending on marine mammal functional hearing groups (Laughlin 2011b), the received level of 120 dB re 1 μPa would be below the ambient level. Therefore, for this proposed project, 122 dB re 1 μPa is used as the threshold for Level B behavioral harassment. The distance to the 122 dB contour Level B acoustical harassment threshold due to vibratory pile removal extends a maximum of 1.6 km as is shown in Figure 1-5 in the Application.

    As far as airborne noise is concerned, the estimated in-air source level from vibratory pile driving a 30-in steel pile is estimated at 97.8 dB re 1 μPa at 15 m (50 feet) from the pile (Laughlin 2010b). Using the spreading loss of 6 dB per doubling of distance, it is estimated that the distances to the 90 dB and 100 dB thresholds were estimated at 37 m and 12 m, respectively.

    The closest documented harbor seal haul-out is the Naval Station Everett floating security fence, and the Port Gardner log booms, both approximately 4.5 miles to the northeast of the project site). The closest documented California sea lion haul out site are the Everett Harbor navigation buoys, located approximately 3 miles to the northeast of the project site (Figure 3-1). In-air disturbance will be limited to those animals moving on the surface through the immediate pier area, within approximately 37 meters (123 feet) for harbor seals and within 12 meters (39 feet) for other pinnipeds of vibratory pile removal (Figure 1-6 in Application).

    Incidental take is estimated for each species by estimating the likelihood of a marine mammal being present within a ZOI during active pile removal or driving. Expected marine mammal presence is determined by past observations and general abundance near the Tank Farm Pier during the construction window. Typically, potential take is estimated by multiplying the area of the ZOI by the local animal density. This provides an estimate of the number of animals that might occupy the ZOI at any given moment. However, in some cases take requests were estimated using local marine mammal data sets (e.g., Orca Network, state and federal agencies), opinions from state and federal agencies, and observations from Navy biologists.

    Harbor Seal

    Based on the ORCA monitoring, NMFS' analysis uses a conservative estimate of 13 harbor seals per day potentially within the ZOI. For Year One pile removal, the duration estimate is 975 hours over 140 days. For the exposure estimate, it will be conservatively assumed that 13 harbor seals may be present within the ZOI and be exposed multiple times during the project. The calculation for marine mammal exposures is estimated by:

    Exposure estimate = N * 140 days of vibratory pile removal activity, where: N = # of animals (13) Exposure estimate = 13 * 140 days = 1,820

    NMFS is proposing the authorization for Level B acoustical harassment of 1,820 harbor seals. However, many of these takes are likely to be repeated exposures of individual animals.

    California Sea Lion

    Based on the ORCA monitoring this analysis uses a conservative estimate of 6 California sea lions per day potentially within the ZOI.

    Exposure estimate = 6 * 140 days = 840

    NMFS is proposing the authorization for Level B acoustical harassment take of 840 California sea lions. Many of these takes are likely to be repeated exposures of individual animals.

    Steller Sea Lion

    Based on the observation data from Craven Rock, this analysis uses a conservative estimate of 12 Steller sea lions per day potentially near the ZOI. However, given the distance from this haul-out to the Tank Farm Pier, it is not expected that the same numbers would be present in the ZOI. For the exposure estimate, it will be conservatively assumed that 1/6th of the Steller sea lions observed at Craven Rock (2 animals) may be present within the ZOI and be exposed multiple times during the project for total of 2 animals

    Exposure estimate = 2 * 140 days = 280

    NMFS is proposing the authorization for Level B acoustical harassment take of 280 Steller sea lions. It is likely that many of these takes are likely to be repeated exposures of individual animals..

    Harbor Porpoise

    Based on the water depth within the ZOI and group size, this analysis uses a conservative estimate of 8 harbor porpoises per day potentially near the ZOI.

    Exposure estimate = 8 * 140 days = 1,120

    WSF is requesting authorization for Level B acoustical harassment take of 1,120 Harbor porpoise. Note that many of these takes are likely to be repeated exposures of individual animals.

    Dall's Porpoise

    Based on the average winter group size, as described in Section 3.0 of the Application, this analysis uses a conservative estimate of 3 Dall's porpoises per day potentially near the ZOI.

    Exposure estimate = 3 * 140 days = 420

    NMFS is proposing authorization for Level B acoustical harassment take of 420 Dall's porpoise. A number of these anticipated takes are likely to be repeated exposures of individual animals.

    Killer Whale

    Southern Resident Killer Whale—In order to estimate anticipated take, NMFS used Southern Resident killer whale density data from the Pacific Marine Species Density Database (US Navy 2014) that measured density per km2 per season in the waters in the vicinity of the Mukilteo Tank Farm Pier. Data was provided as a range by the Navy. NMFS took the high end of the range for the summer, fall, and winter seasons to estimate density and multiplied that figure by the ensonified area (~5 km2.)

    Exposure estimate = (0.00090 [summer] + 0.000482 [fall] + 0.000250 [winter]) * 5 km2 = 0.0258 Southern Resident killer whales.

    Note that pod size of Southern Resident killer whales can range from 3-50. NMFS will assume that one pod of 15 whales will be sighted during this authorization period and proposes to authorize that amount. However, it is possible that a larger group may be observed. In order to limit the take of southern resident killer whales NMFS proposes to require additional steps applicable to killer whales. These steps are described below and in Appendix B of the Application.

    Transient Killer Whale—NMFS estimated the take of transient killer whales by applying the same methodology used to estimate Southern Resident killer whale.

    Exposure estimate = (0.001582 [summer] + 0.002373 [fall] + 0.002373 [winter]) * 5 km2 = 0.03163 transient killer whales.

    Note that pod size of transients can range from 1-5. NMFS will assume that two pods of 5 whales will be sighted during this authorization period. Therefore, NMFS is proposing 10 takes of transient killer whales.

    Gray Whale

    Based on the frequency of sightings during the in-water work window, this analysis uses a conservative estimate of 3 gray whales per day potentially near the ZOI.

    It is assumed that Gray whales will not enter the ZOI each day of the project, but may be present in the ZOI for 5 days per month as they forage in the area, for a total of 30 days. For the exposure estimate, it will be conservatively assumed that up to 3 animals may be present within the ZOI and be exposed multiple times during the project.

    Exposure estimate = 3 * 30 days = 90

    NMFS is proposing authorization for Level B acoustical harassment take of 90 Gray whales. It is assumed that this number will include multiple harassments of a single individual animal.

    Humpback Whale

    Based on the frequency of sightings during the in-water work window, this analysis uses a conservative estimate of 2 humpback whales potentially near the ZOI.

    It is assumed that humpback whales will not enter the ZOI each day of the project, but may be present in the ZOI for 3 days per month as they forage in the area, for a total of 18 days. For the exposure estimate, it will be conservatively assumed that up to 2 animals may be present within the ZOI and be exposed multiple times during the project.

    Exposure estimate = 2 * 18 days = 36

    NMFS is proposing authorization for Level B acoustical harassment take of 36 humpback whales. It is assumed that this number will include multiple harassments of the same individuals.

    Based on the estimates, approximately 1,820 Pacific harbor seals, 840 California sea lions, 280 Steller sea lions, 1,120 Harbor porpoise, 420 Dall's porpoise, 94 killer whales (10 transient, 15 Southern Resident killer whales), 90 gray whales, and 36 humpback whales could be exposed to received sound levels above 122 dB re 1 μPa (rms) from the proposed Mukilteo Tank Farm Pier Removal project. A summary of the estimated takes is presented in Table 4.

    Table 4—Estimated Numbers of Marine Mammals That May Be Exposed to Vibratory Hammer Sound Levels Above 122 dB re 1 μPa [rms] Species Estimated
  • marine
  • mammal
  • takes *
  • Percentage
  • of species
  • or stock
  • (%)
  • Pacific harbor seal 1,820 16.5 California sea lion 840 0.3 Steller sea lion 280 0.4 Harbor porpoise 1,120 10.5 Dall's porpoise 420 1.0 Killer whale, transient 10 4.1 Killer whale, Southern Resident 15 18.2 Gray whale 90 0.5 Humpback whale 36 2.0 * Represents maximum estimate of animals due to likelihood that some individuals will be taken more than once
    Analysis and Preliminary Determinations Negligible Impact Analysis

    Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of Level B harassment takes, alone, is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through behavioral harassment, NMFS must consider other factors, such as the likely nature of any responses (their intensity, duration, etc.), the context of any responses (critical reproductive time or location, migration, etc.), as well as the number and nature of estimated Level A harassment takes, the number of estimated mortalities, effects on habitat, and the status of the species.

    To avoid repetition, the following discussion applies to the affected stocks of harbor seals, California sea lions, Steller sea lions, harbor porpoises, Dall's porpoises, gray whales and humpback whales, except where a separate discussion is provided for killer whales, as the best available information indicates that effects of the specified activity on individuals of those stocks will be similar, and there is no information about the population size, status, structure, or habitat use of the areas to warrant separate discussion.

    Pile removal activities associated with the Mukilteo Tank Farm removal project, as outlined previously, have the potential to disturb or displace marine mammals. Specifically, the specified activities may result in take, in the form of Level B harassment (behavioral disturbance) only, from underwater sounds generated from pile extraction. Potential takes could occur if individuals of these species are present in the ensonified zone when pile driving is happening.

    No injury, serious injury, or mortality is anticipated given the nature of the activity and measures designed to minimize the possibility of injury to marine mammals. The potential for these outcomes is minimized through the construction method and the implementation of the planned mitigation measures. Specifically, vibratory hammers will be the primary method of extraction and no impact driving will occurs. Vibratory driving and removal does not have significant potential to cause injury to marine mammals due to the relatively low source levels produced (site-specific acoustic monitoring data show no source level measurements above 180 dB rms) and the lack of potentially injurious source characteristics. Given sufficient “notice” through use of soft start, marine mammals are expected to move away from a sound source. The likelihood that marine mammal detection ability by trained observers is high under the environmental conditions described for waters around the Mukilteo Tank Farm further enables the implementation of shutdowns if animals come within 10 meters of operational activity to avoid injury, serious injury, or mortality.

    WSF proposed activities are localized and of relatively short duration. The entire project area is limited to water in close proximity to the tank farm. The project will require the extraction of 3,900 piles and will require 675-975 hours over 140-180 days. These localized and short-term noise exposures may cause brief startle reactions or short-term behavioral modification by the animals. These reactions and behavioral changes are expected to subside quickly when the exposures cease. Moreover, the proposed mitigation and monitoring measures are expected to reduce potential exposures and behavioral modifications even further.

    Southern Resident Killer Whale

    Critical habitat for Southern Resident killer whales has been identified in the area and may be impacted. The proposed action will have short-term adverse effects on Chinook salmon, the primary prey of Southern Resident killer whales. However, the Puget Sound Chinook salmon ESU comprises a small percentage of the Southern Resident killer whale diet. Hanson et al. (2010) found only six to 14 percent of Chinook salmon eaten in the summer were from Puget Sound. Therefore, NMFS concludes that both the short-term adverse effects and the long-term beneficial effects on Southern Resident killer whale prey quantity and quality will be insignificant. Also, the sound from vibratory pile driving and removal may interfere with whale passage. For example, exposed killer whales are likely to redirect around the sound instead of passing through the area. However, the effect of the additional distance traveled is unlikely to cause a measureable increase in an individual's energy budget, and the effects would therefore be temporary and insignificant. Additionally, WSF will employ additional mitigation measures to avoid or minimize impacts to Southern Residents. These measures were described previously in the section Monitoring and Shutdown for Pile Driving.

    The project also is not expected to have significant adverse effects on affected marine mammals' habitat, as analyzed in detail in the “Anticipated Effects on Marine Mammal Habitat” section. The project activities would not modify existing marine mammal habitat. The activities may cause some fish to leave the area of disturbance, thus temporarily impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. Furthermore, no important feeding and/or reproductive areas for other marine mammals are known to be near the proposed action area.

    Effects on individuals that are taken by Level B harassment, on the basis of reports in the literature as well as monitoring from other similar activities, will likely be limited to reactions such as increased swimming speeds, increased surfacing time, or decreased foraging (if such activity were occurring) (e.g., Thorson and Reyff, 2006; Lerma, 2014). Most likely, individuals will simply move away from the sound source and be temporarily displaced from the areas of pile driving, although even this reaction has been observed primarily only in association with impact pile driving. In response to vibratory driving and removal, pinnipeds (which may become somewhat habituated to human activity in industrial or urban waterways) have been observed to orient towards and sometimes move towards the sound. The pile removal activities analyzed here are similar to, or less impactful than, numerous construction activities conducted in other similar locations, which have taken place with no reported injuries or mortality to marine mammals, and no known long-term adverse consequences from behavioral harassment. Repeated exposures of individuals to levels of sound that may cause Level B harassment are unlikely to result in hearing impairment or to significantly disrupt foraging behavior. Thus, even repeated Level B harassment of some small subset of the overall stock is unlikely to result in any significant realized decrease in fitness for the affected individuals, and thus would not result in any adverse impact to the stock as a whole. Level B harassment will be reduced to the level of least practicable impact through use of mitigation measures described herein and, if sound produced by project activities is sufficiently disturbing, animals are likely to simply avoid the project area while the activity is occurring.

    In summary, we considered the following factors: (1) The possibility of injury, serious injury, or mortality may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment consist of, at worst, temporary modifications in behavior; (3) the absence of any significant habitat, other than identified critical habitat for Southern Resident killer whales within the project area, including rookeries, significant haul-outs, or known areas or features of special significance for foraging or reproduction; (4) the expected efficacy of the proposed mitigation measures in minimizing the effects of the specified activity on the affected species or stocks and their habitat to the level of least practicable impact. In combination, we believe that these factors, as well as the available body of evidence from other similar activities, demonstrate that the potential effects of the specified activity will have only short-term effects on individuals. The take resulting from the proposed WSF Mukilteo Multimodal Project Tank Farm Pier Removal project is not reasonably expected to and is not reasonably likely to adversely affect the marine mammal species or stocks through effects on annual rates of recruitment or survival.

    Therefore, based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS preliminarily finds that the total marine mammal take from WSF's Mukilteo Multimodal Project Tank Farm Pier Removal project will have a negligible impact on the affected marine mammal species or stocks.

    Small Numbers Analysis

    Based on long-term marine mammal monitoring and studies in the vicinity of the proposed construction areas, it is estimated that approximately 1,820 Pacific harbor seals, 840 California sea lions, 280 Steller sea lions, 1,120 harbor porpoises, 420 Dall's porpoises, 10 transient killer whales, 15 Southern Resident killer whales, 90 gray whales, and 36 humpback whales could be exposed to received noise levels above 122 dBrms re 1 μPa from the proposed construction work at the Mukilteo Multimodal Ferry Terminal. These numbers represent approximately 0.3%-18.2% of the stocks and populations of these species that could be affected by Level B behavioral harassment.

    The numbers of animals authorized to be taken for all species would be considered small relative to the relevant stocks or populations even if each estimated taking occurred to a new individual—an extremely unlikely scenario. Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the mitigation and monitoring measures, we find that small numbers of marine mammals will be taken relative to the population sizes of the affected species or stocks.

    Impact on Availability of Affected Species for Taking for Subsistence Uses

    There are no subsistence uses of marine mammals in Puget Sound or the San Juan Islands relevant to section 101(a)(5)(D).

    Endangered Species Act (ESA)

    The humpback whale and Southern Resident stock of killer whale are the only marine mammal species currently listed under the ESA that could occur in the vicinity of WSF's proposed construction projects. NMFS issued a Biological Opinion that covers the proposed action on July 31, 2013, and concluded that the proposed action is not likely to jeopardize the continued existence of Southern Resident killer whales or humpback whales, and is not likely to destroy or adversely modify Southern Resident killer whales critical habitat.

    National Environmental Policy Act (NEPA)

    NMFS re-affirms the document titled Final Environmental Assessment Issuance of Marine Mammal Incidental Take Authorizations to the Washington State Department of Transportation to Take Marine Mammals which was issued in February 2014. A Finding of No Significant Impact (FONSI) was signed on February 28, 2014. In the FONSI NMFS determined that the issuance of IHAs for the take, by harassment, of small numbers of marine mammals incidental to the WSF's Mukilteo Ferry Terminal replacement project in Washington State, will not significantly impact the quality of the human environment, as described in this document and in the Mukilteo EA. These documents are found at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

    Proposed Authorization

    For the reasons discussed in this document, NMFS has preliminarily determined that the vibratory pile removal associated with the Mukilteo Tank Farm Pier Removal Project would result, at worst, in the Level B harassment of small numbers of eight marine mammal species that inhabit or visit the area. While behavioral modifications, including temporarily vacating the area around the project site, may be made by these species to avoid the resultant visual and acoustic disturbance, the availability of alternate areas within Washington coastal waters and haul-out sites has led NMFS to preliminarily determine that this action will have a negligible impact on these species in the vicinity of the proposed project area.

    In addition, no take by TTS, Level A harassment (injury) or death is anticipated and harassment takes should be at the lowest level practicable due to incorporation of the mitigation and monitoring measures mentioned previously in this document.

    As a result of these preliminary determinations, NMFS proposes to issue an IHA to WSF for conducting the Mukilteo Tank Farm removal project, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated. The proposed IHA language is provided next.

    This section contains a draft of the IHA itself. The wording contained in this section is proposed for inclusion in the IHA (if issued).

    1. This Authorization is valid from September 1, 2015, through August 31, 2016.

    2. This Authorization is valid only for activities associated with in-water construction work at the Mukilteo Multimodal Ferry Terminals in the State of Washington.

    3. (a) The species authorized for incidental harassment takings, Level B harassment only, are: Pacific harbor seal (Phoca vitulina richardsi), California sea lion (Zalophus californianus), Steller sea lion (Eumetopias jubatus), harbor porpoise (Phocoena phocoena), Dall's porpoise (Phocoenoides dalli), transient and Southern Resident killer whales (Orcinus orca), gray whale (Eschrichtius robustus), and humpback whale (Megaptera novaeangliae).

    (b) The authorization for taking by harassment is limited to the following acoustic sources and from the following activities:

    (i) Vibratory pile removal; and

    (ii) Work associated with pile removal activities.

    (c) The taking of any marine mammal in a manner prohibited under this Authorization must be reported within 24 hours of the taking to the Northwest Regional Administrator (206-526-6150), National Marine Fisheries Service (NMFS) and the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, at (301) 427-8401.

    4. The holder of this Authorization must notify Monica DeAngelis of the West Coast Regional Office (phone: (562) 980-3232) at least 24 hours prior to starting activities.

    5. Prohibitions:

    (a) The taking, by incidental harassment only, is limited to the species listed under condition 3(a) above and by the numbers listed in Table 3 of this Federal Register notice. The taking by Level A harassment, injury or death of these species or the taking by harassment, injury or death of any other species of marine mammal is prohibited and may result in the modification, suspension, or revocation of this Authorization.

    (b) The taking of any marine mammal is prohibited whenever the required protected species observers (PSOs), required by condition 7(a), are not present in conformance with condition 7(a) of this Authorization.

    6. Mitigation:

    (a) Ramp Up (Soft Start): Vibratory hammer for pile removal and pile driving shall be initiated at reduced power for 15 seconds with a 1 minute interval, and be repeated with this procedure for an additional two times.

    (b) Marine Mammal Monitoring: Monitoring for marine mammal presence shall take place 30 minutes before, during and 30 minutes after pile driving.

    (c) Power Down and Shutdown Measures:

    (i) A shutdown zone of 10 m radius for all marine mammals will be established around all vibratory extraction activity.

    (ii) WSF shall implement shutdown measures if Southern Resident killer whales (SRKWs) are sighted within the vicinity of the project area and are approaching the Level B harassment zone (zone of influence, or ZOI) during in-water construction activities.

    (iii) If a killer whale approaches the ZOI during pile driving or removal, and it is unknown whether it is a SRKW or a transient killer whale, it shall be assumed to be a SRKW and WSF shall implement the shutdown measure identified in 6(c)(i).

    (iv) If a SRKW enters the ZOI undetected, in-water pile driving or pile removal shall be suspended until the SRKW exits the ZOI to avoid further level B harassment.

    (d) Time Restrictions—Work would occur only during daylight hours, when visual monitoring of marine mammals can be conducted. In addition, all in-water construction will be limited to the period between August 1, 2015 and February 15, 2016; and August 1, 2016 until IHA expires on August 31, 2016.

    7. Monitoring:

    (a) Protected Species Observers: WSF shall employ qualified protected species observers (PSOs) to monitor the 122 dBrms re 1 μPa (nominal ambient level) zone of influence (ZOI) for marine mammals. Qualifications for marine mammal observers include:

    (i) Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance. Use of binoculars will be required to correctly identify the target.

    (ii) Experience or training in the field identification of marine mammals (cetaceans and pinnipeds).

    (iii) Sufficient training, orientation or experience with the construction operation to provide for personal safety during observations.

    (iv) Ability to communicate orally, by radio or in person, with project personnel to provide real time information on marine mammals observed in the area as necessary.

    (v) Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience).

    (vi) Writing skills sufficient to prepare a report of observations that would include such information as the number and type of marine mammals observed; the behavior of marine mammals in the project area during construction, dates and times when observations were conducted; dates and times when in-water construction activities were conducted; and dates and times when marine mammals were present at or within the defined ZOI.

    (b) Monitoring Protocols: PSOs shall be present on site at all times during pile removal.

    (i) During vibratory pile removal, two land-based biologists will monitor the area from the best observation points available. If weather conditions prevent adequate land-based observations, boat-based monitoring shall be implemented.

    (ii) The vibratory Level B acoustical harassment ZOI shall be monitored for the presence of marine mammals 30 minutes before, during, and 30 minutes after any pile removal activity.

    (iii) Monitoring shall be continuous unless the contractor takes a significant break, in which case, monitoring shall be required 30 minutes prior to restarting pile removal.

    (iv) A range finder or hand-held global positioning system device shall be used to ensure that the 122 dBrms re 1 μPa Level B behavioral harassment ZOI is monitored.

    (v) If marine mammals are observed, the following information will be documented:

    (A) Species of observed marine mammals;

    (B) Number of observed marine mammal individuals;

    (C) Behavioral of observed marine mammals;

    (D) Location within the ZOI; and

    (E) Animals' reaction (if any) to pile-driving activities

    8. Reporting:

    (a) WSDOT shall provide NMFS with a draft monitoring report within 90 days of the conclusion of the construction work. This report shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed.

    (b) If comments are received from the NMFS Northwest Regional Administrator or NMFS Office of Protected Resources on the draft report, a final report shall be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft report will be considered to be the final report.

    (c) In the unanticipated event that the construction activities clearly cause the take of a marine mammal in a manner prohibited by this Authorization (if issued), such as an injury, serious injury or mortality (e.g., ship-strike, gear interaction, and/or entanglement), WSF shall immediately cease all operations and immediately report the incident to the Chief Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401and/or be email to [email protected] and [email protected] and the West Coast Regional Stranding Coordinator Brent Norberg ([email protected]). The report must include the following information:

    (i) Time, date, and location (latitude/longitude) of the incident;

    (ii) Description of the incident;

    (iii) Status of all sound source use in the 24 hours preceding the incident;

    (iv) Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility, and water depth);

    (v) Description of marine mammal observations in the 24 hours preceding the incident;

    (vi) Species identification or description of the animal(s) involved;

    (vii) The fate of the animal(s); and

    (viii) Photographs or video footage of the animal (if equipment is available).

    Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with WSF to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. WSF may not resume their activities until notified by NMFS via letter, email, or telephone.

    (d) In the event that WSF discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), WSF will immediately report the incident to the Chief Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401 and/or be email to [email protected] and [email protected] and the West Coast Regional Stranding Coordinator Brent Norberg ([email protected]).

    The report must include the same information identified above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with WSF to determine whether modifications in the activities are appropriate.

    (e) In the event that WSF discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), WSF shall report the incident to the Chief, Incidental Take Program, Permits and Conservation Division, Office of Protected Resources, NMFS, at 301-427-8401and/or be email to [email protected] and [email protected] and the West Coast Regional Stranding Coordinator Brent Norberg ([email protected]) within 24 hours of the discovery. WSF shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. WSF can continue its operations under such a case.

    9. This Authorization may be modified, suspended or withdrawn if the holder fails to abide by the conditions prescribed herein or if the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals, or if there is an unmitigable adverse impact on the availability of such species or stocks for subsistence uses.

    10. A copy of this Authorization and the Incidental Take Statement must be in the possession of each contractor who performs the construction work at Mukilteo Multimodal Ferry Terminals.

    11. WSF is required to comply with the Terms and Conditions of the Incidental Take Statement corresponding to NMFS' Biological Opinion.

    Request for Public Comments

    NMFS requests comment on our analysis, the draft authorization, and any other aspect of the Notice of Proposed IHA for WSF's Mukilteo Tank Farm removal project. Please include with your comments any supporting data or literature citations to help inform our final decision on WSF's request for an MMPA authorization.

    Dated: July 16, 2015. Perry Gayaldo, Deputy Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2015-18020 Filed 7-22-15; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XD978 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Rehabilitation of Jetty A at the Mouth of the Columbia River AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments.

    SUMMARY:

    NMFS has received a request from the U.S. Army Corps of Engineers, Portland District (Corps) for authorization to take marine mammals incidental to the rehabilitation of jetty system at the mouth of the Columbia River (MCR): North Jetty, South Jetty, and Jetty A. The Corps is requesting an Incidental Harassment Authorization (IHA) for the first season of pile installation and removal at Jetty A only.

    DATES:

    Comments and information must be received no later than August 24, 2015.

    ADDRESSES:

    Comments on the application should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to [email protected]

    Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments received electronically, including all attachments, must not exceed a 25-megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted to the Internet at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    FOR FURTHER INFORMATION CONTACT:

    Robert Pauline, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    Availability

    An electronic copy of the Corps' application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at: http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please call the contact listed above.

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth. NMFS has defined “negligible impact” in 50 CFR 216.103 as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].

    Summary of Request

    On February 13, 2015, NMFS received an application from the Corps for the taking of marine mammals incidental to the rehabilitation of Jetty A at the mouth of the Columbia River (MCR). On June 9, 2015 NMFS received a revised application. NMFS determined that the application was adequate and complete on June 12, 2015. The Corps proposes to conduct in-water work that may incidentally harass marine mammals (i.e., pile driving and removal). This IHA would be valid from May 1, 2016 through April 30, 2017.

    The use of vibratory pile driving is expected to produce underwater sound at levels that have the potential to result in behavioral harassment of marine mammals. Species with the expected potential to be present during the project timeframe include killer whale (Orcinus orca), Steller sea lion (Eumatopius jubatus), gray whale (Eschrichtius robustus), harbor porpoise (Phocoena phocoena), California sea lion (Zalophus californianus), and harbor seal (Phoca vitulina richardii).

    Description of the Specified Activity Overview

    The Corps is seeking an IHA for the first year of pile installation and, possibly, removal work at Jetty A related to construction and maintenance of a barge offloading facility. The barge facility will be used for activities associated with the rehabilitation of Jetty A. The Corps is seeking this authorization by the end of August 2015 for contract bid schedule reasons. Because the work may extend beyond two seasons the Corps will request an LOA for any additional years of pile maintenance and removal at Jetty A. Jetty A is not a haul-out site for pinnipeds so pile installation and removal were the only activities identified as having the potential to adversely affect marine mammals at Jetty A.

    Dates and Duration

    Work on the first year of pile installation may begin as early as May 2016 and would extend through September 2017. Work is anticipated for two seasons stone placement for head stabilization and trunk repairs starting in 2016. Because the work may extend to two seasons the Corps will be requesting an LOA for the second year of pile maintenance and removal at Jetty A.

    The scheduled program of repair and rehabilitation priorities are described in detail in Section 1 of the Corps' IHA application. The sequence and overall timing for remaining work requiring an IHA and future LOA at the three MCR jetties include:

    1. Jetty A Scheduled Repairs and Head Stabilization will require an IHA and future LOA for pile installation of an offloading facilities. Construction and stone placement will likely occur in 2016 and 2017. The Corps will request an LOA after the IHA expires to cover additional years of pile maintenance and removal.

    2. North Jetty Scheduled Repair and Head Stabilization will require an LOA in the future for pile installation and removal at offloading facility. Construction/placement is planned for 2016-2019.

    3. South Jetty Interim Repair and Head Determination will require an LOA for pile installation and removal at two barge offloading facilities. This work would be covered under a future LOA.

    The work season generally extends from April through October, with extensions, contractions, and additional work windows outside of the summer season varying by weather patterns. To avoid the presence of Southern resident killer whales, the Corps will prohibit pile installation for offloading facilities from October 1 until on or after May 1 since that is their primary feeding season when they may be present at the MCR plume. Installation would occur from May 1 to September 30 each year.

    Specified Geographic Region

    This activity will take place at the three MCR jetties in Pacific County, Washington, and Clatsop County, Oregon. The scheduled program of repair and rehabilitation priorities are described and illustrated in Section 1 of the application.

    Detailed Description of Activities

    Jetty A Scheduled Repair would occur as part of the Corps' Major Rehabilitation program for the jetties. Scheduled repairs would address the loss of cross-section, reduce future cross-section instability, and stabilize the head (terminus). Scheduled cross-section repairs are primarily above mean lower low water (MLLW), with a majority of stone placement not likely to extend below −5 feet MLLW. The jetty head (Southern-most end section) would be stabilized at approximately station (STA) 89+00 with large armoring stone placed on relic jetty stone that is mostly above MLLW. Stations (STA) indicate lineal distance along the jetty relative to a fixed reference point (0+00) located at the landward-most point on the jetty root (See Application Figure 2).

    Construction of an offloading facility will be necessary to transport materials to the Jetty A project site. This construction would require dredging and pile installation. There is a small chance that delivery and placement could occur exclusively via overland methods. If such were the case, the Corps would not have a need an IHA.

    Four offloading facilities will eventually be required for completion of entire project. However, only construction of the first facility would be covered under the proposed Authorization. Construction of all four offloading facilities combined will require up to 96 wood or steel piles and up to 373 sections of Z-piles, H-piles, and sheet pile to retain rock fill. A vibratory hammer will be used for pile installation due to the soft sediments (sand) in the project area and only untreated wood will be used, where applicable. No impact driving will be necessary under this Authorization. The piles will be located within 200 feet of the jetty structure. The presence of relic stone may require locating the piling further from the jetty so that use of this method is not precluded by the existing stone. The dolphins/Z- and H-piles would be composed of either untreated timber or steel piles installed to a depth of approximately 15 to 25 feet below grade in order to withstand the needs of off-loading barges and heavy construction equipment. Because vibratory hammers will be used in areas with velocities greater than 1.6 feet per second, the need for hydroacoustic attenuation is not an anticipated issue. Piling will be fitted with pointed caps to prevent perching by piscivorous birds to minimize opportunities for avian predation on listed species. Some of the pilings and offloading facilities will be removed at the end of the construction period.

    Pile installation is assumed to occur for about 10 hours a day, with a total of approximately 15 piles installed per day. Each offloading facility would have about 1/4 of the total piles mentioned. As noted above, up to 96 piles could be installed, and up to 373 sections of sheet pile to retain rock fill. This is a total of 469 initial installation and 469 removal events, over the span of about 67 days. In order to round the math, the NMFS has assumed 68 days, so that each of the four offloading facilities takes about 17 days total for installation and removal. This is likely to be the maximum number of days for pile installation at Jetty A. The Corps is still determining whether or not to remove some or all of these offloading facilities once jetty rehabilitation work is completed. It is possible that portions of these facilities may not survive ocean conditions. Longer-term offloading facilities at South and North Jetties may need to be repaired if used more than one season. The Corps will also be conducting post-construction pedestrian surveys along the jetties, and will have construction activities for about four seasons on the South Jetty.

    Note that only a portion of the activities described above will be covered under the IHA. Actions covered under the authorization would include installing a maximum of 24 piles for use as dolphins and a maximum of 93 sections of Z or H piles for retention of rock fill over 17 days. The piles would be a maximum diameter of 24 inches and would only be installed by vibratory driving method. The possibility exists that smaller diameter piles may be used but for this analysis it is assumed that 24 inch piles will be driven.

    Description of Marine Mammals in the Area of the Specified Activity

    Marine mammals known to occur in the Pacific Ocean offshore at the MCR include whales, orcas, dolphins, porpoises, sea lions, and harbor seals. Most cetacean species observed by Green and others (1992) occurred in Pacific slope or offshore waters (600 to 6,000 feet in depth). Harbor porpoises (Phocoena phocoena) and gray whales (Eschrichtius robustus) were prevalent in shelf waters less than 600 feet in depth. Orcas are known to feed on Chinook salmon at the MCR, and humpback whales (Megaptera novaeangliae) may transit through the area offshore of the jetties. While humpbacks have been observed offshore they are unlikely to be found inside of the jetty system. The marine mammal species potentially present in the activity area are shown in Table 1.

    Pinniped species that occur in the vicinity of the jetties include Pacific harbor seals (Phoca vitulina richardsi), California sea lions (Zalophus californianus), and Steller sea lions (Eumetopias jubatus). Their use is primarily confined to the South Jetty. According to the Washington Department of Fish and Wildlife (WDFW) aerial survey counts from 2000-2014, there are no records for harbor seals, Steller sea lions or California sea lions using Jetty A (WDFW 2014).

    In the species accounts provided here, we offer a brief introduction to the species and relevant stock as well as available information regarding population trends and threats, and describe any information regarding local occurrence.

    Table 1—Marine Mammal Species Potentially Present in the Project Area Species Stock(s)
  • abundance
  • estimate 1
  • ESA
  • Status
  • MMPA*
  • Status
  • Frequency
  • of
  • occurrence 3
  • Killer Whale (Orcinus orca), Eastern N. Pacific, Southern Resident Stock 85 Endangered Depleted and Strategic Infrequent/Rare. Killer Whale (Orcinus orca), Eastern N. Pacific, West Coast Transient Stock 243 Non-depleted Rare. Gray Whale (Eschrichtius robustus), Eastern North Pacific Stock, (Pacific Coast Feed Group) 18,017 (173) Delisted/Recovered (1994) Non-depleted Rare. Harbor Porpoise (Phocoena phocoena), Northern Oregon/Washington Coast Stock 21,487 Non-depleted Likely. Steller Sea Lion (Eumetopias jubatus), Eastern U.S. Stock/DPS** 63,160-78,198 Delisted/Recovered (2013) Depleted and Strategic 2 Likely. California Sea Lion (Zalophus californianus), U.S. Stock 296,750 Non-depleted Likely. Harbor Seal (Phoca vitulina richardii), Oregon and Washington Stock 24,732 4 Non-depleted Seasonal. 1 NOAA/NMFS 2014 marine mammal stock assessment reports at http://www.nmfs.noaa.gov/pr/sars/species.htm. 2 May be updated based on the recent delisting status. 3 Frequency defined here in the range of: • Rare—Few confirmed sightings, or the distribution of the species is near enough to the area that the species could occur there. • Infrequent—Confirmed, but irregular sightings. • Likely—Confirmed and regular sightings of the species in the area year-round. • Seasonal—Confirmed and regular sightings of the species in the area on a seasonal basis. 4 Data is 8 years old. No current abundance estimates exist. *MMPA = Marine Mammal Protection Act. **DPS = Distinct population segment.
    Cetaceans Killer Whale

    During construction of the project, it is possible that two killer whale stocks, the Eastern North Pacific Southern resident and Eastern North Pacific West Coast transient stocks could be in the nearshore vicinity of the MCR. However, based on the restrictions to the work window for pile installation, it is unlikely that either West Coast transient or Southern resident killer whales will be present in the area during the period of possible acoustic effects.

    Since the first complete census of this stock in 1974 when 71 animals were identified, the number of Southern resident killer whales has fluctuated annually. Between 1974 and 1993 the Southern Resident stock increased approximately 35%, from 71 to 96 individuals (Ford et al. 1994), representing a net annual growth rate of 1.8% during those years. Following the peak census count of 99 animals in 1995, the population size has fluctuated and currently stands at 85 animals as of the 2013 census (Carretta et al. 2014).

    The Southern resident killer whale population consists of three pods, designated J, K, and L pods, that reside from late spring to fall in the inland waterways of Washington State and British Columbia (NMFS 2008a). During winter, pods have moved into Pacific coastal waters and are known to travel as far south as central California. Winter and early spring movements and distribution are largely unknown for the population. Sightings of members of K and L pods in Oregon (L pod at Depoe Bay in April 1999 and Yaquina Bay in March 2000, unidentified Southern residents at Depoe Bay in April 2000, and members of K and L pods off of the Columbia River) and in California (17 members of L pod and four members of K pod at Monterey Bay in 2000; L pod members at Monterey Bay in March 2003; L pod members near the Farallon Islands in February 2005 and again off Pt. Reyes in January 2006) have considerably extended the Southern limit of their known range (NMFS 2008a). Sightings of Southern resident killer whales off the coast of Washington, Oregon, and California indicate that they are utilizing resources in the California Current ecosystem in contrast to other North Pacific resident pods that exclusively use resources in the Alaskan Gyre system (NMFS 2008a).

    During the 2011 Section 7 Endangered Species Act (ESA) consultation, NMFS indicated Southern resident killer whales are known to feed on migrating Chinook salmon in the Columbia River plume during the peak salmon runs in March through April. Anecdotal evidence indicates that orcas historically were somewhat frequent visitors in the vicinity of the estuary, but have been less common in current times (Wilson 2015). However, there is low likelihood of them being in close proximity to any of the pile installation locations, and there would be minimal overlap of their presence during the peak summer construction season. To further avoid any overlap with Southern resident killer whales use during pile installation, the Corps would limit the pile installation window to start on or after May 1 and end after September 30 of each year to avoid peak adult salmon runs.

    Southern Resident killer whales were listed as endangered under the ESA in 2005 and consequently the stock is automatically considered as a “strategic” stock under the MMPA. This stock was considered “depleted” prior to its 2005 listing under the ESA.

    The West Coast transient stock ranges from Southeast Alaska to California. Preliminary analysis of photographic data resulted in the following minimum counts for `transient' killer whales belonging to the West Coast Transient Stock (NOAA 2013b). Over the time series from 1975 to 2012, 521 individual transient killer whales have been identified. Of these, 217 are considered part of the poorly known “outer coast” subpopulation and 304 belong to the well-known “inner coast” population. However, of the 304, the number of whales currently alive is not certain. A recent mark-recapture estimate that does not include the “outer coast” subpopulation or whales from California for the west coast transient population resulted in an estimate of 243 in 2006. This estimate applies to the population of West Coast transient whales that occur in the inside waters of southeastern Alaska, British Columbia, and northern Washington. Given that the California transient numbers have not been updated since the publication of the catalogue in 1997 the total number of transient killer whales reported above should be considered as a minimum count for the West Coast transient stock (NOAA 2014a)

    For this project, it is possible only the inner-coast species would be considered for potential exposure to acoustic effects. However, they are even less likely to be in the project area than Southern resident killer whales, especially outside of the peak salmon runs. The Corps is avoiding pile installation work during potential peak feeding timeframes in order to further reduce the potential for acoustic exposure. It is possible, however, that West Coast transients come in to feed on the pinniped population hauled out on the South Jetty.

    This stock of killer whales is not designated as “depleted” under the MMPA nor are they listed as “threatened” or “endangered” under the ESA. Furthermore, the West Coast transient stock of killer whales is also not classified as a strategic stock

    Gray Whale

    During summer and fall, most gray whales in the Eastern North Pacific stock feed in the Chukchi, Beaufort and northwestern Bering Seas. An exception is the relatively small number of whales (approximately 200) that summer and feed along the Pacific coast between Kodiak Island, Alaska and northern California (Carretta et al. 2014), also known as the “Pacific Coast Feeding Group.” The minimum population estimate for the Eastern North Pacific stock using the 2006/2007 abundance estimate of 19,126 and its associated coefficient of variation (CV) of 0.071 is 18,017 animals. The minimum population estimate for Pacific Coast Feeding Group gray whales is calculated as the lower 20th percentile of the log-normal distribution of the 2010 mark-recapture estimate, or 173 animals (Carretta et al. 2014). If gray whales were in the vicinity of MCR, the Pacific Coast Feeding Group would be the most likely visitor. Anecdotal evidence indicates they have been seen at MCR, but are not a common visitor, as they mostly remain in the vicinity of the offshore shelf-break (Griffith 2015).

    In 1994, the Eastern North Pacific stock of gray whales was removed from the Endangered Species List as it was no longer considered “endangered” or “threatened” under the ESA. NMFS has not designated gray whales as “depleted” under the MMPA. The Eastern North Pacific gray whale stock is not classified as “strategic.”

    Harbor Porpoise

    The harbor porpoise inhabits temporal, subarctic, and arctic waters. In the eastern North Pacific, harbor porpoises range from Point Barrow, Alaska, to Point Conception, California. Harbor porpoise primarily frequent coastal waters and occur most frequently in waters less than 100 m deep (Hobbs and Waite 2010). They may occasionally be found in deeper offshore waters.

    Harbor porpoise are known to occur year-round in the inland transboundary waters of Washington and British Columbia, Canada and along the Oregon/Washington coast. Aerial survey data from coastal Oregon and Washington, collected during all seasons, suggest that harbor porpoise distribution varies by depth. Although distinct seasonal changes in abundance along the west coast have been noted, and attributed to possible shifts in distribution to deeper offshore waters during late winter seasonal movement patterns are not fully understood. Harbor porpoises are sighted regularly at the MCR (Griffith 2015, Carretta et al. 2014).

    According to the online database, Ocean Biogeographic Information System, Spatial Ecological Analysis of Megavertebrate Populations (Halpin 2009 at OBIS-SEAMAP 2015), West Coast populations have more restricted movements and do not migrate as much as East Coast populations. Most harbor porpoise groups are small, generally consisting of less than five or six individuals, though for feeding or migration they may aggregate into large, loose groups of 50 to several hundred animals. Behavior tends to be inconspicuous, compared to most dolphins, and they feed by seizing prey which consists of wide variety of fish and cephalopods ranging from benthic or demersal.

    The Northern Oregon/Washington coast stock of harbor porpoise inhabits the waters near the proposed project area. The population estimate for this stock is calculated at 21,847 with a minimum population estimate of 15,123. (Carretta et al., 2014)

    Harbor porpoise are not listed as “depleted” under the MMPA, listed as “threatened” or “endangered” under the Endangered Species Act, or classified as “strategic.”

    Pinnipeds Steller Sea Lion

    The Steller sea lion is a pinniped and the largest of the eared seals. Steller sea lion populations that primarily occur east of 144° W (Cape Suckling, Alaska) comprise the Eastern Distinct Population Segment (DPS), which was de-listed and removed from the list of Endangered Species List on November 4, 2013 (78 FR 66140). This stock is found in the vicinity of MCR. The population west of 144° W longitude comprises the Western DPS, which is listed as endangered, based largely on over-fishing of the seal's food supply.

    The range of the Steller sea lion includes the North Pacific Ocean rim from California to northern Japan. Steller sea lions forage in nearshore and pelagic waters where they are opportunistic predators. They feed primarily on a wide variety of fishes and cephalopods. Steller sea lions use terrestrial haulout sites to rest and take refuge. They also gather on well-defined, traditionally used rookeries to pup and breed. These habitats are typically gravel, rocky, or sand beaches; ledges; or rocky reefs (Allen and Angliss, 2013).

    The MCR South Jetty is used by Steller sea lions for hauling out and is not designated critical habitat. Use occurs chiefly at the concrete block structure at the terminus, or head of the jetty, and at the emergent rubble mound comprised of the eroding jetty trunk near the terminus.

    Previous monthly averages between 1995 and 2004 for Steller sea lions hauled-out at the South Jetty head ranged from about 168 to 1,106 animals. More recent data from ODFW from 2000-2014 reflects a lower frequency of surveys, and numbers ranged from zero animals to 606 Steller sea lions (ODFW 2014). More frequent surveys by WDFW for the same time frame (2000-2014) put the monthly range at 177 to 1,663 animals throughout the year. According to ODFW (2014), most counts of animals remain at or near the jetty tip.

    Steller sea lions are present, in varying abundances, all year as is shown in the Corps application. Abundance is typically lower as the summer progresses when adults are at the breeding rookeries. Steller sea lions are most abundant in the vicinity during the winter months and tend to disperse elsewhere to rookeries during breeding season between May and July. Abundance increases following the breeding season. However, this is not always true as evidenced by a flyover count of the South Jetty on May 23, 2007 where 1,146 Steller sea lions were observed on the concrete block structure and none on the rubble mound (ODFW 2007). Those counts represent a high-use day on the South Jetty. According to ODFW (2014), during the summer months it is not uncommon to have between 500-1,000 Steller sea lions present, the majority of which are immature males and females (no pups or pregnant females). All population age classes, and both males and females, use the South Jetty to haul out. Only non-breeding individuals are typically found on the jetty during May-July, and a greater percentage of juveniles are present. There is probably a lot of turnover in sea lion numbers using the jetty. That is, the 100 or so sea lions hauled out one week might not be the same individuals hauled out the following week. Recent ODFW and WDFW survey data continue to support these findings. The most recent estimate from 2007 put the populations between 63,160 and 78,198.(Allen and Angliss, 2013). The best available information indicates the eastern stock of Steller sea lion increased at a rate of 4.18% per year between 1979 and 2010 based on an analysis of pup counts in California, Oregon, British Columbia and Southeast Alaska (Allen and Angliss, 2013).

    California Sea Lion

    California sea lions are found from the Southern tip of Baja California to southeast Alaska. They breed mainly on offshore islands from Southern California's Channel Islands south to Mexico. Non-breeding males often roam north in spring foraging for food. Since the mid-1980s, increasing numbers of California sea lions have been documented feeding on fish along the Washington coast and—more recently—in the Columbia River as far upstream as Bonneville Dam, 145 miles from the river mouth. The population size of the U.S. stock of California sea lions is estimated at 296,750 animals (Carretta et al. 2014). As with Steller sea lions, according to ODFW (2014) most counts of California sea lions are also concentrated near the tip of the jetty, although sometimes haul out about halfway down the jetty. Survey information (2007 and 2014) from ODFW indicates that California sea lions are relatively less prevalent in the Pacific Northwest during June and July, though in the months just before and after their absence there can be several hundred using the South Jetty. More frequent WDFW surveys (2014) indicate greater numbers in the summer, and use remains concentrated to fall and winter months. Nearly all California sea lions in the Pacific Northwest are sub-adult and adult males (females and young generally stay in California). Again, there is probably a lot of turnover in sea lion numbers using the jetty. (ODFW 2014).

    California sea lions in the U.S. are not listed as “endangered” or “threatened” under the Endangered Species Act, listed as “depleted” under the MMPA, or classified as “strategic” under the MMPA.

    Harbor Seal

    Harbor seals range from Baja California, north along the western coasts of the U.S., British Columbia and southeast Alaska, west through the Gulf of Alaska, Prince William Sound, and the Aleutian Islands, and north in the Bering Sea to Cape Newenham and the Pribilof Islands. They haul out on rocks, reefs, beaches, and drifting glacial ice and feed in marine, estuarine, and occasionally fresh waters. Harbor seals generally are non-migratory, with local movements associated with tides, weather, season, food availability, and reproduction. Harbor seals do not make extensive pelagic migrations, though some long distance movement of tagged animals in Alaska (900 km) and along the U.S. west coast (up to 550 km) have been recorded. Harbor seals have also displayed strong fidelity to haulout sites (Carretta et al. 2014).

    The 1999 harbor seal population estimate for the Oregon/Washington Coast stock was about 24,732 animals. However, the data used was over 8 years old and, therefore, there are no current abundance estimates. Harbor seals are not considered to be “depleted” under the MMPA or listed as “threatened” or “endangered” under the ESA. The Oregon/Washington Coast stock of harbor seals is not classified as a “strategic” stock (Carretta et al. 20140).

    Further information on the biology and local distribution of these species can be found in the Corps application available online at: http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm and the NMFS Marine Mammal Stock Assessment Reports, which may be found at: http://www.nmfs.noaa.gov/pr/species/.

    Potential Effects of the Specified Activity on Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that stressors, (e.g. pile driving,) and potential mitigation activities, associated with the rehabilitation of Jetty A at MCR may impact marine mammals and their habitat. The Estimated Take by Incidental Harassment section later in this document will include an analysis of the number of individuals that are expected to be taken by this activity. The Negligible Impact Analysis section will include the analysis of how this specific activity will impact marine mammals and will consider the content of this section, the Estimated Take by Incidental Harassment section, and the Proposed Mitigation section to draw conclusions regarding the likely impacts of this activity on the reproductive success or survivorship of individuals and from that on the affected marine mammal populations or stocks. In the following discussion, we provide general background information on sound and marine mammal hearing before considering potential effects to marine mammals from sound produced by vibratory pile driving.

    Description of Sound Sources

    Sound travels in waves, the basic components of which are frequency, wavelength, velocity, and amplitude. Frequency is the number of pressure waves that pass by a reference point per unit of time and is measured in hertz (Hz) or cycles per second. Wavelength is the distance between two peaks of a sound wave; lower frequency sounds have longer wavelengths than higher frequency sounds and attenuate (decrease) more rapidly in shallower water. Amplitude is the height of the sound pressure wave or the `loudness' of a sound and is typically measured using the decibel (dB) scale. A dB is the ratio between a measured pressure (with sound) and a reference pressure (sound at a constant pressure, established by scientific standards). It is a logarithmic unit that accounts for large variations in amplitude; therefore, relatively small changes in dB ratings correspond to large changes in sound pressure. When referring to sound pressure levels (SPLs; the sound force per unit area), sound is referenced in the context of underwater sound pressure to 1 microPascal (μPa). One pascal is the pressure resulting from a force of one newton exerted over an area of one square meter. The source level (SL) represents the sound level at a distance of 1 m from the source (referenced to 1 μPa). The received level is the sound level at the listener's position. Note that all underwater sound levels in this document are referenced to a pressure of 1 μPa and all airborne sound levels in this document are referenced to a pressure of 20 μPa.

    Root mean square (rms) is the quadratic mean sound pressure over the duration of an impulse. Rms is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick, 1983). Rms accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels (Hastings and Popper, 2005). This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units than by peak pressures.

    When underwater objects vibrate or activity occurs, sound-pressure waves are created. These waves alternately compress and decompress the water as the sound wave travels. Underwater sound waves radiate in all directions away from the source (similar to ripples on the surface of a pond), except in cases where the source is directional. The compressions and decompressions associated with sound waves are detected as changes in pressure by aquatic life and man-made sound receptors such as hydrophones.

    Even in the absence of sound from the specified activity, the underwater environment is typically loud due to ambient sound. Ambient sound is defined as environmental background sound levels lacking a single source or point (Richardson et al., 1995), and the sound level of a region is defined by the total acoustical energy being generated by known and unknown sources. These sources may include physical (e.g., waves, earthquakes, ice, atmospheric sound), biological (e.g., sounds produced by marine mammals, fish, and invertebrates), and anthropogenic sound (e.g., vessels, dredging, aircraft, construction). A number of sources contribute to ambient sound, including the following (Richardson et al., 1995):

    • Wind and waves: The complex interactions between wind and water surface, including processes such as breaking waves and wave-induced bubble oscillations and cavitation, are a main source of naturally occurring ambient noise for frequencies between 200 Hz and 50 kHz (Mitson, 1995). In general, ambient sound levels tend to increase with increasing wind speed and wave height. Surf noise becomes important near shore, with measurements collected at a distance of 8.5 km from shore showing an increase of 10 dB in the 100 to 700 Hz band during heavy surf conditions.

    • Precipitation: Sound from rain and hail impacting the water surface can become an important component of total noise at frequencies above 500 Hz, and possibly down to 100 Hz during quiet times.

    • Biological: Marine mammals can contribute significantly to ambient noise levels, as can some fish and shrimp. The frequency band for biological contributions is from approximately 12 Hz to over 100 kHz.

    • Anthropogenic: Sources of ambient noise related to human activity include transportation (surface vessels and aircraft), dredging and construction, oil and gas drilling and production, seismic surveys, sonar, explosions, and ocean acoustic studies. Shipping noise typically dominates the total ambient noise for frequencies between 20 and 300 Hz. In general, the frequencies of anthropogenic sounds are below 1 kHz and, if higher frequency sound levels are created, they attenuate rapidly (Richardson et al., 1995). Sound from identifiable anthropogenic sources other than the activity of interest (e.g., a passing vessel) is sometimes termed background sound, as opposed to ambient sound. Representative levels of anthropogenic sound are displayed in Table 2.

    The sum of the various natural and anthropogenic sound sources at any given location and time—which comprise “ambient” or “background” sound—depends not only on the source levels (as determined by current weather conditions and levels of biological and shipping activity) but also on the ability of sound to propagate through the environment. In turn, sound propagation is dependent on the spatially and temporally varying properties of the water column and sea floor, and is frequency-dependent. As a result of the dependence on a large number of varying factors, ambient sound levels can be expected to vary widely over both coarse and fine spatial and temporal scales. Sound levels at a given frequency and location can vary by 10-20 dB from day to day (Richardson et al., 1995). The result is that, depending on the source type and its intensity, sound from the specified activity may be a negligible addition to the local environment or could form a distinctive signal that may affect marine mammals.

    Table 2—Representative Sound Levels of Anthropogenic Sources Sound source Frequency
  • range (Hz)
  • Underwater
  • sound level
  • Reference
    Small vessels 250-1,000 151 dB rms at 1 m Richardson et al., 1995. Tug docking gravel barge 200-1,000 149 dB rms at 100 m Blackwell and Greene, 2002. Vibratory driving of 72-in steel pipe pile 10-1,500 180 dB rms at 10 m Reyff, 2007. Impact driving of 36-in steel pipe pile 10-1,500 195 dB rms at 10 m Laughlin, 2007. Impact driving of 66-in cast-in- steel-shell (CISS) pile 10-1,500 195 dB rms at 10 m Reviewed in Hastings and Popper, 2005.

    In-water construction activities associated with the project include vibratory pile driving and removal. There are two general categories of sound types: Impulse and non-pulse (defined in the following). Vibratory pile driving is considered to be continuous or non-pulsed while impact pile driving is considered to be an impulse or pulsed sound type. The distinction between these two sound types is important because they have differing potential to cause physical effects, particularly with regard to hearing (e.g., Ward, 1997 in Southall et al., 2007). Please see Southall et al., (2007) for an in-depth discussion of these concepts. Note that information related to impact hammers is included here for comparison. The Corps does not intend to employ the use of impact hammers as part of this proposed project. Pulsed sound sources (e.g., explosions, gunshots, sonic booms, impact pile driving) produce signals that are brief (typically considered to be less than one second), broadband, atonal transients (ANSI, 1986; Harris, 1998; NIOSH, 1998; ISO, 2003; ANSI, 2005) and occur either as isolated events or repeated in some succession. Pulsed sounds are all characterized by a relatively rapid rise from ambient pressure to a maximal pressure value followed by a rapid decay period that may include a period of diminishing, oscillating maximal and minimal pressures, and generally have an increased capacity to induce physical injury as compared with sounds that lack these features.

    Non-pulsed sounds can be tonal, narrowband, or broadband, brief or prolonged, and may be either continuous or non-continuous (ANSI, 1995; NIOSH, 1998). Some of these non-pulsed sounds can be transient signals of short duration but without the essential properties of pulses (e.g., rapid rise time). Examples of non-pulsed sounds include those produced by vessels, aircraft, machinery operations such as drilling or dredging, vibratory pile driving, and active sonar systems (such as those used by the U.S. Navy). The duration of such sounds, as received at a distance, can be greatly extended in a highly reverberant environment.

    The likely or possible impacts of the proposed pile driving program in the MCR area on marine mammals could involve both non-acoustic and acoustic stressors. Potential non-acoustic stressors could result from the physical presence of the equipment and personnel. Any impacts to marine mammals are expected to primarily be acoustic in nature. Acoustic stressors could include effects of heavy equipment operation, dredging and disposal actions, and pile installation at Jetty A.

    Marine Mammal Hearing

    When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Based on available behavioral data, audiograms have been derived using auditory evoked potentials, anatomical modeling, and other data, Southall et al. (2007) designate “functional hearing groups” for marine mammals and estimate the lower and upper frequencies of functional hearing of the groups. The functional groups and the associated frequencies are indicated below (though animals are less sensitive to sounds at the outer edge of their functional range and most sensitive to sounds of frequencies within a smaller range somewhere in the middle of their functional hearing range):

    • Low frequency cetaceans (13 species of mysticetes): functional hearing is estimated to occur between approximately 7 Hz and 30 kHz;

    • Mid-frequency cetaceans (32 species of dolphins, six species of larger toothed whales, and 19 species of beaked and bottlenose whales): functional hearing is estimated to occur between approximately 150 Hz and 160 kHz;

    • High frequency cetaceans (eight species of true porpoises, six species of river dolphins, Kogia, the franciscana, and four species of cephalorhynchids): functional hearing is estimated to occur between approximately 200 Hz and 180 kHz;

    • Phocid pinnipeds in Water: functional hearing is estimated to occur between approximately 75 Hz and 75 kHz; and

    • Otariid pinnipeds in Water: functional hearing is estimated to occur between approximately 100 Hz and 40 kHz.

    As mentioned previously in this document, nine marine mammal species (seven cetacean and two pinniped) may occur in the project area. Of the three cetacean species likely to occur in the proposed project area, one is classified as low-frequency cetaceans (i.e., minke), one is classified as a mid-frequency cetacean (i.e., killer whale), and one is classified as a high-frequency cetaceans (i.e., harbor porpoise) (Southall et al., 2007). Additionally, harbor seals are classified as members of the phocid pinnipeds in water functional hearing group while Stellar sea lions and California sea lions are grouped under the Otariid pinnipeds in water functional hearing group. A species' functional hearing group is a consideration when we analyze the effects of exposure to sound on marine mammals.

    Acoustic Impacts

    Potential Effects of Pile Driving Sound—The effects of sounds from pile driving might result in one or more of the following: temporary or permanent hearing impairment, non-auditory physical or physiological effects, behavioral disturbance, and masking (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007). The effects of pile driving on marine mammals are dependent on several factors, including the size, type, and depth of the animal; the depth, intensity, and duration of the pile driving sound; the depth of the water column; the substrate of the habitat; the standoff distance between the pile and the animal; and the sound propagation properties of the environment. Impacts to marine mammals from pile driving activities are expected to result primarily from acoustic pathways. As such, the degree of effect is intrinsically related to the received level and duration of the sound exposure, which are in turn influenced by the distance between the animal and the source. The further away from the source, the less intense the exposure should be. The substrate and depth of the habitat affect the sound propagation properties of the environment. Shallow environments are typically more structurally complex, which leads to rapid sound attenuation. In addition, substrates that are soft (e.g., sand) would absorb or attenuate the sound more readily than hard substrates (e.g., rock) which may reflect the acoustic wave. Soft porous substrates would also likely require less time to drive the pile, and possibly less forceful equipment, which would ultimately decrease the intensity of the acoustic source.

    In the absence of mitigation, impacts to marine species would be expected to result from physiological and behavioral responses to both the type and strength of the acoustic signature (Viada et al., 2008). The type and severity of behavioral impacts are more difficult to define due to limited studies addressing the behavioral effects of impulse sounds on marine mammals. Potential effects from impulse sound sources can range in severity from effects such as behavioral disturbance or tactile perception to physical discomfort, slight injury of the internal organs and the auditory system, or mortality (Yelverton et al., 1973).

    Hearing Impairment and Other Physical Effects—Marine mammals exposed to high intensity sound repeatedly or for prolonged periods can experience hearing threshold shift (TS), which is the loss of hearing sensitivity at certain frequency ranges (Kastak et al., 1999; Schlundt et al., 2000; Finneran et al., 2002, 2005). TS can be permanent (PTS), in which case the loss of hearing sensitivity is not recoverable, or temporary (TTS), in which case the animal's hearing threshold would recover over time (Southall et al., 2007). Marine mammals depend on acoustic cues for vital biological functions, (e.g., orientation, communication, finding prey, avoiding predators); thus, TTS may result in reduced fitness in survival and reproduction. However, this depends on the frequency and duration of TTS, as well as the biological context in which it occurs. TTS of limited duration, occurring in a frequency range that does not coincide with that used for recognition of important acoustic cues, would have little to no effect on an animal's fitness. Repeated sound exposure that leads to TTS could cause PTS. PTS constitutes injury, but TTS does not (Southall et al., 2007). The following subsections discuss in somewhat more detail the possibilities of TTS, PTS, and non-auditory physical effects.

    Temporary Threshold Shift—TTS is the mildest form of hearing impairment that can occur during exposure to a strong sound (Kryter, 1985). While experiencing TTS, the hearing threshold rises, and a sound must be stronger in order to be heard. In terrestrial mammals, TTS can last from minutes or hours to days (in cases of strong TTS). For sound exposures at or somewhat above the TTS threshold, hearing sensitivity in both terrestrial and marine mammals recovers rapidly after exposure to the sound ends. Few data on sound levels and durations necessary to elicit mild TTS have been obtained for marine mammals, and none of the published data concern TTS elicited by exposure to multiple pulses of sound. Available data on TTS in marine mammals are summarized in Southall et al. (2007).

    Given the available data, the received level of a single pulse (with no frequency weighting) might need to be approximately 186 dB re 1 μPa2−s (i.e., 186 dB sound exposure level [SEL] or approximately 221-226 dB p-p [peak]) in order to produce brief, mild TTS. Exposure to several strong pulses that each have received levels near 190 dB rms (175-180 dB SEL) might result in cumulative exposure of approximately 186 dB SEL and thus slight TTS in a small odontocete, assuming the TTS threshold is (to a first approximation) a function of the total received pulse energy.

    The above TTS information for odontocetes is derived from studies on the bottlenose dolphin (Tursiops truncatus) and beluga whale (Delphinapterus leucas). There is no published TTS information for other species of cetaceans. However, preliminary evidence from a harbor porpoise exposed to pulsed sound suggests that its TTS threshold may have been lower (Lucke et al., 2009). As summarized above, data that are now available imply that TTS is unlikely to occur unless odontocetes are exposed to pile driving pulses stronger than 180 dB re 1 μPa rms.

    Permanent Threshold Shift—When PTS occurs, there is physical damage to the sound receptors in the ear. In severe cases, there can be total or partial deafness, while in other cases the animal has an impaired ability to hear sounds in specific frequency ranges (Kryter, 1985). There is no specific evidence that exposure to pulses of sound can cause PTS in any marine mammal. However, given the possibility that mammals close to a sound source can incur TTS, it is possible that some individuals might incur PTS. Single or occasional occurrences of mild TTS are not indicative of permanent auditory damage, but repeated or (in some cases) single exposures to a level well above that causing TTS onset might elicit PTS.

    Relationships between TTS and PTS thresholds have not been studied in marine mammals but are assumed to be similar to those in humans and other terrestrial mammals, based on anatomical similarities. PTS might occur at a received sound level at least several decibels above that inducing mild TTS if the animal were exposed to strong sound pulses with rapid rise time. Based on data from terrestrial mammals, a precautionary assumption is that the PTS threshold for impulse sounds (such as pile driving pulses as received close to the source) is at least 6 dB higher than the TTS threshold on a peak-pressure basis and probably greater than 6 dB (Southall et al., 2007). On an SEL basis, Southall et al. (2007) estimated that received levels would need to exceed the TTS threshold by at least 15 dB for there to be risk of PTS. Thus, for cetaceans, Southall et al. (2007) estimate that the PTS threshold might be an M-weighted SEL (for the sequence of received pulses) of approximately 198 dB re 1 μPa2−s (15 dB higher than the TTS threshold for an impulse). Given the higher level of sound necessary to cause PTS as compared with TTS, it is considerably less likely that PTS could occur.

    Measured source levels from impact pile driving can be as high as 214 dB rms. Although no marine mammals have been shown to experience TTS or PTS as a result of being exposed to pile driving activities, captive bottlenose dolphins and beluga whales exhibited changes in behavior when exposed to strong pulsed sounds (Finneran et al., 2000, 2002, 2005). The animals tolerated high received levels of sound before exhibiting aversive behaviors. Experiments on a beluga whale showed that exposure to a single watergun impulse at a received level of 207 kPa (30 psi) p-p, which is equivalent to 228 dB p-p, resulted in a 7 and 6 dB TTS in the beluga whale at 0.4 and 30 kHz, respectively. Thresholds returned to within 2 dB of the pre-exposure level within four minutes of the exposure (Finneran et al., 2002). Although the source level of pile driving from one hammer strike is expected to be much lower than the single watergun impulse cited here, animals being exposed for a prolonged period to repeated hammer strikes could receive more sound exposure in terms of SEL than from the single watergun impulse (estimated at 188 dB re 1 μPa2−s) in the aforementioned experiment (Finneran et al., 2002). However, in order for marine mammals to experience TTS or PTS, the animals have to be close enough to be exposed to high intensity sound levels for a prolonged period of time. Based on the best scientific information available, these SPLs are far below the thresholds that could cause TTS or the onset of PTS.

    Non-auditory Physiological Effects—Non-auditory physiological effects or injuries that theoretically might occur in marine mammals exposed to strong underwater sound include stress, neurological effects, bubble formation, resonance effects, and other types of organ or tissue damage (Cox et al., 2006; Southall et al., 2007). Studies examining such effects are limited. In general, little is known about the potential for pile driving to cause auditory impairment or other physical effects in marine mammals. Available data suggest that such effects, if they occur at all, would presumably be limited to short distances from the sound source and to activities that extend over a prolonged period. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall et al., 2007) or any meaningful quantitative predictions of the numbers (if any) of marine mammals that might be affected in those ways. Marine mammals that show behavioral avoidance of pile driving, including some odontocetes and some pinnipeds, are especially unlikely to incur auditory impairment or non-auditory physical effects.

    Disturbance Reactions

    Disturbance includes a variety of effects, including subtle changes in behavior, more conspicuous changes in activities, and displacement. Behavioral responses to sound are highly variable and context-specific and reactions, if any, depend on species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day, and many other factors (Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007).

    Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok et al., 2003). Animals are most likely to habituate to sounds that are predictable and unvarying. The opposite process is sensitization, when an unpleasant experience leads to subsequent responses, often in the form of avoidance, at a lower level of exposure. Behavioral state may affect the type of response as well. For example, animals that are resting may show greater behavioral change in response to disturbing sound levels than animals that are highly motivated to remain in an area for feeding (Richardson et al., 1995; NRC, 2003; Wartzok et al., 2003).

    Controlled experiments with captive marine mammals showed pronounced behavioral reactions, including avoidance of loud sound sources (Ridgway et al., 1997; Finneran et al., 2003). Observed responses of wild marine mammals to loud pulsed sound sources (typically seismic guns or acoustic harassment devices, but also including pile driving) have been varied but often consist of avoidance behavior or other behavioral changes suggesting discomfort (Morton and Symonds, 2002; Thorson and Reyff, 2006; see also Gordon et al., 2004; Wartzok et al., 2003; Nowacek et al., 2007). Responses to continuous sound, such as vibratory pile installation, have not been documented as well as responses to pulsed sounds.

    With both types of pile driving, it is likely that the onset of pile driving could result in temporary, short term changes in an animal's typical behavior and/or avoidance of the affected area. These behavioral changes may include (Richardson et al., 1995): changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where sound sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haul-outs or rookeries). Pinnipeds may increase their haul-out time, possibly to avoid in-water disturbance (Thorson and Reyff, 2006).

    The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be expected to be biologically significant if the change affects growth, survival, or reproduction. Significant behavioral modifications that could potentially lead to effects on growth, survival, or reproduction include:

    • Drastic changes in diving/surfacing patterns (such as those thought to cause beaked whale stranding due to exposure to military mid-frequency tactical sonar);

    • Habitat abandonment due to loss of desirable acoustic environment; and

    • Cessation of feeding or social interaction.

    The onset of behavioral disturbance from anthropogenic sound depends on both external factors (characteristics of sound sources and their paths) and the specific characteristics of the receiving animals (hearing, motivation, experience, demography) and is difficult to predict (Southall et al., 2007).

    Auditory Masking—Natural and artificial sounds can disrupt behavior by masking, or interfering with, a marine mammal's ability to hear other sounds. Masking occurs when the receipt of a sound is interfered with by another coincident sound at similar frequencies and at similar or higher levels. Chronic exposure to excessive, though not high-intensity, sound could cause masking at particular frequencies for marine mammals that utilize sound for vital biological functions. Masking can interfere with detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. Therefore, under certain circumstances, marine mammals whose acoustical sensors or environment are being severely masked could also be impaired from maximizing their performance fitness in survival and reproduction. If the coincident (masking) sound were anthropogenic, it could be potentially harassing if it disrupted hearing-related behavior. It is important to distinguish TTS and PTS, which persist after the sound exposure, from masking, which occurs only during the sound exposure. Because masking (without resulting in TS) is not associated with abnormal physiological function, it is not considered a physiological effect, but rather a potential behavioral effect.

    Masking occurs at the frequency band which the animals utilize so the frequency range of the potentially masking sound is important in determining any potential behavioral impacts. Because sound generated from in-water vibratory pile driving is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds made by porpoises. However, lower frequency man-made sounds are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey sound. It may also affect communication signals when they occur near the sound band and thus reduce the communication space of animals (e.g., Clark et al., 2009) and cause increased stress levels (e.g., Foote et al., 2004; Holt et al., 2009).

    Masking has the potential to impact species at the population or community levels as well as at individual levels. Masking affects both senders and receivers of the signals and can potentially have long-term chronic effects on marine mammal species and populations. Recent research suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of SPL) in the world's ocean from pre-industrial periods, and that most of these increases are from distant shipping (Hildebrand, 2009). All anthropogenic sound sources, such as those from vessel traffic, pile driving, and dredging activities, contribute to the elevated ambient sound levels, thus intensifying masking.

    Vibratory pile driving is relatively short-term, with rapid oscillations occurring for 10 to 30 minutes per installed pile. It is possible that vibratory pile driving resulting from this proposed action may mask acoustic signals important to the behavior and survival of marine mammal species, but the short-term duration and limited affected area would result in insignificant impacts from masking. Any masking event that could possibly rise to Level B harassment under the MMPA would occur concurrently within the zones of behavioral harassment already estimated for vibratory pile driving, and which have already been taken into account in the exposure analysis.

    Acoustic Effects, Airborne—Marine mammals that occur in the project area could be exposed to airborne sounds associated with pile driving that have the potential to cause harassment, depending on their distance from pile driving activities. Airborne pile driving sound would have less impact on cetaceans than pinnipeds because sound from atmospheric sources does not transmit well underwater (Richardson et al., 1995); thus, airborne sound would only be an issue for pinnipeds either hauled-out or looking with heads above water in the project area. Most likely, airborne sound would cause behavioral responses similar to those discussed above in relation to underwater sound. For instance, anthropogenic sound could cause hauled-out pinnipeds to exhibit changes in their normal behavior, such as reduction in vocalizations, or cause them to temporarily abandon their habitat and move further from the source. Studies by Blackwell et al. (2004) and Moulton et al. (2005) indicate a tolerance or lack of response to unweighted airborne sounds as high as 112 dB peak and 96 dB rms. However, since there are no haulout areas in the immediate vicinity of Jetty A, pinnipeds are unlikely to be disturbed by airborne acoustics associated with pile driving activities. Therefore, such impacts to will not be considered as part of the analysis

    Vessel Interaction

    Besides being susceptible to vessel strikes, cetacean and pinniped responses to vessels may result in behavioral changes, including greater variability in the dive, surfacing, and respiration patterns; changes in vocalizations; and changes in swimming speed or direction (NRC 2003). There will be a temporary and localized increase in vessel traffic during construction. A maximum of three work barges will be present at any time during the in-water and over water work. The barges will be located near each other where construction is occurring

    Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory and impact pile driving and removal in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.

    Potential Pile Driving Effects on Prey—Construction activities would produce continuous (i.e., vibratory pile driving) sounds. Fish react to sounds that are especially strong and/or intermittent low-frequency sounds. Short duration, sharp sounds can cause overt or subtle changes in fish behavior and local distribution. Hastings and Popper (2005) identified several studies that suggest fish may relocate to avoid certain areas of sound energy. Additional studies have documented effects of pile driving on fish, although several are based on studies in support of large, multiyear bridge construction projects (e.g., Scholik and Yan, 2001, 2002; Popper and Hastings, 2009). Sound pulses at received levels of 160 dB may cause subtle changes in fish behavior. SPLs of 180 dB may cause noticeable changes in behavior (Pearson et al., 1992; Skalski et al., 1992). SPLs of sufficient strength have been known to cause injury to fish and fish mortality. The most likely impact to fish from pile driving activities at the project area would be temporary behavioral avoidance of the area. The duration of fish avoidance of this area after pile driving stops is unknown, but a rapid return to normal recruitment, distribution and behavior is anticipated. Additionally, NMFS 2011 Biological Opinion indicated that no adverse effects were anticipated for critical habitat of prey species for marine mammals. In general, impacts to marine mammal prey species are expected to be minor and temporary due to the short timeframe for the project.

    Effects to Foraging Habitat—Pile installation may temporarily increase turbidity resulting from suspended sediments. Any increases would be temporary, localized, and minimal. The Corps must comply with state water quality standards during these operations by limiting the extent of turbidity to the immediate project area. In general, turbidity associated with pile installation is localized to about a 25-foot radius around the pile (Everitt et al. 1980). Cetaceans are not expected to be close enough to the project pile driving areas to experience effects of turbidity, and any pinnipeds will be transiting the terminal area and could avoid localized areas of turbidity. Therefore, the impact from increased turbidity levels is expected to be discountable to marine mammals. Furthermore, pile driving and removal at the project site will not obstruct movements or migration of marine mammals.

    Natural tidal currents and flow patterns in MCR waters routinely disturb sediments. High volume tidal events can result in hydraulic forces that re-suspend benthic sediments, temporarily elevating turbidity locally. Any temporary increase in turbidity as a result of the proposed action is not anticipated to measurably exceed levels caused by these normal, natural periods.

    Proposed Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking” for certain subsistence uses.

    For the proposed project, the Corps worked with NMFS and proposed the following mitigation measures to minimize the potential impacts to marine mammals in the project vicinity. The primary purposes of these mitigation measures are to minimize sound levels from the activities, and to monitor marine mammals within designated zones of influence corresponding to NMFS' current Level A and B harassment thresholds which are depicted in Table 3 found later in the Estimated Take by Incidental Harassment section.

    The Corps committed to the use of vibratory hammers for pile installation and will implement a soft-start procedure. In order to avoid exposure of Southern resident killer whales (Orcinus orca) the Corps also is limiting the installation window to on or after May 1 and will avoid installation or removal after September 30

    Monitoring Protocols—Monitoring would be conducted before, during, and after pile driving and removal activities. In addition, observers shall record all incidents of marine mammal occurrence, regardless of distance from activity, and shall document any behavioral reactions in concert with distance from piles being driven. Observations made outside the shutdown zone will not result in shutdown; that pile segment would be completed without cessation, unless the animal approaches or enters the shutdown zone, at which point all pile driving activities would be halted. Monitoring will take place from 15 minutes prior to initiation through thirty minutes post-completion of pile driving activities. Pile driving activities include the time to remove a single pile or series of piles, as long as the time elapsed between uses of the pile driving equipment is no more than thirty minutes. Please see Section 13 of the Application for details on the marine mammal monitoring plan developed by the Corps with NMFS' cooperation.

    The following additional measures apply to visual monitoring:

    (1) Monitoring will be conducted by qualified observers, who will be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown/delay procedures when applicable by calling for the shutdown to the hammer operator. These vantage points include Jett A or the barge. Qualified observers are trained biologists, with the following minimum qualifications:

    (a) Visual acuity in both eyes (correction is permissible) sufficient for discernment of moving targets at the water's surface with ability to estimate target size and distance; use of binoculars may be necessary to correctly identify the target;

    (b) Advanced education in biological science or related field (undergraduate degree or higher required);

    (c) Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience);

    (d) Experience or training in the field identification of marine mammals, including the identification of behaviors;

    (e) Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;

    (f) Writing skills sufficient to prepare a report of observations including but not limited to the number and species of marine mammals observed; dates and times when in-water construction activities were conducted; dates and times when in-water construction activities were suspended to avoid potential incidental injury from construction sound of marine mammals observed within a defined shutdown zone; and marine mammal behavior; and

    (g) Ability to communicate orally, by radio or in person, with project personnel to provide real-time information on marine mammals observed in the area as necessary.

    (2) Prior to the start of pile driving activity, the shutdown zone will be monitored for 15 minutes to ensure that it is clear of marine mammals. Pile driving will only commence once observers have declared the shutdown zone clear of marine mammals; animals will be allowed to remain in the shutdown zone (i.e., must leave of their own volition) and their behavior will be monitored and documented. The shutdown zone may only be declared clear, and pile driving started, when the entire shutdown zone is visible (i.e., when not obscured by dark, rain, fog, etc.). In addition, if such conditions should arise during impact pile driving that is already underway, the activity would be halted.

    If a marine mammal approaches or enters the shutdown zone during the course of pile driving operations, activity will be halted and delayed until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or 15 minutes have passed without re-detection of the animal. Monitoring will be conducted throughout the time required to drive a pile.

    Soft Start—The use of a soft start procedure is believed to provide additional protection to marine mammals by warning or providing a chance to leave the area prior to the hammer operating at full capacity, and typically involves a requirement to initiate sound from the hammer at reduced energy followed by a waiting period. This procedure is repeated two additional times. It is difficult to specify the reduction in energy for any given hammer because of variation across drivers. The project will utilize soft start techniques for all vibratory pile driving. We require the Corps to initiate sound from vibratory hammers for fifteen seconds at reduced energy followed by a thirty-second waiting period, with the procedure repeated two additional times. Soft start will be required at the beginning of each day's pile driving work and at any time following a cessation of pile driving of 20 minutes or longer.

    In addition to the measures described later in this section, the Corps would employ the following standard mitigation measures:

    (a) Conduct briefings between construction supervisors and crews, marine mammal monitoring team, and Corps staff prior to the start of all pile driving activity, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.

    (b) For in-water heavy machinery work other than pile driving (using, e.g., standard barges, tug boats, barge-mounted excavators, or clamshell equipment used to place or remove material), if a marine mammal comes within 10 m, operations shall cease and vessels shall reduce speed to the minimum level required to maintain steerage and safe working conditions. This type of work could include the following activities: (1) Movement of the barge to the pile location or (2) positioning of the pile on the substrate via a crane (i.e., stabbing the pile).

    Monitoring and Shutdown for Pile Driving

    The following measures would apply to the Corps' mitigation through shutdown and disturbance zones:

    Shutdown Zone—For all pile driving activities, the Corps will establish a shutdown zone. Shutdown zones are intended to contain the area in which SPLs equal or exceed the 180/190 dB rms acoustic injury criteria, with the purpose being to define an area within which shutdown of activity would occur upon sighting of a marine mammal (or in anticipation of an animal entering the defined area), thus preventing injury of marine mammals. The estimated shutdown zone for Level A injury to cetaceans would be 1 meter. The Corps, however, would implement a minimum shutdown zone of 10 m radius for all marine mammals around all vibratory pile driving and removal activities. These precautionary measures are intended to further reduce the unlikely possibility of injury from direct physical interaction with construction operations.

    Disturbance Zone—Disturbance zones are the areas in which sound pressure levels (SPLs) equal or exceed 120 dB rms (for continuous sound) for pile driving installation and removal. Disturbance zones provide utility for monitoring conducted for mitigation purposes (i.e., shutdown zone monitoring) by establishing monitoring protocols for areas adjacent to the shutdown zones. Monitoring of disturbance zones enables observers to be aware of and communicate the presence of marine mammals in the project area but outside the shutdown zone and thus prepare for potential shutdowns of activity. However, the primary purpose of disturbance zone monitoring is for documenting incidents of Level B harassment; disturbance zone monitoring is discussed in greater detail later (see “Proposed Monitoring and Reporting”). Nominal radial distances for disturbance zones are shown in Table 4 later in this notice. The shutdown zone for Level B injury wound extend 7,356 meters from the sound source. Given the size of the disturbance zone for vibratory pile driving, it is impossible to guarantee that all animals would be observed or to make comprehensive observations of fine-scale behavioral reactions to sound. We discuss monitoring objectives and protocols in greater depth in “Proposed Monitoring and Reporting.”

    In order to document observed incidents of harassment, monitors record all marine mammal observations, regardless of location. The observer's location, as well as the location of the pile being driven, is known from a GPS. The location of the animal is estimated as a distance from the observer, which is then compared to the location from the pile and the estimated zone of influence (ZOI) for relevant activities (i.e., pile installation and removal). This information may then be used to extrapolate observed takes to reach an approximate understanding of actual total takes.

    Time Restrictions—Work would occur only during daylight hours, when visual monitoring of marine mammals can be conducted. In order minimize impact to Southern resident killer whales, in-water work will not be conducted during their primary feeding season extending from October 1 until on or after May 1. Installation could occur from May 1 through September 30 each year.

    Mitigation Conclusions

    NMFS has carefully evaluated the applicant's proposed mitigation measures and considered a range of other measures in the context of ensuring that NMFS prescribes the means of affecting the least practicable impact on the affected marine mammal species and stocks and their habitat. Our evaluation of potential measures included consideration of the following factors in relation to one another:

    • The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals

    • The proven or likely efficacy of the specific measure to minimize adverse impacts as planned

    • The practicability of the measure for applicant implementation,

    Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed below:

    1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).

    2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of pile driving, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of pile driving, or other activities expected to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).

    4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of pile driving, or other activities expected to result in the take of marine mammals (this goal may contribute to a, above, or to reducing the severity of harassment takes only).

    5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.

    6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.

    Based on our evaluation of the applicant's proposed measures, as well as other measures considered by NMFS, NMFS has preliminarily determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Proposed Monitoring and Reporting

    In order to issue an ITA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for incidental take authorizations (ITAs) must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.

    Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:

    1. An increase in the probability of detecting marine mammals, both within the mitigation zone (thus allowing for more effective implementation of the mitigation) and in general to generate more data to contribute to the analyses mentioned below;

    2. An increase in our understanding of how many marine mammals are likely to be exposed to levels of pile driving that we associate with specific adverse effects, such as behavioral harassment, TTS, or PTS;

    3. An increase in our understanding of how marine mammals respond to stimuli expected to result in take and how anticipated adverse effects on individuals (in different ways and to varying degrees) may impact the population, species, or stock (specifically through effects on annual rates of recruitment or survival) through any of the following methods:

    Behavioral observations in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);

    Physiological measurements in the presence of stimuli compared to observations in the absence of stimuli (need to be able to accurately predict received level, distance from source, and other pertinent information);

    Distribution and/or abundance comparisons in times or areas with concentrated stimuli versus times or areas without stimuli;

    4. An increased knowledge of the affected species; and

    5. An increase in our understanding of the effectiveness of certain mitigation and monitoring measures.

    The Corps submitted a marine mammal monitoring plan as part of the IHA application for this project, which can be found at www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. The plan may be modified or supplemented based on comments or new information received from the public during the public comment period.

    Visual Marine Mammal Observation

    The Corps will collect sighting data and behavioral responses to construction for marine mammal species observed in the region of activity during the period of activity. All observers will be trained in marine mammal identification and behaviors and are required to have no other construction-related tasks while conducting monitoring. The Corps will monitor the shutdown zone and disturbance zone before, during, and after pile driving, with at least one located at a best practicable vantage point, such as on the Jetty A or the barge. Based on our requirements, the Marine Mammal Monitoring Plan would implement the following procedures for pile driving:

    • Individuals meeting the minimum qualifications identified in the applicant's monitoring plan, Section 13 of the application, Level A and Level B harassment zones during impact during vibratory pile driving.

    • The area within the Level B harassment threshold for impact driving (shown in Figure 19 of the application) will be monitored by the field monitor stationed either on Jetty A or a pile driving rig. Any marine mammal documented within the Level B harassment zone during impact driving would constitute a Level B take (harassment), and will be recorded and reported as such.

    • During vibratory pile driving, a shutdown zone will be established to include all areas where the underwater SPLs are anticipated to equal or exceed the Level A (injury) criteria for marine mammals (180 dB isopleth for cetaceans; 190 dB isopleth for pinnipeds). Pile installation will not commence or will be suspended temporarily if any marine mammals are observed within or approaching the area. The shutdown zone will always be a minimum of 10 meters (33 feet) to prevent injury from physical interaction of marine mammals with construction equipment

    • The individuals will scan the waters within each monitoring zone activity using binoculars (Vector 10X42 or equivalent), spotting scopes (Swarovski 20-60 zoom or equivalent), and visual observation.

    • Use a hand-held or boat-mounted GPS device or rangefinder to verify the required monitoring distance from the project site.

    • If waters exceed a sea-state which restricts the observers' ability to make observations within the marine mammal shutdown zone (e.g. excessive wind or fog), pile installation will cease. Pile driving will not be initiated until the entire shutdown zone is visible.

    • Conduct pile driving only during daylight hours from sunrise to sunset when it is possible to visually monitor marine mammals.

    • The waters will be scanned 15 minutes prior to commencing pile driving at the beginning of each day, and prior to commencing pile driving after any stoppage of 15 minutes or greater. If marine mammals enter or are observed within the designated marine mammal shutdown zone during or 15 minutes prior to pile driving, the monitors will notify the on-site construction manager to not begin until the animal has moved outside the designated radius.

    • The waters will continue to be scanned for at least 30 minutes after pile driving has completed each day, and after each stoppage of 20 minutes or greater.

    Data Collection

    We require that observers use approved data forms. Among other pieces of information, the Corps will record detailed information about any implementation of shutdowns, including the distance of animals to the pile and description of specific actions that ensued and resulting behavior of the animal, if any. In addition, the Corps will attempt to distinguish between the number of individual animals taken and the number of incidents of take. We require that, at a minimum, the following information be collected on the sighting forms:

    • Date and time that monitored activity begins or ends;

    • Construction activities occurring during each observation period;

    • Weather parameters (e.g., percent cover, visibility);

    • Water conditions (e.g., sea state, tide state);

    • Species, numbers, and, if possible, sex and age class of marine mammals;

    • Description of any observable marine mammal behavior patterns, including bearing and direction of travel and distance from pile driving activity;

    • Distance from pile driving activities to marine mammals and distance from the marine mammals to the observation point;

    • Locations of all marine mammal observations; and

    • Other human activity in the area.

    Proposed Reporting Measures

    The Corps would provide NMFS with a draft monitoring report within 90 days of the conclusion of the proposed construction work. This report will detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed. If no comments are received from NMFS within 30 days, the draft final report will constitute the final report. If comments are received, a final report must be submitted within 30 days after receipt of comments.

    In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the IHA (if issued), such as an injury (Level A harassment), serious injury or mortality (e.g., ship-strike, gear interaction, and/or entanglement), the Corps would immediately cease the specified activities and immediately report the incident to Jolie Harrison ([email protected]), Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and Brent Norberg ([email protected]), the West Coast Regional Stranding Coordinator. The report would include the following information:

    • Time, date, and location (latitude/longitude) of the incident;

    • Name and type of vessel involved;

    • Vessel's speed during and leading up to the incident;

    • Description of the incident;

    • Status of all sound source use in the 24 hours preceding the incident;

    • Water depth;

    • Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    • Description of all marine mammal observations in the 24 hours preceding the incident;

    • Species identification or description of the animal(s) involved;

    • Fate of the animal(s); and

    • Photographs or video footage of the animal(s) (if equipment is available).

    Activities would not resume until NMFS is able to review the circumstances of the prohibited take. NMFS would work with the Corps to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Corps would not be able to resume their activities until notified by NMFS via letter, email, or telephone.

    In the event that the Corps discovers an injured or dead marine mammal, and the lead MMO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), the Corps would immediately report the incident to Jolie Harrison ([email protected]), Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and Brent Norberg ([email protected]), the West Coast Regional Stranding Coordinator .

    The report would include the same information identified in the paragraph above. Activities would be able to continue while NMFS reviews the circumstances of the incident. NMFS would work with the Corps to determine whether modifications in the activities are appropriate.

    In the event that the Corps discovers an injured or dead marine mammal, and the lead MMO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the Corps would report the incident to Jolie Harrison ([email protected]), Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, the Chief of the Permits and Conservation Division, Office of Protected Resources, NMFS, and the NMFS West Coast Stranding Hotline and/or by email to Brent Norberg ([email protected]), the West Coast Regional Stranding Coordinator, within 24 hours of the discovery. The Corps would provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network.

    Estimated Take by Incidental Harassment

    Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: “. . . any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild [Level A harassment]; or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering [Level B harassment].”

    All anticipated takes would be by Level B harassment resulting from vibratory pile driving and removal and may result in temporary changes in behavior. Injurious or lethal takes are not expected due to the expected source levels and sound source characteristics associated with the activity, and the proposed mitigation and monitoring measures are expected to further minimize the possibility of such take.

    If a marine mammal responds to a stimulus by changing its behavior (e.g., through relatively minor changes in locomotion direction/speed or vocalization behavior), the response may or may not constitute taking at the individual level, and is unlikely to affect the stock or the species as a whole. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on animals or on the stock or species could potentially be significant (e.g., Lusseau and Bejder, 2007; Weilgart, 2007). Given the many uncertainties in predicting the quantity and types of impacts of sound on marine mammals, it is common practice to estimate how many animals are likely to be present within a particular distance of a given activity, or exposed to a particular level of sound.

    Upland work can generate airborne sound and create visual disturbance that could potentially result in disturbance to marine mammals (specifically, pinnipeds) that are hauled out or at the water's surface with heads above the water. However, because there are no regular haul-outs in the vicinity of Jetty A, we believe that incidents of incidental take resulting from airborne sound or visual disturbance are unlikely.

    The Corps requested authorization for the incidental taking of small numbers of killer whale, Gray whale, harbor porpoise, Steller sea lion, California sea lion, and harbor seal near the MCR project area that may result from vibratory pile driving and removal during construction activities associated with the rehabilitation of Jetty A at the MCR.

    In order to estimate the potential incidents of take that may occur incidental to the specified activity, we must first estimate the extent of the sound field that may be produced by the activity and then consider in combination with information about marine mammal density or abundance in the project area. We first provide information on applicable sound thresholds for determining effects to marine mammals before describing the information used in estimating the sound fields, the available marine mammal density or abundance information, and the method of estimating potential incidences of take.

    Sound Thresholds

    We use generic sound exposure thresholds to determine when an activity that produces sound might result in impacts to a marine mammal such that a take by harassment might occur. To date, no studies have been conducted that explicitly examine impacts to marine mammals from pile driving sounds or from which empirical sound thresholds have been established. These thresholds (Table 3) are used to estimate when harassment may occur (i.e., when an animal is exposed to levels equal to or exceeding the relevant criterion) in specific contexts; however, useful contextual information that may inform our assessment of effects is typically lacking and we consider these thresholds as step functions. NMFS is working to revise these acoustic guidelines; for more information on that process, please visit www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

    Table 3—Underwater Injury and Disturbance Threshold Decibel Levels for Marine Mammals Criterion Criterion definition Threshold * Level A harassment PTS (injury) conservatively based on TTS ** 190 dB RMS for pinnipeds
  • 180 dB RMS for cetaceans
  • Level B harassment Behavioral disruption for impulse noise (e.g., impact pile driving) 160 dB RMS Level B harassment Behavioral disruption for non-pulse noise (e.g., vibratory pile driving, drilling) 120 dB RMS * All decibel levels referenced to 1 micropascal (re: 1 μPa). Note all thresholds are based off root mean square (RMS) levels ** PTS=Permanent Threshold Shift; TTS=Temporary Threshold Shift.
    Distance to Sound Thresholds

    Underwater Sound Propagation Formula—Pile driving generates underwater noise that can potentially result in disturbance to marine mammals in the project area. Transmission loss (TL) is the decrease in acoustic intensity as an acoustic pressure wave propagates out from a source. TL parameters vary with frequency, temperature, sea conditions, current, source and receiver depth, water depth, water chemistry, and bottom composition and topography. The general formula for underwater TL is:

    TL = B * log 10 (R 1/R 2), where TL = transmission loss in dB R 1= the distance of the modeled SPL from the driven pile, and R 2= the distance from the driven pile of the initial measurement.

    This formula neglects loss due to scattering and absorption, which is assumed to be zero here. The degree to which underwater sound propagates away from a sound source is dependent on a variety of factors, most notably the water bathymetry and presence or absence of reflective or absorptive conditions including in-water structures and sediments. Spherical spreading occurs in a perfectly unobstructed (free-field) environment not limited by depth or water surface, resulting in a 6 dB reduction in sound level for each doubling of distance from the source (20*log[range]). Cylindrical spreading occurs in an environment in which sound propagation is bounded by the water surface and sea bottom, resulting in a reduction of 3 dB in sound level for each doubling of distance from the source (10*log[range]). A practical spreading value of fifteen is often used under conditions where water increases with depth as the receiver moves away from the shoreline, resulting in an expected propagation environment that would lie between spherical and cylindrical spreading loss conditions. Practical spreading loss (4.5 dB reduction in sound level for each doubling of distance) is assumed here.

    The Corps does not have information or modeling results related to pile installation activities. However, some features of the proposed action are similar to those recently proposed by the Navy, WSDOT, and other entities which were issued IHA/LOAs. For these reasons, NMFS considered some of the results from previous, representative monitoring efforts. Though the MCR navigation channel is a major commercial thoroughfare, there are no ports or piers in the immediate proximity of the jetties, as the seas are too dangerous. The location and setting of the MCR jetties is far more dynamic than a naval pier setting in the Puget Sound, the substrate is mostly sand, and the natural background noise is likely to be much higher with the large, breaking wave sets, dynamic currents, and high winds. The Corps project is also in the immediate proximity of the open ocean, with less opportunity for sound attenuation by land.

    NMFS considered representative results from underwater monitoring for concrete, steel, and wood piles that were installed via both impact and vibratory hammers in water depths from 5 to 15 meters (Illingworth and Rodkin 2007, WSDOT 2011 cited in Naval Base Kitsap 2014, Navy 2014, and NMFS 2011b). Transmission loss and propagation estimates are affected by the size and depth of the piles, the type of hammer and installation method, frequency, temperature, sea conditions, currents, source and receiver depth, water depth, water chemistry, and bottom composition and topography. NMFS reviewed several documents that included relevant monitoring results for radial distances and proxy sound levels encompassed by underwater pile driving noise. These distances for impact driving and vibratory driving for 24-in steel piles were summarized previously in Table 15 and Table 16 in the Application.

    Since no site-specific, in-water noise attenuation data is available, the practical spreading model described and used by NMFS was used to determine transmission loss and the distances at which impact and vibratory pile driving or removal source levels are expected to attenuate down to the pertinent acoustic thresholds. The underwater practical spreading model is provided below:

    R2 = R1 * 10^ ((dBat R1- dBacoustic threshold)/15) where: R1 = distance of a known or measured sound level. R2 = estimated distance required for sound to attenuate to a prescribed acoustic threshold.

    NMFS used representative sound levels from different studies to determine appropriate proxy sound levels and to model estimated distances until pertinent thresholds (R1 and dB at R1). Studies which met the following parameters were considered: Pile materials comprised of wood, concrete, and steel pipe piles; pile sizes 24- up to 30-inches diameter, and pile driver type of either vibratory and impact hammers. These types and sizes of piles were considered in order to evaluate a representative range of sound levels that may result from the Proposed Action. In some cases since there was little or no data specific to 24-inch piles, NMFS analyzed 30-inch piles as the next larger pile size with available data. The Corps will include a maximum pile size of 24-inches as a constraint in its construction contracts, though it will consult with NMFS regarding the originally proposed size.

    Results of the practical spreading model provided the distance of the radii that were used to establish a ZOI or area affected by the noise criteria. At the MCR, the channel is about 3 miles across between the South and North Jetty. These jetties, as well as Jetty A, could attenuate noise, but the flanking sides on two of the jetties are open ocean, and Jetty A is slightly further interior in the estuary. Clatsop Spit, Cape Disappointment, Hammond Point, as well as the Sand Islands, are also land features that would attenuate noise. Therefore, as a conservative estimate, the NMFS is using (and showing on ZOI maps) the maximum distance and area but has indicated jetty attenuation in the ZOI area maps (See Figure 19 in the Application).

    NMFS selected proxy values for impact installation methods and calculated distances to acoustic thresholds for comparison and contextual purposes. As note previously, the Corps is not proposing impact installation. NMFS ultimately relied most heavily on the proxy values developed by the Navy (2014).

    For impact installation, NMFS used 193 rms dB re 1 µPa rms at a distance of 10 meters, which is comprised of the range of average rms of n-weighted piles used to determine the recommended proxy source SPLs at 10m as determined by Navy (2014). The Tongue Point data (182 db re 1 µPa rms at a distance of 10 meters for 24-in steel piles (Navy 2014) is likely applicable to this MCR jetty project because it is of similar sandy rather than gravely substrate; and it is within the same geographical and hydraulic context, though it is likely more sheltered than conditions at the jetties. Therefore, 193 rms dB re 1 µPa rms is an extremely conservative proxy estimate for impact installation, as sandy substrate and the hydraulic context at the MCR project area would further reduce spreading distance. Note that impact driving is not being proposed by the Corps.

    For vibratory installation, NMFS proposes 163 dB re 1 μPa rms. The proxy value of 163 dB re 1 μPa rms is greater than the 24-inch pipe pile proxy and equal to the sheet pile values proposed by Navy (2014) at 161 dB re 1 µPa rms and 163 dB re 1 µPa rms, respectively, and is also higher than the Friday Harbor Ferry sample (162 dB re 1 µPa rms) (Navy 2014 and Laughlin 2010a cited in Washington State Ferries 2013, respectively). NMFS also proposes 163 dB re 1 µPa rms to reflect sheet pile installation, which registered higher than the pipe pile levels in the proxy study. Given the comparative differences between the substrate and context used in the Navy study relative to the MCR, 163 dB re 1 µPa rms is a very conservative evaluation level. Results are listed in Table 4.

    Table 4. Calculated Area Encompassed Within Zone of Influence at MCR Jetties for Underwater Marine Mammal Sound Thresholds at Jetty A Jetty Underwater threshold Distance—m (ft) Area excluding land & jetty masses—km2 (mi2) Jetty A: ~ Station 78+50, River Side Impact driving, pinniped injury (190 dB)* 16 (52.5) <0.001 (0.0003) Impact driving, cetacean injury (180 dB)* 74 (242.8) 0.01 (0.004) Impact driving, disturbance (160 dB)* 1,585 (5,200.1, or ~1 mile) 3.38 (1.31) Vibratory driving, pinniped injury (190 dB) 0 0 Vibratory driving, cetacean injury (180 dB) 1 (3.3) <0.000003
  • (0.000001)
  • Vibratory driving, disturbance (120 dB) 7,356 (4.6 miles) 23.63 (9.12)

    Note that the actual area insonified by pile driving activities is significantly constrained by local topography relative to the total threshold radius. The actual insonified area was determined using a straight line-of-sight projection from the anticipated pile driving locations. This area is depicted in Table 4 and represented in the Application submitted by the Corps in Figure 19 of the Application.

    The method used for calculating potential exposures to impact and vibratory pile driving noise for each threshold was estimated using local marine mammal data sets, the Biological Opinion, best professional judgment from state and federal agencies, and data from IHA estimates on similar projects with similar actions. All estimates are conservative and include the following assumptions:

    • During construction, each species could be present in the project area each day. The potential for a take is based on a 24-hour period. The model assumes that there can be one potential take (Level B harassment exposure) per individual per 24-hours.

    • All pilings installed at each site would have an underwater noise disturbance equal to the piling that causes the greatest noise disturbance (i.e., the piling furthest from shore) installed with the method that has the largest ZOI. The largest underwater disturbance ZOI would be produced by vibratory driving steel piles. The ZOIs for each threshold are not spherical and are truncated by land masses which would dissipate sound pressure waves.

    • Exposures were based on estimated work days. Numbers of days were based on an average production rate of 15 pilings per day for a total of 68 pile installation days. This means construction at each jetty offloading facility would occur over an approximate span of ~ 17 days.

    • In absence of site specific underwater acoustic propagation modeling, the practical spreading loss model was used to determine the ZOI.

    Killer Whale

    Southern resident killer whales have been observed offshore near the study area and ZOI, but the Corps does not have fine-scale details on frequency of use. However, as noted in Section 3, members of K and L pods were sighted off the Oregon Coast in 1999 and 2000 and whales move as far north as Canada down to California, passing the MCR. While killer whales do occur in the Columbia River plume, where fresh water from the river intermixes with salt water from the ocean, they are rarely seen in the interior of the Columbia River Jetty system. The insonified area associated with the proposed action at Jetty A does not extend out into the open ocean where killer whales are likely to be found. Furthermore, the Corps has limited its pile installation window in order to avoid peak salmon runs and any overlap with the presence of Southern residents. To ensure no Level B acoustical harassment occurs, the Corps will restrict pile installation from October 1 until on or after May 1 of each season. However, this restriction was enacted primarily for construction work at the North and South jetties, where the insonified zone will radiate out towards the open ocean. As such NMFS is not anticipating any acoustic exposure to Southern residents. Also note that in the 2011 Biological Opinion, NMFS issued a not likely to adversely affect determination. Therefore, NMFS has determined that authorization of take for Southern residents is not warranted.

    Western Transient killer whales may be traversing offshore over a greater duration of time than the feeding resident. They are rarely observed inside of the jetty system. The Southwest Fisheries Science Center (SWFSC) stratum model under the Marine Animal Monitor Model provides an estimated density of 0.00070853 animals per km 2 for summer killer whales for areas near MCR, which may provide a surrogate proxy value for assuming possible densities near the jetties (Barlow et al. 2009, Halpin et al. 2009 at OBIS-SEAMAP). Given anecdotal evidence (Griffith 2015) and sightings recorded on the OBIS network from surveys done in 2005 (Halpin et al. 2009, OBIS-SEAMAP 2015), this density may be appropriate for the MCR vicinity.

    The following formula was used to calculate exposure using

    Exposure Estimate = (0.000708DensityEstimate * 23.63ZOI Jetty A * 17days) = 0.28 killer whale exposures Where: NDensityEstimate = Represents estimated density of species within the 4.6-mile radius encompassing the ZOI at Jetty A; using the density model suggested by NOAA (2015), this equates to 0.000708 animals per km 2 (Barlow et al. 2009). Days = Total days of pile installation or removal activity (~17 days)

    Given the low density and rare occurrence of transient killer whales in the ZOI, exposure of feeding or transient killer whales to Level B acoustical harassment from pile driving is unlikely to occur. However, NMFS proposes to authorize take of small number due to the remote chance that transient orcas remain in the vicinity to feed on pinnipeds that frequent the haulouts at the South Jetty.

    NMFS proposes to authorize the take of 8 transients because solitary killer whales are rarely observed, and transient whales travel in pods of 2-15 members. NMFS has assumed a pod size of 8.