| Page Range | 58573-59020 | |
| FR Document |
| Page and Subject | |
|---|---|
| 80 FR 59019 - National Public Lands Day, 2015 | |
| 80 FR 59015 - National Hunting and Fishing Day, 2015 | |
| 80 FR 58808 - Membership in the National Parks Overflights Advisory Group Aviation Rulemaking Committee | |
| 80 FR 58805 - In the Matter of the Designation of Peter Cherif, Also Known as Peter Cheraf, Also Known as Abu Hamza Cheraf, as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 58806 - In the Matter of the Designation of Mujahidin Indonesia Timur (MIT), aka Mujahideen Indonesia Timor, aka Mujahidin of Eastern Indonesia, aka Mujahidin Indonesia Barat, aka Mujahidin Indonesia Timor, aka Mujahidin of Western Indonesia (MIB), as a Specially Designated Global Terrorist Entity Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 58806 - In the Matter of the Designation of Gulmurod Khalimov as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 58805 - In the Matter of the Designation of Emilie Konig as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 58803 - In the Matter of the Designation of Sally-Anne Frances Jones, Also Known as Sally Anne Jones, Also Known as Sally Jones, Also Known as Umm Hussain al-Britani, Also Known as Sakinah Hussain, as a Specially Designated Global Terrorist pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 58804 - In the Matter of the Amendment of the Designation of Islamic State of Iraq and the Levant, Also Known as Islamic State, Also Known as ISIL, Also Known as ISIS, as a Foreign Terrorist Organization Pursuant to Section 219 of the Immigration and Nationality Act, as Amended | |
| 80 FR 58804 - In the Matter of the Amendment of the Designation of Islamic State of Iraq and the Levant, Also Known as Islamic State, Also Known as ISIL, Also Known as ISIS, as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224 | |
| 80 FR 58805 - In the Matter of the Designation of Maxime Hauchard, Also Known as Abou Abdallah Al Faransi, as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 58804 - In the Matter of the Designation of Jaysh Rijal al-Tariq al-Naqshabandi, Also Known as Army of the Men of the Naqshbandi Order, Also Known as Armed Men of the Naqshabandi Order, Also Known as Naqshbandi Army, Also Known as Naqshabandi Army, Also Known as Men of the Army of al-Naqshbandia Way, Also Known as Jaysh Rajal al-Tariqah al-Naqshbandia, Also Known as JRTN, Also Known as JRN, Also Known as AMNO as a Foreign Terrorist Organization Pursuant to Section 219 of the Immigration and Nationality Act, as Amended | |
| 80 FR 58805 - In the Matter of the Designation of Boubaker Ben Habib Ben Ali Hakim, Boubakeur al-Hakim, Boubakeur el-Hakim, Boubaker el Hakim, Abou al Moukatel, Abou Mouqatel, Abu-Muqatil al-Tunisi as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 58751 - Recovery Policy: Stafford Act Section 705, Disaster Grant Closeout Procedures | |
| 80 FR 58637 - Approval of California Air Plan Revisions, San Joaquin Valley Unified Air Pollution Control District | |
| 80 FR 58732 - Office of Federal High-Performance Green Buildings; Green Building Advisory Committee; Notification of Upcoming Public Advisory Committee Meeting | |
| 80 FR 58804 - In the Matter of the Amendment of the Designation of Ansar Bayt al-Maqdis, Also Known as Ansar Jerusalem, Also Known as Supporters of Jerusalem, Also Known as Ansar Bayt al-Maqdes, Also Known as Ansar Beit al-Maqdis, Also Known as Jamaat Ansar Beit al-Maqdis, Also Known as Jamaat Ansar Beit al-Maqdis fi Sinaa, Also Known as Supporters of the Holy Place, as a Foreign Terrorist Organization Pursuant to Section 219 of the Immigration and Nationality Act, as Amended | |
| 80 FR 58731 - Submission for OMB Review; Background Investigations for Child Care Workers | |
| 80 FR 58806 - In the Matter of the Amendment of the Designation of Ansar Bayt al-Maqdis, Also Known as Ansar Jerusalem, Also Known as Supporters of Jerusalem, Also Known as Ansar Bayt al-Maqdes, Also Known as Ansar Beit al-Maqdis, Also Known as Jamaat Ansar Beit al-Maqdis, Also Known as Jamaat Ansar Beit al-Maqdis fi Sinaa, Also Known as Supporters of the Holy Place, as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224 | |
| 80 FR 58636 - Revisions to Test Methods, Performance Specifications, and Testing Regulations for Air Emission Sources | |
| 80 FR 58711 - Western Hemisphere Institute for Security Cooperation Board of Visitors Meeting Notice | |
| 80 FR 58640 - PM10 Plans and Redesignation Request; Truckee Meadows, Nevada; Deletion of TSP Area Designation | |
| 80 FR 58757 - Notice of Intent To Prepare an Environmental Impact Statement for the Lambert Houses Redevelopment Project, Bronx, NY | |
| 80 FR 58737 - Administration on Intellectual and Developmental Disabilities, President's Committee for People With Intellectual Disabilities | |
| 80 FR 58776 - Agency Information Collection Activities: Indian Oil and Gas Valuation; Comment Request | |
| 80 FR 58803 - In the Matter of the Designation of Jaysh Rijal al-Tariq al-Naqshabandi, Also Known as Army of the Men of the Naqshbandi Order, Also Known as Armed Men of the Naqshabandi Order, Also Known as Naqshbandi Army, Also Known as Naqshabandi Army, Also Known as Men of the Army of al-Naqshbandia Way, Also Known as Jaysh Rajal al-Tariqah al-Naqshbandia, Also Known as JRTN, Also Known as JRN, Also Known as AMNO, as a Specially Designated Global Terrorist Pursuant to Section 1(b) of Executive Order 13224, as Amended | |
| 80 FR 58611 - Drawbridge Operation Regulation; Sacramento River, Sacramento, CA | |
| 80 FR 58610 - Drawbridge Operation Regulation; Sacramento River, Sacramento, CA | |
| 80 FR 58771 - Request for Nominations for the Invasive Species Advisory Committee | |
| 80 FR 58710 - Proposed Collection; Comment Request | |
| 80 FR 58738 - Biosimilar User Fee Act; Stakeholder Meetings on Biosimilar User Fee Act of 2012 Reauthorization; Request for Notification of Regulated Industry Organization Intention To Participate | |
| 80 FR 58731 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking Activities | |
| 80 FR 58731 - Formations of, Acquisitions by, and Mergers of Bank Holding Companies | |
| 80 FR 58741 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 80 FR 58742 - Agency Information Collection Activities: Proposed Collection; Comment Request | |
| 80 FR 58702 - National Organic Standards Board (NOSB): Call for Nominations | |
| 80 FR 58636 - Milk in California; Reconvened Hearing on a Proposal To Establish a Federal Milk Marketing Order | |
| 80 FR 58793 - Submission for OMB Review; Comments Request | |
| 80 FR 58600 - Listing of Color Additives Exempt From Certification; Mica-Based Pearlescent Pigments | |
| 80 FR 58724 - Agency Information Collection Activities; Comment Request; The Secretary of the Department of Education's Recognition of Accrediting Agencies, and the Comparability of Medical and Veterinary Medical Programs | |
| 80 FR 58793 - PSEG Power, LLC and PSEG Nuclear, LLC; Establishment of Atomic Safety and Licensing Board | |
| 80 FR 58720 - Privacy Act of 1974; System of Records | |
| 80 FR 58607 - Privacy Act of 1974; Implementation | |
| 80 FR 58715 - Strategic Environmental Research and Development Program, Scientific Advisory Board; Notice of Federal Advisory Committee Meeting | |
| 80 FR 58711 - Proposed Collection; Comment Request | |
| 80 FR 58669 - Defense Federal Acquisition Regulation Supplement: Clauses With Alternates-Small Business Programs (DFARS Case 2015-D017) | |
| 80 FR 58632 - Defense Federal Acquisition Regulation Supplement: Contract Debts-Conform to FAR Section Designations (DFARS Case 2015-D029) | |
| 80 FR 58630 - Defense Federal Acquisition Regulation Supplement: Electronic Copies of Contractual Documents (DFARS Case 2012-D056) | |
| 80 FR 58671 - Defense Federal Acquisition Regulation Supplement: Warranty Tracking of Serialized Items (DFARS Case 2014-D026) | |
| 80 FR 58715 - Information Collection Requirement; Defense Federal Acquisition Regulation Supplement (DFARS); Contract Financing | |
| 80 FR 58803 - Notice of Senior Executive Service Performance Review Board Membership | |
| 80 FR 58714 - Advisory Committee on Arlington National Cemetery Meeting Notice | |
| 80 FR 58688 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Eastern Massasauga Rattlesnake | |
| 80 FR 58712 - Advisory Committee on Arlington National Cemetery Honor Subcommittee Meeting Notice | |
| 80 FR 58707 - Advisory Committee on Arlington National Cemetery Remember Subcommittee Meeting | |
| 80 FR 58722 - Proposed Collection; Comment Request | |
| 80 FR 58708 - Proposed Collection; Comment Request | |
| 80 FR 58674 - Endangered and Threatened Wildlife and Plants; Threatened Species Status for the Elfin-woods Warbler | |
| 80 FR 58709 - Advisory Committee on Arlington National Cemetery Explore Subcommittee Meeting Notice | |
| 80 FR 58707 - Army Science Board Partially Closed Meeting Notice | |
| 80 FR 58725 - Notice of Intent To Prepare a Supplement to the Draft Northern Pass Transmission Line Project Environmental Impact Statement and Announcing the Extension of the Public Comment Period and Postponement of Public Hearings To Receive Comments on the Draft Environmental Impact Statement | |
| 80 FR 58724 - Availability of a Draft Feasibility Study With Integrated Environmental Impact Statement (EIS), Ala Wai Canal Project, Oahu, HI | |
| 80 FR 58814 - Citizens Coinage Advisory Committee Meeting | |
| 80 FR 58703 - Proposed Information Collection; Comment Request; Survey of State Government Research and Development (R&D) | |
| 80 FR 58810 - BNSF Railway Company-Abandonment Exemption-in Stearns County, Minn. | |
| 80 FR 58792 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension With Change, of a Previously Approved Collection; Federal Firearms License (FFL) RENEWAL Application | |
| 80 FR 58791 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension Without Change, of a Previously Approved Collection; Federal Firearms Licensee Firearms Inventory Theft/Loss Report ATF F 3310.11 | |
| 80 FR 58713 - Proposed Collection; Comment Request | |
| 80 FR 58633 - Pipeline Safety: Miscellaneous Changes to Pipeline Safety Regulations: Response to Petitions for Reconsideration | |
| 80 FR 58705 - Draft 2015 Marine Mammal Stock Assessment Reports | |
| 80 FR 58787 - Certain Hot-Rolled Steel Flat Products From Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom: Determinations | |
| 80 FR 58753 - West Virginia; Amendment No. 1 to Notice of a Major Disaster Declaration | |
| 80 FR 58754 - Proposed Flood Hazard Determinations | |
| 80 FR 58750 - Changes in Flood Hazard Determinations | |
| 80 FR 58813 - Submission for OMB Review; Comment Request | |
| 80 FR 58723 - National Commission on the Future of the Army; Notice of Federal Advisory Committee Meeting | |
| 80 FR 58720 - National Commission on the Future of the Army; Notice of Federal Advisory Committee Meeting | |
| 80 FR 58752 - Changes in Flood Hazard Determinations | |
| 80 FR 58748 - Approval of SGS North America, Inc., as a Commercial Gauger | |
| 80 FR 58747 - Accreditation and Approval of Camin Cargo Control, Inc., as a Commercial Gauger and Laboratory | |
| 80 FR 58748 - Advisory Committee on Commercial Operations to U.S. Customs and Border Protection (COAC) | |
| 80 FR 58788 - Bulk Manufacturer of Controlled Substances Application: Cerilliant Corporation | |
| 80 FR 58790 - Manufacturer of Controlled Substances Registration: Noramco, Inc. | |
| 80 FR 58737 - Agency Recordkeeping/Reporting Requirements Under Emergency | |
| 80 FR 58772 - Proposed Renewal of Information Collection: OMB Control Number 1090-0009, Donor Certification Form | |
| 80 FR 58811 - Submission for OMB Review; Comment Request | |
| 80 FR 58814 - Proposed Information Collection (Application for Adaptive Sports Grant) Activity: Comment Request | |
| 80 FR 58729 - Shenango Dam Hydroelectric Company, LLC; Notice of Preliminary Permit Application Accepted for Filing and Soliciting Comments, Motions To Intervene, and Competing Applications | |
| 80 FR 58728 - Joseph Weinert, Holly Parrish and Kevin Bezner, Notice of Transfer of Exemption | |
| 80 FR 58726 - Oncor Electric Delivery Company LLC; Notice of Filing | |
| 80 FR 58727 - Oncor Electric Delivery Company LLC; Notice of Filing | |
| 80 FR 58726 - Burgess Capital LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
| 80 FR 58729 - San Diego Gas & Electric Company; Notice of Petition for Declaratory Order | |
| 80 FR 58726 - Combined Notice of Filings #2 | |
| 80 FR 58727 - Combined Notice of Filings #1 | |
| 80 FR 58704 - Synthetic Biology Standards Consortium-Planning and Progress Workshop | |
| 80 FR 58704 - Judges Panel of the Malcolm Baldrige National Quality Award | |
| 80 FR 58815 - Privacy Act of 1974; System of Records | |
| 80 FR 58597 - Special Conditions: Flight Structures, Inc., Boeing Model 777-200 Dynamic Test Requirements for Single-Occupant, Oblique (Side-Facing) Seats With Airbag Devices | |
| 80 FR 58589 - Special Conditions: Embraer Model EMB-545 Airplanes; Seats With Inflatable Lap Belts | |
| 80 FR 58593 - Special Conditions: Boeing Model 747-8 Airplanes; Seats With Inflatable Lap Belts | |
| 80 FR 58586 - Special Conditions: Boeing Model 747-8, Dynamic Test Requirements for Single-Occupant, Oblique (Side-Facing) Seats With Airbag Devices | |
| 80 FR 58731 - Notice of Agreements Filed | |
| 80 FR 58575 - Disclosure of Seat Dimensions To Facilitate Use of Child Safety Seats on Airplanes During Passenger-Carrying Operations | |
| 80 FR 58735 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 80 FR 58733 - Proposed Data Collection Submitted for Public Comment and Recommendations | |
| 80 FR 58796 - Joint Industry Plan; Order Approving Amendment No. 2 to the National Market System Plan Governing the Process of Selecting a Plan Processor and Developing a Plan for the Consolidated Audit Trail by BATS Exchange, Inc., BATS-Y Exchange, Inc., BOX Options Exchange LLC, C2 Options Exchange, Incorporated, Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc., International Securities Exchange, LLC, ISE Gemini, LLC, Miami International Securities Exchange LLC, NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC, The NASDAQ Stock Market LLC, National Stock Exchange, Inc., New York Stock Exchange LLC, NYSE MKT LLC, and NYSE Arca, Inc. | |
| 80 FR 58797 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to a Change to the Secondary Benchmark Index Applicable to Shares of the PIMCO Global Advantage® Inflation-Linked Bond Active Exchange-Traded Fund | |
| 80 FR 58794 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Regarding the PIMCO Intermediate Municipal Bond Active Exchange-Traded Fund | |
| 80 FR 58799 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Order Granting Approval of Proposed Rule Change Relating to the Listing and Trading of the 1-3 Month Enhanced Short Duration ETF, a Series of Plus Trust | |
| 80 FR 58744 - Notice of Amendment to Program Comment to Avoid Duplicative Reviews for Wireless Communications Facilities Construction and Modification | |
| 80 FR 58790 - Notice of Lodging of Proposed Consent Decree Under the Clean Air Act | |
| 80 FR 58729 - Submission for OMB Review; Comment Request | |
| 80 FR 58791 - Notice of Lodging of Proposed Consent Decree Under the Clean Air Act | |
| 80 FR 58792 - Notice of Permit Applications Received Under the Antarctic Conservation Act | |
| 80 FR 58770 - Proposed Information Collection; Depredation Orders for Double-Crested Cormorants | |
| 80 FR 58663 - Freedom of Information Act Regulations | |
| 80 FR 58738 - Agency Information Collection Activities; Submission to OMB for Review and Approval; Public Comment Request | |
| 80 FR 58773 - Proposed Appointment to the National Indian Gaming Commission | |
| 80 FR 58625 - Minerals Management: Adjustment of Cost Recovery Fees | |
| 80 FR 58809 - Petition for Waiver of Compliance | |
| 80 FR 58717 - Proposed Collection; Comment Request | |
| 80 FR 58774 - Notice of Public Meeting: Northern California Resource Advisory Council | |
| 80 FR 58740 - Center for Scientific Review Notice of Closed Meetings | |
| 80 FR 58768 - Endangered Species; Receipt of Applications for Permit | |
| 80 FR 58739 - National Center for Complementary & Integrative Health; Notice of Closed Meeting | |
| 80 FR 58739 - National Heart, Lung, and Blood Institute Notice of Closed Meeting | |
| 80 FR 58740 - Eunice Kennedy Shriver National Institute of Child Health and Human Development Notice of Closed Meeting | |
| 80 FR 58741 - Eunice Kennedy Shriver National Institute of Child Health and Human Development; Notice of Closed Meeting | |
| 80 FR 58741 - National Library of Medicine; Notice of Closed Meeting | |
| 80 FR 58602 - Veterinary Feed Directive Regulation Questions and Answers; Small Entity Compliance Guide; Guidance for Industry; Availability | |
| 80 FR 58806 - Public Hearing | |
| 80 FR 58759 - Information Collection Request Sent to the Office of Management and Budget for Approval; Wildlife and Sport Fish Grants and Cooperative Agreements | |
| 80 FR 58767 - Endangered and Threatened Wildlife and Plants; Recovery Plan for the Coterminous United States Population of Bull Trout | |
| 80 FR 58774 - Information Collection Request Sent to the Office of Management and Budget (OMB) for Approval; Nomination of Properties for Listing in the National Register of Historic Places | |
| 80 FR 58981 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to Southwest Fisheries Science Center Fisheries Research | |
| 80 FR 58717 - Privacy Act of 1974; System of Records | |
| 80 FR 58609 - Privacy Act; Implementation | |
| 80 FR 58603 - Medical Devices; Cardiovascular Devices; Classification of the Steerable Cardiac Ablation Catheter Remote Control System | |
| 80 FR 58611 - Update to Product Lists | |
| 80 FR 58573 - Formatting and Non-Substantive Corrections to Authority Citations; Corrections | |
| 80 FR 58911 - Transit Asset Management; National Transit Database | |
| 80 FR 58614 - Acibenzolar-S-methyl; Pesticide Tolerances | |
| 80 FR 58786 - Request for Information on the State of the Offshore Renewable Energy Industry-Request for Feedback; MMAA104000 | |
| 80 FR 58620 - National Priorities List | |
| 80 FR 58658 - National Priorities List | |
| 80 FR 58819 - Endangered and Threatened Wildlife and Plants; Endangered Status for 49 Species From the Hawaiian Islands | |
| 80 FR 58951 - Onshore Oil and Gas Operations; Federal and Indian Oil and Gas Leases; Measurement of Oil |
Agricultural Marketing Service
Census Bureau
National Institute of Standards and Technology
National Oceanic and Atmospheric Administration
Army Department
Defense Acquisition Regulations System
Engineers Corps
Federal Energy Regulatory Commission
Agency for Toxic Substances and Disease Registry
Children and Families Administration
Community Living Administration
Food and Drug Administration
National Institutes of Health
Substance Abuse and Mental Health Services Administration
Coast Guard
Federal Emergency Management Agency
U.S. Customs and Border Protection
Fish and Wildlife Service
Land Management Bureau
National Park Service
Ocean Energy Management Bureau
Office of Natural Resources Revenue
Drug Enforcement Administration
Federal Aviation Administration
Federal Railroad Administration
Federal Transit Administration
Pipeline and Hazardous Materials Safety Administration
Surface Transportation Board
United States Mint
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.
Nuclear Regulatory Commission.
Correcting amendments.
The U.S. Nuclear Regulatory Commission (NRC) published a final rule in the
This rule is effective on September 30, 2015.
Please refer to Docket ID NRC-2015-0122 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:
•
•
•
Cindy Bladey, Office of Administration, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-3280, email:
The NRC published a final rule in the
The final rule also included an incorrect reference in the authority citation for 10 CFR part 73. In a final rule published on May 20, 2013 (78 FR 29520), the NRC moved the advance notification provisions to governors of affected states for shipments of spent nuclear fuel through their affected states from 10 CFR 73.37(f) to 10 CFR 73.37(b)(2). There was no conforming change made to the authority citation for 10 CFR part 73, which still referenced 10 CFR 73.37(f). In a final rule published on November 10, 2014 (79 FR 66598), the NRC corrected this reference by changing it to 10 CFR 73.37(b)(2) in the authority citation for 10 CFR part 73. The September 9, 2015, final rule inadvertently reversed the previous correction. This document restores the authority citation for 10 CFR part 73 to reference 10 CFR 73.37(b)(2) rather than 10 CFR 73.37(f).
In addition, the final rule did not include a reference to Section 229 of the Atomic Energy Act (42 U.S.C. 2278a) in the authority citation for 10 CFR part 73. In a final rule published on October 14, 2009, the NRC amended its regulations to authorize the imposition of federal criminal penalties on those who introduce weapons or explosives without authorization into specified classes of facilities subject to NRC regulatory authority (74 FR 52667). The authority for this amendment derived from Section 654 of the Energy Policy Act of 2005 (EPAct), codified at 42 U.S.C. 2278a. The September 9, 2015, final rule converted citations to the EPAct to their corresponding citations in the United States Code, but did not include a reference to 42 U.S.C. 2278a. This document adds this reference to the 10 CFR part 73 authority citation.
Lastly, the final rule did not include a reference to Section 170H of the Atomic Energy Act (42 U.S.C. 2210h) in the authority citations for 10 CFR parts 20 and 32. In a final rule published on November 8, 2006, the NRC amended its regulations to implement the National Source Tracking System for certain sealed sources as required by Section 651(d) of the EPAct (71 FR 65686). In the 2006 final rule, the authority citations for 10 CFR parts 20 and 32 both referenced the entirety of the EPAct as authority, but these references were changed to specific references to Section 651(e) of the EPAct in a final rule published on October 1, 2007 (72 FR 55864), effectively removing the references to Section 651(d). The September 9, 2015, final rule did not restore this reference (codified at 42 U.S.C. 2210h). This document adds this reference to the authority citations for 10 CFR parts 20 and 32.
Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive the normal notice and comment requirements if it finds, for good cause, that they are impracticable, unnecessary, or contrary to the public interest. As authorized by 5 U.S.C. 553(b)(B), the NRC finds good cause to waive notice and opportunity for comment on the amendments because it will have no substantive impact and is
Byproduct material, Criminal penalties, Hazardous waste, Licensed material, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Occupational safety and health, Packaging and containers, Penalties, Radiation protection, Reporting and recordkeeping requirements, Source material, Special nuclear material, Waste treatment and disposal.
Byproduct material, Criminal penalties, Labeling, Nuclear energy, Nuclear materials, Radiation protection, Reporting and recordkeeping requirements.
Administrative practice and procedure, Age-related degradation, Backfitting, Classified information, Criminal penalties, Environmental protection, Nuclear power plants and reactors, Penalties, Radiation protection, Reporting and recordkeeping requirements.
Criminal penalties, Exports, Hazardous materials transportation, Incorporation by reference, Imports, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements, Security measures.
Classified information, Criminal penalties, Penalties, Reporting and recordkeeping requirements, Security measures.
Administrative practice and procedure, Classified information, Criminal penalties, Exports, Incorporation by reference, Imports, Intergovernmental relations, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements, Scientific equipment.
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 20, 32, 54, 73, 95, and 110.
Atomic Energy Act of 1954, secs. 11, 53, 63, 65, 81, 103, 104, 161, 170H, 182, 186, 223, 234, 274, 1701 (42 U.S.C. 2014, 2073, 2093, 2095, 2111, 2133, 2134, 2201, 2210h, 2232, 2236, 2273, 2282, 2021, 2297f); Energy Reorganization Act of 1974, secs. 201, 202 (42 U.S.C. 5841, 5842); Low-Level Radioactive Waste Policy Amendments Act of 1985, sec. 2 (42 U.S.C. 2021b); 44 U.S.C. 3504 note.
Atomic Energy Act of 1954, secs. 81, 161, 170H, 181, 182, 183, 223, 234, 274 (42 U.S.C. 2111, 2201, 2210h, 2231, 2232, 2233, 2273, 2282, 2021); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note.
Atomic Energy Act of 1954, secs. 102, 103, 104, 161, 181, 182, 183, 186, 189, 223, 234 (42 U.S.C. 2132, 2133, 2134, 2136, 2137, 2201, 2231, 2232, 2233, 2236, 2239, 2273, 2282); Energy Reorganization Act of 1974, secs. 201, 202, 206 (42 U.S.C. 5841, 5842, 5846); 44 U.S.C. 3504 note.
Section 54.17 also issued under E.O. 12829, 58 FR 3479, 3 CFR, 1993 Comp., p. 570; E.O. 13526, 75 FR 707, 3 CFR, 2009 Comp., p. 298; E.O. 12968, 60 FR 40245, 3 CFR, 1995 Comp., p. 391.
Atomic Energy Act of 1954, secs. 53, 147, 149, 161, 170D, 170E, 170H, 170I, 223, 229, 234, 1701 (42 U.S.C. 2073, 2167, 2169, 2201, 2210d, 2210e, 2210h, 2210i, 2273, 2278a, 2282, 2297f); Energy Reorganization Act of 1974, secs. 201, 202 (42 U.S.C. 5841, 5842); Nuclear Waste Policy Act of 1982, secs. 135, 141 (42 U.S.C. 10155, 10161); 44 U.S.C. 3504 note.
Section 73.37(b)(2) also issued under Sec. 301, Public Law 96-295, 94 Stat. 789 (42 U.S.C. 5841 note).
Atomic Energy Act of 1954, secs. 145, 161, 223, 234 (42 U.S.C. 2165, 2201, 2273, 2282); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note; E.O. 10865, as amended, 25 FR 1583, 3 CFR, 1959-1963 Comp., p. 398; E.O. 12829, 58 FR 3479, 3 CFR, 1993 Comp., p. 570; E.O. 12968, 60 FR 40245, 3 CFR, 1995 Comp., p. 391; E.O. 13526, 75 FR 707, 3 CFR, 2009 Comp., p. 298.
Atomic Energy Act of 1954, secs. 11, 51, 53, 54, 57, 62, 63, 64, 65, 81, 82, 103, 104, 109, 111, 121, 122, 123, 124, 126, 127, 128, 129, 133, 134, 161, 170H, 181, 182, 183, 184, 186, 187, 189, 223, 234 (42 U.S.C. 2014, 2071, 2073, 2074, 2077, 2092, 2093, 2094, 2095, 2111, 2112, 2133, 2134, 2139, 2141, 2151, 2152, 2153, 2154, 2155, 2156, 2157, 2158, 2160c, 2160d, 2201, 2210h, 2231, 2232, 2233, 2234, 2236, 2237, 2239, 2273, 2282); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); Administrative Procedure Act (5 U.S.C. 552, 553); 42 U.S.C. 2139a, 2155a; 44 U.S.C. 3504 note.
Section 110.1(b) also issued under 22 U.S.C. 2403; 22 U.S.C. 2778a; 50 App. U.S.C. 2401
For the Nuclear Regulatory Commission.
Federal Aviation Administration (FAA), DOT.
Final rule.
This final rule requires air carriers conducting domestic, flag, and supplemental operations to make available on their Web sites information to enable passengers to determine which child restraint system can be used on airplanes in these operations. Specifically, this final rule requires air carriers to make available on their Web sites the width of the narrowest and widest passenger seats in each class of service for each make, model and series of airplane used in passenger-carrying operations.
This rule is effective October 30, 2015. Compliance with this rule is required February 29, 2016.
For information on where to obtain copies of rulemaking documents and other information related to this final rule, see “How To Obtain Additional Information” in the
For technical questions concerning this action, contact Catherine Burnett, Flight Standards Service, Air Transportation Division, AFS-200, Federal Aviation Administration, 800 Independence Avenue SW., Washington, DC 20591; telephone (202) 267-8166; email
Section 412 of the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95)
In addition to the authority found in the Act, the FAA has authority under Title 49 of the United States Code (49 U.S.C.) to issue rules on aviation safety. Section 106 of Subtitle I describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is consistent with the authority described in 49 U.S.C. 106(f), which establishes the authority of the Administrator to promulgate regulations and rules and 49 U.S.C. 44701(a)(5), which requires the Administrator to promote safe flight of civil aircraft in air commerce by prescribing regulations and minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security.
Existing regulations regarding the use of a child restraint system (CRS) on airplanes operating under part 121 are found in 14 CFR 121.311. In accordance with § 121.311, no certificate holder
The FAA strongly encourages the use of an FAA-approved CRS on aircraft.
This rule requires air carriers operating under 14 CFR part 121 that have Web sites to post on their Web sites information regarding airplane seat dimensions. The FAA notes, however, that this rule does not require an air carrier that does not have a Web site to establish a Web site to satisfy the information disclosure requirements of this final rule.
Specifically, affected air carriers must post the width of the narrowest and widest passenger seats in each class of service for each airplane make, model and series operated in passenger-carrying operations. By requiring air carriers to make this information available, the agency expects caregivers to have more information about whether a specific CRS can be used on the airplane on which they expect to travel.
The FAA emphasizes that this rule includes an information disclosure requirement only. It does not create any new operational requirements for air carriers or flight attendants; it does not change any existing provisions regarding the use of a CRS on board airplanes or existing regulations regarding passengers under the age of 2 traveling on board airplanes with or without the use of a CRS; and, it does not require an air carrier to identify the specific airplane that it will use on a given flight.
This final rulemaking is minimal cost and is estimated to be $372,600 over a ten-year period ($271,800 present value).
Existing requirements regarding CRS use in part 121 operations are found in 14 CFR 121.311. Section 121.311(c)(2) generally states that no air carrier may prohibit a child, if requested by the child's caregiver, from occupying a CRS furnished by the child's caregiver provided that the following conditions are satisfied: The child holds a ticket for an approved seat or a seat is made available by the air carrier for the child's use; the child is accompanied by a caregiver; and, the CRS is appropriately labeled and secured. (Certificate holders are encouraged to allow the use of an empty seat to accommodate a CRS; however, they are not required to allow non-ticketed children to occupy empty passenger seats, even if the child uses a CRS.)
Under § 121.311(c)(3), however, air carriers may determine the most appropriate passenger seat location for a CRS based on safe operating practices. In assessing the most appropriate location for a CRS, an air carrier must consider a number of factors. For example, the CRS must be installed in a forward-facing airplane seat in accordance with the provisions of § 121.311. This includes placing the CRS in the appropriate forward or aft-facing direction as indicated on the label for the size of the child. A window seat is the preferred location; however, other locations may be acceptable, provided the CRS does not block the egress of any passenger, including the child's caregiver, to the aisle used to evacuate the airplane.
The FAA encourages the use of an approved CRS on airplanes and has committed to educate and inform passengers, air carriers and crewmembers regarding CRS use on airplanes in order to increase their use on airplanes. Accordingly, the FAA provides information on its Web site for caregivers traveling with children on the use of a CRS on airplanes. The public information and guidance material are intended to be useful to caregivers in support of the agency's commitment regarding CRS use. For example, the FAA has previously addressed the issue of “CRS fit” in airplane seats on the FAA Web site by informing caregivers that a CRS with a maximum width of 16 inches should fit in most airplane seats.
Additionally, on November 3, 2005, the FAA published Advisory Circular (AC) 120-87, Use of Child Restraint Systems on Aircraft, to serve as a resource during development, implementation, and revision of an air carrier's standard operating procedures and training programs regarding CRS use. The FAA has since published two amended versions of the AC. AC 120-87A was published on December 1, 2006 and AC 120-87B was published on September 17, 2010. The AC provides information on placement of a CRS on airplanes that may be considered by air carriers as they develop policies regarding seat locations for CRS use on a specific airplane. The AC also explains how placement of a CRS in an aisle seat or in a seat forward or aft of an emergency exit row may affect egress during an evacuation. Further, the AC emphasizes the carrier's discretion in identifying the most appropriate forward-facing passenger seat location for a CRS but explains that prohibiting the use of a CRS by a ticketed child, when there are seats where the CRS could be used safely, is not consistent with § 121.311. The FAA will publish updated AC 120-87C with this final rule to address the seat dimension disclosure requirements of this final rule.
The FAA also published Information for Operators (InFO) 11007, Regulatory Requirements Regarding Accommodation of Child Restraint Systems—Update, to clarify regulations regarding CRS accommodation and to provide information for a CRS with a detachable base. As with AC 120-87, InFO 11007 provides examples of CRS design variations and lists possible solutions for accommodation. For example, a CRS with a base that is too wide to fit properly in a seat with rigid armrests could be moved to a seat with moveable armrests that can be raised to accommodate the CRS, and an aft-facing CRS that cannot be installed properly, because of minimal pitch (distance between rows of seats), can be moved to a bulkhead seat or a seat in a row with additional pitch. The FAA will publish an updated InFO so that it remains consistent with the requirements of this final rule.
Section 412 of the FAA Modernization and Reform Act of 2012 (Pub. L. 112-95) (the Act) required the FAA to conduct rulemaking “[T]o require each air carrier operating under part 121 of title 14, Code of Federal Regulations, to post on the Internet Web site of the air carrier the maximum dimensions of a child safety seat that can be used on each aircraft operated by the air carrier to enable passengers to determine which child safety seats can be used on those aircraft.” To fulfill the requirements of the Act, the FAA proposed to require air carriers operating under part 121 to make available on their Web sites the width of the widest passenger seat in each class of service for each make, model and series of airplane used in passenger-carrying operations (79 FR 18212, April 1, 2014). The agency intended the proposed revisions to part 121 to provide greater information to caregivers to help them determine whether a particular CRS will fit in an airplane seat. This proposal would not have affected existing regulations regarding the use of a CRS on board airplanes or a passenger under the age of 2 traveling onboard airplanes with or without the use of a CRS. The NPRM provided a public comment period of 90 days, which ended on June 30, 2014.
The FAA received ten comments. Commenters included three individuals, Airlines for America (A4A), the American Automobile Association (AAA), the Association of Flight Attendants (AFA), Baby B'Air, Consumers Union, the National Transportation Safety Board (NTSB) and Spirit Airlines (Spirit). All of the commenters generally supported the proposed changes; however, some suggested changes, as addressed in the section of the document entitled, “Discussion of Public Comments and Final Rule.”
The FAA received comments on the following general issue areas related to the proposal:
• Disclosure of the width of the narrowest seat in addition to the proposal to disclose the width of the widest seat in each class of service;
• Disclosure of the width of the narrowest seat in lieu of the proposal to disclose the width of the widest seat in each class of service;
• Disclosure of seat pitch in addition to the proposal to disclose seat width;
• Airplane equipment changes that result in seat measurements different from the measurements relied upon for a seat previously purchased;
• Definition of “seat width”; and
• Commonality of seat dimensions (within the same class of service) among an air carrier's airplanes within the same make, model and series.
Several commenters addressed issues outside of the scope of this rulemaking. These issues included discussion of a requirement for all passengers including infants to be properly secured in their
This rulemaking satisfies the rulemaking requirement of section 412 of the Act by making more information available to allow caregivers to make a determination regarding CRS fit prior to a flight. In the NPRM, the agency proposed to require air carriers conducting passenger operations under part 121 to disclose on their Web sites the width of the widest passenger seat in each class of service for each airplane make, model and series within the air carrier's fleet. The proposal was limited in its applicability to part 121 air carriers conducting passenger-carrying operations because all-cargo operations have generally been excluded from part 121 requirements pertaining to passengers.
The final rule differs from the proposal in two respects. First, whereas the proposal required disclosure of only the widest seat in each class of service, the final rule requires disclosure of both the widest and the narrowest seats in each class of service. Second, the final rule clarifies the measurement of seat width. The agency addresses these modifications in more detail in the discussions entitled “Disclosure of width of the widest and narrowest seats in each class of service” and “Definition of seat width” respectively.
Although section 412 of the Act refers to the maximum dimensions of child safety seats that can be used on each aircraft the operator uses, the FAA proposed an alternate approach in the NPRM in order to implement the statute's goal to enable a passenger to determine which CRS can be used on an airplane. The FAA does not believe that it is practical for each air carrier to provide the maximum dimensions of one or many CRSs the carrier does not possess or to which the carrier does not have ready access. In contrast, air carriers have ready access to the airplanes they operate and information regarding those aircraft.
Therefore, the agency proposed to require air carriers to provide seat dimension data to fulfill the intent of the statutory requirement for rulemaking. Seat dimension data provides information equivalent to CRS dimension data that can be used to assist caregivers in making a determination as to whether a CRS will fit in a passenger seat on the airplane on which they expect to travel.
The agency did not receive any comments objecting to the proposal to provide seat dimension information and A4A specifically supported it. Accordingly, in the final rule, the FAA has maintained the NPRM approach to providing seat dimension information.
In the NPRM, the agency proposed to amend § 121.311 by adding a requirement for air carriers to disclose seat dimension information for each class of service for each airplane make, model and series that a certificate holder uses in passenger-carrying operations.
The FAA appreciates Spirit's comments but has determined that class of service is the most relevant break point for information disclosure as it remains the prevailing concept used to distinguish seat products, including the seat size variations and amenities that are associated with those products. It has also been the agency's longstanding policy that CRS accommodation need only be made within the same class of service as the ticket holder's class of service in order to comply with § 121.311(c)(2).
The agency recognizes, however, that there may be seat product concepts that are analogous to the distinction in classes of service for purposes of CRS accommodation and that they may be relevant to the assessment of CRS accommodation. The agency will address these analogous seat product concepts and their relevance to CRS accommodation in revised CRS guidance material published with this final rule (AC 120-87C).
The purpose of this final rule is to facilitate CRS use on airplanes through disclosure of seat dimensions. Consistent with this goal, the agency encourages air carriers to provide any additional information to their customers that would further facilitate CRS use on airplanes.
In related comments, A4A and Spirit disagreed with FAA's information about the commonality of seat dimensions among an air carrier's airplanes of the same make, model and series. A4A stated, “The widths of the widest and narrowest passenger seats may vary within a given aircraft series and operated by the same carrier depending on the particular model of seats installed on the aircraft.” Similarly, Spirit commented that its 29 Airbus A319-100 airplanes are equipped with different seat models that differ in width.
The information disclosure requirements in this final rule balance the directive to facilitate CRS use and the necessary operational flexibility that air carriers must have to substitute
While the agency agrees with comments indicating that not every airplane of the same make, model and series used by a particular air carrier may be equipped with the same seat model, and that some may differ in size, after further review of airplanes used by affected air carriers, the FAA determined that in many cases, there is commonality in seat dimensions for airplanes of the same make, model, and series operated by an air carrier. Therefore, this final rule leverages the commonality that does exist among aircraft seats to provide caregivers with the most helpful information regarding CRS fit.
Additionally, in the example cited by Spirit where there may be varying models of seats on a particular make, model and series of aircraft, Spirit would still only have to post two measurements. In Spirit's example, the make is Airbus, the model is 319 and the series is 100. If, hypothetically, there were three or four different models of seats with varying widths on their entire A-319-100 fleet, in order to comply with the requirements of this final rule, Spirit would only have to post the dimensions of the narrowest seat and the widest seat in each class of service for their entire fleet of A-319-100s.
Accordingly, the final rule retains the proposed requirement to disclose seat information for each class of service for each airplane make, model, and series operated by the air carrier in passenger carrying operations.
In the NPRM, the agency proposed to require air carriers to disclose the width of the widest passenger seat in each class of service because width is the predominant limiting seat dimension for CRS use on airplanes. Also, if a caregiver knew the width dimension of the widest seat for a particular class of service on an airplane, and if the CRS the caregiver intended to use on the flight fits within that dimension, then the caregiver would be able to expect that at least one seat in the class of service for which the caregiver and child were ticketed would accommodate the CRS.
The agency also sought comment on alternative proposals pertaining to the disclosure of seat width. Specifically, the agency asked whether disclosure of only the narrowest seat in each class of service or disclosure of both narrowest seat and the widest seat in each class of service would be more effective in facilitating CRS use.
Two commenters (an individual and Spirit) recommended that the FAA modify the proposal by requiring air carriers to disclose the dimensions of the narrowest seat in each class of service rather than the widest. An individual commenter noted that if a CRS will fit in the narrowest seat in a particular class of service, it will fit in all seats in that class. Spirit offered a similar argument and added that disclosure of the widest seat in each class of service would lead to passenger confusion about the availability of the widest seats.
Four commenters (A4A, AFA, NTSB and Consumers Union) recommended modifying the proposal by requiring air carriers to disclose the widths of both the narrowest and widest seats in each class of service because such a requirement would further the goal of providing the most useful information to caregivers.
A4A suggested that disclosure of dimensions of only the widest seat on an aircraft could lead caregivers to mistakenly assume that their CRS will fit in their reserved seat if it is smaller than the dimensions of the widest seat available, and that such misunderstandings could lead to airplane boarding delays. A4A also noted that disclosure of only the widest seat could discourage caregivers from using a CRS based on concern that they may not be assigned to that widest seat. Further, A4A commented that provision of the widths of both the narrowest and widest seats in each class of service provides caregivers a more complete picture of the dimensions of the entire seat class, enabling them to make more informed decisions pertaining to CRS use.
AFA commented that requiring disclosure of both dimensions would more effectively achieve the statutory intent of facilitating CRS use. AFA did not support disclosure of only the widest seat in each class of service.
NTSB commented that providing the width for both the narrowest and widest seats in each class of service for seats in which a CRS could be installed would give caregivers more useful information. NTSB explained that this additional information could enable the caregiver to work with the air carrier to determine the most suitable seat assignment. NTSB also commented that providing the dimensions of the narrowest seats could help CRS manufacturers to develop or identify a CRS that can fit in any air carrier seat, thereby assisting caregivers in procuring a CRS suitable for air travel.
Consumers Union generally supports a requirement to disclose seat dimension information, but added that a better approach would be to require disclosure of all the dimensions of all available seats on an airplane to enable the consumer to select an appropriate seat from all available seats.
While the FAA recognizes that other seat dimensions may limit CRS fit on some occasions, seat width remains the predominant limiting dimension for CRS use in an airplane seat and thus remains the focus of this rulemaking. However, upon further consideration of the proposal and review of comments, the FAA agrees with comments regarding the benefits of disclosure of the width of both the narrowest and widest seat in each class of service for each airplane make, model and series. Disclosure of the widths of both the narrowest and widest seats in each class of service would be more effective in achieving the statutory intent of facilitating CRS use. Thus, the final rule requires each air carrier to make available on its Web site the width of both the narrowest and widest passenger seats in each class of service, for each airplane make, model, and series used in passenger-carrying operations under part 121. Disclosure of the width of the narrowest and widest seats in each class of service will enable caregivers to better determine if the CRS they provide for their child will fit in the airplane on which they expect to travel and thus will encourage more widespread use of a CRS in air transportation.
Finally, NTSB commented that “[I]nformation should only be provided for seats in which an approved CRS would be allowed to be installed.” The NTSB noted that CRS use is typically not permitted in exit rows and aisle seats so as not to affect emergency egress. The FAA agrees with the intent of the NTSB comment and recognizes the importance of information about potential limitations on CRS use.
Some air carriers currently publish information regarding regulatory restrictions or approved operating procedures that limit CRS use in specific airplane locations (
A4A stated that the NPRM did not define seat width and suggests that the FAA include a definition of “seat width” in the final rule to avoid confusion. A4A recommended that seat width should be measured as the distance between the inside of the seat arm rests.
Although the NPRM preamble identified seat width as the distance between arm rests, to ensure clarity, the amendment to § 121.311 will include a definition of seat width applicable to seat dimension disclosure requirements. Consistent with the A4A comment and the NPRM preamble, the definition will specify that seat width is the distance between the inside of the seat arm rests.
In the NPRM, the FAA considered requiring disclosure of seat pitch (distance between rows of seats); however the agency determined that the predominant passenger seat dimension that limits CRS use is the width of the passenger seat.
Three commenters—NTSB, Consumers Union and AAA—recommended that the FAA require disclosure of seat pitch in addition to seat width, as seat pitch may be the limiting dimension in situations involving a rear-facing CRS. The agency acknowledges that in some circumstances, seat pitch can affect the use of a CRS that must be used in an aft-facing position, but using pitch to determine CRS fit is complex and minimally effective without additional detail.
Air carriers may be able to provide the distance between rows of passenger seats or “pitch” and some air carriers currently do so. However, as stated in the NPRM, a rear-facing CRS does not have an equivalent measurement to “pitch” as it does to “width.” In order to be installed properly, an aft-facing CRS must be installed in an aircraft seat on an angle. An aft-facing CRS has an installed level indicator (typically a moving ball or needle that must stay between two lines) that indicates when the CRS is properly oriented in the airplane seat. Therefore, although seat pitch can affect whether there is enough room to properly use an aft-facing CRS, it is only part of the triangular equation with several variables which makes it difficult for seat pitch data to provide meaningful information to a caregiver. (The agency notes that one way to accommodate an aft-facing CRS that does not fit in a row because of seat pitch, is for the air carrier to move the CRS to a seat in a bulkhead row where pitch is not typically an issue.)
Based on the foregoing and consistent with the proposal, the final rule does not require air carriers to provide information regarding seat pitch.
Consistent with the requirement for rulemaking in section 412 of the Act, the agency proposed to require air carriers that have Web sites to disclose on those Web sites certain seat dimension data. The final rule includes this disclosure requirement.
In the NPRM, the FAA noted that a number of air carriers currently conducting passenger-carrying operations already provide seat dimension information on their Web sites. For example, some air carriers currently provide both the pitch and width for the passenger seats in each class of service. The agency expects, however, that the information disclosure proposed in the NPRM and included in this final rule will increase the instances in which caregivers are able to assess whether a CRS will fit on an airplane make, model, and series on which they expect to travel.
Air carriers may use existing information pages on their Web sites that already provide information regarding airplane cabin interior dimensions and CRSs to list the width of the widest and narrowest seats for each class of service on each airplane make, model, and series in their fleets.
The only time an air carrier would need to update its Web site after initial implementation would be when a new airplane make, model, or series is introduced to the air carrier's fleet, or when the air carrier replaces the widest or narrowest seats installed on an existing airplane make, model, or series with wider or narrower seats.
Consumers Union stated that it is insufficient to require seat dimension information to be disclosed only on air carrier Web sites and recommended making such information available “[E]verywhere a consumer might purchase a ticket or change a flight.” While the FAA appreciates the intent behind this comment, this rule is promulgated under the authority of section 412 of the Act, which requires the FAA to initiate rulemaking to require air carriers conducting part 121 operations to make certain information available on those air carriers' Web sites. Therefore, as proposed, the final rule will require seat information disclosure on the air carrier's Web site only.
Three commenters—Consumers Union, NTSB, and AFA—suggested that the ultimate goal should be to mandate that all passengers including infants be properly secured in their own seats with approved safety restraints. Consumers Union added that as an interim step, air carriers should facilitate and encourage CRS use by offering seats at no cost or a drastically reduced cost for infants and toddlers under the age of two.
The FAA appreciates the intent of these comments and strongly encourages the use of a CRS on airplanes through multiple outreach efforts. However, this comment recommends changes to current passenger seating requirements that are outside of the scope of the information disclosure NPRM that preceded this final rule.
The FAA proposed a conforming change to 14 CFR 121.583 to make clear that the requirement applies in passenger-carrying operations only. The FAA did not receive any comments on this proposed conforming change and has included it in the final rule.
The FAA submitted a request for Office of Management and Budget
The FAA recognizes that different operators will need different lengths of time to comply with this regulation due to variations in information technology systems, variations in currently published data, and the range of numbers of airplane make, model and series in each operator's fleet. In the NPRM, the FAA proposed an effective date of 150 days after the date of publication of the final rule in the
While the FAA did not receive any comments on the proposed effective and compliance dates, further review of this issue led the FAA to conclude that the effective date of the final rule should be 30 days after publication. Accordingly, the final rule will be effective 30 days after publication in the
Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Agreements Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995). This portion of the preamble summarizes the FAA's analysis of the economic impacts of this rule.
Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this rule. The reasoning for this determination follows.
The FAA estimates that children under the age of two represent one percent of all commercial passengers.
For child safety purposes, the FAA encourages (but does not require) caregivers to purchase a separate ticket for each child under the age of two so that the child can be securely restrained in a CRS. The FAA does not require the use of CRS for children under the age of two based on the FAA's analysis which shows that when caregivers are forced to purchase airline seats for children under age 2, the additional cost of an airline ticket will motivate some families to drive to their destinations instead of to fly. As background, section 522 of Public Law 103-305, required the Secretary of Transportation to study the impact of mandating the use of CRSs for children under 2 years old on scheduled air carriers. The Secretary submitted a report of this study to Congress in 1995. The report estimated that if a child restraint rule were imposed, approximately five infant lives would be saved aboard aircraft, and two major injuries and four minor injuries would be avoided over a 10-year period. The report also cautioned that this improvement would be offset by additional highway fatalities for airline passengers who chose to drive rather than purchase a seat for children under age 2. Even if infant fares were only 25 percent of full fare, the report estimated that there would be diversion to cars and thus a net increase in fatalities over a 10-year period.
The concern expressed in the 1995 report on mandating the use of CRSs for children under 2 years old, was that mandating CRSs (which require a passenger seat) could increase airline travel costs to families with children under age 2 enough to cause a significant number to travel by automobile instead of by airplane. In turn, this would expose the entire family to the higher risks of automobile travel and associated highway fatalities and injuries.
Currently, air carriers are not required to disclose seat dimension information on their Web sites. It is believed that some caregivers choose not to travel with a CRS due to concern that the seat will not fit the particular equipment being flown. Congress directed the FAA to conduct rulemaking “[T]o require each air carrier operating under part 121, to post on the Internet Web site of the air carrier the maximum dimensions of a child safety seat that can be used to enable passengers to determine which child safety seats can be used on those aircraft.”
The FAA considered several alternatives for determining the type of seat dimension information to be posted on air carrier Web sites.
One alternative required the width of each seat in each class of service for each individual airplane operated by an air carrier be posted on its Web site. While this alternative would provide the most precise information to caregivers, the FAA believes that
Another alternative required air carriers to publish only one dimension — that of the narrowest seat across an air carrier's entire fleet. This alternative, however, would only allow a caregiver to determine if there may be a possibility of a particular CRS fitting a particular airline seat on a particular flight. The FAA believes that providing the dimension of the narrowest seat only across an entire fleet would not facilitate CRS use because a caregiver with a CRS larger than the narrowest seat may be discouraged from using a CRS, even though there may be wider seats available that could accommodate one. Therefore this approach would not meet the intent of Congress when it mandated disclosure of seat dimensions.
After considering the alternatives, the FAA decided that the information to be posted on air carrier Web sites should provide caregivers with data to facilitate CRS use but should not be overly burdensome for the air carriers. Based on these criteria and comments to the proposed rule, the final rule requires an air carrier to post on its Web site the width of the narrowest and widest seats for each make, model, and series of aircraft in each class of service in the air carrier's fleet. This level of detail is reasonable given that most air carriers already disclose other airplane-related dimensions on their Web sites, including dimensions for overhead bins, space underneath seats, maximum size of carry-on luggage, and maximum size for pet carriers. Because of the level of detail air carriers are already providing, the FAA believes the requirements of this rule to be a minimal impact to those part 121 air carriers conducting passenger-carrying operations.
In the proposed rule air carriers were required to provide only the dimension of the widest seat for each make, model, and series of aircraft. The FAA received no comments on the cost-benefit methodology and estimates.
To account for the inclusion of providing the narrowest seat dimension in addition to that of the widest, the costs of the final rule exceed those estimated for the proposed rule. The cost increase is a result of the additional workload required by staff to gather and post to an air carrier's Web site the dimension of the narrowest seat dimension for each make, model, and series of aircraft operated by an air carrier, in addition to that of the widest. The FAA assumes that this activity does not impact the time estimated in the NPRM for management to verify that a carrier's Web site has been updated satisfactorily. Thus, adding the narrowest seat dimension to a carrier's Web site for the final rule increases present value costs beyond those of the NPRM by $6,500 for the low case, and $7,600 for the high case (in 2013 dollars).
The FAA reports there to be 81 part 121 air carriers;
To determine the cost of this rule, hours are estimated for each occupational job series
As the basis of costs for this rulemaking, the FAA used assumptions regarding job skills and labor hours from the regulatory analysis
To show a range of costs for the 58 air carriers affected by this rulemaking, the FAA first estimated a low and high case of hours worked by staff (database and systems administrators) and management.
The variable hour component is only applicable to the staff labor group. It accounts for the incremental labor required to make Web sites compliant to this rule for air carriers operating a fleet of multiple aircraft makes, models, and series, versus those that may operate only one make, model, and series of aircraft. Thus, the variable hour component increases for each make, model and series of aircraft operated by an individual carrier. Total costs of this rule are calculated by multiplying the hours expended for each of the labor groups by their respective hourly compensation, which are then summed across all carriers.
Following is a more detailed description of the estimated hours and costs by labor group. It is important to note that even for the high case, this final rule is still expected to be minimal cost.
The FAA expects the time required for an air carrier to revise its Web site to include seat dimension information is most labor intensive during the first year of the rule's implementation. The estimated hours to comply with this rule include work performed by the staff and management labor groups.
As an example, an air carrier operating 3 make, model, and series of aircraft will expend 11 hours complying with this rule for the low case and 19 hours for the high case.
For years 2 through 10, the FAA determined that less time is required, relative to year 1, to maintain the accuracy of seat dimension information posted to an air carrier's Web site. During this timeframe, it is established that air carriers with Web sites have already posted seat dimension information; thus air carriers may only need to revise the data periodically.
The total cost for air carriers to comply with this rule is the sum of compensation paid
Since BLS reports average labor costs for scheduled air carriers independently of those for nonscheduled air carriers, estimated hours worked are tallied individually as well. Of the 58 Web sites in this analysis, 42 are for air carriers engaged in scheduled operations while the remaining 16 Web sites are for air carriers engaged in nonscheduled operations. The following table shows the fully-burdened rates used to estimate costs for the scheduled and nonscheduled air carrier groups.
For the low case, multiplying hours required annually for each carrier to comply with this rule by the fully-burdened hourly wage rate over a ten-year period (and summed across all 58 air carriers) totals approximately $219 thousand in 2013 dollars ($161 thousand at 7 percent present value). For the high case, the rule costs approximately $373 thousand ($272 thousand at 7 percent present value), when summed across all carriers. This compares to operating revenues totaling just under $165 billion for 54 reporting air carriers (operating revenues for 4 of the air carriers affected by this rule were not available). Tables 3 and 4 summarize the low and high case costs for years 1 through 10. The FAA considers these costs to be minimal.
In comparison, NPRM costs in 2013 dollars totaled $211 thousand for the low case ($154 thousand at 7 percent present value), and $362 thousand for the high case ($264 thousand at 7 percent present value).
This final rule addresses Congressional direction that requires air carriers to make available on their Web sites information to enable passengers to determine which child restraint system can be used on airplanes in passenger carrying operations. Industry comments to the NPRM generally support the changes required by Congress. Since this rule is mandated by Congress, the FAA believes that the benefits exceed the costs.
The Regulatory Flexibility Act (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation. To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration.” The RFA covers a wide-range of small entities, including small businesses, not-for-profit organizations, and small governmental jurisdictions.
Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA.
However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.
The Small Business Administration (SBA) small entity size standard for air carriers is 1,500 employees or less. Of the 58 part 121 air carriers analyzed for this rule, 23 are classified as large entities and 27 as small entities.
For this regulatory flexibility analysis, calendar year (CY) 2013 operating revenues
Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155.0 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II do not apply.
The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. According to the Paperwork Reduction Act of 1995 and regulations implementing the Act (5 CFR part 1320), an agency may not collect or sponsor the collection of information, nor may it impose an information collection requirement unless it displays a currently valid Office of Management and Budget (OMB) control number.
This final rule will impose the following new information collection requirements. As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)), the FAA submitted these information collection amendments to OMB for its review. OMB approved these new information collection requirements associated with this final rule and assigned OMB Control Number 2120-0760.
Additional detail regarding the annual burden is provided in the regulatory evaluation discussion provided in this preamble (Section VI. Regulatory Notices and Analyses, A. Regulatory Evaluation) as well as the Supporting Statement for Paperwork Reduction Act Submissions associated with this rulemaking.
The agency did not receive any public comments on this rule's information collection requirements.
The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this rule and has determined that it follows the direction of Congress, which may improve safety and thus is not considered as an unnecessary obstacle to foreign commerce.
In keeping with U.S. obligations under the Convention on International Civil Aviation, it is FAA policy to conform to International Civil Aviation Organization (ICAO) Standards and Recommended Practices to the maximum extent practicable. The FAA has determined that there are no ICAO Standards and Recommended Practices that correspond to these regulations.
Executive Order 13609, Promoting International Regulatory Cooperation, (77 FR 26413, May 4, 2012) promotes international regulatory cooperation to meet shared challenges involving health, safety, labor, security, environmental, and other issues and to reduce, eliminate, or prevent unnecessary differences in regulatory requirements. The FAA has analyzed this action under the policies and agency responsibilities of Executive Order 13609, and has determined that this action will have no effect on international regulatory cooperation.
FAA Order 1050.1F identifies FAA actions that are categorically excluded from preparation of an environmental assessment or environmental impact statement under the National Environmental Policy Act in the absence of extraordinary circumstances. The FAA has determined this rulemaking action qualifies for the categorical exclusion identified in paragraph 5-5.6 and involves no extraordinary circumstances.
The FAA has analyzed this rule under the principles and criteria of Executive Order 13132, Federalism. The agency has determined that this action will not have a substantial direct effect on the States, or the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the various levels of government, and, therefore, would not have Federalism implications.
The FAA analyzed this rule under Executive Order 13211, Actions Concerning Regulations that Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). The agency has determined that it will not be a “significant energy action” under the executive order and will not be likely to have a significant adverse effect on the supply, distribution, or use of energy.
Comments received may be viewed by going to
An electronic copy of rulemaking documents may be obtained from the Internet by—
1. Searching the Federal eRulemaking Portal (
2. Visiting the FAA's Regulations and Policies Web page at
3. Accessing the Government Printing Office's Federal Digital System at
Copies may also be obtained by sending a request to the Federal Aviation Administration, Office of Rulemaking, ARM-1, 800 Independence Avenue SW., Washington, DC 20591, or
All documents the FAA considered in developing this rule, including economic analyses and technical reports, may be accessed from the Internet through the Federal eRulemaking Portal referenced in item (1) above.
Reporting and recordkeeping requirements.
Air carriers, Aircraft, Aviation safety, Charter flights, Reporting and recordkeeping requirements.
In consideration of the foregoing, the Federal Aviation Administration amends chapter I of title 14, Code of Federal Regulations as follows:
49 U.S.C. 106(f), 106(g), 40101, 40103, 40105, 40109, 40113, 44110, 44502, 44701-44702, 44711, and 46102.
(b) * * *
49 U.S.C. 106(f), 106(g), 40103, 40113, 40119, 41706, 42301 preceding note added by Pub. L. 112-95, sec. 412, 126 Stat. 89, 44101, 44701-44702, 44705, 44709-44711, 44713, 44716-44717, 44722, 44729, 44732; 46105; Pub. L. 111-216, 124 Stat. 2348 (49 U.S.C. 44701 note); Pub. L. 112-95 126 Stat 62 (49 U.S.C. 44732 note).
(k)
(2) For purposes of paragraph (k)(1) of this section, the width of a passenger seat means the distance between the inside of the armrests for that seat.
(a) When authorized by the certificate holder, the following persons, but no others, may be carried aboard an airplane without complying with the passenger-carrying airplane requirements in §§ 121.309(f), 121.310, 121.391, 121.571, and 121.587; the passenger-carrying operation requirements in part 117 and §§ 121.157(c) and 121.291; the requirements pertaining to passengers in §§ 121.285, 121.313(f), 121.317, 121.547, and 121.573; and the information disclosure requirements in § 121.311(k):
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for Boeing Model 747-8 airplanes. This airplane will have novel or unusual design features associated with oblique-angled, single-occupant seats equipped with airbag systems. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is September 30, 2015. We must receive your comments by November 16, 2015.
Send comments identified by docket number FAA-2015-0309 using any of the following methods:
John Shelden, Airframe and Cabin Safety, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2785; facsimile 425-227-1149.
The FAA has determined that notice of, and opportunity for, prior public comment on these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.
In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On February 3, 2014, the Boeing Company applied for an amendment to Type Certificate no. A20WE to allow installation of single-occupant, oblique-angled (side-facing) seats with airbag devices in Boeing Model 747-8 airplanes.
Boeing requested special conditions to allow installation of oblique business-class passenger seats in the Boeing Model 747-8 airplane. The seating configuration Boeing proposes in Certification Plan no. 15090, “Installation of Business Class Zodiac Seats and Furniture for 747-8 TRX RC076,” consists of Zodiac Cirrus III model side-facing, pod-style, business-class seats (with surrounding shells and front-row furniture) installed at an angle of up to 30 degrees to the airplane longitudinal centerline. These seats will include inflatable restraint (airbag) systems for occupant restraint and injury protection.
The Model 747-8 airplane, a derivative of the Model 747-400 airplane, is a bi-level, wide-body airplane powered by four wing-mounted General Electric GEnx-2B engines. The airplane will have a maximum seating capacity of 605 passengers and two crew members, and a maximum takeoff weight of 987,000 pounds.
Under the provisions of Title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 747-8 airplane meets the applicable provisions of the regulations listed in Type Certificate no. A20WE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type certification basis.” The regulations listed in Type Certificate no. A20WE are as follows:
14 CFR part 25, Amendments 25-1 through 25-120, with exceptions permitted by § 21.101. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 747-8 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The business-class seating configuration Boeing proposes is novel or unusual due to the seat installation at 30 degrees to the airplane centerline, the airbag-system installation, and the seat/occupant interface with the surrounding furniture that introduces occupant alignment and loading concerns. The proposed business-class seating configuration also is beyond the limits of current acceptable equivalent-level-of-safety findings.
Ongoing research is progressing to establish acceptable limits. Until those limits become available, the FAA proposes a set of interim limits based on the current literature available, current National Highway Traffic Safety Administration (NHTSA) regulations, and preliminary test data from the research program.
The existing regulations do not provide adequate or appropriate safety standards for occupants of oblique-angled seats with airbag systems. To provide a level of safety that is equivalent to that afforded occupants of forward- and aft-facing seats, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement part 25 and, more specifically, supplement §§ 25.562 and 25.785. The requirements contained in these special conditions consist of both test conditions and injury pass/fail criteria.
Amendment 25-15 to part 25, dated October 24, 1967, introduced the subject of side-facing seats, and a requirement that each occupant in a side-facing seat must be protected from head injury by a safety belt and a cushioned rest that will support the arms, shoulders, head, and spine.
Subsequently, Amendment 25-20, dated April 23, 1969, clarified the definition of side-facing seats to require that each occupant of a seat, positioned at more than an 18-degree angle to the vertical plane of the airplane longitudinal centerline, must be protected from head injury by a safety belt and an energy-absorbing rest that will support the arms, shoulders, head, and spine; or by a safety belt and shoulder harness that will prevent the head from contacting any injurious object. The FAA concluded that an 18-degree angle would provide an adequate level of safety based on tests that were performed at that time, and thus adopted that standard.
Part 25 was amended June 16, 1988, by Amendment 25-64, to revise the emergency-landing conditions that must be considered in the design of the airplane. Amendment 25-64 revised the static-load conditions in 14 CFR 25.561, and added the new § 25.562 that requires dynamic testing for all seats approved for occupancy during takeoff and landing. The intent of Amendment 25-64 is to provide an improved level of safety for occupants on transport-category airplanes. Because most seating is forward-facing on transport-category airplanes, the pass/fail criteria developed in Amendment 25-64 focused primarily on these seats. As a result, the FAA issued Policy Memorandums ANM-03-115-30 and PS-ANM-100-2000-00123 to provide the additional guidance necessary to demonstrate the level of safety required by the regulations for side-facing seats.
To reflect current research findings, the FAA developed a methodology to address all fully side-facing seats (
The proposed Model 747-8, a Transaero Airlines business-class seat installation, is novel such that the current Model 747-8 airplane certification basis does not adequately address protection of the occupant's neck and spine for seat configurations that are positioned at an angle greater than 18 degrees from the airplane centerline. Therefore, The Boeing Company's proposed configuration will require new special conditions.
These special conditions will provide head injury criteria, neck injury criteria, spine injury criteria, and body-to-wall contact criteria. They contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
These special conditions are applicable to the Boeing Model 747-8 airplanes configured with the business-class seating defined in Boeing Certification Plan. Should Boeing apply at a later date for a change to the type certificates to include another model incorporating the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.
This action affects only certain novel or unusual design features on one model airplane. It is not a rule of general applicability.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, which is imminent, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Model 747-8 airplane.
In addition to the requirements of § 25.562:
1. Head Injury Criteria.
Compliance with § 25.562(c)(5) is required, except that, if the anthropomorphic test device (ATD) has no apparent contact with the seat/structure but has contact with an airbag, a head-injury criterion (HIC) unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.
2. Body-to-Wall/Furnishing Contact.
If a seat is installed aft of structure (
3. Neck Injury Criteria.
The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.
a. The N
b. In addition, peak F
c. Rotation of the head about its vertical axis, relative to the torso, is limited to 105 degrees in either direction from forward-facing.
d. The neck must not impact any surface that would produce concentrated loading on the neck.
4. Spine and Torso Injury Criteria
a. The shoulders must remain aligned with the hips throughout the impact
b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X-direction) acceleration exceeding 20g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE International (SAE) J211-1.
c. Occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.
5. Longitudinal test(s), conducted to measure the injury criteria above, must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609. The test(s) must be conducted with an undeformed floor, at the most-critical yaw case(s) for injury, and with all lateral structural supports (armrests/walls) installed.
Boeing must demonstrate that the installation of seats via plinths or pallets meets all applicable requirements. Compliance with the guidance contained in FAA Policy Memorandum PS-ANM-100-2000-00123, dated February 2, 2000, titled “Guidance for Demonstrating Compliance with Seat Dynamic Testing for Plinths and Pallets,” is acceptable to the FAA.
If inflatable airbag systems are installed on single-place side-facing seats, the airbag systems must meet Special Conditions no. 25-589-SC.
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for Embraer Model EMB-545 airplanes. These airplanes will have a novel or unusual design feature associated with seats with inflatable lap belts. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is September 30, 2015. We must receive your comments by November 16, 2015.
Send comments identified by docket number FAA-2015-2884 using any of the following methods:
•
•
•
•
Jayson Claar, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington, 98057-3356; telephone (425) 227-2194, facsimile (425) 227-1232.
The FAA has determined that notice of, and opportunity for, prior public comment on these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.
In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On October 14, 2010, Embraer S.A. applied for an amendment to Type Certificate No. TC00062IB to include the new Embraer Model EMB-545 airplane. These special conditions allow installation of inflatable lap belts for head-injury protection on certain seats in Embraer Model EMB-545 airplanes.
The Embraer Model EMB-545 airplane is a derivative of the Model EMB-550 airplane currently approved under Type Certificate No. TC00062IB.
The fuselage length difference is in the pressurized section. The Model EMB-545 airplane is designed for an eight-passenger configuration and a maximum of nine passengers (including lavatory seat). Like the Model EMB-550, the Model EMB-545 airplane primary structure is aluminum. Materials other than aluminum will be used in areas with unique structural requirements. Advanced composites will be largely employed on the high-lift devices (two flaps), spoilers (three panels), and control surfaces (aileron). A winglet will be attached to each wing tip to further increase airplane aerodynamic efficiency. The empennage will be a swept T-tail composed of advanced composite material with metallic attachment fittings. The rudder and elevators also will be composed of composite material.
Two Honeywell HTF7500-E medium-bypass-ratio turbofan engines, mounted on aft-fuselage pylons, will power the Model EMB-545 airplane. Each engine will produce approximately 6,540 lbs. of thrust for normal takeoff. However, because the Model EMB-545 is smaller and lighter, software will regulate the thrust. The primary flight-control systems (elevators, ailerons, rudder, and multi-function spoilers) will be electronically controlled and powered by electrohydraulic servoactuators using digital fly-by-wire (FBW) technology. The FBW flight controls will receive commands directly from the cockpit dual sidesticks and conventional rudder pedals.
Occupants must be protected from head injury, as required by § 25.785, either by eliminating any injurious object within the striking radius of the head, or by installing padding. Traditionally, this has required either a setback of 35 inches from any bulkhead or other rigid interior feature or, where not practical, the installation of specified types of padding. The relative effectiveness of these established means of injury protection was not quantified. With the adoption of Amendment 25-64 to part 25, specifically § 25.562, a new standard was created that quantifies required head-injury protection.
Each seat-type design approved for crew or passenger occupancy during takeoff and landing, as required by § 25.562, must successfully complete dynamic tests or be demonstrated by rational analysis based on dynamic tests of a similar type seat. In particular, the regulations require that persons not suffer serious head injury under the conditions specified in the tests, and that protection must be provided, or the seat be designed, so that head impact does not exceed a HIC value of 1,000 units. While the test conditions described for HIC are detailed and specific, it is the intent of the requirement that an adequate level of head-injury protection be provided for passengers in a severe crash.
Because §§ 25.562 and 25.785 and associated guidance do not adequately address seats with inflatable lap belts, the FAA recognizes that appropriate pass/fail criteria need to be developed that fully address the safety concerns specific to occupants of these seats.
Under the provisions of 14 CFR 21.101, Embraer must show that the Model EMB-545 airplane meets the applicable provisions of the regulations listed in Type Certificate No. TC00062IB, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate No. TC00062IB are as follows:
14 CFR part 25, effective February 1, 1965, including Amendments 25-1 through 25-129, in their entirety. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, Embraer Model EMB-545 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
Embraer Model EMB-545 airplanes will incorporate the following novel or unusual design feature: seats with inflatable lap belts.
The inflatable lap belt has two potential advantages over other means of head-impact protection. First, it can provide significantly greater protection than would be expected with energy-absorbing pads, and second, it can provide essentially equivalent protection for occupants of all stature. These are significant advantages from a safety standpoint, because such devices will likely provide a level of safety that exceeds the minimum standards of part 25. Conversely, inflatable lap belts in general are active systems and must be relied upon to activate properly when needed, as opposed to an energy-absorbing pad or upper torso restraint that is passive and always available. Therefore, the potential advantages must be balanced against this and other potential disadvantages to develop standards for this design feature.
The FAA has considered the installation of inflatable lap belts to have two primary safety concerns: first, that they perform properly under foreseeable operating conditions; and second, that they do not perform in a manner or at such times as would constitute a hazard to the airplane or occupants. This latter point has the potential to be the more rigorous of the requirements, owing to the active nature of the system.
The inflatable lap belt will rely on electronic sensors for signaling, and will employ an automatic inflation mechanism for activation, so that it is available when needed. These same devices could be susceptible to inadvertent activation, causing deployment in a potentially unsafe manner. The consequences of such deployment must be considered in establishing the reliability of the system. Embraer must substantiate that the effects of an inadvertent deployment in flight are either not a hazard to the airplane, or that such deployment is an extremely improbable occurrence (less than 10
The potential for an inadvertent deployment could be increased as a result of conditions in service. The installation must take into account wear and tear so that the likelihood of an inadvertent deployment is not increased to an unacceptable level. In this context, an appropriate inspection interval and self-test capability are considered necessary. Other outside influences are lightning and high-intensity radiated fields (HIRF). Existing regulations regarding lightning, § 25.1316, and HIRF, § 25.1317, are applicable. For compliance with those conditions, if inadvertent deployment could cause a hazard to the airplane, the inflatable lap belt is considered a critical system; if inadvertent deployment could cause injuries to persons, the inflatable lap belt should be considered an essential system. Finally, the inflatable lap-belt installation should be protected from the effects of fire, so that an additional hazard is not created by, for example, a rupture of a pyrotechnic squib.
To function as an effective safety system, the inflatable lap belt must function properly and must not introduce any additional hazards to occupants as a result of its functioning. The inflatable lap belt differs variously from traditional occupant-protection systems and requires special conditions to ensure adequate performance.
Because the inflatable lap belt is essentially a single-use device, it could potentially deploy under crash conditions that are not sufficiently severe as to require head-injury protection from the inflatable lap belt. And because an actual crash is frequently composed of a series of impacts before the airplane comes to rest, this could render the inflatable lap belt useless if a larger impact follows the initial impact. This situation does not exist with energy-absorbing pads or upper-torso restraints, which tend to provide continuous protection regardless of severity or number of impacts in a crash event. Therefore, the inflatable lap-belt installation should be such that the inflatable lap belt will provide protection when it is required, by not expending its protection during a less-severe impact. Also, it is possible to have several large impact events during the course of a crash, but there will be no requirement for the inflatable lap belt to provide protection for multiple impacts.
Given that each occupant's restraint system provides protection for that occupant only, the installation must address unoccupied seats. It will be necessary to show that the required protection is provided for each occupant regardless of the number of occupied seats, and that unoccupied seats may have lap belts that are active.
The inflatable lap belt should be effective for a wide range of occupants. The FAA has historically considered the range from the 5th percentile female to the 95th percentile male as the range of occupants that must be taken into account. In this case, the FAA is proposing consideration of a broader range of occupants due to the nature of the lap-belt installation and its close proximity to the occupant. In a similar vein, these persons could have assumed the brace position for those accidents where an impact is anticipated. Test data indicate that occupants in the brace position do not require supplemental protection, so it would not be necessary to show that the inflatable lap belt will enhance the brace position. However, the inflatable lap belt must not introduce a hazard when it is deployed into a seated, braced occupant.
Another area of concern is the use of seats so equipped by children, whether they are lap-held, sitting in approved child-safety seats, or occupying the seat directly. Although specifically prohibited by FAA operating regulations, the use of the supplementary loop belt (“belly belt”) may be required by other civil aviation authorities, and should also be considered with the end goal of meeting those regulations. Similarly, if the seat is occupied by a pregnant woman, the installation needs to address such usage, either by demonstrating that it will function properly, or by adding appropriate limitation on usage.
The inflatable lap belt will be electrically powered. Likewise, the system could possibly fail due to a separation in the fuselage. Because this system is intended as crash/post-crash protection means, failure due to fuselage separation is not acceptable. As with emergency lighting, the restraint system should function properly if such a separation occurs at any point in the fuselage.
Because the inflatable lap belt is likely to have a large volume displacement, the inflated bag could potentially impede egress of passengers. However, the lap-belt bag deflates to absorb energy, so it is likely that an inflatable lap belt would be deflated by the time passengers begin to leave their seats. Nonetheless, it is appropriate to specify a time interval after which the inflatable lap belt may not impede rapid egress. The maximum time allowed for an exit to open fully after actuation is 10 seconds, according to § 25.809(b)(2). Therefore, the FAA has established 10 seconds as the time interval that the inflatable lap belt must not impede rapid egress from the seat after it is deployed. In actuality, it is unlikely that a flight attendant would prepare an exit this quickly in an accident severe enough to warrant deployment of the inflatable lap belt. The inflatable lap belt will likely deflate much more quickly than 10 seconds.
This potential impediment to rapid egress is even more critical at the seats installed in the emergency-exit rows. Installation of inflatable restraints at the Type III exit rows presents different egress concerns as compared with front-row seats. However, the need to address egress is already part of the special conditions, so there is no change to the special conditions at this time. As noted below, the method of compliance with the special conditions may involve specific considerations when an inflatable restraint is installed at Type III exits. Section 25.813 clearly requires access to the exit from the main aisle in the form of an unobstructed passageway, and no interference in opening the exit. The restraint system must not create an impediment to the access to, and the opening of, the exit. These lap belts should be evaluated in the exit row under existing regulations (§§ 25.809 and 25.813) and guidance material. The inflatable lap belts must also be evaluated in post-crash conditions, and should be evaluated using representative restraint systems in the bag-deployed condition.
This evaluation would include reviewing the access to, and opening of, the exit, specifically for obstructions in the egress path; and any interferences in opening the exit. Each unique interior configuration must be considered,
Note that the special conditions are applicable to the inflatable lap-belt system as installed. The special conditions are not an installation approval. Therefore, while the special
Embraer will install inflatable lap belts, a novel design feature, on certain seats of Model EMB-545 airplanes, to reduce the potential for head injury if an accident occurs. The inflatable lap belt works similar to an automotive inflatable air bag, except that the air bag in the Embraer design is integrated into the lap belt of the restraint system.
The performance criteria for head-injury protection in objective terms is stated in § 25.562. However, none of these criteria are adequate to address the specific issues raised concerning seats with inflatable lap belts. The FAA has therefore determined that, in addition to the requirements of part 25, special conditions are needed to address requirements particular to the installation of seats with inflatable lap belts.
Accordingly, in addition to the passenger-injury criteria specified in § 25.785, these special conditions are proposed for Embraer Model EMB-545 airplanes equipped with inflatable lap belts. Other conditions may be developed, as needed, based on further FAA review and discussions with the manufacturer and civil-aviation authorities.
For a passenger-safety system, the inflatable lap belt is unique in that it is both an active and entirely autonomous device. While the automotive industry has good experience with inflatable air bags, the conditions of use and reliance on the inflatable lap belt as the sole means of injury protection are quite different. In automobile installations, the air bag is a supplemental system and works in conjunction with an upper-torso restraint. In addition, the crash event is more definable and typically of shorter duration, which can simplify the activation logic. The airplane-operating environment is also quite different from automobiles and includes the potential for greater wear and tear, and unanticipated abuse conditions (due to galley loading, passenger baggage, etc.). Airplanes also operate where exposure to HIRF could affect the lap-belt activation system.
Part I of Appendix F to part 25 specifies the flammability requirements for interior materials and components. There is no reference to inflatable restraint systems in Appendix F, because such devices did not exist at the time the flammability requirements were written. The existing requirements are based on material types as well as use, and have been specified in light of state-of-the-art materials available to perform a given function. Without a specific reference, the default requirement would apply to the type of material used in making the inflatable restraint, which is a fabric in this case. However, in writing special conditions, the FAA must also consider the use of the material, and whether the default requirement is appropriate. In this case, the specialized function of the inflatable restraint means that highly specialized materials are needed. The standard normally applied to fabrics is a 12-second vertical ignition test. However, materials that meet this standard do not perform adequately as inflatable restraints. Because the safety benefit of the inflatable restraint is significant, the flammability standard appropriate for these devices should not screen out suitable materials and thereby effectively eliminate the use of inflatable restraints. The FAA must establish a balance between the safety benefit of the inflatable restraint and its flammability performance. Presently, the 2.5-inch-per-minute horizontal test is considered to provide that balance. As the state-of-the-art in materials progresses (which is expected), the FAA may change this standard in subsequent special conditions to account for improved materials.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
These special conditions are applicable to Embraer Model EMB-545 airplanes. Should Embraer apply at a later date for a change to the type certificates to include another model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.
This action affects only certain novel or unusual design features on Embraer Model EMB-545 airplanes. It is not a rule of general applicability, and it affects only Embraer Model EMB-545 airplanes listed on amended Type Certificate No. TC00062IB.
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
1. The inflatable lap belt must be shown to deploy and provide protection under crash conditions where it is necessary to prevent serious head injury. The means of protection must take into consideration a range of stature from a two-year-old child to a 95th percentile male. The inflatable lap belt must provide a consistent approach to energy absorption throughout that range of occupants. In addition, the following situations must be considered.
The seat occupant is:
• holding an infant
• a child in a child-restraint device
• a child not using a child-restraint device
• a pregnant woman
2. The inflatable lap belt must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly, considering that unoccupied seats may have an active airbag system in the lap belt.
3. The design must prevent the inflatable lap belt from being either incorrectly buckled or incorrectly installed such that the inflatable lap belt would not properly deploy. Alternatively, it must be shown that such deployment is not hazardous to the occupant, and will provide the required head-injury protection.
4. The inflatable lap-belt system must be shown not to be susceptible to inadvertent deployment as a result of wear and tear, or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings), likely to be experienced in service.
5. Deployment of the inflatable lap belt must not introduce injury mechanisms to the seated occupant, nor result in injuries that could impede rapid egress. This assessment should include an occupant who is in the brace position when it deploys, and an occupant whose inflatable lap belt is loosely fastened.
6. An inadvertent deployment that could cause injury to a standing or sitting person must be shown to be improbable.
7. It must be shown that inadvertent deployment of the airbag system in the lap belt, during the most critical part of the flight, either will not cause a hazard
8. The inflatable lap belt must be shown to not impede rapid egress of occupants 10 seconds after its deployment.
9. The inflatable lap-belt system must be protected from lightning and HIRF. The threats specified in existing regulations regarding lightning, § 25.1316, and HIRF, § 25.1317, are incorporated by reference for the purpose of measuring lightning and HIRF protection. For the purposes of complying with HIRF requirements, the inflatable lap-belt system is considered a “critical system” if its deployment could have a hazardous effect on the airplane; otherwise it is considered an “essential” system.
10. The inflatable lap belt must function properly after loss of normal airplane electrical power, and after a transverse separation of the fuselage at the most critical location. A separation at the location of the lap belt does not have to be considered.
11. The inflatable lap belt must be shown to not release hazardous quantities of gas or particulate matter into the cabin.
12. The inflatable lap-belt installation must be protected from the effects of fire such that no hazard to occupants will result.
13. A means must be available for a crewmember to verify the integrity of the inflatable-lap-belt-activation system prior to each flight, or it must be demonstrated to reliably operate between inspection intervals.
14. The inflatable material may not have an average burn rate of greater than 2.5 inches per minute when tested using the horizontal-flammability test as defined in 14 CFR part 25, Appendix F, Part I(b)(5).
15. The airbag system in the lap belt, once deployed, must not adversely affect the emergency-lighting system (
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for Boeing Model 747-8 airplanes. These airplanes will have a novel or unusual design feature associated with seats with inflatable lap belts. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is September 30, 2015. We must receive your comments by November 16, 2015.
Send comments identified by docket number FAA-2015-2392 using any of the following methods:
•
•
•
•
Jayson Claar, FAA, Airframe and Cabin Safety Branch, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone (425) 227-2194, facsimile (425) 227-1232.
The FAA has determined that notice of, and opportunity for, prior public comment on these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.
In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On February 3, 2014, the Boeing Company applied for an amendment to Type Certificate no. A20WE to allow installation of inflatable lap belts for head-injury protection on certain seats in Boeing Model 747-8 airplanes.
The Model 747-8 airplane, a derivative of the Model 747-400 airplane, is a bi-level, wide-body airplane powered by four wing-mounted General Electric GEnx-2B engines. The airplane will have a maximum seating
The Boeing Company requested special conditions to allow inflatable lap belts on Boeing Model 747-8 series airplanes, similar to Special Conditions no. 25-386-SC for Boeing Model 737 series airplanes; 25-187A-SC for Boeing Model 777 series airplanes; 25-148-SC for Boeing Model 767 series airplanes; and 25-431-SC for Boeing Model 787 series airplanes. These special conditions will allow installation of inflatable lap belts for head-injury protection on certain seats in Boeing Model 747-8 airplanes. Section 121.311(j) of 14 CFR requires that no person may operate a transport-category airplane type-certificated after January 1, 1958, and manufactured on or after October 27, 2009, in passenger-carrying operations after October 27, 2009, unless all passenger and flight-attendant seats on the airplane, operated under part 121 rules, meet the requirements of § 25.562 in effect on or after June 16, 1988.
The Boeing Model 747-8 airplane, operated under part 121, must meet all of the requirement of § 25.562 for passenger and flight-attendant seats. Therefore, it is in the interest of installers to show full compliance to § 25.562, so that an operator under part 121 may be able to use the airplane without having to conduct additional certification work. The FAA also notes that some foreign civil airworthiness authorities have invoked these same operator requirements in the form of airworthiness directives.
Occupants must be protected from head injury, as required by § 25.785, either by eliminating any injurious object within the striking radius of the head, or by installing padding. Traditionally, this has required either a setback of 35 inches from any bulkhead or other rigid interior feature or, where not practical, the installation of specified types of padding. The relative effectiveness of these established means of injury protection was not quantified. With the adoption of Amendment 25-64 to part 25, specifically § 25.562, a new standard was created that quantifies required head-injury protection.
Each seat-type design approved for crew or passenger occupancy during takeoff and landing, as required by § 25.562, must successfully complete dynamic tests or be demonstrated by rational analysis based on dynamic tests of a similar type seat. In particular, the regulations require that persons not suffer serious head injury under the conditions specified in the tests, and that protection must be provided, or the seat be designed, so that head impact does not exceed a HIC value of 1,000 units. While the test conditions described for HIC are detailed and specific, it is the intent of the requirement that an adequate level of head-injury protection be provided for passengers in a severe crash.
Because §§ 25.562 and 25.785 and associated guidance do not adequately address seats with inflatable lap belts, the FAA recognizes that appropriate pass/fail criteria need to be developed that fully address the safety concerns specific to occupants of these seats.
Under the provisions of 14 CFR 21.101, Boeing must show that the Model 747-8 airplane meets the applicable provisions of the regulations listed in Type Certificate no. A20WE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type certification basis.” The regulations incorporated by reference in Type Certificate no. A20WE are as follows:
14 CFR part 25, Amendments 25-1 through 25-120, with exceptions permitted by § 21.101. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 747-8 airplanes must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
Boeing Model 747-8 airplanes will incorporate the following novel or unusual design feature: Seats with inflatable lap belts. The inflatable lap belt is designed to limit occupant forward excursion in the event of an accident. This will reduce the potential for head injury, thereby reducing the Head Injury Criterion (HIC) measurement as required by Title 14, Code of Federal Regulations (14 CFR), 25.562(c)(5). The inflatable lap belt functions similarly to an automotive inflatable airbag, but in this case, the airbag is integrated into the lapbelt, and inflates away from the seated occupant. While inflatable airbags are now standard in the automotive industry, the use of an inflatable lap belt is novel for commercial aviation.
The inflatable lap belt has two potential advantages over other means of head-impact protection. First, it can provide significantly greater protection than would be expected with energy-absorbing pads, and second, it can provide essentially equivalent protection for occupants of all stature. These are significant advantages from a safety standpoint, because such devices will likely provide a level of safety that exceeds the minimum standards of part 25. Conversely, inflatable lap belts in general are active systems and must be relied upon to activate properly when needed, as opposed to an energy-absorbing pad or upper torso restraint that is passive and always available. Therefore, the potential advantages must be balanced against this and other potential disadvantages to develop standards for this design feature.
The FAA has considered the installation of inflatable lap belts to have two primary safety concerns: First, that they perform properly under foreseeable operating conditions; and second, that they do not perform in a manner or at such times as would constitute a hazard to the airplane or occupants. This latter point has the potential to be the more rigorous of the requirements, owing to the active nature of the system.
The inflatable lap belt will rely on electronic sensors for signaling, and will employ an automatic inflation mechanism for activation, so that it is available when needed. These same devices could be susceptible to
The potential for an inadvertent deployment could be increased as a result of conditions in service. The installation must take into account wear and tear so that the likelihood of an inadvertent deployment is not increased to an unacceptable level. In this context, an appropriate inspection interval and self-test capability are considered necessary. Other outside influences are lightning and high-intensity radiated fields (HIRF). Existing regulations regarding lightning, § 25.1316, and HIRF, § 25.1317, are applicable. For compliance with those conditions, if inadvertent deployment could cause a hazard to the airplane, the inflatable lap belt is considered a critical system; if inadvertent deployment could cause injuries to persons, the inflatable lap belt should be considered an essential system. Finally, the inflatable lap-belt installation should be protected from the effects of fire, so that an additional hazard is not created by, for example, a rupture of a pyrotechnic squib.
To function as an effective safety system, the inflatable lap belt must function properly and must not introduce any additional hazards to occupants as a result of its functioning. The inflatable lap belt differs variously from traditional occupant-protection systems and requires special conditions to ensure adequate performance.
Because the inflatable lap belt is essentially a single-use device, it could potentially deploy under crash conditions that are not sufficiently severe as to require head-injury protection from the inflatable lap belt. And because an actual crash is frequently composed of a series of impacts before the airplane comes to rest, this could render the inflatable lap belt useless if a larger impact follows the initial impact. This situation does not exist with energy-absorbing pads or upper-torso restraints, which tend to provide continuous protection regardless of severity or number of impacts in a crash event. Therefore, the inflatable lap-belt installation should be such that the inflatable lap belt will provide protection when it is required, by not expending its protection during a less-severe impact. Also, it is possible to have several large impact events during the course of a crash, but there will be no requirement for the inflatable lap belt to provide protection for multiple impacts.
Given that each occupant's restraint system provides protection for that occupant only, the installation must address unoccupied seats. It will be necessary to show that the required protection is provided for each occupant regardless of the number of occupied seats, and that unoccupied seats may have lap belts that are active.
The inflatable lap belt should be effective for a wide range of occupants. The FAA has historically considered the range from the 5th percentile female to the 95th percentile male as the range of occupants that must be taken into account. In this case, the FAA is proposing consideration of a broader range of occupants due to the nature of the lap-belt installation and its close proximity to the occupant. In a similar vein, these persons could have assumed the brace position for those accidents where an impact is anticipated. Test data indicate that occupants in the brace position do not require supplemental protection, so it would not be necessary to show that the inflatable lap belt will enhance the brace position. However, the inflatable lap belt must not introduce a hazard when it is deployed into a seated, braced occupant.
Another area of concern is the use of seats so equipped by children, whether they are lap-held, sitting in approved child-safety seats, or occupying the seat directly. Although specifically prohibited by FAA operating regulations, the use of the supplementary loop belt (“belly belt”) may be required by other civil aviation authorities, and should also be considered with the end goal of meeting those regulations. Similarly, if the seat is occupied by a pregnant woman, the installation needs to address such usage, either by demonstrating that it will function properly, or by adding appropriate limitation on usage.
The inflatable lap belt will be electrically powered. Likewise, the system could possibly fail due to a separation in the fuselage. Because this system is intended as crash/post-crash protection means, failure due to fuselage separation is not acceptable. As with emergency lighting, the restraint system should function properly if such a separation occurs at any point in the fuselage.
Because the inflatable lap belt is likely to have a large volume displacement, the inflated bag could potentially impede egress of passengers. However, the lap-belt bag deflates to absorb energy, so it is likely that an inflatable lap belt would be deflated by the time passengers begin to leave their seats. Nonetheless, it is appropriate to specify a time interval after which the inflatable lap belt may not impede rapid egress. The maximum time allowed for an exit to open fully after actuation is 10 seconds, according to § 25.809(b)(2). Therefore, the FAA has established 10 seconds as the time interval that the inflatable lap belt must not impede rapid egress from the seat after it is deployed. In actuality, it is unlikely that a flight attendant would prepare an exit this quickly in an accident severe enough to warrant deployment of the inflatable lap belt. The inflatable lap belt will likely deflate much more quickly than 10 seconds.
This potential impediment to rapid egress is even more critical at the seats installed in the emergency-exit rows. Installation of inflatable restraints at the Type III exit rows presents different egress concerns as compared with front-row seats. However, the need to address egress is already part of the special conditions, so there is no change to the special conditions at this time. As noted below, the method of compliance with the special conditions may involve specific considerations when an inflatable restraint is installed at Type III exits. Section 25.813 clearly requires access to the exit from the main aisle in the form of an unobstructed passageway, and no interference in opening the exit. The restraint system must not create an impediment to the access to, and the opening of, the exit. These lap belts should be evaluated in the exit row under existing regulations (§§ 25.809 and 25.813) and guidance material. The inflatable lap belts must also be evaluated in post-crash conditions, and should be evaluated using representative restraint systems in the bag-deployed condition.
This evaluation would include reviewing the access to, and opening of, the exit, specifically for obstructions in the egress path; and any interferences in opening the exit. Each unique interior configuration must be considered,
Note that the special conditions are applicable to the inflatable lap-belt system as installed. The special conditions are not an installation approval. Therefore, while the special conditions relate to each such system installed, the overall installation approval is separate, and must consider the combined effects of all such systems installed.
Boeing will install inflatable lap belts, a novel design feature, on certain seats of Model 747-8 airplanes, to reduce the potential for head injury if an accident occurs. The inflatable lap belt works similar to an automotive inflatable air bag, except that the air bag in the Boeing design is integrated into the lap belt of the restraint system.
The performance criteria for head-injury protection in objective terms is stated in § 25.562. However, none of these criteria are adequate to address the specific issues raised concerning seats with inflatable lap belts. The FAA has therefore determined that, in addition to the requirements of part 25, special conditions are needed to address requirements particular to the installation of seats with inflatable lap belts.
Accordingly, in addition to the passenger-injury criteria specified in § 25.785, these special conditions are proposed for the Boeing Model 747-8 airplanes equipped with inflatable lap belts. Other conditions may be developed, as needed, based on further FAA review and discussions with the manufacturer and civil-aviation authorities.
For a passenger-safety system, the inflatable lap belt is unique in that it is both an active and entirely autonomous device. While the automotive industry has good experience with inflatable air bags, the conditions of use and reliance on the inflatable lap belt as the sole means of injury protection are quite different. In automobile installations, the air bag is a supplemental system and works in conjunction with an upper-torso restraint. In addition, the crash event is more definable and typically of shorter duration, which can simplify the activation logic. The airplane-operating environment is also quite different from automobiles and includes the potential for greater wear and tear, and unanticipated abuse conditions (due to galley loading, passenger baggage, etc.). Airplanes also operate where exposure to HIRF could affect the lap-belt activation system.
The current special conditions for the Boeing Model 777 airplane were amended to address flammability of the airbag material. During the development of the inflatable lap belt, the manufacturer was unable to develop a fabric that would meet the inflation requirements for the bag and the flammability requirements of part 25, Appendix F, Part I(a)(1)(ii). The fabrics that were developed that meet the flammability requirement did not produce acceptable deployment characteristics. However, the manufacturer was able to develop a fabric that not only meets the flammability requirements of part 25, Appendix F, Part I(a)(1)(ii), but also has acceptable deployment characteristics.
Part I of Appendix F to part 25 specifies the flammability requirements for interior materials and components. There is no reference to inflatable restraint systems in Appendix F, because such devices did not exist at the time the flammability requirements were written. The existing requirements are based on material types as well as use, and have been specified in light of state-of-the-art materials available to perform a given function. Without a specific reference, the default requirement would apply to the type of material used in making the inflatable restraint, which is a fabric in this case. However, in writing special conditions, the FAA must also consider the use of the material, and whether the default requirement is appropriate. In this case, the specialized function of the inflatable restraint means that highly specialized materials are needed. The standard normally applied to fabrics is a 12-second vertical ignition test. However, materials that meet this standard do not perform adequately as inflatable restraints. Because the safety benefit of the inflatable restraint is significant, the flammability standard appropriate for these devices should not screen out suitable materials and thereby effectively eliminate the use of inflatable restraints. The FAA must establish a balance between the safety benefit of the inflatable restraint and its flammability performance. Presently, the 2.5-inch-per-minute horizontal test is considered to provide that balance. As the state-of-the-art in materials progresses (which is expected), the FAA may change this standard in subsequent special conditions to account for improved materials.
These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
These special conditions are applicable to the Boeing Model 747-8 airplanes. Should Boeing apply at a later date for a change to the type certificates to include another model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.
This action affects only certain novel or unusual design features on the Boeing Model 747-8 airplanes. It is not a rule of general applicability, and it affects only Boeing Model 747-8 airplanes listed on amended Type Certificate no. A20WE.
Aircraft, Aviation safety, reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 747-8 airplanes with inflatable lap belts installed.
1. The inflatable lap belt must be shown to deploy and provide protection under crash conditions where it is necessary to prevent serious head injury. The means of protection must take into consideration a range of stature from a two-year-old child to a 95th percentile male. The inflatable lap belt must provide a consistent approach to energy absorption throughout that range of occupants. In addition, the following situations must be considered.
The seat occupant is:
• Holding an infant
• a child in a child-restraint device
• a child not using a child-restraint device
• a pregnant woman
2. The inflatable lap belt must provide adequate protection for each occupant regardless of the number of occupants of the seat assembly, considering that unoccupied seats may have an active airbag system in the lap belt.
3. The design must prevent the inflatable lap belt from being either incorrectly buckled or incorrectly
4. The inflatable lap-belt system must be shown not to be susceptible to inadvertent deployment as a result of wear and tear, or inertial loads resulting from in-flight or ground maneuvers (including gusts and hard landings), likely to be experienced in service.
5. Deployment of the inflatable lap belt must not introduce injury mechanisms to the seated occupant, nor result in injuries that could impede rapid egress. This assessment should include an occupant who is in the brace position when it deploys, and an occupant whose inflatable lap belt is loosely fastened.
6. An inadvertent deployment that could cause injury to a standing or sitting person must be shown to be improbable.
7. It must be shown that inadvertent deployment of the airbag system in the lap belt, during the most critical part of the flight, either will not cause a hazard to the airplane or its occupants, or meets the requirement of § 25.1309(b).
8. The inflatable lap belt must be shown to not impede rapid egress of occupants 10 seconds after its deployment.
9. The inflatable lap-belt system must be protected from lightning and HIRF. The threats specified in existing regulations regarding lightning, § 25.1316, and HIRF, § 25.1317, are incorporated by reference for the purpose of measuring lightning and HIRF protection. For the purposes of complying with HIRF requirements, the inflatable lap-belt system is considered a “critical system” if its deployment could have a hazardous effect on the airplane; otherwise it is considered an “essential” system.
10. The inflatable lap belt must function properly after loss of normal airplane electrical power, and after a transverse separation of the fuselage at the most critical location. A separation at the location of the lap belt does not have to be considered.
11. The inflatable lap belt must be shown to not release hazardous quantities of gas or particulate matter into the cabin.
12. The inflatable lap-belt installation must be protected from the effects of fire such that no hazard to occupants will result.
13. A means must be available for a crewmember to verify the integrity of the inflatable-lap-belt-activation system prior to each flight, or it must be demonstrated to reliably operate between inspection intervals.
14. The inflatable material may not have an average burn rate of greater than 2.5 inches per minute when tested using the horizontal-flammability test as defined in 14 CFR part 25, Appendix F, Part I(b)(5).
15. The airbag system in the lap belt, once deployed, must not adversely affect the emergency-lighting system (
Federal Aviation Administration (FAA), DOT.
Final special conditions; request for comments.
These special conditions are issued for Boeing Model 777-200 airplanes. This airplane, as modified by Flight Structures, Inc., will have novel or unusual design features associated with oblique-angled, single-occupant seats equipped with airbag systems. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for these design features. These special conditions contain the additional safety standards the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
The effective date of these special conditions is September 30, 2015. We must receive your comments by November 16, 2015.
Send comments identified by docket number FAA-2015-3367 using any of the following methods:
John Shelden, Airframe and Cabin Safety, ANM-115, Transport Airplane Directorate, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2785; facsimile 425-227-1149.
The FAA has determined that notice of, and opportunity for, prior public comment on these special conditions are impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane.
In addition, the substance of these special conditions has been subject to the public-comment process in several prior instances with no substantive comments received. The FAA therefore finds that good cause exists for making these special conditions effective upon issuance.
We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.
We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.
On July 7, 2014, Flight Structures, Inc., applied for a supplemental type certificate to allow the installation of oblique business-class passenger seats, positioned at 32.5 degrees to the vertical plane of the airplane longitudinal centerline, and to include inflatable lap belts, in Boeing Model 777-200 airplanes.
The seating configuration Flight Structures, Inc., proposes in certification plan No. B3FS332-D10 includes the installation of TSO-39c-approved, Zodiac Aries model, side-facing, pod-style, business-class seats (with surrounding shells and front-row furniture), installed at an angle of up to 32.5 degrees to the airplane longitudinal centerline. These seats will include restraint (airbag) systems for occupant restraint and injury protection.
The Boeing Model 777-200 airplane, approved under Type Certificate No. T00001SE, is a swept-wing, conventional-tail, twin-engine, turbofan-powered transport airplane, with seating capacity for 440 passengers.
Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Flight Structures, Inc., must show that the Model 777-200 airplane, as changed, meets the applicable provisions of the regulations listed in Type Certificate No. T00001SE, or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA. The regulations listed in the type certificate are commonly referred to as the “original type- certification basis.” The regulations listed in Type Certificate No. T00001SE are as follows:
14 CFR part 25, Amendments 25-1 through 25-82, with exceptions listed in the type-certification data sheet. In addition, the certification basis includes certain special conditions, exemptions, or later amended sections of the applicable part that are not relevant to these special conditions.
If the Administrator finds that the applicable airworthiness regulations (
Special conditions are initially applicable to the model for which they are issued. Should the applicant apply for a supplemental type certificate to modify any other model included on the same type certificate to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.
In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777-200 airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.
The FAA issues special conditions as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type certification basis under § 21.101.
The business-class seating configuration Flight Structures, Inc., proposes is novel and unusual due to the seat installation at 32.5 degrees to the aircraft centerline, the airbag-system installation, and the seat/occupant interface with the surrounding furniture that introduces occupant alignment and loading concerns. The proposed business-class seating configuration also is beyond the limits of current acceptable equivalent-level-of-safety findings.
Ongoing research is progressing to establish acceptable limits. Until those limits become available, the FAA proposes a set of interim limits based on the current literature available, current National Highway Traffic Safety Administration (NHTSA) regulations, and preliminary test data from the research program.
The existing regulations do not provide adequate or appropriate safety standards for occupants of oblique-angled seats with airbag systems. To provide a level of safety that is equivalent to that afforded occupants of forward- and aft-facing seats, additional airworthiness standards, in the form of special conditions, are necessary. These special conditions supplement part 25 and, more specifically, supplement §§ 25.562 and 25.785. The requirements contained in these special conditions consist of both test conditions and injury pass/fail criteria.
Amendment 25-15 to part 25, dated October 24, 1967, introduced the subject of side-facing seats, and a requirement that each occupant in a side-facing seat must be protected from head injury by a safety belt and a cushioned rest that will support the arms, shoulders, head, and spine.
Subsequently, Amendment 25-20, dated April 23, 1969, clarified the definition of side-facing seats to require that each occupant of a seat, positioned at more than an 18-degree angle to the vertical plane of the airplane longitudinal centerline, must be protected from head injury by a safety belt and an energy-absorbing rest that will support the arms, shoulders, head, and spine; or by a safety belt and shoulder harness that will prevent the head from contacting any injurious object. The FAA concluded that an 18-degree angle would provide an adequate level of safety based on tests that were performed at that time, and thus adopted that standard.
Part 25 was amended June 16, 1988, by Amendment 25-64, to revise the emergency-landing conditions that must be considered in the design of the airplane. Amendment 25-64 revised the static-load conditions in 14 CFR 25.561, and added the new § 25.562 that requires dynamic testing for all seats approved for occupancy during takeoff and landing. The intent of Amendment 25-64 is to provide an improved level of safety for occupants on transport-category airplanes. Because most seating is forward-facing on transport-category airplanes, the pass/fail criteria developed in Amendment 25-64 focused primarily on these seats. As a result, the FAA issued Policy Memorandums ANM-03-115-30 and PS-ANM-100-2000-00123 to provide the additional guidance necessary to demonstrate the level of safety required by the regulations for side-facing seats.
To reflect current research findings, the FAA developed a methodology to address all fully side-facing seats (
The proposed Model 777-200 airplane business-class seat installation is novel such that the current Model 777-200 airplane certification basis does not adequately protection of the occupant's neck and spine for seat
These special conditions will provide head injury criteria, neck injury criteria, spine injury criteria, and body-to-wall contact criteria. They contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.
These special conditions are applicable to the Boeing Model 777-200 airplanes configured with the business-class seating defined in Flight Structures, Inc., certification plan No. B3FS332-D10. Should Flight Structures, Inc., apply at a later date for a supplemental type certificate to modify any other model included on Type Certificate No. T00001SE to incorporate the same novel or unusual design feature, these special conditions would apply to the other model as well.
This action affects only certain novel or unusual design features on one model of airplane. It is not a rule of general applicability, and affects only the applicant who applied to the FAA for approval of these features on the airplane.
The substance of these special conditions has been subjected to the notice and comment period in several prior instances, and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable, and good cause exists for adopting these special conditions upon publication in the
Aircraft, Aviation safety, Reporting and recordkeeping requirements.
The authority citation for these special conditions is as follows:
49 U.S.C. 106(g), 40113, 44701, 44702, 44704.
Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for the Boeing Model 777-200 airplane.
In addition to the requirements of § 25.562:
Compliance with § 25.562(c)(5) is required, except that, if the anthropomorphic test device (ATD) has no apparent contact with the seat/structure but has contact with an airbag, a head-injury criterion (HIC) unlimited score in excess of 1000 is acceptable, provided the HIC15 score (calculated in accordance with 49 CFR 571.208) for that contact is less than 700.
If a seat is installed aft of structure (
The seating system must protect the occupant from experiencing serious neck injury. The assessment of neck injury must be conducted with the airbag device activated, unless there is reason to also consider that the neck-injury potential would be higher for impacts below the airbag-device deployment threshold.
a. The N
i. F
ii. F
iii. M
iv. M
b. In addition, peak F
c. Rotation of the head about its vertical axis, relative to the torso, is limited to 105 degrees in either direction from forward-facing.
d. The neck must not impact any surface that would produce concentrated loading on the neck.
a. The shoulders must remain aligned with the hips throughout the impact sequence, or support for the upper torso must be provided to prevent forward or lateral flailing beyond 45 degrees from the vertical during significant spinal loading. Alternatively, the lumbar spine tension (F
b. Significant concentrated loading on the occupant's spine, in the area between the pelvis and shoulders during impact, including rebound, is not acceptable. During this type of contact, the interval for any rearward (X-direction) acceleration exceeding 20g must be less than 3 milliseconds as measured by the thoracic instrumentation specified in 49 CFR part 572, subpart E, filtered in accordance with SAE International (SAE) J211-1.
c. Occupant must not interact with the armrest or other seat components in any manner significantly different than would be expected for a forward-facing seat installation.
5. Longitudinal test(s), conducted to measure the injury criteria above, must be performed with the FAA Hybrid III ATD, as described in SAE 1999-01-1609. The test(s) must be conducted with an undeformed floor, at the most-critical yaw case(s) for injury, and with all lateral structural supports (armrests/walls) installed.
Boeing must demonstrate that the installation of seats via plinths or pallets meets all applicable requirements. Compliance with the guidance contained in FAA Policy Memorandum PS-ANM-100-2000-00123, dated February 2, 2000, titled “Guidance for Demonstrating Compliance with Seat Dynamic Testing for Plinths and Pallets,” is acceptable to the FAA.
If inflatable lap belts are installed on single-place side-facing seats, the lap belts must meet Special Conditions No. 25-187A-SC.
Food and Drug Administration, HHS.
Final rule.
The Food and Drug Administration (“FDA” or “we”) is amending the color additive regulations to provide for the safe use of mica-based pearlescent pigments prepared from titanium dioxide and mica as color additives in certain distilled spirits. This action is in response to a color additive petition (CAP) submitted by E. & J. Gallo Winery.
This rule is effective November 2, 2015. See section VIII for further information on the filing of objections. Submit either electronic or written objections and requests for a hearing by October 30, 2015.
You may submit either electronic or written objections and requests for a hearing, identified by Docket No. FDA-2015-C-1154, by any of the following methods:
Submit electronic objections in the following way:
•
Submit written objections in the following ways:
•
Salome Bhagan, Center for Food Safety and Applied Nutrition (HFS-265), Food and Drug Administration, 5100 Paint Branch Pkwy., College Park, MD 20740-3835, 240-402-3041.
In a notice published in the
CAP 5C0302 was submitted by E. & J. Gallo Winery, c/o Keller and Heckman LLP, Three Embarcadero Center, Suite 1420, San Francisco, CA 94111 (petitioner). In CAP 5C0302, E. & J. Gallo Winery proposed to amend the color additive regulations in § 73.350 to increase the maximum permitted alcohol content of distilled spirits to which mica-based pearlescent pigments may be added from 23 percent to 25 percent alcohol by volume, and to remove the current limitation for distilled spirits mixtures containing more than 5 percent wine on a proof gallon basis. The term “distilled spirits” is defined by the Alcohol and Tobacco Tax and Trade Bureau as ethyl alcohol, hydrated oxide of ethyl, spirits of wine, whisky, rum, brandy, gin, and other distilled spirits, including all dilutions and mixtures thereof, for nonindustrial use. The term does not include mixtures containing wine, bottled at 48 degrees of proof or less, if the mixture contains more than 50 percent wine on a proof gallon basis (27 CFR 5.11).
Mica-based pearlescent pigments prepared from titanium dioxide and mica are currently approved under § 73.350(c)(1)(i) for use as a color additive in amounts up to 1.25 percent, by weight, in cereals, confections and frostings, gelatin deserts, hard and soft candies (including lozenges), nutritional supplement tablets and gelatin capsules, and chewing gum. They are also approved under § 73.350(c)(1)(ii) in amounts up to 0.07 percent, by weight, in: Distilled spirits containing not less than 18 percent and not more than 23 percent alcohol by volume but not including distilled spirits mixtures containing more than 5 percent wine on a proof gallon basis (§ 73.350(c)(1)(ii)(A)); cordials, liqueurs, flavored alcoholic malt beverages, wine coolers, and cocktails (§ 73.350(c)(1)(ii)(B)); and non-alcoholic cocktail mixes and mixers, such as margarita mix, Bloody Mary mix, and daiquiri mix, but excluding eggnog, tonic water, and beverages that are typically consumed without added alcohol (
Under section 721(b)(4) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 379e(b)(4)), a color additive cannot be listed for a particular use unless the data and information available to FDA establishes that the color additive is safe for that use. FDA's color additive regulations in 21 CFR 70.3(i) define “safe” to mean that there is convincing evidence that establishes with reasonable certainty that no harm will result from the intended use of the color additive. To establish with reasonable certainty that a color additive intended for use in food is not harmful under its intended conditions of use, we consider the projected human dietary exposure to the additive, the additive's toxicological data, and other relevant information (such as published literature) available to us. We compare an individual's estimated daily intake (EDI) of the additive from all sources to an acceptable daily intake (ADI) established by toxicological data. The EDI is determined by projections based on the amount of the additive proposed for use in particular foods and on data regarding the amount consumed from all sources of the additive. We typically use the EDI for the 90th percentile consumer of a color additive as a
During our safety review of the use of mica-based pearlescent pigments proposed in CAP 5C0302, we considered the exposure to the color additive from its petitioned use and from the currently permitted uses in food and ingested drugs under §§ 73.350 and 73.1350, respectively. In estimating the cumulative estimated dietary intake (CEDI) of these pigments, we determined that the exposure to mica-based pearlescent pigments from the use in egg decorating kits used for coloring the shells of boiled eggs and in contact lenses (§§ 73.350(c)(1)(iii) and 73.3128, respectively) is negligible and, therefore, does not contribute to the exposure.
The petitioner estimated the eaters-only exposure to mica-based pearlescent pigments from the proposed use in distilled spirits containing not less than 18 percent and not more than 25 percent alcohol by volume at 0.14 grams per person per day (g/p/d) at the mean and 0.31 g/p/d at the 90th percentile for the U.S. population (Ref. 1). (An eaters-only exposure is the total of the amount of food consumed per day averaged over the number of days in the survey period by individuals consuming the food at least once during the survey period.) We conclude that the petitioner's exposure estimates are sufficiently conservative to account for the petitioned use of mica-based pearlescent pigments. Regarding cumulative exposure from the current and petitioned uses of mica-based pearlescent pigments, we note that in our recent final rule that provided for the safe use of mica-based pearlescent pigments as color additives in cordials, liqueurs, flavored alcoholic malt beverages, wine coolers, cocktails, non-alcoholic cocktail mixers and mixes, and in egg decorating kits for coloring shell eggs, we estimated the CEDI for the use of mica-based pearlescent pigments in food (§ 73.350) and ingested drugs (§ 73.1350) to be 0.25 g/p/d at the mean and 0.50 g/p/d at the 90th percentile for the U.S. population (80 FR 32303 at 32305, June 8, 2015). Since the petitioned use of mica-based pearlescent pigments will generally substitute for currently-permitted uses of mica-based pearlescent pigments in other alcoholic beverages with no change in the maximum use level of 0.07 percent by weight, we have determined that the petitioned use of mica-based pearlescent pigments will not result in an increase in consumer exposure to these pigments. Therefore, we conclude that our previous CEDI for mica-based pearlescent pigments of 0.25 g/p/d at the mean and 0.50 g/p/d at the 90th percentile for the U.S. population will remain unchanged (Ref. 1).
To support the safety of the proposed use of mica-based pearlescent pigments in food, the petitioner referenced the safety determination made by FDA for previously filed petitions (70 FR 42271, July 22, 2005); (71 FR 31927, June 2, 2006); and (78 FR 35115, June 12, 2013); including our previously established ADI for mica-based pearlescent pigments of 1.8 g/p/d based on a 2-year rat carcinogenicity bioassay (71 FR 31927 at 31928). Because there is no increase in the intake of mica-based pearlescent pigments beyond a level that has already been established as safe, FDA has no concerns regarding the petitioned use of mica-based pearlescent pigments in distilled spirits containing not less than 18 percent and not more than 25 percent alcohol by volume (Ref. 2).
Based on the data and information in the petition and other relevant material, FDA concludes that the petitioned use of mica-based pearlescent pigments prepared from titanium dioxide and mica as a color additive at a level of up to 0.07 percent by weight in distilled spirits containing not less than 18 percent and not more than 25 percent alcohol by volume, is safe. We further conclude that the additive will achieve its intended technical effect and is suitable for the petitioned use. Therefore, we are amending the color additive regulations in part 73 as set forth in this document. In addition, based upon the factors listed in 21 CFR 71.20(b), we conclude that certification of mica-based pearlescent pigments prepared from titanium dioxide and mica is not necessary for the protection of the public health.
In accordance with § 71.15 (21 CFR 71.15), the petitions and the documents that we considered and relied upon in reaching our decision to approve the petition will be made available for public disclosure (see
We previously considered the environmental effects of this rule, as stated in the April 22, 2015 notice of filing for CAP 5C0302 (80 FR 22449). We stated that we had determined, under 21 CFR 25.32(k), that this action is of a type that does not individually or cumulatively have a significant effect on the human environment such that neither an environmental assessment nor an environmental impact statement is required. We have not received any new information or comments that would affect our previous determination.
This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.
Our review of this petition was limited to section 721 of the FD&C Act. This final rule is not a statement regarding compliance with other sections of the FD&C Act. For example, section 301(ll) of the FD&C Act prohibits the introduction or delivery for introduction into interstate commerce of any food that contains a drug approved under section 505 of the FD&C Act (21 U.S.C. 355), a biological product licensed under section 351 of the Public Health Service Act (42 U.S.C. 262), or a drug or biological product for which substantial clinical investigations have been instituted and their existence has been made public, unless one of the exemptions in section 301(ll)(1) to (ll)(4) of the FD&C Act applies. In our review of this petition, we did not consider whether section 301(ll) of the FD&C Act or any of its exemptions apply to food containing this additive. Accordingly, this final rule should not be construed to be a statement that a food containing this additive, if introduced or delivered for introduction into interstate commerce, would not violate section 301(ll) of the FD&C Act. Furthermore, this language is included in all color additive final rules that pertain to food and therefore should not be construed to be a statement of the likelihood that section 301(ll) of the FD&C Act applies.
This rule is effective as shown in the
It is only necessary to send one set of documents. Identify documents with the docket number found in brackets in the heading of this document. Any objections received in response to the regulation may be seen in the Division of Dockets Management between 9 a.m. and 4 p.m., Monday through Friday, and will be posted to the docket at
The following references have been placed on display in the Division of Dockets Management (see
Color additives, Cosmetics, Drugs, Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, and redelegated to the Director, Center for Food Safety and Applied Nutrition, 21 CFR part 73 is amended as follows:
21 U.S.C. 321, 341, 342, 343, 348, 351, 352, 355, 361, 362, 371, 379e.
(c) * * *
(1) * * *
(ii) * * *
(A) Distilled spirits containing not less than 18 percent and not more than 25 percent alcohol by volume.
Food and Drug Administration, HHS.
Notification of availability.
The Food and Drug Administration (FDA) is announcing the availability of a small entity compliance guide and guidance for industry #120 entitled “Veterinary Feed Directive Regulation Questions and Answers.” This guidance aids industry in complying with the requirements of the Veterinary Feed Directive (VFD) final rule that published in the
Submit either electronic or written comments on Agency guidances at any time.
You may submit comments as follows:
Submit electronic comments in the following way:
• Federal eRulemaking Portal:
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
•
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS
Submit written requests for single copies of the guidance to the Policy and Regulations Staff (HFV-6), Center for Veterinary Medicine, Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Dragan Momcilovic, Center for Veterinary Medicine (HFV-226), Food and Drug Administration, 7519 Standish Pl., Rockville, MD 20855, 240-402-5944,
In the
In 1996, Congress enacted the Animal Drug Availability Act (ADAA) to facilitate the approval and marketing of new animal drugs and medicated feeds. In passing the ADAA, Congress created a new regulatory category for certain animal drugs used in animal feed called VFD drugs. VFD drugs are new animal drugs intended for use in or on animal feed which are limited to use under the professional supervision of a licensed veterinarian. FDA published final regulations implementing the VFD-related provisions of the ADAA in 2000. On June 3, 2015, FDA published a VFD final rule that revised those VFD regulations and introduced clarifying changes to specified definitions, and published the draft revised guidance for comment.
This guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The guidance represents the current thinking of FDA on VFD regulation questions and answers. It does not establish any rights for any person and is not binding on FDA or the public. You can use an alternative approach if it satisfies the requirements of the applicable statutes and regulations.
This guidance refers to previously approved collections of information found in FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR 558.6 have been approved under OMB control number 0910-0363.
Persons with access to the Internet may obtain the guidance at either
Food and Drug Administration, HHS.
Final order.
The Food and Drug Administration (FDA) is classifying the steerable cardiac ablation catheter remote control system into class II (special controls). The special controls that will apply to the device are identified in this order and will be part of the codified language for the steerable cardiac ablation catheter remote control system's classification. The Agency is classifying the device into class II (special controls) in order to provide a reasonable assurance of safety and effectiveness of the device.
This order is effective September 30, 2015. The classification was applicable on December 18, 2014.
Deborah Castillo, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1321, Silver Spring, MD 20993-0002, 301-796-4908.
In accordance with section 513(f)(1) of the Federal Food, Drug, and Cosmetic Act (the FD&C Act) (21 U.S.C. 360c(f)(1)), devices that were not in commercial distribution before May 28, 1976 (the date of enactment of the Medical Device Amendments of 1976), generally referred to as postamendments devices, are classified automatically by statute into class III without any FDA rulemaking process. These devices remain in class III and require premarket approval, unless, and until, the device is classified or reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate
Section 513(f)(2) of the FD&C Act, as amended by section 607 of the Food and Drug Administration Safety and Innovation Act (Pub. L. 112-144), provides two procedures by which a person may request FDA to classify a device under the criteria set forth in section 513(a)(1) of the FD&C Act. Under the first procedure, the person submits a premarket notification under section 510(k) of the FD&C Act for a device that has not previously been classified and, within 30 days of receiving an order classifying the device into class III under section 513(f)(1) of the FD&C Act, the person requests a classification under section 513(f)(2). Under the second procedure, rather than first submitting a premarket notification under section 510(k) of the FD&C Act and then a request for classification under the first procedure, the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence and requests a classification under section 513(f)(2) of the FD&C Act. If the person submits a request to classify the device under this second procedure, FDA may decline to undertake the classification request if FDA identifies a legally marketed device that could provide a reasonable basis for review of substantial equivalence with the device or if FDA determines that the device submitted is not of “low-moderate risk” or that general controls would be inadequate to control the risks and special controls to mitigate the risks cannot be developed.
In response to a request to classify a device under either procedure provided by section 513(f)(2) of the FD&C Act, FDA will classify the device by written order within 120 days. This classification will be the initial classification of the device.
On February 14, 2014, Catheter Robotics, Inc. submitted a request for classification of the AMIGO Remote Catheter System under section 513(f)(2) of the FD&C Act. The manufacturer recommended that the device be classified into class II (Ref. 1).
In accordance with section 513(f)(2) of the FD&C Act, FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1). FDA classifies devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use. After review of the information submitted in the request, FDA determined that the device can be classified into class II with the establishment of special controls. FDA believes these special controls, in addition to general controls, will provide reasonable assurance of the safety and effectiveness of the device.
Therefore, on December 18, 2014, FDA issued an order to the requestor classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 870.5700.
Following the effective date of this final classification order, any firm submitting a premarket notification (510(k)) for a steerable cardiac ablation catheter remote control system will need to comply with the special controls named in this final order. The device is assigned the generic name steerable cardiac ablation catheter remote control system, and it is identified as a prescription device that is external to the body and interacts with the manual handle of a steerable cardiac ablation catheter to remotely control the advancement, retraction, rotation, and deflection of a compatible, steerable ablation catheter used for the treatment of cardiac arrhythmias in the right side of the heart. The device allows reversion to manual control of the steerable cardiac ablation catheter without withdrawal of the catheter and interruption of the procedure.
FDA has identified the following risks to health associated specifically with this type of device, as well as the mitigation measures required to mitigate these risks in table 1.
FDA believes that the following special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness:
• Non-clinical mechanical performance testing must demonstrate that the device performs as intended under anticipated conditions of use. The following performance testing must be performed:
○ Mechanical performance of the system (without catheter connected);
○ mechanical performance of the system with compatible catheters connected to verify that the system does not impact catheter function or
Side-by side remote control and manual comparisons of catheter manipulation (including all ranges of motion of catheter deflection and tip curl) for all compatible catheters; must include testing for worst-case conditions, and
evaluation of the accuracy and function of all device control safety features; and
○ simulated-use testing in a bench anatomic model or animal model.
• Non-clinical electrical testing must include validation of EMC, electrical safety, thermal safety, and electrical system performance. The following performance testing must be performed:
○ Electrical performance of the system with compatible catheters connected to verify that the system does not impact catheter function or performance. Assessments must include the following:
Side-by side remote control and manual comparisons of catheter manipulation (including all ranges of motion of catheter deflection and tip curl) for all compatible catheters; must include testing for worst-case conditions, and
evaluation of the accuracy and function of all device control safety features; and
○ electrical safety between the device and ablation catheter system and with other electrical equipment expected in the catheter lab or operating room.
• In vivo testing must demonstrate that the device performs as intended under anticipated conditions of use, including an assessment of the system impact on the functionality and performance of compatible catheters, and documentation of the adverse event profile associated with clinical use. Evidence must be submitted to address the following:
○ Manipulation and positioning: Ability to manipulate compatible catheters to pre-specified cardiac locations and confirm proper anatomic placement and tissue contact, in accordance with the system indications for use and the compatible catheter indications for use;
○ Safety: Assess device-related complication rate and major procedural complication rate (regardless of device relatedness) in comparison to literature and/or a manual comparison group for compatible ablation catheters to support the indications for use;
○ Efficacy: Assess ablation success in comparison to literature and/or a manual comparison group for compatible ablation catheters to support the indications for use; and
○ User assessment of device remote controls and safety features.
• Post-market surveillance (PMS) must be conducted and completed in accordance with FDA-agreed upon PMS protocol.
• A training program must be included with sufficient educational elements that, upon completion of the training program, the clinician and supporting staff can
○ Identify the safe environments for device use,
○ use all safety features of device, and
○ operate the device in simulated or actual use environments representative of indicated environments and use for the indication of compatible catheters.
• Performance data must demonstrate the sterility of the sterile disposable components of the system.
• Performance data must support shelf life by demonstrating continued sterility of the device (of the sterile disposable components), package integrity, and device functionality over the requested shelf life.
• Labeling must include the following:
○ Appropriate instructions, warnings, cautions, limitations, and information related to the intended patient population, compatible ablation catheters, and the device safeguards for the safe use of the device;
○ specific instructions and the clinical training needed for the safe use of the device, which includes:
instructions on assembling the device in all available configurations, including installation and removal of compatible catheters;
instructions and explanation of all controls, inputs, and outputs;
instructions on all available modes or states of the device;
instructions on all safety features of the device; and
validated methods and instructions for reprocessing/disinfecting any reusable components;
○ a detailed summary of the mechanical compatibility testing including:
A table with a complete list of compatible catheters tested (manufacturer trade name and model number), and
a table with detailed test results, including type of test, acceptance criteria, and test results (
○ a detailed summary of the in vivo testing including:
a table with a complete list of compatible catheters used during testing (manufacturer trade name and model number);
adverse events encountered pertinent to use of the device under use conditions;
a detailed summary of the device- and procedure-related complications; and
a summary of study outcomes and endpoints. Information pertinent to the fluoroscopy times/exposure for the procedure, patient and operator fluoroscopic exposure;
○ other labeling items:
a detailed summary of pertinent non-clinical testing information: EMC, mechanical, electrical, and sterilization of device and components;
a detailed summary of the device technical parameters; and
an expiration date/shelf life and storage conditions for the sterile accessories; and
○ when available, and according to the timeframe included in the PMS protocol agreed upon with FDA, provide a detailed summary of the PMS data including:
Updates to the labeling to accurately reflect outcomes or necessary modifications based upon data collected during the PMS experience, and
inclusion of results and adverse events associated with utilization of the device during the PMS.
The steerable cardiac ablation catheter remote control system is a prescription device restricted to patient use only upon the authorization of a practitioner licensed by law to administer or use the device; see 21 CFR 801.109 (
Section 510(m) of the FD&C Act provides that FDA may exempt a class II device from the premarket notification requirements under section 510(k) if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the device. For this type of device, FDA has determined that premarket notification is necessary to provide reasonable assurance of the safety and effectiveness of the device. Therefore, this device type is not exempt from premarket notification requirements. Persons who intend to market this type of device must submit to FDA a premarket notification, prior to marketing the device, which contains information about the steerable cardiac ablation catheter remote control system they intend to market.
The Agency has determined under 21 CFR 25.33(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment
This final order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in 21 CFR part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485; and the collections of information in 21 CFR part 820, regarding postmarket surveillance, have been approved under OMB control number 0910-0449.
The following reference has been placed on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, and may be seen by interested persons between 9 a.m. and 4 p.m., Monday through Friday, and is available electronically at
Medical devices.
Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 870 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 371.
(a)
(b)
(1) Non-clinical mechanical performance testing must demonstrate that the device performs as intended under anticipated conditions of use. The following performance testing must be performed:
(i) Mechanical performance of the system (without catheter connected);
(ii) Mechanical performance of the system with compatible catheters connected to verify that the system does not impact catheter function or performance. Assessments must include the following:
(A) Side-by-side remote control and manual comparisons of catheter manipulation (including all ranges of motion of catheter deflection and tip curl) for all compatible catheters; must include testing for worst-case conditions, and
(B) Evaluation of the accuracy and function of all device control safety features; and
(iii) Simulated-use testing in a bench anatomic model or animal model.
(2) Non-clinical electrical testing must include validation of electromagnetic compatibility (EMC), electrical safety, thermal safety, and electrical system performance. The following performance testing must be performed:
(i) Electrical performance of the system with compatible catheters connected to verify that the system does not impact catheter function or performance. Assessments must include the following:
(A) Side-by-side remote control and manual comparisons of catheter manipulation (including all ranges of motion of catheter deflection and tip curl) for all compatible catheters; must include testing for worst-case conditions, and
(B) Evaluation of the accuracy and function of all device control safety features; and
(ii) Electrical safety between the device and ablation catheter system and with other electrical equipment expected in the catheter lab or operating room.
(3) In vivo testing must demonstrate that the device performs as intended under anticipated conditions of use, including an assessment of the system impact on the functionality and performance of compatible catheters, and documentation of the adverse event profile associated with clinical use. Evidence must be submitted to address the following:
(i) Manipulation and Positioning: Ability to manipulate compatible catheters to pre-specified cardiac locations and confirm proper anatomic placement and tissue contact, in accordance with the system indications for use and the compatible catheter indications for use;
(ii) Safety: Assess device-related complication rate and major procedural complication rate (regardless of device relatedness) in comparison to literature and/or a manual comparison group for compatible ablation catheters to support the indications for use;
(iii) Efficacy: Assess ablation success in comparison to literature and/or a manual comparison group for compatible ablation catheters to support the indications for use; and
(iv) User assessment of device remote controls and safety features.
(4) Post-market surveillance (PMS) must be conducted and completed in accordance with FDA agreed upon PMS protocol.
(5) A training program must be included with sufficient educational elements that, upon completion of the training program, the clinician and supporting staff can:
(i) Identify the safe environments for device use,
(ii) Use all safety features of device, and
(iii) Operate the device in simulated or actual use environments representative of indicated environments and use for the indication of compatible catheters.
(6) Performance data must demonstrate the sterility of the sterile disposable components of the system.
(7) Performance data must support shelf life by demonstrating continued sterility of the device (of the sterile disposable components), package integrity, and device functionality over the requested shelf life.
(8) Labeling must include the following:
(i) Appropriate instructions, warnings, cautions, limitations, and information related to the intended patient population, compatible ablation catheters, and the device safeguards for the safe use of the device;
(ii) Specific instructions and the clinical training needed for the safe use of the device, which includes:
(A) Instructions on assembling the device in all available configurations, including installation and removal of compatible catheters;
(B) Instructions and explanation of all controls, inputs, and outputs;
(C) Instructions on all available modes or states of the device;
(D) Instructions on all safety features of the device; and
(E) Validated methods and instructions for reprocessing/disinfecting any reusable components;
(iii) A detailed summary of the mechanical compatibility testing including:
(A) A table with a complete list of compatible catheters tested (manufacturer trade name and model number), and
(B) A table with detailed test results, including type of test, acceptance criteria, and test results (
(iv) A detailed summary of the in vivo testing including:
(A) A table with a complete list of compatible catheters used during testing (manufacturer trade name and model number);
(B) Adverse events encountered pertinent to use of the device under use conditions;
(C) A detailed summary of the device- and procedure-related complications; and
(D) A summary of study outcomes and endpoints. Information pertinent to the fluoroscopy times/exposure for the procedure, patient, and operator fluoroscopic exposure;
(v) Other labeling items:
(A) A detailed summary of pertinent non-clinical testing information: EMC, mechanical, electrical, and sterilization of device and components;
(B) A detailed summary of the device technical parameters; and
(C) An expiration date/shelf life and storage conditions for the sterile accessories; and
(vi) When available, and according to the timeframe included in the PMS protocol agreed upon with FDA, provide a detailed summary of the PMS data including:
(A) Updates to the labeling to accurately reflect outcomes or necessary modifications based upon data collected during the PMS experience, and
(B) Inclusion of results and adverse events associated with utilization of the device during the PMS.
Office of the Secretary, DoD.
Direct final rule with request for comments.
The Office of the Secretary of Defense (OSD) is exempting those records contained in DPFPA 07, entitled “Counterintelligence Management Information System (CIMIS),” pertaining to investigatory material compiled for counterintelligence and law enforcement purposes (under (k)(2) of the Act), other than material within the scope of subsection (j)(2) of the Privacy Act to enable the protection of identities of confidential sources who might not otherwise come forward and who furnished information under an express promise that the sources' identity would be held in confidence. The exemption will allow DoD to provide protection against notification of investigatory material including certain reciprocal investigations which might alert a subject to the fact that an investigation of that individual is taking place, and the disclosure of which would weaken the on-going investigation, reveal investigatory techniques, and place confidential informants in jeopardy who furnished information under an express promise that the sources' identity would be held in confidence. Further, requiring OSD to grant access to records and amend these records would unfairly impede the investigation of allegations of unlawful activities. To require OSD to confirm or deny the existence of a record pertaining to a requesting individual may in itself provide an answer to that individual relating to an on-going investigation. The investigation of possible unlawful activities would be jeopardized by agency rules requiring verification of record, disclosure of the record to the subject, and record amendment procedures.
The rule will be effective on December 9, 2015 unless adverse comments are received by November 30, 2015. If adverse comment is received, the Department of Defense will publish a timely withdrawal of the rule in the
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Ms. Cindy Allard at (571) 372-0461.
This direct final rule makes changes to the Office of the Secretary Privacy Program rules. These changes will allow the Department to add an exemption rule to the Office of the Secretary of Defense Privacy Program rules that will exempt applicable Department records and/or material from certain portions of the Privacy Act.
This rule is being published as a direct final rule as the Department of Defense does not expect to receive any adverse comments, and so a proposed rule is unnecessary.
DoD has determined this rulemaking meets the criteria for a direct final rule because it involves non-substantive changes dealing with DoD's management of its Privacy Programs. DoD expects no opposition to the changes and no significant adverse comments. However, if DoD receives a significant adverse comment, the Department will withdraw this direct final rule by publishing a notice in the
It has been determined that Privacy Act rules for the Department of Defense are not significant rules. This rule does not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive orders.
It has been determined that this Privacy Act rule for the Department of Defense does not have significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act systems of records within the Department of Defense. A Regulatory Flexibility Analysis is not required.
It has been determined that this Privacy Act rule for the Department of Defense imposes no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.
It has been determined that this Privacy Act rule for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that this rulemaking will not significantly or uniquely affect small governments.
It has been determined that this Privacy Act rule for the Department of Defense does not have federalism implications. This rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, no Federalism assessment is required.
Privacy.
Accordingly, 32 CFR part 311 is amended to read as follows:
5 U.S.C. 522a.
(c) * * *
(25)
(i)
(ii)
(iii)
(A) From subsections (c)(3) because making available to a record subject the accounting of disclosure from records concerning him or her would specifically reveal any investigative interest in the individual. Revealing this information could reasonably be expected to compromise ongoing efforts to investigate a known or suspected offender by notifying the record subject that he or she is under investigation. This information could also permit the record subject to take measures to impede the investigation,
(B) From subsection (d) because these provisions concern individual access to and amendment of certain records contained in this system, including counterintelligence, law enforcement, and investigatory records. Compliance with these provisions could alert the subject of an investigation of the fact and nature of the investigation, and/or the investigative interest of agencies; compromise sensitive information related to national security; interfere with the overall counterintelligence and investigative process by leading to the destruction of evidence, improper influencing of witnesses, fabrication of testimony, and/or flight of the subject; could identify a confidential source or disclose information which would constitute an unwarranted invasion of another's personal privacy; reveal a sensitive investigation or constitute a potential danger to the health or safety of law enforcement personnel, confidential informants, and witnesses. Amendment of these records would interfere with ongoing counterintelligence investigations and analysis activities and impose an excessive administrative burden by requiring investigations, analyses, and reports to be continuously reinvestigated and revised.
(C) From subsection (e)(1) because it is not always possible to determine what information is relevant and necessary at an early stage in a given investigation. Also, because Pentagon Force Protection Agency and other agencies may not always know what information about a known or suspected offender may be relevant to for the purpose of conducting an operational response.
(D) From subsections (e)(4)(G) through (I) (Agency Requirements) because portions of this system are exempt from the access and amendment provisions of subsection (d).
(E) From subsection (f) because requiring the Agency to grant access to records and establishing agency rules for amendment of records would compromise the existence of any criminal, civil, or administrative enforcement activity. To require the confirmation or denial of the existence of a record pertaining to a requesting individual may in itself provide an answer to that individual relating to the existence of an on-going investigation.
Counterintelligence investigations would be jeopardized by agency rules requiring verification of the record, disclosure of the record to the subject, and record amendment procedures.
Office of the Secretary, DoD.
Direct final rule with request for comments.
The Office of the Secretary of Defense (OSD) is exempting those records contained in DPFPA 06, entitled “Internal Affairs Records System,” pertaining to open or closed investigatory material compiled for law enforcement purposes (under (j)(2) of the Act) to enable OSD to conduct certain internal affairs investigations, relay law enforcement information without compromise of the information, protect investigative techniques and efforts employed, as well as open or closed investigatory material compiled for law enforcement purposes (under (k)(2) of the Act), other than material within the scope of subsection (j)(2) of the Privacy Act to enable the protection of identities of confidential informants who might not otherwise come forward and who furnished information under an express promise that the informant's identity would be held in confidence. This exemption rule will allow the Pentagon Force Protection Agency to ensure the integrity of the Internal Affairs investigative process, including certain reciprocal investigations, by preventing the subject of the record from using the Privacy Act to learn of the existence of open investigations, thereby compromising investigative techniques, or open and closed investigations which place confidential informants in jeopardy who furnished information under an express promise that the informant's identity would be held in confidence. Further, requiring the Pentagon Force Protection Agency to grant access to records and amend these records would unfairly impede the investigation. To confirm or deny the existence of a record pertaining to an open investigation a requesting individual may in itself provide an answer to that individual. The investigation of possible unlawful activities would be jeopardized by agency rules requiring verification of record, disclosure of the record to the subject, and record amendment procedures.
The rule is effective on December 9, 2015 unless adverse comments are received by November 30, 2015. If adverse comment is received, the Department of Defense will publish a timely withdrawal of the rule in the
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Ms. Cindy Allard at (571) 372-0461.
This direct final rule makes non-substantive changes to the Office of the Secretary Privacy Program rules. These changes will allow the Department to add an exemption rule to the Office of the Secretary of Defense Privacy Program rules that will exempt applicable Department records and/or material from certain portions of the Privacy Act.
This rule is being published as a direct final rule as the Department of Defense does not expect to receive any adverse comments, and so a proposed rule is unnecessary.
DoD has determined this rulemaking meets the criteria for a direct final rule because it involves non-substantive changes dealing with DoD's management of its Privacy Programs. DoD expects no opposition to the changes and no significant adverse comments. However, if DoD receives a significant adverse comment, the Department will withdraw this direct final rule by publishing a notice in the
It has been determined that Privacy Act rules for the Department of Defense are not significant rules. This rule does not (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy; a sector of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in these Executive orders.
It has been determined that this Privacy Act rule for the Department of Defense does not have significant economic impact on a substantial number of small entities because it is concerned only with the administration of Privacy Act systems of records within the Department of Defense. A Regulatory Flexibility Analysis is not required.
It has been determined that this Privacy Act rule for the Department of Defense imposes no information requirements beyond the Department of Defense and that the information collected within the Department of Defense is necessary and consistent with 5 U.S.C. 552a, known as the Privacy Act of 1974.
It has been determined that this Privacy Act rule for the Department of Defense does not involve a Federal mandate that may result in the expenditure by State, local and tribal governments, in the aggregate, or by the private sector, of $100 million or more and that this rulemaking will not significantly or uniquely affect small governments.
It has been determined that this Privacy Act rule for the Department of Defense does not have federalism implications. This rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, no Federalism assessment is required.
Privacy.
Accordingly, 32 CFR part 311 is amended to read as follows:
5 U.S.C. 552a.
(c) * * *
(24) System identifier and name: DPFPA 06, Internal Affairs Records System.
(i) Exemptions: Portions of this system that fall within 5 U.S.C. 552a(j)(2) and/or (k)(2) are exempt from the following provisions of 5 U.S.C. 552a, section (c)(3) and (4); (d); (e)(1) through (e)(3); (e)(4)(G) through (I); (e)(5); (f) and (g) of the Act, as applicable.
(ii) Authority: 5 U.S.C. 552a(j)(2) and (k)(2).
(iii) Reasons:
(A) From subsections (c)(3) and (4) because making available to a record subject the accounting of disclosure of investigations concerning him or her would specifically reveal an investigative interest in the individual. Revealing this information would reasonably be expected to compromise open or closed administrative or civil investigation efforts to a known or suspected offender by notifying the record subject that he or she is under investigation. This information could also permit the record subject to take measures to impede the investigation,
(B) From subsection (d) because these provisions concern individual access to and amendment of open or closed investigation records contained in this system, including law enforcement and investigatory records. Compliance with these provisions would provide the subject of an investigation of the fact and nature of the investigation, and/or the investigative interest of the Pentagon Force Protection Agency; compromise sensitive information related to national security; interfere with the overall law enforcement process by leading to the destruction of evidence, improper influencing of witnesses, fabrication of testimony, and/or flight of the subject; could identify a confidential informant or disclose information which would constitute an unwarranted invasion of another's personal privacy; reveal a sensitive investigative or constitute a potential danger to the health or safety of law enforcement personnel, confidential informants, and witnesses. Amendment of investigative records would interfere with open or closed administrative or civil law enforcement investigations and analysis activities and impose an excessive administrative burden by requiring investigations, analyses, and reports to be continuously reinvestigated and revised.
(C) From subsections (e)(1) through (e)(3) because it is not always possible to determine what information is relevant and necessary in open or closed investigations.
(D) From subsections (e)(4)(G) through (I) (Agency Requirements) because portions of this system are exempt from the access and amendment provisions of subsection (d).
(E) From subsection (e)(5) because the requirement that investigative records be maintained with attention to accuracy, relevance, timeliness, and completeness would unfairly hamper the criminal, administrative, or civil investigative process. It is the nature of Internal Affairs investigations to uncover the commission of illegal acts and administrative violations. It is frequently impossible to determine initially what information is accurate, relevant, timely, and least of all complete. With the passage of time, seemingly irrelevant or untimely information may acquire new significant as further investigation brings new details to light.
(F) From subsection (f) because requiring the Agency to grant access to records and establishing agency rules for amendment of records would compromise the existence of any criminal, civil, or administrative enforcement activity. To require the confirmation or denial of the existence of a record pertaining to a requesting individual may in itself provide an answer to that individual relating to the existence of an on-going investigation. The investigation of possible unlawful activities would be jeopardized by agency rules requiring verification of the record, disclosure of the record to the subject, and record amendment procedures.
(G) From subsection (g) for compatibility with the exemption claimed from subsection (f), the civil remedies provisions of subsection (g) must be suspended for this record system. Because of the nature of criminal, administrative and civil investigations, standards of accuracy, relevance, timeliness and completeness cannot apply to open or closed investigations in this record system. Information gathered in criminal investigations is often fragmentary and leads relating to an individual in the context of one investigation may instead pertain to a second investigation.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Tower Drawbridge across the Sacramento River, mile 59.0 at Sacramento, CA. The deviation is necessary to allow the community to participate in the 5K Walk to Defeat ALS. This deviation allows the bridge to remain in the closed-to-navigation position during the deviation period.
This deviation is effective from 11 a.m. to 1 p.m. on October 3, 2015.
The docket for this deviation, [USCG-2015-0924], is available at
If you have questions on this temporary deviation, call or email David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510-437-3516, email
California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, over Sacramento River, at Sacramento, CA. The drawbridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal from May 1 through October 31 from 6 a.m. to 10 p.m. and from November 1 through April 30 from 9 a.m. to 5 p.m. At all other times the draw shall open on signal if at least four hours notice is given, as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.
The drawspan will be secured in the closed-to-navigation position from 11 a.m. to 1 p.m. on October 3, 2015, to allow the community to participate in the 5K Walk to Defeat ALS. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.
Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Coast Guard, DHS.
Notice of deviation from drawbridge regulation.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the Tower Drawbridge across the Sacramento River, mile 59.0 at Sacramento, CA. The deviation is necessary to allow the community to participate in the Urban Cow Half Marathon. This deviation allows the bridge to remain in the closed-to-navigation position during the deviation period.
This deviation is effective from 7:30 a.m. to 10 a.m. on October 4, 2015.
The docket for this deviation, [USCG-2015-0883], is available at
If you have questions on this temporary deviation, call or email David H. Sulouff, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510-437-3516, email
California Department of Transportation has requested a temporary change to the operation of the Tower Drawbridge, mile 59.0, over Sacramento River, at Sacramento, CA. The drawbridge navigation span provides a vertical clearance of 30 feet above Mean High Water in the closed-to-navigation position. The draw opens on signal from May 1 through October 31 from 6 a.m. to 10 p.m. and from November 1 through April 30 from 9 a.m. to 5 p.m. At all other times the draw shall open on signal if at least four hours notice is given, as required by 33 CFR 117.189(a). Navigation on the waterway is commercial and recreational.
The drawspan will be secured in the closed-to-navigation position from 7:30 a.m. to 10 a.m. on October 4, 2015, to allow the community to participate in the Urban Cow Half Marathon. This temporary deviation has been coordinated with the waterway users. No objections to the proposed temporary deviation were raised.
Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessels can arrange their transits to minimize any impact caused by the temporary deviation.
In accordance with 33 CFR 117.35(e), the drawbridge must return to its regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.
Postal Regulatory Commission.
Final rule.
The Commission is updating the product lists. This action reflects a publication policy adopted by Commission order. The referenced policy assumes periodic updates. The updates are identified in the body of this document. The product lists, which is re-published in its entirety, includes these updates.
David A. Trissell, General Counsel, at 202-789-6800.
This document identifies updates to the product lists, which appear as 39 CFR Appendix A to Subpart A of Part 3020—Mail Classification Schedule. Publication of the updated product lists in the
1. Global Expedited Package Services (GEPS)—Non-Published Rates 7 (MC2015-55 and CP2015-83) (Order No. 2558), added July 1, 2015.
2. Priority Mail Contract 126 (MC2015-56 and CP2015-84) (Order No. 2559), added July 2, 2015.
3. Priority Mail & First-Class Package Service Contract 5 (MC2015-57 and CP2015-85) (Order No. 2560), added July 2, 2015.
4. Parcel Return Service Contract 9 (MC2015-58 and CP2015-88) (Order No. 2569), added July 8, 2015.
5. Priority Mail Contract 127 (MC2015-60 and CP2015-90) (Order No. 2570), added July 8, 2015.
6. Parcel Return Service Contract 10 (MC2015-59 and CP2015-89) (Order No. 2572), added July 8, 2015.
7. Priority Mail Contract 129 (MC2015-62 and CP2015-93) (Order No. 2582), added July 14, 2015.
8. Priority Mail & First-Class Package Service Contract 6 (MC2015-63 and CP2015-94) (Order No. 2583), added July 15, 2015.
9. Priority Mail Contract 128 (MC2015-61 and CP2015-92) (Order No. 2592), added July 16, 2015.
10. Priority Mail Contract 130 (MC2015-64 and CP2015-95) (Order No. 2595), added July 17, 2015.
11. Priority Mail Contract 131 (MC2015-65 and CP2015-96) (Order No. 2596), added July 17, 2015.
12. Priority Mail Contract 132 (MC2015-66 and CP2015-97) (Order No. 2598), added July 17, 2015.
13. Priority Mail Contract 133 (MC2015-67 and CP2015-98) (Order No. 2600), added July 20, 2015.
14. Priority Mail Contract 135 (MC2015-71 and CP2015-109) (Order No. 2636), added August 4, 2015.
15. Priority Mail Contract 134 (MC2015-70 and CP2015-108) (Order No. 2637), added August 4, 2015.
16. Priority Mail Express & Priority Mail Contract 19 (MC2015-69 and CP2015-107) (Order No. 2638), added August 4, 2015.
17. Priority Mail Contract 138 (MC2015-74 and CP2015-112) (Order No. 2640), added August 5, 2015.
18. Priority Mail & First-Class Package Service Contract 7 (MC2015-75 and CP2015-114) (Order No. 2641), added August 5, 2015.
19. Priority Mail Contract 137 (MC2015-73 and CP2015-111) (Order No. 2642), added August 5, 2015.
20. Priority Mail Contract 136 (MC2015-72 and CP2015-110) (Order No. 2647), added August 10, 2015.
21. Priority Mail Contract 139 (MC2015-76 and CP2015-120) (Order No. 2651), added August 11, 2015.
22. Priority Mail Express Contract 26 (MC2015-77 and CP2015-121) (Order No. 2662), added August 13, 2015.
23. Priority Mail Express & Priority Mail Contract 20 (MC2015-78 and CP2015-123) (Order No. 2670), added August 18, 2015.
24. Priority Mail Contract 140 (MC2015-79 and CP2015-126) (Order No. 2680), added August 25, 2015.
25. Priority Mail Contract 141 (MC2015-80 and CP2015-134) (Order No. 2706), added September 14, 2015.
26. Priority Mail Express Contract 27 (MC2015-81 and CP2015-135) (Order No. 2707), added September 14, 2015.
The following negotiated service agreements have expired and are being deleted from the Mail Classification Schedule:
1. Express Mail Contract 12 (MC2012-36 and CP2012-44) (Order No. 1433).
2. Priority Mail Contract 39 (MC2012-37 and CP2012-45) (Order No. 1434).
3. Priority Mail Contract 41 (MC2012-39 and CP2012-47) (Order No. 1445).
4. First-Class Package Service Contract 8 (MC2012-27 and CP2012-36) (Order No. 1394).
5. First-Class Package Service Contract 9 (MC2012-28 and CP2012-37) (Order No. 1395).
6. First-Class Package Service Contract 10 (MC2012-35 and CP2012-43) (Order No. 1419).
7. First-Class Package Service Contract 11 (MC2012-40 and CP2012-48) (Order No. 1446).
8. First-Class Package Service Contract 12 (MC2012-41 and CP2012-49) (Order No. 1447).
9. First-Class Package Service Contract 13 (MC2012-42 and CP2012-50) (Order No. 1452).
10. First-Class Package Service Contract 14 (MC2012-43 and CP2012-51) (Order No. 1453).
11. First-Class Package Service Contract 15 (MC2012-45 and CP2012-53) (Order No. 1457).
Administrative practice and procedure, Postal Service.
For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:
39 U.S.C. 503; 3622; 3631; 3642; 3682.
(An asterisk (*) indicates an organizational class or group, not a Postal Service product.)
Environmental Protection Agency (EPA).
Final rule.
This regulation establishes tolerances for residues of acibenzolar-
This regulation is effective September 30, 2015. Objections and requests for hearings must be received on or before November 30, 2015, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the
The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2014-0840, is available at
Susan Lewis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone
You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:
• Crop production (NAICS code 111).
• Animal production (NAICS code 112).
• Food manufacturing (NAICS code 311).
• Pesticide manufacturing (NAICS code 32532).
You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at
Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2014-0840 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before November 30, 2015. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).
In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2014-0840, by one of the following methods:
•
•
•
In the
Based upon review of the data supporting the petition, EPA has revised the tolerance for residues of acibenzolar-
Section 408(b)(2)(A)(i) of FFDCA allows EPA to establish a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the tolerance is “safe.” Section 408(b)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Section 408(b)(2)(C) of FFDCA requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue. . . .”
Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for acibenzolar-S-methyl including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with acibenzolar-S-methyl follows.
EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. In subchronic and chronic oral studies in rats, dogs and mice, signs of mild regenerative hemolytic anemia were consistently observed in all three species. These signs frequently included decreased erythrocyte counts, decreased hemoglobin, decreased hematocrit, increased reticulocyte counts, increased hemosiderosis in the spleen, liver and/or bone marrow, extramedullary hematopoiesis in the spleen, and increased spleen weights in both males and females. A compensatory response (increased erythrocyte production) regularly followed the initial anemia. Additional toxic effects observed in these same studies included decreases in body weight, body weight gain and/or food consumption. No other significant treatment-related effects of toxicological concern were observed in these subchronic and chronic oral studies. In a 28-day dermal study in rats, no systemic or dermal effects were observed at dose levels up to 1,000 milligram (mg)/kilogram (kg)/day, the limit dose. No neurotoxic effects were observed at any dose in a subchronic neurotoxicity study in rats.
Treatment-related developmental malformations, anomalies and variations were observed in a developmental toxicity study in rats at or below the no observable adverse effect level (NOAEL) for maternal toxicity. At the highest dose tested in this study (400 mg/kg/day), both maternal toxicity (hemorrhagic perineal discharge) and considerable developmental toxicity (including total litter resorptions, fetal malformations, anomalies and variations) were observed. The fetal malformations noted at this dose included treatment-related effects on nervous system tissues (hydrocephaly, craniorachisis and anophthalmia/microphthalmia). At the next lower dose tested (200 mg/kg/day), treatment-related visceral malformations and skeletal variations were demonstrated in the absence of significant maternal toxicity. A similar increased sensitivity of fetuses or pups (as compared to adults) was not observed in a developmental toxicity study in rabbits or in 2-generation and 1-generation (range-finding) studies in rats. In a dermal developmental toxicity study in rats, no maternal or developmental toxicity was observed at dose levels up to 500 mg/kg/day, the highest dose tested.
In a battery of mutagenicity studies, results were negative in all studies except in an
In a 2-year chronic toxicity/carcinogenicity study in rats and an 18-month carcinogenicity study in mice, acibenzolar-
Acibenzolar-
Specific information on the studies received and the nature of the adverse effects caused by acibenzolar-
Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which the NOAEL and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect expected in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see
A summary of the toxicological endpoints for acibenzolar-
1.
i.
ii.
iii.
iv.
• Condition a: The data used are reliable and provide a valid basis to show what percentage of the food derived from such crop is likely to contain the pesticide residue.
• Condition b: The exposure estimate does not underestimate exposure for any significant subpopulation group.
• Condition c: Data are available on pesticide use and food consumption in a particular area, the exposure estimate does not understate exposure for the population in such area.
For the acute dietary analysis, EPA estimated PCT for the following crops for which uses of acibenzolar-
In the chronic dietary exposure analysis, 100% CT was assumed for all commodities.
In most cases, EPA uses available data from United States Department of Agriculture/National Agricultural Statistics Service (USDA/NASS), proprietary market surveys, and the National Pesticide Use Database for the chemical/crop combination for the most recent 6-7 years. EPA uses a maximum
The Agency believes that the three conditions discussed in Unit III.C.1.iv. have been met. With respect to Condition a, PCT estimates are derived from Federal and private market survey data, which are reliable and have a valid basis. The Agency is reasonably certain that the percentage of the food treated is not likely to be an underestimation. As to Conditions b and c, regional consumption information and consumption information for significant subpopulations is taken into account through EPA's computer-based model for evaluating the exposure of significant subpopulations including several regional groups. Use of this consumption information in EPA's risk assessment process ensures that EPA's exposure estimate does not understate exposure for any significant subpopulation group and allows the Agency to be reasonably certain that no regional population is exposed to residue levels higher than those estimated by the Agency.
2.
Surface water estimated drinking water concentrations (EDWCs) were generated for the total residues of acibenzolar and CGA 210007 using the Pesticide Root Zone Model/Exposure Analysis Modeling System (PRZM/EXAMS) model for all proposed uses. Exposure in ground water due to leaching was assessed with the Pesticide Root Zone Model Ground Water (PRZM-GW). The EDWCs of acibenzolar-
Modeled estimates of drinking water concentrations were directly entered into the dietary exposure model. For acute dietary risk assessment, the water concentration value of 47.19 µg/L was used to assess the contribution to drinking water. For chronic dietary risk assessment, the water concentration of value 13.33 µg/L was used to assess the contribution to drinking water.
3.
Acibenzolar-
There is the potential for post-application exposure for individuals exposed as a result of being in an environment that has been previously treated with acibenzolar-
Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at
4.
EPA has not found acibenzolar-
1.
2.
3.
i. The toxicology database for acibenzolar-
ii. There is some evidence of potential neurotoxicity in a developmental neurotoxicity study. Although there were no treatment-related offspring effects seen on survival, clinical signs, functional observational battery (FOB), developmental land marks, brain weights or neuropathology, significant morphometric changes (decreased thickness of the molecular layer of the cerebellum) were observed in male offspring on postnatal date (PND) 63 at 82 mg/kg/day. At the high dose, treatment-related offspring effects included decreased body weights, increased auditory startle response and increased thickness in the corpus
iii. Based on the developmental toxicity in rats and the developmental neurotoxicity studies in rats, there is concern for increased qualitative and/or quantitative susceptibility following in utero exposure to acibenzolar-
iv. There are no residual uncertainties identified in the exposure databases. The refined acute dietary assessment utilizes maximum percent crop treated estimates but is still considered conservative, since it is based on field trial data treated at the shorest preharvest interval and maximum use rate. The chronic dietary and residential risk assessments are also conservative. These assessments will not underestimate dietary and/or non-dietary residential exposure to acibenzolar-
EPA determines whether acute and chronic dietary pesticide exposures are safe by comparing aggregate exposure estimates to the acute PAD (aPAD) and chronic PAD (cPAD). For linear cancer risks, EPA calculates the lifetime probability of acquiring cancer given the estimated aggregate exposure. Short-, intermediate-, and chronic-term risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the appropriate PODs to ensure that an adequate MOE exists.
1.
2.
3.
4.
5.
6.
HPLC/UV Method AG-617A is available for tolerance enforcement. The method consists of an initial hydrolysis with NaOH to convert acibenzolar-
The method may be requested from: Chief, Analytical Chemistry Branch, Environmental Science Center, 701 Mapes Rd., Ft. Meade, MD 20755-5350; telephone number: (410) 305-2905; email address:
In making its tolerance decisions, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4). The Codex Alimentarius is a joint United Nations Food and Agriculture Organization/World Health Organization food standards program, and it is recognized as an international food safety standards-setting organization in trade agreements to which the United States is a party. EPA may establish a tolerance that is different from a Codex MRL; however, FFDCA section 408(b)(4) requires that EPA explain the reasons for departing from the Codex level.
The Codex has not established a MRL for acibenzolar-
The tolerance level for fruit, citrus, group 10-10 (0.02 ppm) is being set at the LOQ of the enforcement method which is higher than the petitioned-for tolerance (0.01 ppm). The names of the crop groups for citrus and pome fruit are being corrected to fruit, citrus, group 10-10 and fruit, pome, group 11-10.
Therefore, tolerances are established for residues of acibenzolar-
This action establishes tolerances under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory
Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501
This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).
Pursuant to the Congressional Review Act (5 U.S.C. 801
Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.
Therefore, 40 CFR chapter I is amended as follows:
21 U.S.C. 321(q), 346a and 371.
(a) * * *
(1) * * *
Environmental Protection Agency (EPA).
Final rule.
The Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA” or “the Act”), as amended, requires that the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”) include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The National Priorities List (“NPL”) constitutes this list. The NPL is intended primarily to guide the Environmental Protection Agency (“the EPA” or “the agency”) in determining which sites warrant further investigation. These further investigations will allow the EPA to assess the nature and extent of public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. This rule adds five sites to the General Superfund section of the NPL.
The document is effective on October 30, 2015.
Contact information for the EPA Headquarters:
• Docket Coordinator, Headquarters; U.S. Environmental Protection Agency; CERCLA Docket Office; 1301 Constitution Avenue NW., William Jefferson Clinton Building West, Room 3334, Washington, DC 20004, 202/566-0276.
The contact information for the regional dockets is as follows:
• Holly Inglis, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records and Information Center, 5 Post Office Square, Suite 100, Boston, MA 02109-3912; 617/918-1413.
• Ildefonso Acosta, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4344.
• Lorie Baker (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3HS12, Philadelphia, PA 19103; 215/814-3355.
• Jennifer Wendel, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street SW., Mailcode 9T25, Atlanta, GA 30303; 404/562-8799.
• Todd Quesada, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA Superfund Division Librarian/SFD Records Manager SRC-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/886-4465.
• Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Suite 1200, Mailcode 6SFTS, Dallas, TX 75202-2733; 214/665-7436.
• Preston Law, Region 7 (IA, KS, MO, NE), U.S. EPA, 11201 Renner Blvd.,
• Sabrina Forrest, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/312-6484.
• Sharon Murray, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S. EPA, 75 Hawthorne Street, Mailcode SFD 6-1, San Francisco, CA 94105; 415/947-4250.
• Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mailcode ECL-112, Seattle, WA 98101; 206/463-1349.
Terry Jeng, phone: (703) 603-8852, email:
In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613
To implement CERCLA, the EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances, or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. The EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).
As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable, taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)).
The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.
For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by the EPA (the “General Superfund section”) and one of sites that are owned or operated by other federal agencies (the “Federal Facilities section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987) and CERCLA section 120, each federal agency is responsible for carrying out most response actions at facilities under its own jurisdiction, custody or control, although the EPA is responsible for preparing a Hazard Ranking System (“HRS”) score and determining whether the facility is placed on the NPL.
There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the HRS, which the EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), the EPA promulgated revisions to the HRS partly in response
(1) The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.
(2) The EPA determines that the release poses a significant threat to public health.
(3) The EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.
The EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually.
A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with a permanent remedy, taken instead of or in addition to removal actions” (40 CFR 300.5). However, under 40 CFR 300.425(b)(2), placing a site on the NPL “does not imply that monies will be expended.” The EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.
The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.
Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.
When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.
In other words, while geographic terms are often used to designate the site (
EPA regulations provide that the remedial investigation (“RI”) “is a process undertaken * * * to determine the nature and extent of the problem presented by the release” as more information is developed on site contamination, and which is generally performed in an interactive fashion with the feasibility study (“FS”) (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.
Further, as noted above, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the agency at any time after it receives notice it is a potentially responsible party.
For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.
The EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that the EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:
(i) Responsible parties or other persons have implemented all appropriate response actions required;
(ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or
(iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate.
In November 1995, the EPA initiated a policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use.
The EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.
Sites qualify for the CCL when: (1) Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) the EPA has determined that the response action should be limited to measures that do not involve construction (
The Sitewide Ready for Anticipated Use measure represents important Superfund accomplishments and the measure reflects the high priority the EPA places on considering anticipated future land use as part of the remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. The EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment for current and future land uses, in a manner that allows contaminated properties to be restored to environmental and economic vitality. For further information, please go to
In order to maintain close coordination with states and tribes in the NPL listing decision process, the EPA's policy is to determine the position of the states and tribes regarding sites that the EPA is considering for listing. This consultation process is outlined in two memoranda that can be found at the following Web site:
A model letter and correspondence between the EPA and states and tribes where applicable, is available on the EPA's Web site at
Yes, documents relating to the evaluation and scoring of the sites in this final rule are contained in dockets located both at the EPA headquarters and in the EPA regional offices.
An electronic version of the public docket is available through
The headquarters docket for this rule contains the HRS score sheets, the documentation record describing the information used to compute the score and a list of documents referenced in the documentation record for each site.
The EPA regional dockets contain all the information in the headquarters docket, plus the actual reference documents containing the data principally relied upon by the EPA in calculating or evaluating the HRS score. These reference documents are available only in the regional dockets.
You may view the documents, by appointment only, after the publication of this rule. The hours of operation for the headquarters docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding federal holidays. Please contact the regional dockets for hours. For addresses for the headquarters and regional dockets, see “
You may obtain a current list of NPL sites via the Internet at
This final rule adds the following five sites to the General Superfund section of the NPL. These sites are being added to the NPL based on HRS score.
General Superfund section:
The EPA is adding five sites to the NPL in this final rule, all to the general Superfund section. All of the sites were proposed for addition to the NPL on March 26, 2015 (80 FR 15972).
Four of the sites received no comments. They are BJAT LLC in Franklin, MA; Estech General Chemical Company in Calumet City, IL; Colonial Creosote in Bogalusa, LA; and Main Street Ground Water Plume in Burnet, TX. Although two comments were erroneously submitted to the docket for Colonial Creosote along with two erroneous comments for Main Street Ground Water Plume, all four comments related to the Anaconda Aluminum Co Columbia Falls Reduction Plant. Those comments will be addressed at the time a decision is made on the Anaconda Aluminum Co Columbia Falls Reduction Plant site.
Extensive comments were submitted for the Grain Handling Facility at Freeman in Freeman, WA. Those comments have been addressed in a response to comments support document available in the public docket concurrently with the publication of this rule.
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA. This rule does not contain any information collection requirements that require approval of the OMB.
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This rule listing sites on the NPL does not impose any obligations on any group, including small entities. This rule also does not establish standards or requirements that any small entity must meet, and imposes no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. Listing a site on the NPL does not itself impose any costs. Listing does not mean that the EPA necessarily will undertake remedial action. Nor does listing require any action by a private party, state, local or tribal governments or determine liability for response costs. Costs that arise out of site responses result from future site-specific decisions regarding what actions to take, not directly from the act of placing a site on the NPL.
This final rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. Listing a site on the NPL does not impose any costs on a tribe or require a tribe to take remedial action. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because this action itself is procedural in nature (adds sites to a list) and does not, in and of itself, provide protection from environmental health and safety risks. Separate future regulatory actions are required for mitigation of environmental health and safety risks.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment. As discussed in Section I.C. of the preamble to this action, the NPL is a list of national priorities. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance as it does not assign liability to any party. Also,
This action is subject to the CRA, and the EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).
Provisions of the Congressional Review Act (CRA) or section 305 of CERCLA may alter the effective date of this regulation. Under 5 U.S.C. 801(b)(1), a rule shall not take effect, or continue in effect, if Congress enacts (and the President signs) a joint resolution of disapproval, described under section 802. Another statutory provision that may affect this rule is CERCLA section 305, which provides for a legislative veto of regulations promulgated under CERCLA. Although
If action by Congress under either the CRA or CERCLA section 305 calls the effective date of this regulation into question, the EPA will publish a document of clarification in the
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
40 CFR part 300 is amended as follows:
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
Bureau of Land Management, Interior.
Final rule.
This final rule amends the Bureau of Land Management (BLM) mineral resources regulations to update some fees that cover the BLM's cost of processing certain documents relating to its minerals programs and some filing fees for mineral-related documents. These updated fees include those for actions such as lease renewals and mineral patent adjudications.
This final rule is effective October 1, 2015.
You may send inquiries or suggestions to Director (630), Bureau of Land Management, 2134LM, 1849 C Street NW., Washington, DC 20240; Attention: RIN 1004-AE44.
Steven Wells, Chief, Division of Fluid Minerals, 202-912-7143; Mitchell Leverette, Chief, Division of Solid Minerals, 202-912-7113; or Mark Purdy, Regulatory Affairs, 202-912-7635. Persons who use a telecommunications device for the deaf (TDD) may leave a message for these individuals with the Federal Information Relay Service (FIRS) at 1-800-877-8339, 24 hours a day, 7 days a week.
The BLM has specific authority to charge fees for processing applications and other documents relating to public lands under section 304 of the Federal Land Policy and Management Act of 1976 (FLPMA), 43 U.S.C. 1734. In 2005, the BLM published a final cost recovery rule (70 FR 58854) establishing or revising certain fees and service charges, and establishing the method it would use to adjust those fees and service charges on an annual basis.
At 43 CFR 3000.12(a), the regulations provide that the BLM will annually adjust fees established in Subchapter C (43 CFR parts 3000-3900) according to changes in the Implicit Price Deflator for Gross Domestic Product (IPD-GDP), which is published quarterly by the U.S. Department of Commerce. See also 43 CFR 3000.10. This final rule will allow the BLM to update these fees and service charges by October 1 of this year, as required by the 2005 regulation. The fee recalculations are based on a mathematical formula. The public had an opportunity to comment on this procedure during the comment period on the 2005 cost recovery rule, and this new rule administers the procedure set forth in those regulations. Therefore, the BLM has changed the fees in this final rule without providing opportunity for additional notice and comment. See 43 CFR 3000.10(c). Accordingly, the Department of the Interior for good cause finds under 5 U.S.C. 553(b)(B) and (d)(3) that notice and public comment procedures are unnecessary and that the rule may be effective less than 30 days after publication.
The BLM publishes a fee update rule each year, which becomes effective on October 1 of that year. The fee updates are based on the change in the IPD-GDP from the 4th Quarter of one calendar year to the 4th Quarter of the following calendar year. This fee update rule is based on the change in the IPD-GDP from the 4th Quarter of 2013 to the 4th Quarter of 2014, thus reflecting the rate of inflation over four calendar quarters.
The fee is calculated by applying the IPD-GDP to the base value from the previous year's rule, also known as the “existing value.” This calculation results in an updated base value. The updated base value is then rounded to the closest multiple of $5 for fees equal to or greater than $1, or to the nearest cent for fees under $1, to establish the new fee.
Under this rule, 34 fees will remain the same and 14 fees will increase. Of the fees that will be increased, 12 of the fee increases will amount to $5 each. The largest increase, $40, will be applied to the fee for adjudicating a mineral patent application containing more than 10 claims, and will increase the fee from $3,035 to $3,075. The fee for adjudicating a patent application containing 10 or fewer claims will increase by $15, from $1,520 to $1,535.
The calculations that resulted in the new fees are included in the table below:
Each year, the figures in the Existing Value column in the table above (not those in the Existing Fee column) are used as the basis for calculating the adjustment to these fees. The Existing Value is the figure from the New Value column in the previous year's rule. In the case of fees that were not in the table the previous year, or that had no figure in the New Value column the previous year, the Existing Value is the same as the Existing Fee. Because the new fees are derived from the new values, adjustments based on the figures in the Existing Fee column would lead to significantly over- or under-valued fees over time. Accordingly, fee adjustments are made by multiplying the annual change in the IPD-GDP by the figure in the Existing Value column. This calculation defines the New Value for this year, which is then rounded to the nearest $5 for fees equal to or greater than $1 or the nearest penny for fees under $1 to establish the New Fee.
This document is not a significant rule, and the Office of Management and Budget has not reviewed this rule under Executive Order 12866.
The BLM has determined that the rule will not have an annual effect on the economy of $100 million or more. It will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or
This rule will not create inconsistencies or otherwise interfere with an action taken or planned by another agency. This rule does not change the relationships of the onshore minerals programs with other agencies' actions. These relationships are included in agreements and memoranda of understanding that would not change with this rule.
In addition, this final rule does not materially affect the budgetary impact of entitlements, grants, or loan programs, or the rights and obligations of their recipients. This rule applies an inflation factor that increases some existing user fees for processing documents associated with the onshore minerals programs. However, most of these fee increases are less than 2 percent, and none of the increases materially affect the budgetary impact of user fees.
Finally, this rule will not raise novel legal or policy issues. As explained above, this rule simply implements an annual process to account for inflation that was adopted by and explained in the 2005 cost recovery rule.
This final rule will not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
The SBA would consider many, if not most, of the operators the BLM works with in the onshore minerals programs to be small entities. The BLM notes that this final rule does not affect service industries, for which the SBA has a different definition of “small entity.”
The final rule may affect a large number of small entities since 14 fees for activities on public lands will be increased. However, the BLM has concluded that the effects will not be significant. Most of the fixed fee increases will be less than 2 percent as a result of this final rule. The adjustments result in no increase in the fee for the processing of 34 documents relating to the BLM's minerals programs. The highest adjustment, in dollar terms, is for adjudications of mineral patent applications involving more than 10 mining claims, which will be increased by $40. For the 2005 final rule, the BLM completed a Regulatory Flexibility Act threshold analysis, which is available for public review in the administrative record for that rule. For instructions on how to view a copy of that analysis, please contact one of the persons listed in the
This final rule is not a “major rule” as defined at 5 U.S.C. 804(2). The final rule will not have an annual effect on the economy greater than $100 million; it will not result in major cost or price increases for consumers, industries, government agencies, or regions; and it will not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises. For the 2005 final rule, which established the fee adjustment procedure that this rule implements, the BLM completed a threshold analysis, which is available for public review in the administrative record for that rule. The fee increases implemented in today's rule are substantially smaller than those provided for in the 2005 rule. Accordingly, a Small Entity Compliance Guide is not required.
This final rule will not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. In accordance with Executive Order 13132, therefore, we find that the final rule does not have federalism implications. A federalism assessment is not required.
This rule does not contain information collection requirements that require a control number from the Office of Management and Budget in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521). After the effective date of this rule, the new fees may affect the non-hour burdens associated with the following control numbers:
(1) 1004-0034 which expires July 31, 2018;
(2) 1004-0137 which expires January 31, 2018;
(3) 1004-0162 which expires September 30, 2015;
(4) 1004-0185 which expires December 31, 2015;
(5) 1004-0132 which expires December 31, 2016;
(6) 1004-0073 which expires August 31, 2016;
(7) 1004-0025 which expires March 31, 2016;
(8) 1004-0114 which expires October 31, 2016; and
(9) 1004-0121 which expires March 31, 2016.
As required by Executive Order 12630, the BLM has determined that this rule will not cause a taking of private property. No private property rights will be affected by a rule that merely updates fees. The BLM therefore certifies that this final rule does not represent a governmental action capable of interference with constitutionally protected property rights.
In accordance with Executive Order 12988, the BLM finds that this final rule will not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.
The BLM has determined that this final rule qualifies as a routine financial transaction and a regulation of an administrative, financial, legal, or procedural nature that is categorically excluded from environmental review under NEPA pursuant to 43 CFR 46.205 and 46.210(c) and (i). The final rule does not meet any of the 12 criteria for exceptions to categorical exclusions listed at 43 CFR 46.215.
Pursuant to Council on Environmental Quality (CEQ) regulations, the term “categorical exclusions” means categories of actions “which do not individually or cumulatively have a significant effect on the human environment and which have been found to have no such effect in procedures adopted by a federal agency in implementation of [CEQ] regulations (§ 1507.3) and for which, therefore, neither an environmental assessment nor an environmental impact statement is required.” 40 CFR 1508.4.
The BLM has determined that this final rule is not significant under the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 1501
In accordance with Executive Order 13175, the BLM has determined that this final rule does not include policies that have tribal implications. Specifically, the rule would not have substantial direct effects on one or more Indian tribes. Consequently, the BLM did not utilize the consultation process set forth in Section 5 of the Executive Order.
In developing this rule, the BLM did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554).
In accordance with Executive Order 13211, the BLM has determined that this final rule is not likely to have a significant adverse effect on the supply, distribution, or use of energy. It merely adjusts certain administrative cost recovery fees to account for inflation.
The principal author of this rule is Mark Purdy of the Division of Regulatory Affairs, Bureau of Land Management.
Public lands—mineral resources, Reporting and recordkeeping requirements.
For reasons stated in the preamble, the Bureau of Land Management amends 43 CFR part 3000 as follows:
16 U.S.C. 3101
(a) The table in this section shows the fixed fees that you must pay to the BLM for the services listed for Fiscal Year 2016. These fees are nonrefundable and must be included with documents you file under this chapter. Fees will be adjusted annually according to the change in the Implicit Price Deflator for Gross Domestic Product (IPD-GDP) by way of publication of a final rule in the
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to establish that the Electronic Data Access system is the primary tool for distributing contracts and contract data and to provide internal control procedures for data verification to ensure contract documents in the Electronic Data Access system are accurate representations of original documents. This rule also removes outmoded language that is not consistent with electronic document processes.
Effective September 30, 2015.
Ms. Tresa Sullivan, telephone 571-372-6089.
DoD published a proposed rule in the
There are some minor editorial changes made from the proposed rule in the final rule to clarify the distribution of signed contract copies to contractors, uploading of certain contract attachments into EDA, and what constitutes an original signature. Accordingly, paragraph (a) is added to DFARS 204.201 to clarify that contracting officers shall distribute one signed copy or reproduction of the signed contract to the contractor in lieu of the requirements at FAR 4.201(a). DFARS 204.270-1, paragraph (a), and 204.802, paragraph (a), now include statements that contract attachments that are classified, are too sensitive for widespread distribution, or cannot be practicably converted to electronic format should be provided by separate cover and not uploaded into EDA. Additionally, section 204.802, paragraph (f) is added to state that a photocopy, facsimile, electronic, mechanically-applied and printed signature, seal, and date are considered to be an original signature, seal, and date.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
A final regulatory flexibility analysis has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601,
This final rule amends the DFARS to make the following changes:
• DFARS 204.201, paragraph (a), clarifies that contracting officers shall distribute one signed copy or reproduction of the signed contract to the contractor in lieu of the requirements at FAR 4.201(a).
• DFARS 204.270, Electronic Document Access, states the policy that the Electronic Data Access (EDA) System, an online repository for contractual instruments and supporting documents, is DoD's primary tool for electronic distribution of contractual documents. The rule provides that contract attachments that are classified, are too sensitive for widespread distribution, or cannot be practicably converted to electronic format should be provided by separate cover and not uploaded into EDA. This section also provides policy that agencies have certain responsibilities when posting documents to EDA, to include internal control procedures that ensure electronic copies of contract documents and data in EDA are accurate representations of original documents.
• DFARS 204.802, Contract Files, is revised. The language in this section, which addresses contract file requirements for authenticating and conforming paper documents and copies, is being removed as it is outdated. A new paragraph (a) is being added, providing that electronic documents posted to the EDA system are a part of the contract file. Additionally, paragraph (f) is added to state that a photocopy, facsimile, electronic, mechanically-applied and printed signature, seal, and date are considered to be an original signature, seal, and date.
No comments were received from the public in response to the initial regulatory flexibility analysis.
There will be little, if any, impact on small entities as this rule primarily affects procedures for internal Government electronic posting and distribution of contractual documents.
This rule does not require any reporting or recordkeeping, and no alternatives were identified that will accomplish the objectives of the rule.
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, 48 CFR parts 204 and 237 are amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(a) In lieu of the requirement at FAR 4.201 (a), contracting officers shall distribute one signed copy or reproduction of the signed contract to the contractor.
(a) The Electronic Document Access (EDA) system, an online repository for contractual instruments and supporting documents, is DoD's primary tool for electronic distribution of contract documents and contract data. Contract attachments shall be uploaded to EDA, except for contract attachments that are classified, are too sensitive for widespread distribution (
(b) Agencies are responsible for ensuring the following when posting documents, including contractual instruments, to EDA—
(1) The timely distribution of documents; and
(2) That internal controls are in place to ensure that—
(i) The electronic version of a contract document in EDA is an accurate representation of the contract; and
(ii) The contract data in EDA is an accurate representation of the underlying contract.
The procedures at PGI 204.270-2 provide details on how to record the results of data verification in EDA. When these procedures are followed, contract documents in EDA are an accurate representation of the contract and therefore may be used for audit purposes.
(a) Any document posted to the Electronic Document Access (EDA) system is part of the contract file and is accessible by multiple parties, including the contractor. Do not include in EDA contract documents that are classified, too sensitive for widespread distribution (
(f) A photocopy, facsimile, electronic, mechanically-applied and printed signature, seal, and date are considered to be an original signature, seal, and date.
Ensure that quality assurance surveillance plans are prepared in conjunction with the preparation of the statement of work or statement of objectives for solicitations and contracts for services. These plans should be tailored to address the performance risks inherent in the specific contract type and the work effort addressed by the contract. (See FAR subpart 46.4.) Retain quality assurance surveillance plans in the contract file. See
Defense Acquisition Regulations System, Department of Defense (DoD).
Final rule.
DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) subpart on contract debts to conform with the comparable Federal Acquisition Regulation (FAR) subpart.
Effective September 30, 2015.
Ms. Julie Hammond, telephone 571-372-6174.
DoD is amending the numbering structure for various sections in DFARS subpart 232.6 and revising section headings, where appropriate, in order to conform with the FAR. This change will align the DFARS with the same coverage in the FAR. No changes are made beyond the redesignation of DFARS subpart 232.6 section numbers and the conformation of DFARS section headings to the FAR.
“Publication of proposed regulations”, 41 U.S.C. 1707, is the statute which applies to the publication of the Federal Acquisition Regulation. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because the DFARS sections are being renumbered merely to conform to the FAR sections and the DFARS section titles are being modified to conform to the FAR section titles. The content of the DFARS sections remains unchanged. This will alleviate any confusion the contracting officers may have and aid in moving between the two regulations with ease. These requirements affect only the internal operating procedures of the Government.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
The Regulatory Flexibility Act does not apply to this rule because this final rule does not constitute a significant DFARS revision within the meaning of FAR 1.501-1, and 41 U.S.C. 1707 does not require publication for public comment.
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, 48 CFR part 232 is amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
When transferring a case to the contract financing office, follow the procedures at PGI 232.603.
When issuing a demand for payment of a contract debt, follow the procedures at PGI 232.604.
Only the department/agency contract financing offices (see PGI 232.070(c)) are authorized to compromise debts covered by this subpart.
Pipeline and Hazardous Materials Safety Administration (PHMSA), Department of Transportation (DOT).
Final rule; response to petitions for reconsideration.
On March 11, 2015, PHMSA published a final rule amending the pipeline safety regulations to make miscellaneous changes that updated and clarified certain regulatory requirements. These amendments addressed several subject matter areas, including the performance of post-construction inspections, Type B onshore gas gathering line leak surveys, qualifying plastic pipe joiners, ethanol regulation, pipe transportation, offshore pipeline condition report filing, pressure reduction calculations for hazardous liquid pipeline anomalies, and components fabricated by welding. This final rule responds to petitions for reconsideration of the final rule.
The effective date of the amendment to 49 CFR 192.305, published at 80 FR 12779, March 11, 2015, is delayed indefinitely. PHMSA will publish a document in the
Kay McIver, Transportation Specialist, by telephone at 202-366-0113, or by electronic mail at
On March 11, 2015, PHMSA published a final rule amending the pipeline safety regulations to make miscellaneous changes that update and clarify certain regulatory requirements (80 FR 12762). These amendments address several subject matter areas, including the performance of post-construction inspections, Type B onshore gas gathering line leak surveys, qualifying plastic pipe joiners, ethanol regulation, pipe transportation, offshore pipeline condition report filing, pressure reduction calculations for hazardous liquid pipeline anomalies, and components fabricated by welding.
Collectively, PHMSA received four petitions for reconsideration of the final rule from the American Public Gas Association (APGA), the American Gas Association (AGA), the Interstate Natural Gas Association (INGAA), and the National Association of Pipeline Safety Representatives (NAPSR). The APGA, the AGA, and NAPSR expressed concerns about the provisions of the final rule applicable to construction inspection in § 192.305. INGAA and the AGA expressed concerns applicable to provisions in the final rule applicable to components fabricated by welding.
In the final rule published on March 11, 2015, PHMSA added paragraph (e) to § 192.153 requiring that “a component having a design pressure established under paragraph (a) or paragraph (b) of this section and subject to the strength testing requirements of § 192.505(b) must be tested to at least 1.5 times the MAOP.” PHMSA also modified § 192.165(b)(3) to cross-reference this new subsection. In the preamble to the final rule, PHMSA noted “this proposal is not a change to the current pressure testing requirements found in Part 192, but [is] simply a clarification to ensure a clearer understanding of PHMSA's pressure testing requirements for certain ASME BPVC vessels located in compressor stations, meter stations and other Class 3 or Class 4 locations” (80 FR 12772, March 11, 2015).
On April 10, 2015, INGAA and AGA filed separate petitions for reconsideration with PHMSA regarding this change (Docket No. PHMSA-2010-0026). INGAA stated that PHMSA's modifications to these code sections were not merely a clarification, but a departure from industry and agency understanding and practice, and require additional review. Specifically, INGAA claimed that PHMSA changed the acceptable test factor for a pressure vessel built under the American Society or Mechanical Engineers (ASME) Boiler and Pressure Vessel Code (BPVC) from the ASME requirements of 1.3 times the Maximum Allowable Working Pressure
INGAA and AGA requested that PHMSA reconsider this change due to a lack of technical justification and regulatory support, asking PHMSA to, at a minimum, conduct a study to validate the future use of 1.5 times MAOP for ASME pressure vessels and create an exception for ASME pressure vessels that were put into operation between July 14, 2004 (when the 1.3 factor was adopted by ASME) and October 1, 2015 (the final rule's effective date).
After reviewing INGAA's and AGA's petitions for reconsideration, the language in the final rule, and the Pipeline Safety Regulations (PSR), PHMSA disagrees with the petitioners' claim that the change, as written, was a departure from industry and agency understanding. The pressure testing requirements in the PSR for pipelines in Class 3 and 4 areas, as well as facilities located in Class 1 and 2 areas, are subject to the requirements of § 192.505(b) and require a pressure test equal to a minimum of 1.5 times the MAOP. The testing requirements of § 192.505(b), which were not revised in the final rule, state that in a Class 1 or Class 2 location, each compressor station, regulator station, and measuring station must be tested to at least Class 3 location test requirements. PHMSA believes the amendment to § 192.153 and the corresponding cross-reference with § 192.165(b)(3) simply clarify the regulations, is consistent with existing agency understanding and practice, and ensures regulated parties do not incorrectly use the newer ASME BPVC design factor of 1.3 for pressure testing in instances where pipelines must be tested at 1.5 times MAOP.
Regarding INGAA's request to create an exception for ASME pressure vessels put into operation between July 14, 2004, and October 1, 2015, from the requirements found at § 192.153(e), PHMSA is considering INGAA's request and will be evaluating the potential costs and environmental implications to operators to retest the non-compliant pressure vessels.
Prior to the issuance of the final rule on March 11, 2015, § 192.305 stated that “each transmission pipeline or main must be inspected to ensure that it is constructed in accordance with this part,” and § 195.204 stated “inspection must be provided to ensure the installation of pipe or pipeline systems in accordance with the requirements of this subpart.” In the final rule issued on March 11, 2015, PHMSA amended § 192.305 to specify that a pipeline operator must not use operator personnel to perform a required inspection if the operator personnel also performed the construction task that required inspection. This amendment was based, in part, on a petition (Docket No. PHMSA-2010-0026) from the National Association of Pipeline Safety Representatives (NAPSR),
On April 10, 2015, the APGA petitioned for a clarification, or in the alternative, a reconsideration of the final rule. The APGA stated that the amendment to § 192.305 has the potential to impose significant costs on publicly-owned gas distribution systems with little, if any, corresponding safety benefit. The APGA stated that if a utility has only one qualified crew that works together to construct distribution mains, there would not be anyone working for the utility available and qualified to perform the inspection. According to the APGA, 585 municipal gas utilities have 5 or fewer employees. The APGA went on to say that prohibiting small utilities from having their own employees inspect pipeline construction work performed by employees of the municipal utility would significantly increase the costs for those utilities by requiring small utilities to contract with third parties for such inspections. The APGA stated that its concerns would be alleviated by a clarification stating a two-man utility crew may inspect each other's work and comply with the amendment to § 192.305.
On April 10, 2015, the AGA petitioned PHMSA to extend the compliance date for the amendments in § 192.305 and § 195.204 from October 1, 2015, to January 1, 2016. The AGA asked for this additional time to allow pipeline operators to modify their construction inspection procedures, align associated documentation, and ensure proper training is in place for both company employees and contractors.
On July 28, 2015, NAPSR petitioned PHMSA to reconsider the revision of § 192.305, as it undermines the 2002 NAPSR CR-1-02 resolution. NAPSR asked for a delay in the effective date of the final rule relative to § 192.305 until PHMSA has reviewed the rule and worked with NAPSR to address its concerns. According to NAPSR, allowing contractor personnel to inspect the work performed by their own company does not remove the inherent conflict of interest that is present and defeats the safety benefits that NAPSR intended. NAPSR stated that its original resolution would have prohibited contractors from self-inspecting their own work. NAPSR noted that, unfortunately, the final rule's amendment specifically allows contract personnel to inspect the work of their own crews so long as the inspector did not directly perform the task being inspected. Additionally, the amendment appears to apply to operator construction personnel as well, which was not NAPSR's original intent since, in its experience, operator personnel have less of an incentive to accept poor-quality work. Further, the final rule mistakenly decreases the scope of the inspection by changing the inspection requirements to only those found in Subpart G for the construction of mains and transmission lines,, rather than in all of Part 192 as it was prior to the amendment.
As stated in the final rule, PHMSA believes that these construction inspections are important safety requirements because transmission pipelines and distribution mains are usually buried after construction, and subsequent examinations of these pipelines often involve a difficult excavation process. Upon further examination of the impacts of this amendment, in particular the issues raised by the petitioners, PHMSA believes that further examination and analysis of this safety issue is warranted prior to this change going into effect. Therefore, PHMSA is delaying the effective date of the amendment to 49 CFR 192.305 indefinitely. During this delay, PHMSA will be evaluating the ways operators are currently complying with § 192.305, developing guidance (based on input from industry and other regulatory bodies) and hosting a series of workshops on the guidance. Upon completion of this evaluation, PHMSA will determine the efficacy of the amendment and decide if any additional amendments to the current regulations are warranted and to propose any necessary amendments to § 192.305. Please note, the effective date for all the other amendments contained in the final rule remains October 1, 2015.
This final rule is a non-significant regulatory action under section 3(f) of Executive Order 12866 (58 FR 51735) and therefore was not reviewed by the Office of Management and Budget. This final rule is not significant under the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034).
This final rule will not impose increased compliance costs on the regulated industry. The amendments to the March 11, 2015 final rule provide regulatory relief to pipeline operators involved in construction inspection and do not alter the cost benefit analysis and conclusions.
Under the Regulatory Flexibility Act (5 U.S.C. 601
This final rule imposes no new requirements for recordkeeping and reporting.
This final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It would not result in costs of $100 million, adjusted for inflation, or more in any one year to either State, local, or tribal governments, in the aggregate, or to the private sector, and is the least burdensome alternative that achieves the objective of the final rule.
The National Environmental Policy Act (42 U.S.C. 4321-4375) requires that Federal agencies analyze final actions to determine whether those actions will have a significant impact on the human environment. The Council on Environmental Quality regulations requires Federal agencies to conduct an environmental review considering (1) the need for the final action, (2) alternatives to the final action, (3) probable environmental impacts of the final action and alternatives, and (4) the agencies and persons consulted during the consideration process. 40 CFR 1508.9(b).
The amendment adopted in this final rule will not impose increased compliance costs on the regulated industry or have any measureable effect on our original assessment. The amendments to the March 11, 2015, final rule provide regulatory relief to pipeline operators involved in construction inspection. Overall, this final rule will reduce the compliance burden without compromising pipeline safety. Therefore, PHMSA has determined that this final rule will not have a significant impact on the human environment.
Anyone may search the electronic form of all comments received for any of our dockets. You may review DOT's complete Privacy Act Statement published in the
PHMSA has analyzed this final rule according to Executive Order 13132 (“Federalism”). This final rule does not have a substantial direct effect on the States, the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government. This final rule does not impose substantial direct compliance costs on State and local governments. This final rule does not preempt State law for intrastate pipelines. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
This final rule is not a “significant energy action” under Executive Order 13211 (Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use). It is not likely to have a significant adverse effect on supply, distribution, or energy use. Further, the Office of Information and Regulatory Affairs has not designated this final rule as a significant energy action.
The effective date for the amendment revising 49 CFR 192.305, published March 11, 2015, at 80 FR 12779, is delayed indefinitely.
Agricultural Marketing Service, USDA.
Notice to reconvene public hearing on proposed rulemaking.
In the event of a lapse of appropriations necessitating an adjournment of the public hearing on September 30, 2015, this Notice serves to establish a date to reconvene a public hearing that began on September 22, 2015, in Clovis, CA, to consider and take evidence on a proposal to establish a Federal milk marketing order to regulate the handling of milk in California.
The hearing will reconvene at 9:00 a.m. two business days after the date Federal government operations resume. If the date is a Friday, the hearing will reconvene the following Monday. If the reconvening date is a Federal Holiday, the hearing will reconvene the next business day.
The hearing will reconvene at the Clovis Veterans Memorial District Building, 808 Fourth Street, Clovis, California 93612; telephone (559) 299-0471. If still ongoing, the hearing will be held on October 22 and 23, 2015, at the Piccadilly Inn Airport Hotel, 5115 E. McKinley Avenue, Fresno, California 93727; telephone (559) 375-7760.
William Francis, Director, Order Formulation and Enforcement Division, USDA/AMS/Dairy Program, Stop 0231—Room 2969-S, 1400 Independence Avenue SW., Washington, DC 20250-0231; (202) 720-6274; email address:
Persons requiring a sign language interpreter or other special accommodations should contact Diane Hirsch, AMS Dairy Program, at (425) 487-5601, email:
Prior documents in this proceeding:
In the event of a lapse of appropriations necessitating an adjournment of the public hearing on September 30, 2015, notice is hereby given that the hearing to consider the promulgation of a Federal Milk Marketing Order for the state of California will reconvene in session at the Clovis Veterans Memorial District Building, 808 Fourth Street, Clovis, California 93612; telephone (559) 299-0471. If still ongoing, the hearing will be held on October 22 and 23, 2015, at the Piccadilly Inn Airport Hotel, 5115 E. McKinley Avenue, Fresno, California 93727; telephone (559) 375-7760. At the reconvened hearing, testimony will continue to be received regarding Proposals 1-4 as included in the Notice of Hearing published August 5, 2015, 80 FR 47210.
Milk marketing orders.
7 U.S.C. 601-674, and 7253.
Environmental Protection Agency (EPA).
Announcement of public hearing.
The Environmental Protection Agency (EPA) is announcing a public hearing for the proposed rule titled, “Revisions to Test Methods, Performance Specifications, and Testing Regulations for Air Emission Sources,” that was published in the
The public hearing will be held on October 8, 2015, in Research Triangle Park. Please refer to
The hearing will be held at the Environmental Protection Agency, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711.
Written comments on the proposed rule may also be submitted to the EPA electronically by mail, by facsimile, or through hand delivery/courier. Please refer to the proposed rule for the addresses and detailed instructions.
A complete set of documents related to the proposed rule is available for public inspection at the EPA Docket Center located at Docket ID No. EPA-HQ-OAR-2014-0292, EPA/DC, WJC West Building, Room 3334, 1301 Constitution Avenue NW., Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. A reasonable fee may be charged for copying. Documents are also available through the electronic docket system at
The proposal and information about the public hearing, can be found at
If you would like to speak at the public hearing or have questions concerning the public hearing or proposed rule, please contact Ms. Lula Melton, Office of Air Quality Planning and Standards, Air Quality Assessment Division (E143-02), Environmental Protection Agency, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711; telephone: (919) 541-2910; fax number: (919) 541-0516; email address:
The proposed rule for which the EPA is holding the public hearing was published in the
The public hearing will be held in Research Triangle Park, North Carolina, and will begin at 1:00 p.m. (local time) and continue until 4:00 p.m. (local time). The EPA will make every effort to accommodate all speakers that arrive and register before 1:00 p.m. Please note that the hearing is being held at a U.S. government facility, and individuals planning to attend the hearing should be prepared to show valid picture identification to the security staff in order to gain access to the building. The REAL ID Act, passed by Congress in 2005, established new requirements for entering federal facilities. These requirements took effect July 21, 2014. If your driver's license is issued by American Samoa, Louisiana, Minnesota, New Hampshire, or New York, you must present an additional form of identification to enter the federal building in Research Triangle Park, North Carolina where the public hearing will be held. Acceptable alternative forms of identification include federal employee badges, passports, enhanced driver's licenses, military identification cards, birth certificates, social security cards, voter registration cards, and U.S. citizen ID cards. In addition, you will need to obtain a property pass for any personal belongings you bring with you. Upon leaving the building, you will be required to return this property pass to the security desk. No large signs will be allowed in the building, cameras may only be used outside of the building, and demonstrations will not be allowed on federal property for security reasons.
If you would like to present oral testimony at the hearing, please notify Ms. Lula Melton, U.S. EPA, Office of Air Quality Planning and Standards, Mail Code: E143-02, 109 T.W. Alexander Drive, Research Triangle Park, NC 27711; telephone: (919) 541-2910; fax number: (919) 541-0516; email address:
Oral testimony will be limited to 5 minutes for each commenter to address the proposed revisions. The EPA will not provide audiovisual equipment for presentations unless we receive special requests in advance. Commenters should notify Ms. Melton if they will need specific equipment and/or specific translation services for non-English speaking commenters. The EPA encourages commenters to provide written versions of their oral testimonies either electronically on computer disk or CD-ROM, or in paper copy.
The hearing schedule, including lists of speakers, will be posted at
The EPA has established the official public docket for the proposed rule under Docket ID No. EPA-HQ-OAR-2014-0292. Please refer to the proposed rule (80 FR 54146, September 8, 2015) for detailed information on accessing information related to the proposed rule.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a revision to the San Joaquin Valley Unified Air Pollution Control District (SJVUAPCD) portion of the California State Implementation Plan (SIP). This revision concerns emissions of volatile organic compounds (VOCs), oxides of nitrogen (NO
Any comments must arrive by October 30, 2015.
Submit comments, identified by docket ID number EPA-R09-OAR-2015-0570, by one of the following methods:
1.
2.
3.
Rynda Kay, EPA Region IX, (415) 947-4118,
Throughout this document, “we,” “us” and “our” refer to the EPA.
Table 1 lists the rule addressed by this proposal with the date that it was adopted by the local air agency and submitted by the California Air Resources Board.
On December 18, 2014, the EPA determined that the submittal for SJVUAPCD Rule 4901 met the completeness criteria in 40 CFR part 51, appendix V, which must be met before formal EPA review.
We approved an earlier version of Rule 4901 into the SIP on October 11, 2009 (74 FR 57907). The SJVUAPCD adopted revisions to the SIP-approved version on September 18, 2014 and CARB submitted them to us on November 6, 2014. While we can act on only the most recently submitted version, we have reviewed materials provided with previous submittals.
VOCs help produce ground-level ozone, smog and PM, which harm human health and the environment. NO
Rule 4901 is designed to limit emissions of these pollutants generated by the use of wood burning fireplaces, wood burning heaters, and outdoor wood burning devices. The rule establishes requirements for the sale/transfer, operation, and installation of wood burning devices and on the advertising of wood for sale intended for burning in a wood burning fireplace, wood burning heater, or outdoor wood burning device within the San Joaquin Valley Air Basin (San Joaquin Valley).
The SIP-approved rule was modified to replace the existing episodic curtailment requirement, which required declaration of a mandatory wood burning curtailment day whenever the PM
The two-tiered curtailment program also replaces a contingency measure provision which would have been implemented in the event that the EPA finalized a rulemaking finding San Joaquin Valley had failed to attain the 1997 PM
Additionally, the revised rule adds outdoor wood burning heaters to the applicability paragraph, explicitly references to the New Source Performance Standard (NSPS) for New Residential Wood Heaters (40 CFR part 60, subpart AAA) to assure compliance with the latest Federal requirements, and includes other editorial revisions to improve rule clarity.
The EPA's technical support document (TSD) has more information about this rule.
SIP rules must be enforceable (see CAA section 110(a)(2)), must not interfere with applicable requirements concerning attainment and reasonable further progress or other CAA requirements (see CAA section 110(l)), and must not modify certain SIP control requirements in nonattainment areas without ensuring equivalent or greater
The San Joaquin Valley is currently designated and classified as an extreme 1-hour ozone nonattainment area and an extreme 8-hour ozone nonattainment area under both the 1997 and 2008 8-hour ozone standards (40 CFR 81.305). CAA section 172(c)(1) requires ozone nonattainment areas to implement all reasonably available control measures (RACM), including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology (RACT), as expeditiously as practicable. Therefore, SJVUAPCD must implement RACM for ozone precursors. While our stringency discussion below focuses on PM emissions, we are not aware of reasonably available controls for these sources for ozone precursors that are not also reasonably available controls for PM. In addition, because residential wood burning takes place in the winter months when ozone concentrations are lower and the probability of exceeding the ozone NAAQS is low, we do not believe it is necessary to assess RACM/RACT for ozone and its precursors independently from our assessment of RACM/RACT for PM.
San Joaquin Valley is designated and classified as a moderate nonattainment area for the 2006 24-hour PM
San Joaquin Valley is designated and classified as a serious nonattainment area for the 1997 annual and 1997 24-hour PM
San Joaquin Valley is currently designated attainment for PM
Guidance and policy documents that we use to evaluate enforceability, revision/relaxation and rule stringency requirements for the applicable criteria pollutants include the following:
We believe this rule is consistent with CAA requirements and relevant guidance regarding enforceability, SIP revisions, and RACM/RACT and BACM/BACT.
The rule requirements and applicability are clear, and the monitoring, recordkeeping, reporting and other provisions sufficiently ensure that affected sources and regulators can evaluate and determine compliance with Rule 4901 consistently. Additionally, Rule 4901 includes several provisions that together provide continuous control of PM emissions consistent with the CAA and EPA guidance on start-up, shut-down, and malfunction, including an episodic curtailment program, certification and registration requirements, restrictions concerning materials that can be burned, and a limit on visible emissions from residential chimneys.
The District estimates that the new tiered curtailment program described in Rule 4901, Paragraph 5.6, would reduce average winter burning season emissions by 3.27 tons per day (tpd) PM
We propose to determine that our approval of the submittal would comply with CAA section 110(l), because the proposed SIP revision would not interfere with the on-going process for ensuring that requirements for RFP and attainment are met and the submitted SIP revision is at least as stringent as the rule previously approved into the SIP. CAA section 193 does not apply to this action because the submitted SIP revision does not weaken any SIP control requirement in effect before November 15, 1990.
We assess whether Rule 4901 implements BACM/BACT for PM
The TSD describes additional rule revisions that we recommend for the next time the local agency modifies the rule but are not currently the basis for rule disapproval.
As authorized in section 110(k)(3) of the Act, the EPA proposes to fully approve the submitted rule because we believe it fulfills all relevant requirements. We will accept comments from the public on this proposal until October 30, 2015. Unless we receive convincing new information during the comment period, we intend to publish a final approval action that will incorporate this rule into the federally enforceable SIP.
In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference the SJVUAPCD rule described in Table 1 of this notice. The EPA has made, and will continue to make, these documents available electronically through
Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the
• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
• Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4);
• Does not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Is not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Is not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Is not subject to requirements of Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the Clean Air Act; and
• Does not provide EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, this proposed action does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the State, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Volatile organic compounds.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve two revisions to the Nevada state implementation plan (SIP). The first revision provides a demonstration of implementation of best available control measures (BACM) for control of particulate matter with an aerodynamic diameter less than or equal to a nominal ten micrometers (PM
Comments must be received on or before October 30, 2015.
Submit your comments, identified by Docket ID Number EPA-R09-OAR-2015-0633, by one of the following methods:
1.
2.
3.
John Ungvarsky, Air Planning Office (AIR-2), U.S. Environmental Protection Agency,
Throughout this document, whenever “we,” “us,” or “our” is used, we mean the EPA. This supplementary information section is arranged as follows:
On April 30, 1971 (36 FR 8186), pursuant to section 109 of the Clean Air Act (CAA), as amended in 1970, the EPA promulgated the original national ambient air quality standards (NAAQS or “standards”) for the “criteria” pollutants, which included carbon monoxide, hydrocarbons, nitrogen dioxide, photochemical oxidant, sulfur dioxide, and particulate matter.
Generally, SIPs were to provide for attainment of the NAAQS within three years after EPA approval of the plan. However, many areas of the country did not attain the NAAQS within the statutory period. In response, Congress amended the Act in 1977 to establish a new approach, based on area designations, for attaining the NAAQS. Under section 107(d) of the 1977 amended Act, states were to make recommendations for all areas within their borders as attainment, nonattainment, or unclassifiable for each of the NAAQS, including TSP, and the EPA was to designate areas based on those recommendations, as modified if appropriate. For the State of Nevada, the state recommended, and the EPA approved, the use of hydrographic areas as the geographic basis for designating air quality planning areas. 67 FR 12474 (March 19, 2002). For the TSP NAAQS, the EPA designated a number of areas in Nevada as “nonattainment,” including Truckee Meadows
As amended in 1977, the CAA required states to revise their SIPs by January 1979 for all designated nonattainment areas. The various local entities and the State of Nevada responded by developing and submitting attainment plans for the TSP nonattainment areas, including Truckee Meadows,
In 1987, the EPA revised the NAAQS for particulate matter, eliminating TSP as the indicator for the NAAQS and replacing it with the “PM
Under our regulations for implementing the revised particulate matter NAAQS (
The CAA was significantly amended in 1990. Under the 1990 amended Act, Congress replaced the PM
The 1990 Act Amendments also provided for the continued transition from TSP to PM
Section 166(f) of the 1990 amended Act authorizes the EPA to replace the TSP increments with PM
In November 2002, we deleted the TSP attainment or unclassifiable area designations throughout the State of Nevada, except for those in Clark County. 67 FR 68769 (November 13, 2002). In April 2013, we deleted the TSP attainment or unclassifiable area designations within Clark County and also deleted the TSP
The Nevada Division of Environmental Protection (NDEP) is the state agency with overall responsibility for the Nevada SIP and is the designated agency for submitting SIPs and SIP revisions to the EPA for approval. The Washoe County District Board of Health (“Health District”), which administers air quality programs through the Health District's Air Quality Management Division (“WCAQMD”), is empowered under state law to develop air quality plans within Washoe County. The Health District is also empowered under state law to regulate stationary sources within Washoe County with the exception of certain types of power plants, which lie exclusively within the jurisdiction of the NDEP. After it adopts an air quality plan for Washoe County, the Health District submits the plan to NDEP for adoption as part of the Nevada SIP and then for submittal to the EPA for approval.
As noted above, the Health District adopted, and the EPA approved, an air quality plan in the 1970s to provide for attainment of the TSP standard in Truckee Meadows. Another plan was required for Truckee Meadows in response to the area's classification as a “Moderate” nonattainment area for PM
As noted above, in 2001, the EPA reclassified the Truckee Meadows area to “Serious” nonattainment for the PM
In 2009, based on ambient PM
In this proposed rule, we are proposing to approve the 2014 PM
Section 110(l) of the CAA requires states to provide reasonable notice and public hearing prior to adoption of SIP revisions. In this action, we are proposing action on the NDEP's submittal of the 2014 PM
In this action, we also proposed to approve an element (
The CAA establishes the requirements for redesignating a nonattainment area to attainment. Specifically, section 107(d)(3)(E) allows for redesignation provided that the following criteria are met: (1) the EPA determines that the area has attained the applicable NAAQS; (2) the EPA has fully approved the applicable implementation plan for the area under section 110(k); (3) the EPA determines that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP, applicable Federal air pollution control regulations, and other permanent and enforceable reductions; (4) the EPA has fully approved a maintenance plan for the area as meeting the requirements of CAA section 175A; and (5) the State containing such area has met all requirements applicable to the area under section 110 and part D of title I of the CAA.
The EPA provided guidance on redesignations in the form of a General Preamble for the Implementation of Title I of the CAA Amendments of 1990 published in the
For the reasons set forth below in section V of this document, we are proposing to approve the NDEP's request for redesignation of the Truckee Meadows nonattainment area to attainment for the PM
Section 107(d)(3)(E)(i) of the CAA states that for an area to be redesignated to attainment, the EPA must determine that the area has attained the applicable NAAQS. In this case, the applicable NAAQS is the PM
We generally determine whether an area's air quality meets the PM
The PM
The WCAQMD currently operates five SLAMS within the Truckee Meadows PM
WCAQMD reports the PM
Table 1 provides the highest measured PM
For the 2012-2014 period, with one exception, the AQS database contains complete, quality-assured and certified data from the six PM
Based on our review of the quality-assured, certified, and complete (or otherwise validated) PM
Section 107(d)(3)(E)(ii) and (v) require the EPA to determine that the area has a fully-approved applicable SIP under section 110(k) that meets all applicable requirements under section 110 and part D for the purposes of redesignation. The EPA may rely on prior SIP approvals in approving a redesignation request, Calcagni Memo at 3;
The general SIP elements and requirements set forth in section 110(a)(2) include, but are not limited to, the following: submittal of a SIP that has been adopted by the state after reasonable public notice and hearing; provisions for establishment and operation of appropriate procedures needed to monitor ambient air quality; implementation of a source permit program; provisions for the implementation of part C requirements for Prevention of Significant Deterioration (PSD); provisions for air pollution modeling; and provisions for public and local agency participation in planning and emission control rule development.
We note that SIPs must be fully approved only with respect to applicable requirements for purposes of redesignation in accordance with CAA section 107(d)(3)(E)(ii). The section 110 and part D requirements that are linked to a particular nonattainment area's designation and classification are the relevant measures to evaluate in reviewing a redesignation request. Requirements that apply regardless of the designation of any particular area in the state are not applicable requirements for purposes of redesignation, and the state will remain subject to these requirements after the nonattainment area is redesignated to attainment.
Thus, for example, CAA section 110(a)(2)(D) requires that SIPs contain certain measures to prevent sources in a state from significantly contributing to air quality problems in another state, known as “transport SIPs.” Because the section 110(a)(2)(D) requirements for transport SIPs are not linked to a particular nonattainment area's designation and classification but rather apply regardless of attainment status, these are not applicable requirements for purposes of redesignation under
On numerous occasions over the past 40 years, NDEP has submitted, and we have approved, provisions addressing the basic CAA section 110 provisions for Truckee Meadows.
Subparts 1 and 4 of part D, title I of the CAA contain air quality planning requirements for PM
Subpart 4 contains specific SIP requirements for PM
However, we have determined that, in accordance with our Clean Data Policy, the obligation to submit the following CAA requirements for Truckee Meadows is not applicable for so long as the area continues to attain the PM
Moreover, in the context of evaluating the area's eligibility for redesignation, there is a separate and additional justification for finding that requirements associated with attainment are not applicable for purposes of redesignation. Prior to and independently of the Clean Data Policy, and specifically in the context of redesignations, the EPA interpreted attainment-linked requirements as not applicable for purposes of redesignation. In the General Preamble, the EPA stated:
The remaining applicable part D requirements for serious PM
Section 172(c)(3) of the Act requires the state to submit a comprehensive, accurate, current inventory of actual emissions from all sources of the relevant pollutant(s) in the nonattainment area, including periodic updates as required by the EPA. We interpret the Act such that the emission inventory requirement of section 172(c)(3) is satisfied by the inventory requirement of the maintenance plan.
Sections 172(c)(5) and 189(a)(1)(A) of the CAA require the state to submit SIP revisions that establish certain requirements for new or modified stationary sources in nonattainment areas, including provisions to ensure that major new or modified sources of nonattainment pollutants comply with the lowest achievable emission rate (LAER), and that increases in emissions from such stationary sources are offset so as to provide for reasonable further progress towards attainment in the nonattainment area. For “Moderate” PM
EPA-approved District regulations include rules for the review of applications for new or modified stationary sources; however, the EPA has not approved District regulations specifically meeting the NSR requirements of sections 172(c)(5) and 189(a)(1)(A). However, the EPA interprets section 107(d)(3)(E)(v) of the CAA such that final approval of a NSR program is not a prerequisite to approving the state's redesignation request. The EPA has determined in past redesignations that a NSR program does not have to be approved prior to redesignation, provided that the area demonstrates maintenance of the standard without part D NSR requirements in effect.
The demonstration of maintenance of the standard in the 2014 PM
Once Truckee Meadows has been redesignated to attainment, the requirements of the PSD program set forth at 40 CFR 52.21 will apply with respect to PM
Section 189(b)(1)(B) of the Act requires for any “Serious” PM
The EPA defines BACM as, among other things, the maximum degree of emissions reduction achievable for a source or source category, which is determined on a case-by-case basis considering energy, environmental, and economic impacts.
• Inventory the sources of PM
• Evaluate alternative control techniques and their technological feasibility; and evaluate the costs of control measures or their economic feasibility.
BACM must be applied to each significant (
The first step in the BACM analysis is to develop a detailed emissions inventory of PM
The 2002 PM
In preparing the list of candidate BACM to reduce emissions from the various significant source categories, the WCAQMD reviewed our guidance documents on BACM, other EPA documents on PM
Since 1988, the Health District has adopted and strengthened a number of regulations to reduce PM
Specifically, we have approved the following Health District regulations as satisfying BACM control requirements:
• District Regulation 040.005 (“Visible Air Contaminants”) (72 FR 33397, June 18, 2007) (stationary/industrial processes);
• District Regulation 040.030, “Dust Control” (72 FR 25969, May 8, 2007) (fugitive dust from construction activities and stationary/industrial processes);
• District Regulation 040.031, “Street Sanding Operations” (71 FR 14386, March 22, 2006) (paved streets/reentrained dust/street sanding);
• District Regulation 040.032, “Street Sweeping Operations” (71 FR 14386, March 22, 2006) (paved streets/reentrained dust/street sanding);
• District Regulation 040.051, “Wood Stove/Fireplace Insert Emissions” (72 FR 33397, June 18, 2007) (residential wood combustion); and
• District Regulation 050.001, “Emergency Episode Plan,” (72 FR 33397, June 18, 2007) (residential wood combustion).
Based on our prior approval of these regulations and our conclusion that they cover all significant PM
Section 189(e) of the CAA requires that the control requirements applicable under part D (of title I of the CAA) for major stationary sources of PM
The 1991 PM
We also note that more recent stationary source inventory data and ambient PM
Based on the DRI Report and the more recent inventory and monitoring data, we propose to make the finding authorized under CAA section 189(e) and to determine that major sources of PM
Under the Clean Air Act, as amended in 1990, section 176(c) of the CAA required the states to revise their SIPs to establish criteria and procedures to ensure that federally supported or funded projects in nonattainment and formerly nonattainment areas subject to a maintenance plan (referred to as “maintenance” areas) “conform” to the air quality planning goals in the applicable SIP. SIP revisions intended to meet the conformity requirement in section 176(c) are referred to as “conformity SIPs.” The requirement to determine conformity applies to transportation plans, programs and projects developed, funded or approved under Title 23 U.S.C. and the Federal Transit Act (“transportation conformity”) as well as to other federally supported or funded projects (“general conformity”). In 2005, Congress amended section 176(c), and under the amended conformity provisions, states are no longer required to submit conformity SIPs for “general conformity,” and the conformity SIP requirements for “transportation conformity” have been reduced to include only those relating to consultation, enforcement and enforceability. CAA section 176(c) (4) (E).
On July 31, 1995, the NDEP submitted the general and transportation conformity procedures and criteria for Truckee Meadows as a revision to the Nevada SIP. Given the 2005 amendments to the CAA, the NDEP has withdrawn the earlier conformity SIP submittal, and on March 21, 2013, submitted the
Therefore, based on the evaluation presented above, and based on our proposed approval of the 2011 emissions inventory submitted as part of the 2014 PM
Section 107(d)(3)(E)(iii) of the CAA requires the EPA, in order to approve a redesignation to attainment, to determine that the improvement in air quality is due to permanent and enforceable reductions in emissions resulting from implementation of the applicable SIP and applicable Federal air pollution control regulations and other permanent and enforceable regulations. Improvement should not be a result of temporary reductions (
PM
The 2014 PM
First, the 2014 PM
In addition, the WCAQMD implements a “Keep it Clean, Know the Code” public outreach program (formerly known as the “Green, Yellow, Red” program), which runs from November through February and which consists in part of a daily burn code that provides the community a recommendation on whether RWC will impact air quality in Washoe County. The program also commits the WCAQMD to conduct an RWC survey at least once every three years to track the effectiveness of the public outreach program. The EPA has approved District Regulations 040.051 and 050.001, and the commitment to conduct the RWC survey as revisions of the Nevada SIP, making them permanent and enforceable for the purposes of CAA section 107(d)(3)(E)(iii). See 72 FR 33397 (June 18, 2007) and 73 FR 38124, at 38127 (July 3, 2008). According to the 2014 PM
Second, the 2014 PM
These regulations require, among other things, that municipalities: (1) Use a harder and cleaner type of sand on paved roads following snow storms; (2) reduce the sand application rate by 50 percent compared to 1999 rates; (3) remove the sand within four days after a storm event; and (4) only purchase new sweepers that are PM
Third, the 2014 PM
The 2014 PM
Thus, we find that the improvements in PM
Section 107(d)(3)(E)(iv) of the CAA requires the EPA, in order to approve a redesignation to attainment, to fully approve a maintenance plan for the area as meeting the requirements of section 175A of the Act. Section 175A sets forth the elements of a maintenance plan for areas seeking redesignation from nonattainment to attainment. We interpret this section of the Act to require, in general, the following core elements:
• An attainment emissions inventory to identify the level of emissions in the area sufficient to attain the NAAQS;
• A demonstration of maintenance of the NAAQS for at least 10 years after redesignation;
• Provisions for continued operation of an air quality monitoring network;
• Provisions to verify continued attainment; and
• Contingency provisions that the EPA deems necessary to assure that the state will promptly correct any violation of the NAAQS that occurs after redesignation of the area.
A maintenance plan for the PM
The 2014 PM
• Paved road fugitive dust was re-calculated based on the most recent VMT estimates provided by the Regional Transportation Commission of Washoe County (RTC) and the most recent version of EPA emission factors published in AP-42,
• Unpaved road fugitive dust was re-calculated based on the most recent VMT estimates provided by the RTC and updated silt loading factors; and
• On-road mobile source emissions (combustion, brake and tire wear) were re-calculated based on the most recent VMT estimates provided by the RTC and a different traffic demand model.
In addition to showing the estimated actual emissions in 2011, table 2 below also the baseline maintenance plan inventory used by the 2014 PM
The EPA believes that the selection of 2011 as the attainment year inventory is appropriate given that it represents emissions from an attainment year and the year for which the most recent emissions inventory information was available at the time of preparation of the maintenance plan. Moreover, preparation of a seasonal (winter) inventory in this instance is appropriate given that winter is typically the season when the highest ambient PM
Section 175A of the CAA requires a demonstration of maintenance of the NAAQS for at least 10 years after redesignation. A state may generally demonstrate maintenance of the NAAQS by either showing that future emissions of a pollutant or its precursors will not exceed the level of the attainment inventory, or by modeling to show that the future anticipated mix of sources and emission rates will not cause a violation of the NAAQS.
The 2014 PM
Despite expected growth in the area, the maintenance plan's projected PM
Section 175A requires that the EPA approve a plan providing for maintenance in the area for at least ten years after redesignation. If this redesignation becomes effective in 2015, the projected 2030 inventory demonstrates that Truckee Meadows will maintain the PM
Continued ambient monitoring within an area is required over the maintenance period.
Each state should ensure that it has the legal authority to implement and enforce all measures necessary to attain and maintain the NAAQS, including the acquisition of ambient and source emission data to demonstrate attainment and maintenance, pursuant to CAA sections 110(a)(2)(B) and (F).
First, the WCAQMD will continue to prepare and submit to the EPA comprehensive periodic PM
We find that the WCAQMD's commitments to verify continued attainment of the PM
Section 175A(d) of the CAA requires that maintenance plans include such contingency provisions as the EPA deems necessary to promptly correct any violations of the NAAQS that occur after redesignation of the area. These contingency measures are distinguished from those generally required for nonattainment areas under section 172(c)(9) in that they are not required to be fully adopted measures that will take effect without further action by the state. However, the contingency plan is an enforceable part of the SIP and should ensure that the contingency measures are adopted expeditiously once they are triggered by a specified
The 2014 PM
More specifically, the contingency plan is triggered when any monitor operated by the WCAQMD records a violation of the PM
To address changes in growth and technology, which may alter the effectiveness of different measures over time, the WCAQMD will conduct a triennial review and reprioritization of these potential contingency measures in coordination with the periodic PM
In addition to the contingency plan described above, the maintenance plan identifies a SIP-approved program that serves as an automatically triggered measure when 24-hour PM
Based on our review of the contingency provisions in the 2014 PM
Transportation conformity is required by section 176(c) of the CAA. Our
PM
The maintenance plan submittal must demonstrate that these emissions levels, when considered with emissions from all other sources, are consistent with maintenance of the NAAQS. In order for us to find these emissions levels or “budgets” adequate and approvable, the submittal must meet the conformity adequacy provisions of 40 CFR 93.118(e)(4) and (5). For more information on the transportation conformity requirement and applicable policies on MVEBs, please visit our transportation conformity Web site at:
On January 19, 2010, the EPA announced the availability of the Truckee Meadows 2009 PM
The 2014 PM
The WCAQMD developed the MVEBs in the 2014 PM
A state may choose to apply a safety margin under our transportation conformity rule so long as such margins are explicitly quantified in the applicable plan and are shown to be consistent with attainment or maintenance of the NAAQS (whichever is relevant to the particular plan). See 40 CFR 93.124(a). As shown in table 7 below, each safety margin was calculated by subtracting a future inventory from the 2011 maintenance inventory.
With respect to the 2014 Plan and related MVEBs, we have evaluated the budgets against our adequacy criteria in 40 CFR 93.118(e)(4) and (5) as part of our review of the budgets' approvability and are completing the adequacy review of these budgets concurrent with our final action on the 2014 Plan.
The EPA is proposing to approve the MVEBs for 2015, 2020, 2025 and 2030, shown in table 5 above, as part of our approval of 2014 PM
Based on the review presented above of the various elements of the state's submitted maintenance plan, we are proposing to approve the 2014 PM
Consistent with CAA section 107(d)(4)(B), we have considered the continued necessity for retaining the remaining TSP area designation in Nevada, and as discussed below, we have decided that the TSP nonattainment designation for Truckee Meadows (HA #87) is no longer necessary. As a result, we are proposing to delete it from the TSP table in 40 CFR 81.329.
To evaluate whether the TSP area designation should be retained or can be deleted, we have relied upon the final rule implementing the PM
Based on the above references, we believe that the relevant considerations for evaluating whether the necessity of retaining the TSP area designations depend upon the status of a given area with respect to TSP and PM
For areas that are nonattainment for TSP and nonattainment for PM
In the case of Truckee Meadows, we believe that the considerations for both types of areas described above are relevant because, although Truckee Meadows Valley is nonattainment for TSP and PM
With respect to protection of the PM
To ensure that deletion of the TSP nonattainment designation for Truckee Meadows would not result in any automatic relaxations in SIP emissions limitations, control measures or programs that would interfere with attainment, RFP or maintenance of the NAAQS (including PM
The TSP portions of the Truckee Meadows Air Quality Implementation Plan (AQIP) adopted in response to the CAA, as amended in 1977;
Washoe County stationary source rules, including section 040.005 (“Visible Air Contaminants”), section 040.010 (“Particulate Matter”), section 040.020 (“Dust and Fumes”), section 040.030 (“Dust Control”), section 040.031 (“Street Sanding Operations”), section 040.032 (“Street Sweeping Operations”), section 040.035 (“Open Fires”), section 040.040 (“Burning Permit Conditions”), section 040.045 (“Refuge Disposal”), section 040.050 (“Incinerator Emissions”), section 040.051 (“Wood Stove/Fireplace Insert Emissions”), and section 040.060 (“Sulfur Content of Fuel”).
Based on our review of the TSP provisions in the Truckee Meadows AQIP and the various rules cited above, we find that none are contingent upon continuation of the TSP nonattainment designation, and thus deletion of the TSP designation would not automatically relax any standard.
In summary, because upon redesignation the PSD PM
Under CAA section 110(k)(3), and for the reasons set forth above, the EPA is proposing to approve the BACM demonstration submitted by the NDEP on August 5, 2002 as part of the 2002 Truckee Meadows PM
In addition, under CAA section 107(d)(3)(D), we are proposing to approve the state's request, which accompanied the submittal of the 2014 PM
In connection with the above proposed approvals and determinations, and as authorized under CAA section 189(e), we are proposing to determine that major stationary sources of PM
Lastly, the EPA is proposing to delete the nonattainment area designation for Truckee Meadows for the revoked national standard for total suspended particulate because we have concluded that the designation is no longer necessary.
We are soliciting comments on these proposed actions. We will accept comments from the public on this proposal for 30 days following publication of this proposal in the
Under the CAA, redesignation of an area to attainment and the
• Are 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);
• Do not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• Are 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
• Do 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);
• Do not have Federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999);
• Are not an economically significant regulatory action based on health or safety risks subject to Executive Order 13045 (62 FR 19885, April 23, 1997);
• Are not a significant regulatory action subject to Executive Order 13211 (66 FR 28355, May 22, 2001);
• Are 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,
• Do not provide the EPA with the discretionary authority to address disproportionate human health or environmental effects with practical, appropriate, and legally permissible methods under Executive Order 12898 (59 FR 7629, February 16, 1994).
In addition, the State plan for which the EPA is proposing approval does not apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the proposed rule, as it relates to the maintenance plan, 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). However, the EPA has contacted the Reno-Sparks Indian Colony and invited them to consult on today's action. The Reno-Sparks Indian Colony, which consists of members of three Great Basin Tribes—the Paiute, the Shoshone, and the Washo—and which has Indian country within the Truckee Meadows air quality planning area because the Indian country within the Truckee Meadows area would be redesignated to attainment along with State lands if the EPA were to finalize the proposed rules, as set forth herein.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxide.
Environmental protection, Air pollution control, National parks, Wilderness areas.
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Proposed rule.
The Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA” or “the Act”), as amended, requires that the National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”) include a list of national priorities among the known releases or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The National Priorities List (“NPL”) constitutes this list. The NPL is intended primarily to guide the Environmental Protection Agency (“EPA” or “the agency”) in determining which sites warrant further investigation. These further investigations will allow the EPA to assess the nature and extent of public health and environmental risks associated with the site and to determine what CERCLA-financed remedial action(s), if any, may be appropriate. This rule proposes to add seven sites to the General Superfund section of the NPL.
Comments regarding any of these proposed listings must be submitted (postmarked) on or before November 30, 2015.
Identify the appropriate docket number from the table below.
Submit your comments, identified by Docket ID No. listed above to the
For additional docket addresses and further details on their contents, see section II, “Public Review/Public Comment,” of the Supplementary Information portion of this preamble.
Terry Jeng, phone: (703) 603-8852, email:
In 1980, Congress enacted the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. 9601-9675 (“CERCLA” or “the Act”), in response to the dangers of uncontrolled releases or threatened releases of hazardous substances, and releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. CERCLA was amended on October 17, 1986, by the Superfund Amendments and Reauthorization Act (“SARA”), Public Law 99-499, 100 Stat. 1613
To implement CERCLA, the EPA promulgated the revised National Oil and Hazardous Substances Pollution Contingency Plan (“NCP”), 40 CFR part 300, on July 16, 1982 (47 FR 31180), pursuant to CERCLA section 105 and Executive Order 12316 (46 FR 42237, August 20, 1981). The NCP sets guidelines and procedures for responding to releases and threatened releases of hazardous substances or releases or substantial threats of releases into the environment of any pollutant or contaminant that may present an imminent or substantial danger to the public health or welfare. The EPA has revised the NCP on several occasions. The most recent comprehensive revision was on March 8, 1990 (55 FR 8666).
As required under section 105(a)(8)(A) of CERCLA, the NCP also includes “criteria for determining priorities among releases or threatened releases throughout the United States for the purpose of taking remedial action and, to the extent practicable taking into account the potential urgency of such action, for the purpose of taking removal action.” “Removal” actions are defined broadly and include a wide range of actions taken to study, clean up, prevent or otherwise address releases and threatened releases of hazardous substances, pollutants or contaminants (42 U.S.C. 9601(23)).
The NPL is a list of national priorities among the known or threatened releases of hazardous substances, pollutants or contaminants throughout the United States. The list, which is appendix B of the NCP (40 CFR part 300), was required under section 105(a)(8)(B) of CERCLA, as amended. Section 105(a)(8)(B) defines the NPL as a list of “releases” and the highest priority “facilities” and requires that the NPL be revised at least annually. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is only of limited significance, however, as it does not assign liability to any party or to the owner of any specific property. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.
For purposes of listing, the NPL includes two sections, one of sites that are generally evaluated and cleaned up by the EPA (the “General Superfund section”), and one of sites that are owned or operated by other federal agencies (the “Federal Facilities section”). With respect to sites in the Federal Facilities section, these sites are generally being addressed by other federal agencies. Under Executive Order 12580 (52 FR 2923, January 29, 1987)
There are three mechanisms for placing sites on the NPL for possible remedial action (see 40 CFR 300.425(c) of the NCP): (1) A site may be included on the NPL if it scores sufficiently high on the HRS, which the EPA promulgated as appendix A of the NCP (40 CFR part 300). The HRS serves as a screening tool to evaluate the relative potential of uncontrolled hazardous substances, pollutants or contaminants to pose a threat to human health or the environment. On December 14, 1990 (55 FR 51532), the EPA promulgated revisions to the HRS partly in response to CERCLA section 105(c), added by SARA. The revised HRS evaluates four pathways: ground water, surface water, soil exposure and air. As a matter of agency policy, those sites that score 28.50 or greater on the HRS are eligible for the NPL. (2) Pursuant to 42 U.S.C. 9605(a)(8)(B), each state may designate a single site as its top priority to be listed on the NPL, without any HRS score. This provision of CERCLA requires that, to the extent practicable, the NPL include one facility designated by each state as the greatest danger to public health, welfare or the environment among known facilities in the state. This mechanism for listing is set out in the NCP at 40 CFR 300.425(c)(2). (3) The third mechanism for listing, included in the NCP at 40 CFR 300.425(c)(3), allows certain sites to be listed without any HRS score, if all of the following conditions are met:
• The Agency for Toxic Substances and Disease Registry (ATSDR) of the U.S. Public Health Service has issued a health advisory that recommends dissociation of individuals from the release.
• The EPA determines that the release poses a significant threat to public health.
• The EPA anticipates that it will be more cost-effective to use its remedial authority than to use its removal authority to respond to the release.
The EPA promulgated an original NPL of 406 sites on September 8, 1983 (48 FR 40658) and generally has updated it at least annually.
A site may undergo remedial action financed by the Trust Fund established under CERCLA (commonly referred to as the “Superfund”) only after it is placed on the NPL, as provided in the NCP at 40 CFR 300.425(b)(1). (“Remedial actions” are those “consistent with permanent remedy, taken instead of or in addition to removal actions. . . . ” 42 U.S.C. 9601(24).) However, under 40 CFR 300.425(b)(2) placing a site on the NPL “does not imply that monies will be expended.” The EPA may pursue other appropriate authorities to respond to the releases, including enforcement action under CERCLA and other laws.
The NPL does not describe releases in precise geographical terms; it would be neither feasible nor consistent with the limited purpose of the NPL (to identify releases that are priorities for further evaluation), for it to do so. Indeed, the precise nature and extent of the site are typically not known at the time of listing.
Although a CERCLA “facility” is broadly defined to include any area where a hazardous substance has “come to be located” (CERCLA section 101(9)), the listing process itself is not intended to define or reflect the boundaries of such facilities or releases. Of course, HRS data (if the HRS is used to list a site) upon which the NPL placement was based will, to some extent, describe the release(s) at issue. That is, the NPL site would include all releases evaluated as part of that HRS analysis.
When a site is listed, the approach generally used to describe the relevant release(s) is to delineate a geographical area (usually the area within an installation or plant boundaries) and identify the site by reference to that area. However, the NPL site is not necessarily coextensive with the boundaries of the installation or plant, and the boundaries of the installation or plant are not necessarily the “boundaries” of the site. Rather, the site consists of all contaminated areas within the area used to identify the site, as well as any other location where that contamination has come to be located, or from where that contamination came.
In other words, while geographic terms are often used to designate the site (
The EPA regulations provide that the remedial investigation (“RI”) “is a process undertaken . . . to determine the nature and extent of the problem presented by the release” as more information is developed on site contamination, and which is generally performed in an interactive fashion with the feasibility Study (“FS”) (40 CFR 300.5). During the RI/FS process, the release may be found to be larger or smaller than was originally thought, as more is learned about the source(s) and the migration of the contamination. However, the HRS inquiry focuses on an evaluation of the threat posed and therefore the boundaries of the release need not be exactly defined. Moreover, it generally is impossible to discover the full extent of where the contamination “has come to be located” before all necessary studies and remedial work are completed at a site. Indeed, the known boundaries of the contamination can be expected to change over time. Thus, in most cases, it may be impossible to describe the boundaries of a release with absolute certainty.
Further, as noted above, NPL listing does not assign liability to any party or to the owner of any specific property. Thus, if a party does not believe it is liable for releases on discrete parcels of property, it can submit supporting information to the agency at any time after it receives notice it is a potentially responsible party.
For these reasons, the NPL need not be amended as further research reveals more information about the location of the contamination or release.
The EPA may delete sites from the NPL where no further response is appropriate under Superfund, as explained in the NCP at 40 CFR 300.425(e). This section also provides that the EPA shall consult with states on proposed deletions and shall consider whether any of the following criteria have been met:
(i) Responsible parties or other persons have implemented all appropriate response actions required;
(ii) All appropriate Superfund-financed response has been implemented and no further response action is required; or
(iii) The remedial investigation has shown the release poses no significant threat to public health or the environment, and taking of remedial measures is not appropriate.
In November 1995, the EPA initiated a policy to delete portions of NPL sites where cleanup is complete (60 FR 55465, November 1, 1995). Total site cleanup may take many years, while portions of the site may have been cleaned up and made available for productive use.
The EPA also has developed an NPL construction completion list (“CCL”) to simplify its system of categorizing sites and to better communicate the successful completion of cleanup activities (58 FR 12142, March 2, 1993). Inclusion of a site on the CCL has no legal significance.
Sites qualify for the CCL when: (1) Any necessary physical construction is complete, whether or not final cleanup levels or other requirements have been achieved; (2) the EPA has determined that the response action should be limited to measures that do not involve construction (
The Sitewide Ready for Anticipated Use measure (formerly called Sitewide Ready-for-Reuse) represents important Superfund accomplishments and the measure reflects the high priority the EPA places on considering anticipated future land use as part of the remedy selection process. See Guidance for Implementing the Sitewide Ready-for-Reuse Measure, May 24, 2006, OSWER 9365.0-36. This measure applies to final and deleted sites where construction is complete, all cleanup goals have been achieved, and all institutional or other controls are in place. The EPA has been successful on many occasions in carrying out remedial actions that ensure protectiveness of human health and the environment for current and future land uses, in a manner that allows contaminated properties to be restored to environmental and economic vitality. For further information, please go to
In order to maintain close coordination with states and tribes in the NPL listing decision process, the EPA's policy is to determine the position of the states and tribes regarding sites that the EPA is considering for listing. This consultation process is outlined in two memoranda that can be found at the following Web site:
A model letter and correspondence from this point forward between the EPA and states and tribes where applicable, is available on the EPA's Web site at
Yes, documents that form the basis for the EPA's evaluation and scoring of the sites in this proposed rule are contained in public dockets located both at the EPA Headquarters in Washington, DC, and in the regional offices. These documents are also available by electronic access at
You may view the documents, by appointment only, in the Headquarters or the regional dockets after the publication of this proposed rule. The hours of operation for the Headquarters docket are from 8:30 a.m. to 4:30 p.m., Monday through Friday excluding federal holidays. Please contact the regional dockets for hours.
The following is the contact information for the EPA Headquarters Docket: Docket Coordinator, Headquarters, U.S. Environmental Protection Agency, CERCLA Docket Office, 1301 Constitution Avenue NW., William Jefferson Clinton Building West, Room 3334, Washington, DC 20004; 202/566-0276. (Please note this is a visiting address only. Mail comments to the EPA Headquarters as detailed at the beginning of this preamble.)
The contact information for the regional dockets is as follows:
• Holly Inglis, Region 1 (CT, ME, MA, NH, RI, VT), U.S. EPA, Superfund Records and Information Center, 5 Post Office Square, Suite 100, Boston, MA 02109-3912; 617/918-1413.
• Ildefonso Acosta, Region 2 (NJ, NY, PR, VI), U.S. EPA, 290 Broadway, New York, NY 10007-1866; 212/637-4344.
• Lorie Baker (ASRC), Region 3 (DE, DC, MD, PA, VA, WV), U.S. EPA, Library, 1650 Arch Street, Mailcode 3HS12, Philadelphia, PA 19103; 215/814-3355.
• Jennifer Wendel, Region 4 (AL, FL, GA, KY, MS, NC, SC, TN), U.S. EPA, 61 Forsyth Street SW., Mailcode 9T25, Atlanta, GA 30303; 404/562-8799.
• Todd Quesada, Region 5 (IL, IN, MI, MN, OH, WI), U.S. EPA Superfund Division Librarian/SFD Records Manager SRC-7J, Metcalfe Federal Building, 77 West Jackson Boulevard, Chicago, IL 60604; 312/886-4465.
• Brenda Cook, Region 6 (AR, LA, NM, OK, TX), U.S. EPA, 1445 Ross Avenue, Suite 1200, Mailcode 6SFTS, Dallas, TX 75202-2733; 214/665-7436.
• Preston Law, Region 7 (IA, KS, MO, NE), U.S. EPA, 11201 Renner Blvd., Mailcode SUPRERNB, Lenexa, KS 66219; 913/551-7097.
• Sabrina Forrest, Region 8 (CO, MT, ND, SD, UT, WY), U.S. EPA, 1595 Wynkoop Street, Mailcode 8EPR-B, Denver, CO 80202-1129; 303/312-6484.
• Sharon Murray, Region 9 (AZ, CA, HI, NV, AS, GU, MP), U.S. EPA, 75 Hawthorne Street, Mailcode SFD 6-1, San Francisco, CA 94105; 415/947-4250.
• Ken Marcy, Region 10 (AK, ID, OR, WA), U.S. EPA, 1200 6th Avenue, Mailcode ECL-112, Seattle, WA 98101; 206/463-1349.
You may also request copies from the EPA Headquarters or the regional dockets. An informal request, rather than a formal written request under the Freedom of Information Act, should be the ordinary procedure for obtaining copies of any of these documents. Please note that due to the difficulty of reproducing oversized maps, oversized maps may be viewed only in-person;
You may use the docket at
The Headquarters docket for this proposed rule contains the following for the sites proposed in this rule: HRS score sheets; documentation records describing the information used to compute the score; information for any sites affected by particular statutory requirements or the EPA listing policies; and a list of documents referenced in the documentation record.
The regional dockets for this proposed rule contain all of the information in the Headquarters docket plus the actual reference documents containing the data principally relied upon and cited by the EPA in calculating or evaluating the HRS score for the sites. These reference documents are available only in the regional dockets.
Comments must be submitted to the EPA Headquarters as detailed at the beginning of this preamble in the “Addresses” section. Please note that the mailing addresses differ according to method of delivery. There are two different addresses that depend on whether comments are sent by express mail or by postal mail.
The EPA considers all comments received during the comment period. Significant comments are typically addressed in a support document that the EPA will publish concurrently with the
Comments that include complex or voluminous reports, or materials prepared for purposes other than HRS scoring, should point out the specific information that the EPA should consider and how it affects individual HRS factor values or other listing criteria (
Generally, the EPA will not respond to late comments. The EPA can guarantee only that it will consider those comments postmarked by the close of the formal comment period. The EPA has a policy of generally not delaying a final listing decision solely to accommodate consideration of late comments.
During the comment period, comments are placed in the Headquarters docket and are available to the public on an “as received” basis. A complete set of comments will be available for viewing in the regional dockets approximately one week after the formal comment period closes.
All public comments, whether submitted electronically or in paper form, will be made available for public viewing in the electronic public docket at
In certain instances, interested parties have written to the EPA concerning sites that were not at that time proposed to the NPL. If those sites are later proposed to the NPL, parties should review their earlier concerns and, if still appropriate, resubmit those concerns for consideration during the formal comment period. Site-specific correspondence received prior to the period of formal proposal and comment will not generally be included in the docket.
In today's proposed rule, the EPA is proposing to add seven sites to the NPL, all to the General Superfund section. All of the sites in this proposed rulemaking are being proposed based on HRS scores of 28.50 or above.
The sites are presented in the table below.
Additional information about these statutes and Executive Orders can be found at
This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.
This action does not impose an information collection burden under the PRA. This rule does not contain any
I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This rule listing sites on the NPL does not impose any obligations on any group, including small entities. This rule also does not establish standards or requirements that any small entity must meet, and imposes no direct costs on any small entity. Whether an entity, small or otherwise, is liable for response costs for a release of hazardous substances depends on whether that entity is liable under CERCLA 107(a). Any such liability exists regardless of whether the site is listed on the NPL through this rulemaking.
This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments or the private sector. Listing a site on the NPL does not itself impose any costs. Listing does not mean that the EPA necessarily will undertake remedial action. Nor does listing require any action by a private party, state, local or tribal governments or determine liability for response costs. Costs that arise out of site responses result from future site-specific decisions regarding what actions to take, not directly from the act of placing a site on the NPL
This rule does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.
This action does not have tribal implications as specified in Executive Order 13175. Listing a site on the NPL does not impose any costs on a tribe or require a tribe to take remedial action. Thus, Executive Order 13175 does not apply to this action.
The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because this action itself is procedural in nature (adds sites to a list) and does not, in and of itself, provide protection from environmental health and safety risks. Separate future regulatory actions are required for mitigation of environmental health and safety risks.
This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.
This rulemaking does not involve technical standards.
The EPA believes the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations because it does not affect the level of protection provided to human health or the environment. As discussed in Section I.C. of the preamble to this action, the NPL is a list of national priorities. The NPL is intended primarily to guide the EPA in determining which sites warrant further investigation to assess the nature and extent of public health and environmental risks associated with a release of hazardous substances, pollutants or contaminants. The NPL is of only limited significance as it does not assign liability to any party. Also, placing a site on the NPL does not mean that any remedial or removal action necessarily need be taken.
Environmental protection, Air pollution control, Chemicals, Hazardous substances, Hazardous waste, Intergovernmental relations, Natural resources, Oil pollution, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.
33 U.S.C. 1321(c)(2); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.
Office of the Secretary, Interior.
Proposed rule.
This rule would revise the regulations that the Department of the Interior (Department) follows in processing records under the Freedom of Information Act. The revisions clarify and update procedures for requesting information from the Department and procedures that the Department follows in responding to requests from the public.
Comments on the rulemaking must be submitted on or before November 30, 2015.
You may submit comments on the rulemaking by either of the methods listed below. Please use Regulation Identifier Number 1093-AA19 in your message.
1.
2.
Cindy Cafaro, Office of Executive Secretariat and Regulatory Affairs, 202-208-5342.
In late 2012, the Department published a final rule updating and replacing the Department's previous Freedom of Information Act (FOIA) regulations. Since that time, in order to maintain the independence of the Office of Inspector General (OIG), the Department and the OIG have agreed to authorize the OIG to process their own FOIA appeals. Additionally, the Department has recently migrated its Web site to a new framework, leading to updated links. Finally, the Department has received feedback from its FOIA practitioners and requesters and identified areas where it would be possible to further update, clarify, and streamline the language of some procedural provisions. Therefore, the Department is proposing to make the following changes:
• Section 2.1(e) would be amended to identify the regulations applicable to Privacy Act requests.
• Section 2.5(d) would be amended to provide more guidance on what happens when a request does not reasonably describe the records sought.
• Portions of § 2.6 would be amended to make explicit that a fee waiver request is a valid way of responding to a request for additional fee information and to emphasize fee issues must be resolved before processing will begin.
• A sentence would be added to § 2.8(a) to require a bureau that cannot readily reproduce the requested record in the form or format requested to explain why it cannot.
• Section 2.9(b) would be amended to remove a superfluous introductory phrase.
• Section 2.10 would be amended to highlight the requirements a requester seeking expedited processing must meet and the consequences of not meeting those requirements.
• Section 2.11 would be amended to reduce the suggested contact information provided by requesters.
• Section 2.12(c) would be amended to emphasize that reasonable efforts must be made to search for requested records and to clarify when searching for requested records in electronic form or format will not occur.
• A sentence would be added to § 2.15(e) to require bureaus to provide more information to requesters when placing them in a different processing track than requested.
• Section 2.16(a) would be amended to clarify and streamline discussion of when the time period for responding to a request begins and ends.
• The introductory language of § 2.19(a) would be amended to clarify when bureaus may extend the basic time limit.
• Portions of § 2.20 would be amended to make explicit that expedited processing requests are only appropriate before the bureau issues its final response; to require bureaus to provide more information to requesters when denying expedited processing requests; and to clarify that the portion of an appeal that relates to an expedited processing denial, rather than the entire appeal, will be processed ahead of other appeals.
• Section 2.22(c) and (d) would be amended to clarify when records may be released to requesters.
• Section 2.23(a)(3) would be amended to add a clarifying phrase.
• Section 2.24(b) would be amended and enlarged to require bureaus to provide more information to requesters in denial notifications.
• Section 2.25(c) would be amended to clarify what information must be provided to requesters, and where, when portions of responsive records have been deleted.
• Section 2.26 and § 2.27(a) would be amended to provide more information on when submitter notification is required.
• One word in § 2.27(b) would be replaced to more closely track the language of Executive Order No. 12600, (52 FR 23781, published June 23, 1987).
• Section 2.28(a) would be amended to clarify that a general description of the request would suffice for submitter notices published under § 2.27(b).
• Section 2.31(a)(1) and (2) would be amended to clarify the information a submitter must provide when objecting to the release of responsive information under Exemption 4.
• Section 2.37(g) would be added and § 2.49(a)(1) would be amended so the concept that requesters generally will not be charged if the fee for processing their request is less than $50 is introduced sooner.
• Section 2.37(h) would be added to make the consequences of failure to pay bills for FOIA-related fees explicit.
• Section 2.37(i) would be added to notify requesters they can seek assistance, when considering reformulating their request to meet their needs at a lower cost, from the bureau's designated FOIA contact or FOIA Public Liaison.
• A sentence would be added to § 2.38(b) to require bureaus to provide more information to requesters when placing them in a different fee category than requested.
• Section 2.39 would be amended to replace one word for the sake of grammatical consistency.
• Section 2.42(d) would be amended to further discuss the impact of requester preferences for paper and/or electronic formats.
• Section 2.44(b) would be amended to provide different examples of special services a requester might have to pay for.
• The introductory language of §§ 2.45(a) and 2.48(a) would be amended to clarify what a requester must demonstrate to be entitled to a fee waiver.
• Section 2.46(b) would be amended to clarify when fee waiver requests may be made.
• Minor grammatical changes would be made to § 2.47(a), (c), and (d) to allow a new § 2.47(e) to increase clarity and require bureaus to provide the requester with notice of anticipated fees when denying a request for a fee waiver.
• Section 2.48(a)(2)(v) would be amended to note that representatives of the news media will be presumed to have the ability and intent to disseminate the requested information to a reasonably broad audience of persons interested in the subject.
• Section 2.49(c) would be amended to allow requesters more flexibility in resolving fee issues.
• Portions of § 2.50 would be amended to clarify and streamline discussion of advance payments.
• Section 2.51(b)(3) would be amended to ensure consistent phrasing.
• Section 2.57(a)(5) and (6) would be amended to include minor, clarifying additions.
• Section 2.60 would be amended to reflect that the FOIA Appeals Officer would no longer be the deciding official for FOIA appeals arising from OIG FOIA responses, and small portions of §§ 2.20(c), 2.24(b)(5), 2.47(d), 2.62, and 2.63 would also be amended to reflect this change.
• Section 2.62 would be streamlined to follow the requirements of FOIA more closely.
• Section 2.66 would be amended to provide more information on the role played by FOIA Public Liaisons.
• A word would be added to the definition of “multitrack processing” in Section 2.70 to ensure it is consistent with Section 2.14.
• Section 2.1(d), 2.1(g), 2.3(c), 2.21(a), 2.41(c), 2.59(a), 2.65, and 2.70 would be amended to reflect updated Web site links.
Executive Order (E.O) 12866 provides that the Office of Information and
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. We have developed this rule in a manner consistent with these requirements.
The Department of the Interior certifies that this rule will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601
This is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:
a. Does not have an annual effect on the economy of $100 million or more.
b. Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.
c. Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. This rule does not have a significant or unique effect on State, local, or tribal governments or the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531
In accordance with Executive Order 12630, this rule does not have significant takings implications. A takings implication assessment is not required.
In accordance with Executive Order 13132, this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. It would not substantially and directly affect the relationship between the Federal and state governments. A federalism summary impact statement is not required.
In accordance with Executive Order 12988, the Office of the Solicitor has determined that this rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Executive Order.
Under the criteria in Executive Order 13175, we have evaluated this rule and determined that it has no potential effects on federally recognized Indian tribes. This rule does not have tribal implications that impose substantial direct compliance costs on Indian Tribal governments.
This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required.
This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required. Pursuant to Department Manual 516 DM 2.3A(2), Section 1.10 of 516 DM 2, Appendix 1 excludes from documentation in an environmental assessment or impact statement “policies, directives, regulations and guidelines of an administrative, financial, legal, technical or procedural nature; or the environmental effects of which are too broad, speculative or conjectural to lend themselves to meaningful analysis and will be subject late to the NEPA process, either collectively or case-by-case.”
This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required. This rule will not have a significant effect on the nation's energy supply, distribution, or use.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(a) Be logically organized;
(b) Use the active voice to address readers directly;
(c) Use clear language rather than jargon;
(d) Be divided into short sections and sentences; and
(e) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold your personal identifying information from public review, we cannot guarantee that we will be able to do so.
Freedom of information.
For the reasons stated in the preamble, the Department of the Interior proposes to amend part 2 of title 43 of the Code of Federal Regulations as follows:
5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 3717; 43 U.S.C. 1460, 1461.
The revision reads as follows:
(e) The Department's regulations for requests made under the Privacy Act of 1974, 5 U.S.C. 552a, are located at subpart K of this part.
(d) If the request does not reasonably describe the records sought, the bureau will inform you what additional information you need to provide in order to reasonably describe the records that you seek so the requested records can be located with a reasonable amount of effort. The bureau will also notify you that it will not be able to comply with your request unless the additional information it has requested is received from you in writing within 20 workdays and that you may appeal this determination. If you receive this type of notification, you may wish to discuss it with the bureau's designated FOIA contact or its FOIA Public Liaison (see § 2.66 of this part). If you do not provide the bureau with the additional information as discussed above, the bureau will presume that you are no longer interested in the records and will close the file on the request.
The revisions read as follows:
(b) * * *
(3) That it will not be able to fully comply with your request unless you provide a fee waiver request and/or the requested written assurance or advance payment.
(d) If you are seeking a fee waiver, your request must include a justification that addresses and meets the criteria in §§ 2.45, 2.48, and 2.56 of this part. Failure to provide sufficient justification will result in a denial of the fee waiver request. If you are seeking a fee waiver, you may also indicate the amount you are willing to pay if the fee waiver is denied. This allows the bureau to process the request for records while it considers your fee waiver request.
(e) The bureau will begin processing the request only after all issues regarding fees are resolved.
(a) * * * If the bureau cannot readily reproduce the record in that form or format, it must explain why it cannot.
(b) The bureau can require you to supply additional information if necessary to verify that a particular person has consented to disclosure or is deceased.
You may ask for the processing of your request to be expedited. If you are seeking expedited processing, your request must include a justification that addresses and meets the criteria in § 2.20 of this part. Failure to provide sufficient justification will result in a denial of the expedited processing request.
A request should include your name and a way (such as a mailing or email address) for the bureau to send responsive records to you and to request additional information or clarification of your request. You may also wish to include a daytime telephone number (or the name and telephone number of an appropriate contact).
(c) The bureau will make reasonable efforts to search for the requested records. As part of its reasonable efforts, the bureau will search paper and/or electronic records (for example, emails), as appropriate. The bureau will not search for records in an electronic form or format if these efforts would significantly interfere with the operation of the bureau's automated information system.
(e) * * * If you request placement in a particular processing track but the bureau places you in a different processing track, the bureau will provide you with an explanation of why you were not placed in the processing track you requested.
(a) Ordinarily, the bureau has 20 workdays (including the date of receipt) to determine whether to comply with a request, but unusual circumstances may allow the bureau to take longer than 20 workdays (see § 2.19 of this subpart).
(a) The bureau may extend the basic time limit, if unusual circumstances exist, by notifying you in writing of:
(c) You may ask for expedited processing of your request by writing to the appropriate FOIA contact in the bureau that maintains the records requested any time before the bureau issues its final response to your request. When making a request for expedited processing of an administrative appeal, submit the request to the appropriate deciding official for FOIA appeals.
(f) If expedited processing is denied, the bureau will:
(1) Inform you of the basis for the denial, including an explanation of why the expedited processing request does not meet the Department's expedited processing criteria under this section; and
(2) Notify you of the right to appeal the decision on expedited processing in accordance with the procedures in subpart H of this part.
(g) If you appeal the bureau's expedited processing decision, this portion of your appeal (if it is properly formatted under § 2.59 of this part) will be processed before appeals that do not challenge expedited processing decisions.
The revision reads as follows:
(c) The bureau will release records (or portions of records) to you promptly upon payment of any applicable fees (or before then, at its discretion).
(b) The denial notification must include:
(1) The name and title or position of the person responsible for the denial, along with an office phone number or email address;
(2) A statement of the reasons for the denial;
(3) A reference to any FOIA exemption applied by the bureau to withhold records in full or in part;
(4) An estimate of the volume of any records withheld in full or in part (for example, by providing the number of pages or some other reasonable form of estimation), unless an estimate would harm an interest protected by an exemption used to withhold the records;
(5) The name and title of the Office of the Solicitor or Office of General Counsel attorney consulted (if the bureau is denying a fee waiver request or withholding all or part of a requested record); and
(6) A statement that the denial may be appealed under subpart H of this part and a description of the procedures in subpart H of this part.
(c) If technically feasible, indicating the FOIA exemption under which the deletion of information was made, as required by paragraph (b) of this section, at the place in the record where the deletion was made.
(a) The Department encourages, but does not require, submitters to designate confidential information in good faith (in other words, to identify specific information as information considered protected from disclosure under Exemption 4 of the FOIA, found at 5 U.S.C. 552(b)(4)), at the time of submission or reasonably soon thereafter.
(b) The designations discussed in paragraph (a) of this section assist the bureau in determining whether information obtained from the submitter is confidential, but are not determinative; these designations therefore do not preempt the requirement for bureau-provided notifications under § 2.27 of this subpart.
The revision reads as follows:
(a) Except as outlined in § 2.29 of this subpart, a bureau must promptly notify a submitter in writing when it receives a FOIA request if:
(1) The requested information has been designated by the submitter under § 2.26(a) of this subpart; or
(2) The requested information has not been designated by the submitter under § 2.26(a) of this subpart, but the requested information may be protected from disclosure under Exemption 4 of the FOIA, found at 5 U.S.C. 552(b)(4).
(a) Either a copy of the request, the exact language of the request, or (for notices published under § 2.27(b) of this subpart) a general description of the request;
(a) * * *
(1) Whether the submitter provided the information voluntarily and, if so, how disclosure will impair the Government's ability to obtain similar information in the future and/or how the information fits into a category of information that the submitter does not customarily release to the public;
(2) Whether the Government required the information to be submitted, and if so, how disclosure will impair the Government's ability to obtain similar information in the future and/or how substantial competitive or other business harm would likely result from disclosure; and
24. In § 2.37, add paragraphs (g), (h), and (i) to read as follows:
(g) If the fee for processing your request is less than $50, you will not be charged unless multiple requests are aggregated under § 2.54 of this subpart to an amount that is $50 or more.
(h) If you fail to pay any FOIA-related fee within 30 calendar days of the date of billing, the processing of any new or ongoing requests and/or appeals from you shall ordinarily be suspended.
(i) If you would like to reformulate your request so it will meet your needs at a lower cost, you may wish to seek assistance from the bureau's designated FOIA contact or its FOIA Public Liaison (see § 2.66 of this part).
(b) * * * If you request placement in a particular fee category but the bureau places you in a different fee category, the bureau will provide you with an explanation of why you were not placed in the fee category you requested (for example, if you were placed in the commercial use requester category rather than the category you requested, the bureau will describe how the records would further your commercial, trade, or profit interests).
(d) If the bureau must scan paper records to accommodate your preference to receive records in an electronic format or print electronic records to accommodate your preference to receive records in a paper format, you will pay both the per page amount noted in Appendix A to this part and the time spent by personnel scanning or printing the requested records. For each quarter hour spent by personnel scanning or printing the requested records, the fees will be the same as those charged for a search under § 2.41(b) of this subpart.
(b) Examples of these services include providing multiple copies of the same record, converting records that are not already maintained in a requested format to the requested format, obtaining research data under § 2.69 of this part, sending records by means other than first class mail, and conducting a search that requires the creation of a new computer search program to locate the requested records.
(b) You may submit a fee waiver request at a later time if the bureau has not yet completed processing your request.
The addition reads as follows:
(e) Your anticipated fees, in accordance with § 2.49 of this subpart.
(a) In deciding whether your fee waiver request meets the requirements of § 2.45(a)(1) of this subpart, the bureau will consider the criteria listed in paragraphs (a)(1) through (4) of this section. You must address and meet each of these criteria in order to demonstrate that you are entitled to a fee waiver.
(2) * * *
(v)* * * If you are a representative of the news media, we will presume you have this ability and intent.
(a) * * *
(1) The anticipated fee is less than $50 (see § 2.37(g) of this subpart).
(c) The bureau must receive information from you that resolves any fee issues, in accordance with paragraphs (b)(2) and/or (4) of this section, within 20 workdays or the bureau will close the request.
(a) When a bureau determines or estimates that the total fee you will be charged under this subpart will exceed $250, the bureau may require you to make an advance payment up to the amount of the entire anticipated fee before the bureau begins, or continues, to process your request. If you have a history of prompt payment of FOIA fees, a bureau may elect to process your request before collecting fees when you provide it with a satisfactory assurance of full payment.
(b) If the bureau believes that you did not pay a previous FOIA fee within 30 calendar days of the date of billing, the bureau will require you to either:
(c) When the bureau notifies you that an advance payment is due under paragraph (a) of this section, it will give you an opportunity to reduce the fee by modifying the request.
(d) Your payment of the funds you owe the bureau for work it has already completed before records are sent to you is not an advance payment under § 2.50(a) of this subpart.
(a) The FOIA Appeals Officer is the deciding official for FOIA appeals that do not appeal a decision of the Office of the Inspector General.
(b) The General Counsel is the deciding official for FOIA appeals that appeal a decision of the Office of the Inspector General.
(c) When necessary, the appropriate deciding official for FOIA appeals will consult other appropriate offices, including the Office of the Solicitor or Office of General Counsel for denials of records and fee waivers.
(d) The deciding official for FOIA appeals normally will not make a decision on an appeal if the request becomes a matter of FOIA litigation.
(a) The basic time limit for responding to an appeal is 20 workdays after receipt of an appeal meeting the requirements of § 2.59 of this subpart.
(b) If the Department is unable to reach a decision on your appeal within the given time limit for response, the appropriate deciding official for FOIA appeals will notify you of your statutory right to seek review in a United States District Court.
(a) Each bureau has a FOIA Public Liaison who can assist requesters who have concerns about the service they received when seeking records or who are seeking assistance under § 2.3(d) or § 2.37(i) of this part.
Defense Acquisition Regulations System, Department of Defense (DoD).
Proposed rule.
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to clarify clauses and their prescriptions for small business programs and to create a basic and alternate clause structured in a manner to facilitate use of automated contract writing systems. The rule also includes the full text of the alternate, rather than only providing the paragraphs that differ from the basic clause. The rule also clarifies one clause that is an alternate to a Federal Acquisition Regulation (FAR) clause.
Comments on the proposed rule should be submitted in writing to the address shown below on or before November 30, 2015, to be considered in the formation of a final rule.
Submit comments identified by DFARS Case 2015-D017, using any of the following methods:
○
○
○
○
Comments received generally will be posted without change to
Ms. Julie Hammond, telephone 571-372-6174.
DoD is issuing this proposed rule to clarify, in the small business programs clause prescriptions, the appropriate use of the basic clause and its alternate clause. This rule does not substantively change the text of any clause (basic or alternate) nor does it change the requirement for use of any clause.
This proposed rule addresses one DFARS part 219 clause that has an alternate and one clause that is an alternate to a FAR clause. The affected clauses are 252.219-7003, Small Business Subcontracting Plan (DoD Contracts), with one alternate, and 252.219-7010, Alternate A.
This proposed rule provides a basic clause in full text and the alternate to the basic clause in full text for DFARS clause 252.219-7003 instead of only providing the paragraphs that are changed in the alternate. Each clause (basic and alternate) will have a separate prescription, stating the applicability of the clause. A separate DFARS clause has been modified to incorporate FAR clause 52.219-18 and its two alternates into 252.219-7010, now titled
The proposed rule does not change the clause prescriptions, and only clarifies for contracting officers the applicability of the clause (basic and alternate). The introductory text for the alternate clause will continue to explain what portions of the alternate are different from the basic clause.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601,
DFARS 252.219-7010, Alternate A, is the alternate for FAR 52.219-18, Notification of Competition Limited to Eligible 8(a) Concerns. DFARS 252.219-7010 will affect only those 8(a) concerns when competing for an 8(a) award. Currently there are approximately 8,567 active small business concerns in the 8(a) program. However, these entities should not be economically impacted by the changes addressed in this proposed rule, since nothing substantive will change in solicitations or contracts for potential offerors, and only the appearance of how clause alternates are presented in solicitations and contracts will be changed. This rule should result in potential benefits to offerors, including small businesses, resulting in offerors expending less time to review and understand the solicitation and contract. The rule anticipates saving contractors' time by making all paragraph substitutions from the basic clause and by not requiring offerors to read inapplicable paragraphs contained in the basic clauses where alternates are also included in the solicitations and contracts.
DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2015-D017), in correspondence.
The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
Government procurement.
Therefore, 48 CFR parts 219 and 252 are proposed to be amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
(b)(1)(A) Use the basic or alternate clause at 252.219-7003, Small Business Subcontracting Plan (DoD Contracts), in solicitations and contracts, including solicitations and contracts using FAR part 12 procedures for the acquisition of commercial items, that contain the clause at FAR 52.219-9, Small Business Subcontracting Plan.
(
(
(2) Use the clause at 252.219-7010, Notification of Competition Limited to Eligible 8(a) Concerns—Partnership Agreement, in lieu of the clause at FAR 52.219-18, Notification of Competition Limited to Eligible 8(a) Concerns, in competitive solicitations and contracts when the acquisition is accomplished using the procedures of FAR 19.805 and processed in accordance with the PA cited in 219.800.
The revisions read as follows:
This clause supplements the Federal Acquisition Regulation 52.219-9, Small Business Subcontracting Plan, clause of this contract.
(a)
(b) Subcontracts awarded to workshops approved by the Committee for Purchase from People Who are Blind or Severely Disabled (41 U.S.C. 8502-8504), may be counted toward the Contractor's small business subcontracting goal.
(c) A mentor firm, under the Pilot Mentor-Protege Program established under section
(1) Protege firms which are qualified organizations employing the severely disabled; and
(2) Former protege firms that meet the criteria in section 831(g)(4) of Public Law 101-510.
(d) The master plan is approved by the Contractor's cognizant contract administration activity.
(e) In those subcontracting plans which specifically identify small businesses, the Contractor shall notify the Administrative Contracting Officer of any substitutions of firms that are not small business firms, for the small business firms specifically identified in the subcontracting plan. Notifications shall be in writing and shall occur within a reasonable period of time after award of the subcontract. Contractor-specified formats shall be acceptable.
(f)(1) For DoD, the Contractor shall submit reports in eSRS as follows:
(i) The Standard Form 294, Subcontracting Report for Individual Contracts, shall be submitted in accordance with the instructions on that form.
(ii) An SSR for other than a commercial subcontracting plan, or construction and related maintenance repair contracts, shall be submitted in eSRS to the department or agency within DoD that administers the majority of the Contractor's individual subcontracting plans. An example would be Defense Finance and Accounting Service or Missile Defense Agency.
(2) For DoD, the authority to acknowledge receipt or reject reports in eSRS is as follows:
(i) Except as provided in paragraph (f)(2)(ii) of this clause, the authority to acknowledge receipt or reject SSRs in eSRS resides with the SSR Coordinator at the department or agency that administers the majority of the Contractor's individual subcontracting plans.
(ii) The authority to acknowledge receipt or reject SSRs for construction and related maintenance and repair contracts resides with the SSR Coordinator for each department or agency.
As prescribed in 219.811-3(2), use the following clause:
(a) Offers are solicited only from small business concerns expressly certified by the Small Business Administration (SBA) for participation in the SBA's 8(a) Program and which meet the following criteria at the time of submission of offer:
(1) The Offeror is in conformance with the 8(a) support limitation set forth in its approved business plan.
(2) The Offeror is in conformance with the Business Activity Targets set forth in its approved business plan or any remedial action directed by the SBA.
(3) If the competition is to be limited to 8(a) concerns within one or more specific SBA regions or districts, then the offeror's approved business plan is on the file and serviced by _____.
(b) By submission of its offer, the Offeror represents that it meets all of the criteria set forth in paragraph (a) of this clause.
(c) Any award resulting from this solicitation will be made directly by the Contracting Officer to the successful 8(a) offeror selected through the evaluation criteria set forth in this solicitation.
(d)(1)
(i) The Small Business Administration has determined that there are no small business manufactures or processors in the Federal market place in accordance with FAR 19.502-2(c);
(ii) The acquisition is processed under simplified acquisition procedures and the total amount of this contract does not exceed $25,000, in which case a small business concern may furnish the product of any domestic firm; or
(iii) The acquisition is a construction or service contract.
(2) The _____
Defense Acquisition Regulations System, Department of Defense (DoD).
Proposed rule.
DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to require use of the electronic contract attachments accessible via the Product Deficiency Reporting and Evaluation Program to record and track warranty data and source of repair information for serialized items.
Comments on the proposed rule should be submitted in writing to the address shown below on or before November 30, 2015, to be considered in the formation of a final rule.
Submit comments identified by DFARS Case 2014-D026, using any of the following methods:
○
○
○
○
Comments received generally will be posted without change to
Ms. Kyoung Lee, telephone 571-372-6093.
On June 8, 2011, DoD published a final rule in the
On April 12, 2012, the Director, Defense Procurement Acquisition Policy (DPAP), issued a memorandum entitled
The electronic warranty attachments entitled “Warranty Tracking Information” and “Source of Repair Instructions” are now available in PDREP. The purpose of this proposed rule is to amend DFARS 246.710, DFARS clause 252.246-7005, Notice of Warranty Tracking of Serialized Items, and DFARS clause 252.246-7006, Warranty Tracking of Serialized Items, to make use of the electronic warranty attachments in PDREP mandatory for solicitations and contracts when warranty of serialized items is anticipated or required. This rule also clarifies the requirements for completion and submission of the warranty attachments.
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.
DoD expects that this proposed rule will not have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act 5 U.S.C. 601,
The purpose of this proposed rule is to amend the DFARS to require the use of the electronic formats for the “Warranty Tracking Information” and “Source of Repair Instructions” attachments, required for use in tracking the warranties of serialized items by the provision at DFARS 252.246-7005, Notice of Warranty Tracking of Serialized Items, and the clause at DFARS 252.246-7006, Warranty Tracking of Serialized Items.
Use of the electronic formats will improve the process of collecting and sharing data on warranties provided by contractors on serialized items procured by DoD. Additionally, use of the electronic formats available via the Product Deficiency Reporting and Evaluation Program (PDREP) ensure the data elements for warranty terms are effectively transmitted through various systems such as: Electronic Document Access; Wide Area WorkFlow; the Invoice, Receipt, Acceptance and Property Transfer module; and the PDREP Warranty Tracking database.
According to data available in the Federal Procurement Data System, in fiscal year (FY) 2014 DoD awarded 5,807 contracts that contain one or more warranty clauses. Subject matter experts within DoD estimate that almost twice as many solicitations (11,500) issued by DoD in FY 2014 may have contained a warranty clause. It is also estimated that an average of four offers may have been received in response those solicitations, or 46,000 total offers. Of those responses, approximately 85%, or 39,100 responses, are estimated to be received from small businesses.
This rule does not create any new reporting or recordkeeping requirements. Offerors and contractors are already required to complete the attachments in accordance with the provision at DFARS 252.246-7005, Notice of Warranty Tracking of Serialized Items, and the clause at DFARS 252.246-7006, Warranty Tracking of Serialized Items. Rather, this rule requires contractors and offerors to complete the warranty attachments using the specified electronic formats.
It is estimated that fifty percent of the time (for approximately 5,750 solicitations) the Government will specify the desired warranty terms, in which case the contractor provides the remaining data elements on the “Warranty Tracking Information” attachment and the “Source of Repair Instructions” attachment with its proposal, at contract award, or at the point of delivery. The other fifty percent of the time, the Contractor will be required to specify all the warranty terms on the “Warranty Tracking Information” attachment and the “Source of Repair Instructions” attachment.
The rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternatives to the rule. The impact of this rule on small business is not expected to be significant.
DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.
DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2014-D026), in correspondence.
The rule contains information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C chapter 35); however, these changes to the DFARS do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 0704-0481, entitled Warranty Tracking of Serialized Items.
Government procurement.
Therefore, 48 CFR parts 246 and 252 are proposed to be amended as follows:
41 U.S.C. 1303 and 48 CFR chapter 1.
The additions read as follows:
As used in this subpart—
(3) When the solicitation includes the clause at 252.211-7003, Item Unique Identification and Valuation, which is prescribed in 211.274-6(a), and it is anticipated that the resulting contract will include a warranty for serialized items—
(i) Use the provision at 252.246-7005, Notice of Warranty Tracking of Serialized Items, in the solicitation if the Government does not specify a warranty and offerors will be required to enter data with the offer;
(ii) Use the clause at 252.246-7006, Warranty Tracking of Serialized Items, in the solicitation and contract; and
(iii) Include the following warranty attachments, available at
(A) Warranty Tracking Information.
(B) Source of Repair Instructions.
Follow the procedures at PGI 246.710-70 regarding warranty attachments.
The revisions read as follows:
(a)
(b)
(2) The successful offeror will be required to provide the following information no later than when the warranted items are presented for receipt and/or acceptance, in accordance with the clause at 252.246-7006—
(A) The unique item identifier for each warranted item required by the attachment entitled “Warranty Tracking Information;” and
(B) All information required by the attachment entitled “Source of Repair Instructions” for each warranted item.
(3) For additional information on warranty attachments, see the “Warranty and Source of Repair” training and “Warranty and Source of Repair Tracking User Guide” accessible on the Product Data Reporting and Evaluation Program (PDREP) Web site at
The revision reads as follows:
(b)
(2) The Contractor shall provide the following information no later than when the warranted items are presented for receipt and/or acceptance—
(A) The unique item identifier for each warranted item required by the attachment entitled “Warranty Tracking Information;” and
(B) The warranty repair source information and instructions for each warranted item required by the attachment entitled “Source of Repair Instructions.”
(3) The Contractor shall submit the data for warranty tracking to the Contracting Officer with a copy to the requiring activity and the Contracting Officer Representative.
(4) For additional information on warranty attachments, see the “Warranty and Source of Repair” training and “Warranty and Source of Repair Tacking User Guide” accessible on the Product Data Reporting and Evaluation Program (PDREP) Web site at
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to list the elfin-woods warbler (
We will accept comments received or postmarked on or before November 30, 2015. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Marelisa Rivera, Deputy Field Supervisor, U.S. Fish and Wildlife Service, Caribbean Ecological Services Field Office, P.O. Box 491, Road 301 Km. 5.1, Boquerón, PR 00622; telephone 787-851-7297; facsimile 787-851-7440. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) The biology, range, and population trends of the elfin-woods warbler, including:
(a) Habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends (especially in El Yunque National Forest and Carite Commonwealth Forest); and
(e) Past and ongoing conservation measures for the species, its habitat or both.
(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.
(4) Additional information concerning the historical and current status, range, distribution, and population size of this species, including the locations of any additional populations of this species.
(5) The appropriateness and scope of the proposed 4(d) rule, including any other actions that should be considered for inclusion.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531
You may submit your comments and materials concerning this proposed rule by one of the methods listed in the
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Because we will consider all comments and information we receive during the comment period, our final determination may differ from this proposal.
Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the
In accordance with our joint policy on peer review published in the
The elfin-woods warbler was identified as a Category 2 species in the candidate notice of review (CNOR) published in the
On October 25, 1999, we published a CNOR in the
On May 11, 2004, the Center for Biological Diversity (CBD) petitioned the Service to list the elfin-woods warbler as an endangered species under the Act (CBD 2004, pp. 34-38). The elfin-woods warbler was already considered a candidate species at the time the petition was received. Because the petition did not provide new information regarding the status of or threats to the species, the petition was addressed in the May 11, 2005 CNOR (70 FR 24870). An LPN of 5 was retained in the 2005 CNOR (70 FR 24870, May 11, 2005) and in subsequent CNORs through 2008 (71 FR 53756, September 12, 2006; 72 FR 69034, December 6, 2007; 73 FR 75176, December 10, 2008). The LPN was changed to 11 in the November 9, 2009, CNOR (74 FR 57804), reflecting that the magnitude of threats was moderate to low because the severity of threats to the species were not as strong as previously believed, and the threats were not currently occurring in most of the elfin-woods warbler's habitat; hence, the threats were non-imminent. The elfin-woods warbler retained an LPN of 11 in the 2010 through 2014 CNORs (75 FR 69222, November 10, 2010; 76 FR 66370, October 26, 2011; 77 FR 69994, November 21, 2012; 78 FR 70104, November 22, 2013; 79 FR 72450, December 5, 2014).
The 2011 Multi-District Litigation (MDL) settlement agreement specified that the Service will systematically, over a period of 6 years, review and address the needs of 251 candidate species to determine if they should be added to the Federal Lists of Endangered and Threatened Wildlife and Plants. The elfin-woods warbler was on that list of candidate species. Therefore, the Service is making this proposed listing determination in order to comply with
The elfin-woods warbler was originally classified under the genus
Little detailed information has been published on the life history of the elfin-woods warbler. Some authors noted that the elfin-woods warbler is an extremely active warbler, moving among the dense vines of forest strata with more foliage cover or smaller branch tips, foraging insects, usually at intermediate foliage heights of 3 to 15 meter (m) (10 to 50 feet (ft)) (Colón-Merced 2013, p. 2). Opportunistic observations indicate the elfin-woods warbler feeds on moths, dragonflies, and other types of insects; however, its specific diet remains unknown (Colón-Merced 2013, p. 2). Raffaele
The elfin-woods warbler is endemic to the island of Puerto Rico and was initially thought to occur only in the Luquillo Mountains at EYNF in eastern Puerto Rico (Kepler and Parks 1972, pp. 5-6; Pérez-Rivera 1979, p. 58). During the early 1970s, the species was reported in the MCF in western Puerto Rico (Pérez-Rivera 1979, p. 58; Cruz and Delannoy 1984, p. 92). In addition, the elfin-woods warbler was reported in the Toro Negro Commonwealth Forest in the Cordillera Central (central mountain range) (Pérez-Rivera 1979, p.58), and in the area of Guavate in the Carite Commonwealth Forest in east-central Puerto Rico (Pérez-Rivera and Maldonado 1977, p. 134). More recently, Miranda-Castro
Between 2011 and 2013, the Service, in collaboration with the Puerto Rican Ornithological Society, Inc., and BirdLife International, conducted a study using a habitat suitability model and a single-season occupancy modeling approach to assess the current geographic distribution of the elfin-woods warbler. The project included surveys during the species breeding season (between January and July) within habitat currently occupied by the species in the MCF and predicted habitat within the Cordillera Central (Anadón-Irizarry 2013, p. 2). The predicted habitat included public and private lands within the municipalities of Jayuya, Ciales, Adjuntas, Ponce, Orocovis, and Juana Díaz. The species was detected only in the MCF and adjacent private lands (Service 2014, p. 12).
The elfin-woods warbler is particularly difficult to survey because of its small size, its constant moving behavior, and the dense vegetation of areas where it is found (Raffaele 1989, p. 168). In fact, Kepler and Parkes (1972 pp. 5-6) attribute the belated discovery of elfin-woods warbler to the above factors and their similarity to the black and white warbler. Even the vocalization of the elfin-woods warbler can be easily mistaken with other species. Although the presence of the elfin-woods warbler in the forests of the Cordillera Central of Puerto Rico cannot be disregarded based on the previous facts, the available information suggests that the current distribution of the species is now restricted to two populations in (1) EYNF and (2) MCF and adjacent private lands (Anadón-Irizarry 2006, p. 5; Delannoy 2007, p. 4; González 2008, p. 19). The EYNF and the MCF are located about 150 kilometers (km) (93 miles (mi)) from each other (Arendt
At EYNF, the elfin-woods warbler was originally discovered in the Dwarf forest (Kepler and Parkes 1972, pp. 3-5). This forest type falls within the lower montane rain forest life zone (Ewel and Whitmore 1973, p. 49) and occupies 368 ha (909 ac) of EYNF (Weaver 2012, p. 5). It is found on exposed peaks with short, stunted vegetation above 900 m (2,952 ft) elevation (Weaver 2012, p. 58). In general, the Dwarf forest is not well populated with birds (Snyder
Later, the species was documented at lower elevations in the Palo Colorado, Tabonuco, and Sierra Palm forests (Wiley and Bauer 1985, pp. 12-18). The Palo Colorado forest occurs within the lower montane rain forest life zone, between approximately 600 and 900 m (1,968 and 2,952 ft) (Weaver 2012, p. 1). This forest type covers about 3,441 ha (8,502 ac) of the EYNF (Weaver 2012, p. 5). This forest is mainly composed of fast-growing trees with height not more than 24 m (78 ft) (Lugo 2005, p. 506).
The Tabonuco forest is found between 150 and 600 m (492 and 1,968 ft) elevation, and occupies 5,663 ha (13,993 ac) of the EYNF (Weaver 2012, p. 5). This forest is dominated by the Tabonuco tree (
The Sierra Palm forest (also known as palm breaks) may reach canopy heights of 15 m (50 ft) with 17 cm (7 in) average diameters at breast height (dbh) and grows mainly on steep slopes at approximately 450 m (1,476 ft) elevation, covering about 1,838 ha (4,541 ac) of the EYNF (Weaver 2012, pp. 5 and 56). The Sierra Palm forest occurs on steep windward slopes and poorly drained riparian areas (Lugo 2005, p. 496). This forest is dominated by the Sierra palm (
The
The Exposed Woodland Forest occupies 2,711 ha (6,700 ac) of the MCF and is found in valleys, slopes, and shallow soils with a more or less continuous canopy (González 2008, pp. 15-16). These forest associations are found at elevations ranging from 470 to 800 m (1,542 to 2,624 ft) within the subtropical wet forest life zone (DNR 1976, p. 185).
Timber Plantations occupy approximately 1,111 ha (2,745 ac) of the MCF in elevations ranging from 630 to 840 m (2,066 to 2,755 ft) within the subtropical wet forest and the subtropical moist forest life zones (DNR 1976, p. 185). This habitat—dominated by the María trees (
Dry Slopes Forest occupies approximately 1,367.3 ha (3,377 ac) of the MCF in elevations ranging from 120 to 300 m (394 to 984 ft) within the subtropical moist forest life zone (DNR 1976, p. 185). This habitat is found in shallow and excessively drained serpentine-derived soils dominated by xerophytic vegetation, thin trees and a low open canopy. This forest type is more common in the southern and southeastern slopes of the MCF (DNR 1976, p. 185).
Outside the MCF, the elfin-woods warbler has been detected within secondary forests and existing shade-grown coffee plantations (González 2008, pp. 15-16). Secondary forests are found at elevations ranging from 130 to 750 m (426 to 2,460 ft), and the shade-grown coffee plantations are found at elevations ranging from 300 to 600 m (984 to 1,968 ft) (Gonzalez 2008, p. 59; Puerto Rico Planning Board 2015). Also, the elfin-woods warbler has been documented at very low densities outside the MCF in pasturelands, Gallery forests, and rural residential areas, but not in sun-grown (unshaded) coffee plantations (González 2008, pp. 15-16). Young secondary forests developed as a result of abandonment of agriculture during the 20th century. These forests are less than 25 years old with an open canopy height of 12 to 15 m (40 to 50 ft) (González 2008, p. 6) and are found within the subtropical moist and subtropical wet forest life zones (DNR 1976, p. 185). Their understories
Although the elfin-woods warbler has not been recently observed in this forest (Anadón-Irizarry 2006, p. 54; Anadón-Irizarry 2014, pers. comm.), the habitat suitability model developed for the species (Colón-Merced 2013, p. 51) suggests CCF still provides suitable habitat for the species due to its similarity in elevation, climatic conditions, and vegetation associations with EYNF and MCF. The CCF's similarity to EYNF and MCF suggests that this forest could provide habitat for the expansion of the elfin-woods warbler's current range to maintain the species' historical geographical and ecological distribution.
Additionally, González (2008, p. 27) reported that the highest densities of elfin-woods warbler recorded per point-count stations in MCF were within the
Based on the studies mentioned above, in 2010, BirdLife International estimated the overall elfin-woods warbler population in Puerto Rico to be at least 1,800 mature individuals (Arendt
The surveys conducted by Anadón-Irizarry between 2003 and 2004, and between 2012 and 2013, failed to detect the species within the CCF. The study conducted during the period of 2003-2004 (Anadón-Irizarry 2006, p. 54) included traditional areas previously searched by Pérez-Rivera, and the surveys were conducted along 5.0 km (3.1 mi) of existing trails. The most recent surveys, conducted between 2012 and 2013, avoided the use of existing trails and included nontraditional areas, but they also failed to detect the species (Anadón-Irizarry 2014, pers. comm.). However, during these surveys, the amount of surveyed area within nontraditional habitat was not significant (
Although these studies failed to detect the species, Anadón-Irizarry (2006, p. 54; 2014, pers. comm.) suggested the possibility that the species is still present in isolated pockets of forest that were not searched during the studies (Delannoy 2007, p. 22). The apparent persistent and relatively sedentary behavior of this species to inhabit certain small and isolated pockets of the forest might have led these authors to suggest that it is possible that CCF may harbor undetected elfin-woods warblers (Anadón-Irizarry 2006, p. 54; Delannoy
Section 4 of the Act, and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on:
(A) The present or threatened destruction, modification, or curtailment of its habitat or range;
(B) Overutilization for commercial, recreational, scientific, or educational purposes;
(C) Disease or predation;
(D) The inadequacy of existing regulatory mechanisms; or
(E) Other natural or manmade factors affecting its continued existence.
Listing actions may be warranted based on any of the above threat factors, singly or in combination.
The majority of extant elfin-woods warbler populations are restricted to two disjunct primary habitats in montane forests at EYNF and at MCF and private lands adjacent to MCF. Although the elfin-woods warbler has not been recently observed in CCF, this forest and adjacent lands still contains suitable habitat for the species. The elfin-woods warbler needs suitable forested habitats for essential behaviors such as foraging, breeding, and sheltering (Anadón-Irizarry 2006, pp. 5-8).
In the past, the majority of the forested areas in Puerto Rico, EYNF, MCF, and CCF were impacted by agricultural practices; extraction of timber for construction and charcoal (Dominguez-Cristobal 2000, pp. 370-373; Dominguez-Cristobal 2008, pp. 100-103); development of infrastructure for utilities and communications; and construction of roads, recreational facilities, and trails, negatively affecting elfin-woods warbler habitat (DNR 1976, p. 169; Waide 1995, p. 17; Delannoy 2007, p. 4; Anadón-Irizarry 2006, p. 28; Pérez-Rivera 2014, pers. comm.). Currently, each agency manages these forests for conservation purposes operating under its authorities and mandates to promote habitat conservation (see
Although the threats to the species and its habitat have been minimized within the lands managed and administrated by USFS and PRDNER within EYNF, MCF, and CCF, respectively, the species is still also threatened with habitat destruction, fragmentation, and degradation in 15 percent of its suitable occupied habitat within private lands adjacent to MCF. The private lands adjacent to MCF are known to be susceptible to habitat modification caused by unsustainable agricultural practices and other land uses requiring vegetation clearance (
The increase of urban development in private lands adjacent to EYNF and CCF has negatively affected elfin-woods warbler suitable habitat around these forests. Gould
In 2014 the Service developed a candidate conservation agreement (CCA) with USFS and PRDNER to promote the conservation of the elfin-woods warbler. The purpose of the CCA is to implement measures to conserve, restore, and improve elfin-woods warbler habitat and populations within EYNF and MCF (Service 2014, p. 6). The CCA provides that PRDNER and USFS will promote, develop, and implement the best management practices to avoid any potential threat to suitable and occupied elfin-wood warbler habitat and populations. It also provides that both agencies will implement restoration and habitat enhancement efforts within degraded areas of EYNF and MCF. The agencies will also (1) determine the habitat use, movement, and activity patterns of the species; (2) design and establish long-term population monitoring programs; and (3) develop outreach and education programs to improve mechanisms to promote habitat conservation and restoration within private lands adjacent to both forests.
Although the elfin-woods warbler also occurs on privately owned lands not covered by the CCA, these areas adjacent to MCF are part of a habitat restoration initiative in southwestern Puerto Rico implemented by the Service since 2010, through the Partners for Fish and Wildlife (PFW) and Coastal (CP) Programs. The PFW and CP are voluntary programs that provide technical and financial assistance to landowners to implement restoration and conservation practices on their lands for a particular amount of time. These programs promote the restoration of degraded habitat that was likely occupied by the species before the conversion to agricultural lands and that may be restored as suitable elfin-woods warbler habitat in the future. In some cases, occupied suitable habitat for the species is enhanced and protected through cooperative agreements with the private landowners.
Between 2010 and 2014, a total of 522 ha (1,290 acres) of degraded tropical upland forest and 21 km (13 miles) of riparian buffers have been restored and conserved through these programs in collaboration with the Natural Resources Conservation Service (NRCS), Farm Service Agency (FSA), PRDNER, Envirosurvey Inc. (a local nongovernmental organization), and other partners. Although this initiative promotes the restoration and enhancement of degraded habitat adjacent to the MCF and may potentially provide suitable habitat for the elfin-woods warbler, challenges such as limited resources and uncertainty about land owner participation may affect the implementation of management practices that mitigate impacts of agricultural practices.
The elfin-woods warbler's restricted distribution makes it vulnerable to habitat destruction and modification. The agricultural activities and development projects on private lands adjacent to EYNF, MCF, and CCF may result in the loss or fragmentation of the species' suitable habitat. However, the elfin-woods warbler has been reported on private lands only outside MCF; private lands adjacent to EYNF and CCF need to be appropriately surveyed. The majority of extant elfin-woods warbler populations occur in public lands managed for conservation purposes where activities that may affect the species or its habitat are regulated, and measures to minimize or avoid those impacts are being implemented based on management plans or agencies management mandates. Therefore, we believe that habitat curtailment or modification is a threat to the elfin-woods warbler.
Based on the available information, this factor has not been documented as a threat to the elfin-woods warbler.
Delannoy (2009, p. 2) indicated that Puerto Rican sharp-shinned hawk (
In 1999, the Commonwealth of Puerto Rico approved the Law No. 241−1999, known as the New Wildlife Law of Puerto Rico (
In addition to laws that specifically protect the elfin-woods warbler, MCF and CCF are protected under Puerto Rico's Forests Law (Law No. 133-1975;
The Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703-712) provides protection for the elfin-woods warbler, which is defined as a migratory bird under the MBTA. The MBTA makes it unlawful to pursue; hunt; take; capture; kill; attempt to take, capture, or kill; possess; offer for sale; sell; offer to barter; barter; offer to purchase; purchase; deliver for shipment; ship; export; import; cause to be shipped, exported, or imported; deliver for transportation; transport or cause to be transported; carry or cause to be carried; or receive for shipment, transportation, carriage, or export, any migratory bird, or any part, nest, or egg of such bird, or any product, whether or not manufactured, which consists of, or is comprised in whole or part, of any such bird, or any part, nest, or egg thereof. However, no provisions in the MBTA prevent habitat destruction unless direct mortality or destruction of active nests occurs.
Finally, the elfin-woods warbler co-occurs with other species that are listed under the Act. In the EYNF, the species co-occurs with the Puerto Rican sharp-shinned hawk (
Based on the information currently available to us, the Federal and Commonwealth regulatory mechanisms are being implemented and are functioning as designed. Lack of enforcement of these laws and regulations has not been identified as having a negative impact to the species or exacerbating other negative effects to the species. Therefore, we do not find the existing regulations to be inadequate.
The geographic location of islands in the Caribbean Sea makes them prone to hurricane impacts (Wiley and Wunderle 1993, p. 320). In fact, the frequency of hurricane occurrences is higher in the southeastern United States and the Caribbean than other regions of the world (Wiley and Wunderle 1993, p. 320). Hurricanes can have both direct and indirect effects on bird populations, which may determine the characteristics of local avifauna (Wauer and Wunderle 1992, p. 656; Wunderle
The frequency of hurricane-induced damage equivalent to F3 (severe) on the Fujita scale (Fujita 1971) is at least three times greater in the northeastern quadrant of Puerto Rico, where EYNF and CCF are located, compared to the rest of the island (White
Delannoy (2007, p. 24) suggested that elfin-woods warbler populations at MCF appeared to be stable. However, studies conducted from 1989 to 2006 at EYNF documented a declining trend of the elfin-woods warbler population during the study period (Arendt
Anadón-Irizarry (2006, p. 54), Delannoy (2007, p. 24), and Anadón-Irizarry (2014, pers. comm.) have suggested the elfin-woods warbler no longer exists within CCF. Pérez-Rivera (2014, pers. comm.) has suggested that the habitat modification caused by Hurricane Hugo and Hurricane Georges at CCF may have had a negative effect on the elfin-woods warbler. However, he acknowledged that before concluding the species was extirpated from the forest due to these climatological events, a formal and extensive survey should be conducted to include nontraditional areas within and outside of CCF (Pérez-Rivera 2014, pers. comm.). He suggested hurricanes might be detrimental to low densities and habitat-specialized species, but at the same time might benefit insectivorous species like the elfin-woods warbler. In 1989, a month after Hurricane Hugo, Pérez-Rivera (1991, pp. 474-475) recorded the Antillean euphonia (
Hurricanes can have positive effects on forest and bird ecology by temporarily increasing forest productivity (Wiley and Wunderle 1993, p. 337), particularly for species with ample distribution (White
Studies predict an increase in hurricane intensity in the Atlantic, with higher wind speeds and greater amounts of precipitation, but a reduction in the overall number of storms (Jennings
Based on the above information, it is possible that the elfin-woods warbler could experience local extinction with these catastrophic weather events. While the species appears to have the ability to temporarily move to undisturbed areas and survive in MCF, such dispersal ability has not been documented at EYNF. Having two geographically separate populations on both ends of Puerto Rico may benefit the elfin-woods warbler since, based on the history of hurricanes striking the Island, it is unlikely for both EYNF and MCF to be impacted by the same weather system at once. However, the fact that there are only two known populations left makes the species more vulnerable to extinction if one is lost due to a catastrophic weather event. It is important to note, however, that there are no specific studies corroborating hurricanes as a main cause of elfin-woods warbler population declines at EYNF and MCF, nor that they caused the apparent extirpation of the species from CCF.
Regarding climate, general long-term changes have been observed, including changes in amount of precipitation, wind patterns, and extreme weather events (
As previously mentioned, the elfin-woods warbler is currently known only from specific habitat types at EYNF and MCF, which makes the species susceptible to the effects of climate change. It has been stated that higher temperatures, changes in precipitation patterns, and any alteration in cloud cover will affect plant communities and ecosystem processes in EYNF (Lasso and Ackerman 2003, pp. 101-102). In fact, the distribution of tropical forest life zones in the Caribbean is expected to be altered due to both intensified extreme weather events and progressively drier summer months (Wunderle and Arendt 2011, p. 44). At EYNF, such alteration may allow low-elevation Tabonuco forest species to colonize areas currently occupied by Palo Colorado forest (Scatena and Lugo 1998, p. 196). Dwarf forests at EYNF also are very sensitive to climate change because of their occurrence in narrowly defined environmental conditions (Lasso and Ackerman 2003, p. 95). Dwarf forest epiphytes may experience moisture stress due to higher temperatures and less cloud cover with a rising cloud base, affecting epiphyte growth and flowering (Nadkarni and Solano 2002, p. 584). As previously mentioned, both the Palo Colorado and Dwarf forests have been reported to have the highest elfin-woods warbler mean abundance (Anadón-Irizarry 2006, p. 24). Although the available information predicting changes in habitat due to climate change pertains to EYNF, similar changes would be expected for the MCF and CCF, which lies within two of the same life zones as EYNF.
As indicated above, such climate changes are likely to alter the structure and distribution of the habitat used by the elfin-woods warbler. According to Arendt
Fires are not part of the natural processes for subtropical and moist forests in Puerto Rico (Santiago-Garcia
In EYNF, CCF, and adjacent lands to these forests, fires are not considered common. The tropical rain and moist forest conditions of EYNF and CCF (
In the Maricao area (
Based on the above information, other natural or manmade factors, such as hurricanes, climate change, and human-induced fires, are considered threats to the elfin-woods warbler.
As discussed under Factor A above, a CCA was signed in 2014 by the Service, USFS, and PRDNER to implement strategic conservation actions. In the context of Factor E, these actions include the development and implementation of programmatic reforestation and habitat enhancement efforts within areas degraded by hurricanes to improve the recovery of the elfin-woods warbler within EYNF and MCF (Service 2014, pp. 18-19). Additionally, the CCA will help develop and design studies to gather information on the elfin-woods warbler (
Based on the information available and limited distribution of the elfin-woods warbler, we believe that this species is currently threatened by natural or manmade factors such as hurricanes and human-induced fire. Climate change may exacerbate these threats by increasing intensity and frequency of hurricanes and environmental effects, although information is lacking on the specific extent of these effects. Thus, we consider Factor E to be a threat to this species.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to elfin-woods warbler. Current available information indicates that the elfin-woods warbler has a limited distribution, with only two known populations occurring within EYNF and MCF, including the private lands adjacent to MCF, and at least one extirpated population from CCF. As discussed in the Summary of Factors Affecting the Species section of this proposed rule, threats to the elfin-woods warbler include loss, fragmentation, and degradation of habitat on private lands adjacent to MCF (Factor A). Some of these lands are subjected to habitat modification caused by unsustainable agricultural practices (
Other natural or manmade factors (
Climate change also is expected to alter the structure and distribution of the habitat used by the elfin-woods warbler, which may be particularly susceptible because of the limited distribution and specific forest types used by the species. Available information indicates that while continued change is expected, the magnitude and rate of that change is currently unknown. Therefore, the immediate impact from climate change on the elfin-woods warbler is uncertain.
Human-induced fires have been reported in the Maricao area mostly within the lower southern slopes of the MCF and adjacent private lands, particularly during the dry season, and in the CCF area in a low frequency along the road PR-184. These fires can modify the landscape and ecological conditions, and reduce the quality and quantity of potential elfin-woods warbler habitat. Habitat disturbance caused by human-induced fires may also affect the ability of the species to disperse to other forested habitats. However, in MCF, the areas that are more prone to human-induced fires are not the primary habitat for the species, which is the
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that the elfin-woods warbler is not presently in danger of extinction throughout its entire range based on the low to moderate severity and non-immediacy of threats currently impacting the species. The available information indicates that elfin-woods warbler populations appear to be stable in MCF and that there are no immediate threats precipitating a demographic decline of the elfin-woods warbler in that forest. In Maricao, the species has been reported adjacent to the Commonwealth forest in shade-grown coffee plantations, demonstrating that the species may tolerate some degree of habitat disturbance. At EYNF, the most current information reported a declining trend of the elfin-woods warbler population, mainly attributed to hurricanes striking that forest. However, there are no specific studies corroborating that hurricanes are in fact the main cause of elfin-woods warbler population declines at EYNF and other factors may be influencing the decline (
Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that elfin-woods warbler is threatened throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37577; July 1, 2014).
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. The plan may be revised to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for reclassification from endangered to threatened or for delisting and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. If this species is listed, the recovery outline, draft recovery plan, and the final recovery plan will be made available on our Web site (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
Although the elfin-woods warbler is only proposed for listing as threatened under the Act at this time, please let us know if you are interested in participating in conservation efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for conservation planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7 (a)(1) of the Act directs all Federal agencies to “utilize their authorities in furtherance of the
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the USFS; issuance of section 404 Clean Water Act (33 U.S.C. 1251
Under section 4(d) of the Act, the Service has discretion to issue regulations that we find necessary and advisable to provide for the conservation of threatened wildlife. We may also prohibit by regulation, with respect to threatened wildlife, any act prohibited by section 9(a)(1) of the Act for endangered wildlife. 50 CFR 17.31(a) applies all the general prohibitions for endangered wildlife set forth at 50 CFR 17.21 to threatened wildlife; 50 CFR 17.31(c) states that whenever a 4(d) rule applies to a threatened species, the provisions of 17.31(a) do not apply to that species. Permit provisions for threatened species are set forth at 50 CFR 17.32.
Some activities that would normally be prohibited under 50 CFR 17.31 and 17.32 will contribute to the conservation of the elfin-woods warbler because habitats within some of the physically degraded private lands adjacent to elfin-woods warbler existing populations must be improved before they are suitable for the species. Therefore, for the elfin-woods warbler, the Service has determined that species-specific exceptions authorized under section 4(d) of the Act may be appropriate to promote the conservation of this species. Like the proposed listing rule, this proposal will not be finalized until we have reviewed comments from the public and peer reviewers.
As discussed above in the Summary of Factors Affecting the Species section of this proposed listing rule, threats to the species include loss, fragmentation, and degradation of habitat due to unsustainable agricultural practices and land use requiring vegetation clearance. Agricultural practices occurring on private lands adjacent to MCF, especially those involving habitat modification (
The private lands surrounding MCF are considered the most active coffee production lands in Puerto Rico. Sun-grown coffee plantations adjacent to MCF were converted several decades ago, resulting in the elimination of native forest overstory, reducing the habitat value for wildlife, including the elfin-woods warbler. Although the majority of the coffee-related agricultural lands were converted to sun-grown coffee plantations, several parcels of land surrounding MCF are currently part of a multi-agency habitat restoration initiative in southwestern Puerto Rico implemented by the Service and NRCS since 2010, through the PFW, CP, and U.S. Department of Agriculture Farm Bill Programs. Activities that improve or restore physical habitat quality, such as the conversion of sun-grown coffee to shade-grown coffee, reforestation with native trees, riparian buffering, and forested habitat enhancement (
Under this proposed 4(d) rule, all of the prohibitions set forth at 50 CFR 17.31 and 17.32 would apply to the elfin-woods warbler, except that incidental take caused by the following activities conducted within habitats currently occupied by the elfin-woods warbler on private, Commonwealth, and Federal lands would not be prohibited, provided those activities (1) abide by the conservation measures in the rule, and (2) are conducted in accordance with applicable Commonwealth, Federal, and local laws and regulations:
(1) The conversion of sun-grown coffee to shade-grown coffee plantations by the restoration and maintenance (
Once the shade-grown coffee system reaches its functionality and structure (
The restoration of agricultural lands due to the planting of native trees to provide shade to coffee trees or by selective removal of exotic species creates physically stable and suitable habitats for the elfin-woods warbler. Moreover, the cultivation of shade-grown coffee has many other ecological and human-health benefits such as the reduction of soil erosion, moderation of soil temperatures, and reduced need for fertilizers and pesticides (Borkhataria
(2) Riparian buffer establishment through the planting of native vegetation and removal of exotic species may improve the habitat conditions of Gallery forests along the sub-watersheds associated with lands adjacent to the elfin-woods warbler's existing populations. Gallery forests serve as biological corridors that maintain connectivity between forested lands and associated agricultural lands, reducing the fragmentation in the landscape.
(3) Reforestation and forested habitat enhancement projects within secondary forests (
The intent of these exceptions is to provide incentive for landowners to carry out these activities in a manner which we believe will provide benefits to the species such as (1) maintaining connectivity of suitable elfin-woods warbler habitats, allowing for dispersal between forested and agricultural lands; (2) minimizing habitat disturbance by conducting certain activities outside the peak of the elfin-woods warbler's breeding season (
Based on the rationale above, the provisions included in this proposed rule authorized under section 4(d) of the Act are necessary and advisable to provide for the conservation of the elfin-woods warbler. Nothing in this proposed 4(d) rule would change in any way the recovery planning provisions of section 4(f) of the Act, the consultation requirements under section 7 of the Act, or the ability of the Service to enter into partnerships for the management and protection of the elfin-woods warbler.
We may issue permits to carry out otherwise prohibited activities involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, economic hardship, zoological exhibition, educational purposes, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the
(1) Activities authorized, funded, or carried out by Federal or Commonwealth agencies (
(2) Agricultural and silviculture practices implemented within existing agricultural lands (
We believe the following activities may potentially result in a violation of section 9 the Act. This list is not comprehensive:
(1) Unauthorized collecting or handling of the species;
(2) Destruction/alteration/fragmentation of habitat essential to fulfilling the lifecycle of the species; and
(3) Introduction of nonnative species that compete with or prey upon the elfin-woods warbler.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Caribbean Ecological Services Field Office (see
Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed . . . on which are found those physical or biological features (I) Essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed . . . upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 3(3) of the Act (16 U.S.C. 1532(3)) defines the terms “conserve,” “conserving,” and “conservation” to mean to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this chapter Act are no longer necessary.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary shall designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist:
(1) The species is threatened by taking or other human activity, and
(2) Such designation of critical habitat would not be beneficial to the species.
As discussed under Factor B above, there is currently no imminent threat of take attributed to collection or vandalism for this species, and identification and mapping of critical habitat is not expected to initiate any such threat. Therefore, in the absence of finding that the designation of critical habitat would increase threats to a species, if there are any benefits to a critical habitat designation, we must find that designation is prudent. Here, the potential benefits of designation include: (1) Triggering consultation under section 7 of the Act, in new areas for actions in which there may be a Federal nexus where it would not otherwise occur because, for example, it is unoccupied; (2) focusing conservation activities on the most essential features and areas; (3) providing educational benefits to State or county governments or private entities; and (4) reducing the potential for people to cause inadvertent harm to the species.
Because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, we determine that designation of critical habitat is prudent for the elfin-woods warbler.
Our regulations (50 CFR 424.12(a)(2)) further state that critical habitat is not determinable when one or both of the following situations exists: (1) Information sufficient to perform required analysis of the impacts of the designation is lacking; or (2) the biological needs of the species are not sufficiently well known to permit identification of an area as critical habitat. On the basis of a review of available information, we find that critical habitat for elfin-woods warbler is not determinable because the specific information sufficient to perform the required analysis of the impacts of the designation is currently lacking.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act, need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this proposed rule are the staff members of the Caribbean Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361−1407; 16 U.S.C. 1531−1544; 4201−4245, unless otherwise noted.
(h) * * *
(e) Elfin-woods warbler (
(2)
(i) The conversion of sun-grown coffee to shade-grown coffee plantations by the restoration and maintenance (
(ii) Riparian buffer establishment though the planting of native vegetation and selective removal of exotic species.
(iii) Reforestation and forested habitat enhancement projects within secondary forests (
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to list the eastern massasauga rattlesnake (
We will accept comments received or postmarked on or before November 30, 2015. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Louise Clemency, Field Supervisor, U.S. Fish and Wildlife Service, Chicago Ecological Services Field Office, 1250 S. Grove Ave., Suite 103, Barrington, IL 60010-5010; by telephone 847-381-2253. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
A Species Status Assessment (SSA) team prepared an SSA report for the eastern massasauga rattlesnake. The SSA team was composed of U.S. Fish and Wildlife Service biologists, in consultation with other species experts. The SSA represents a compilation of the best scientific and commercial data available concerning the status of the species, including the impacts of past, present, and future factors (both negative and beneficial) affecting the eastern massasauga rattlesnake. The SSA underwent independent peer review by 21 scientists with expertise in eastern massasauga rattlesnake biology, habitat management, and stressors (factors negatively affecting the species) to the species. The SSA and other materials relating to this proposal can be found on the Midwest Region Web site at
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from other concerned governmental agencies, Native American tribes, the scientific community, industry, or any other interested parties concerning this proposed rule. We particularly seek comments concerning:
(1) The eastern massasauga rattlesnake's biology, range, and population trends, including:
(a) Biological or ecological requirements of the species, including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for the species or its habitat.
(2) Factors that may affect the continued existence of the species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing regulatory mechanisms, or other natural or manmade factors.
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to this species and existing regulations that may be addressing those threats.
(4) Whether designating critical habitat is prudent for this species and, if so, the reasons why any habitat should or should not be determined to be critical habitat for the eastern massasauga rattlesnake as provided by section 4 of the Act, including physical or biological features within areas occupied or specific areas outside of the geographic area occupied that are essential for the conservation of the species.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”
You may submit your comments and materials concerning this proposed rule by one of the methods listed in the
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the
In accordance with our joint policy on peer review published in the
We identified the eastern massasauga rattlesnake as a Category 2 species in the December 30, 1982, Review of Vertebrate Wildlife for Listing as Endangered or Threatened Species (47 FR 58454). Category 2 candidates were defined as species for which we had information that proposed listing was possibly appropriate, but conclusive data on biological vulnerability and threats were not available to support a proposed rule at the time. The species remained so designated in subsequent candidate notices of review (CNORs) for animal species (50 FR 37958, September 18, 1985; 54 FR 554, January 6, 1989; 56 FR 58804, November 21, 1991; 59 FR 58982, November 15, 1994). In the February 28, 1996, CNOR (61 FR 7596), we discontinued the designation of Category 2 species as candidates; therefore, the eastern massasauga rattlesnake was no longer a candidate species.
Subsequently, in 1999, the eastern massasauga rattlesnake was added to the
A thorough background and review of the ecology, life history, and taxonomy of the eastern massasauga rattlesnake can be found in the Species Status Assessment for the Eastern Massasauga Rattlesnake (Szymanski
First described by Rafinesque in 1818, the eastern massasauga rattlesnake is known by several locally used common names: Eastern massasauga rattlesnake, eastern massasauga prairie rattlesnake, spotted rattler, and swamp rattler (Glody 1940, p. 44; Minton 1972, p. 315). The eastern massasauga rattlesnake was previously recognized by the Service as a subspecies (
Eastern massasauga rattlesnakes hibernate in the winter and are active in spring, summer, and fall. The type of habitat used during the active season generally consists of higher, drier habitats, open canopy wetlands, and adjacent upland areas (Sage 2005, p. 32; Lipps 2008, p. 1). Active season habitat use varies regionally (Reinert and Kodrich 1982, p. 169; Johnson
While there is regional variation, in general, after using higher, drier habitats during the active season, the eastern massasauga rattlesnake moves to lower, wet areas for overwintering or hibernation (Reinert and Kodrich 1982, pp. 164, 169; Johnson
The availability of retreat sites is important to the snake at all times of the year. Retreat sites are generally used by the snake to hide from potential predators, but are also important to gain shelter from extreme temperatures, because these sites are more thermally stable than surface habitat (Shoemaker 2007, pp. 9-10). Retreat sites can be hibernacula, rock crevices, hummocks, live or dead tree root systems, mammal holes, crayfish burrows, shrubs, boards, burn piles before burning, or any structure that a snake can crawl into or under.
Adult eastern massasauga rattlesnakes forage by ambushing prey, which are primarily small mammals (voles (
Eastern massasauga rattlesnakes (both males and females) reach sexual maturity at roughly 2 years of age and are ovoviviparous (the females give birth to broods of live young) ranging from 3 to 20 in number, with an average brood size of 9 but varying throughout the range (Anton 2000, p. 248; Bielma 1973, p. 46; Aldridge
The Act directs us to determine whether any species is an endangered species or a threatened species because of any factors affecting its continued existence. We completed a comprehensive assessment of the biological status of the eastern massasauga rattlesnake, and prepared the SSA report, which provides a thorough description of the species' overall viability. We define viability as the ability of the species to maintain multiple, self-sustaining populations across the full gradient of genetic and ecological diversity of the species. We used the conservation biology principles of resiliency, representation, and redundancy in our analysis. Briefly, resiliency is the ability of the species to withstand stochasticity; redundancy is the ability of the species to withstand catastrophic events; and representation is the ability of the species to adapt over time to long-term changes in the environment. In general, the more redundant, representative, and resilient a species is, the more likely it is to sustain populations over time, even under changing environmental conditions. Using these principles, we considered the eastern massasauga rattlesnake's needs at the individual, population, and species scales. We also identified the beneficial and risk factors influencing the species' viability. We considered the degree to which the species' ecological needs are met both currently and as can be reliably forecasted into the future, and assessed the consequences of any unmet needs as they relate to species viability. In this section, we summarize the conclusions of the SSA, which can be accessed at
For survival and reproduction at the individual level, the eastern massasauga rattlesnake requires appropriate habitat, which varies depending on the season and its life stage (see Background section, above). During the winter (generally October through March), they occupy hibernacula, such as crayfish burrows. Intact hydrology at eastern massasauga rattlesnake sites is important in maintaining conditions, such as crayfish burrows with high enough water levels to support the survival of hibernating eastern massasauga rattlesnakes. During their active season (after they emerge from hibernacula), they require low canopy cover and sunny areas (intermixed with shaded areas) for thermoregulation (basking and retreat sites), abundant prey (foraging sites), and the ability to escape predators (retreat sites). Habitat structure, including early successional stage and low canopy cover, appears to be more important for eastern massasauga rattlesnake habitat than plant community composition or soil type. Maintaining such habitat structure may require periodic management of most habitat types occupied by the eastern massasauga rattlesnake.
At the population level, the eastern massasauga rattlesnake requires sufficient population size, population growth, survivorship (the number of individuals that survive over time), recruitment (adding individuals to the population through birth or immigration), population structure (the number and age classes of both sexes), and size. Populations also require a sufficient quantity of high-quality microhabitats with intact hydrology and ecological processes that maintain suitable habitat, and connectivity among these microhabitats. In the SSA, a self-sustaining population of eastern massasauga rattlesnakes is defined as one that is demographically, genetically, and physiologically robust (a population with 50 or more adult females and a stable or increasing growth rate), with a high level of persistence (a probability of persistence greater than 0.9) given its habitat conditions and the risk or beneficial factors operating on it.
We relied on a population-specific model developed by Faust
At the species level, the eastern massasauga rattlesnake requires multiple (redundant), self-sustaining (resilient) populations distributed across areas of genetic and ecological diversity (representative). Using the literature on distribution of genetic diversity across the range of this species, we identified three geographic “analysis units” corresponding to “clumped” genetic variation patterns across the eastern massasauga rattlesnake populations (Figure 1). A reasonable conclusion from the composite of genetic studies that exist (Gibbs
As a result of the risk factors acting on eastern massasauga rattlesnake populations, the resiliency of the eastern massasauga rattlesnake across its range and within each of the three analysis units has declined from its historically known condition. Rangewide, there are 581 known historical eastern massasauga rattlesnake populations, of which 267 are known to still be extant, 163 are likely extirpated or known extirpated, and 121 are of unknown status. For the purposes of our assessment, we considered all populations with extant or unknown status as currently extant (referred to as presumed extant, n=388). Of those 388 populations presumed extant, 40 percent are likely quasi-extirpated (
The number of presumed extant populations has declined from the number that was known historically rangewide by 33 percent (and 31 percent of the presumed extant populations have unknown status). Of those populations presumed extant, 156 (40 percent) are presumed to be quasi-extirpated while 99 (26 percent) are presumed to be demographically, genetically, and physiologically robust (Table 1). Of these presumed demographically, genetically, and physiologically robust populations, 29 (7 percent) are presumed to have conditions suitable for maintaining populations over time (risk factors affecting the species at those populations are nonexistent or of low impact) and, thus, are self-sustaining. The greatest declines in resiliency occurred in the western analysis unit, where only 21 populations are presumed extant, and of these, only 1 is presumed to be self-sustaining. Although to a lesser degree, loss of resiliency has occurred in the central and eastern analysis units, where 22 and 6 populations, respectively, are presumed to be self-sustaining.
The degree of representation, as measured by spatial extent of occurrence, across the range of the eastern massasauga rattlesnake, has declined as noted by the northeasterly contraction in the range and by the loss of area occupied within the analysis units (see pp. 52-55 in the SSA report). Overall, there has been more than a 46 percent reduction of extent of occurrence rangewide (Table 2). This loss has not been uniform, with the western analysis unit encompassing most of this decline (69 percent reduction in extent of occurrence in the western analysis unit). However, losses of 43 percent and 32 percent of the extent of occurrence in the central analysis unit and eastern analysis unit, respectively, are notable as well. The results are not a true measure of area occupied by the species, but rather a coarse evaluation to make relative comparison among years. The reasons for this are twofold: (1) The calculations are done at the county, rather than the population, level; and (2) if at least one population was projected to be extant, the entire county was included in the analysis, even if other populations in the county were projected to be extirpated. Assuming that loss of range equates to loss of adaptive diversity, the degree of representation of the eastern massasauga rattlesnake has declined since historical conditions.
The redundancy of the eastern massasauga rattlesnake has also declined since historical conditions. Potential catastrophic events relevant to eastern massasauga rattlesnake populations include disease, flooding, and drought. We were unable to find sufficient information on the likelihood of disease outbreaks, the factors that affect disease spread, and the magnitude of impact on eastern massasauga rattlesnake populations to assess the risk from a catastrophic disease outbreak. Similarly, we were unable to assess flooding as a catastrophic risk, but we did consider the impacts of flooding and disease as general factors affecting the species in our assessment. We assess the vulnerability of unit-wide extirpation due to varying drought intensities below. Extreme fluctuations in the water table may negatively affect body condition for the following active season, cause early emergence, or cause direct mortality (Harvey and Weatherhead 2006, p. 71; Smith 2009, pp. vii, 33, 38-39).
The Drought Monitor (a weekly map of drought conditions that is produced jointly by the National Oceanic and Atmospheric Administration, the U.S. Department of Agriculture, and the National Drought Mitigation Center (NDMC) at the University of Nebraska-Lincoln) classifies general drought areas by intensity, with D1 being the least intense drought and D4 being the most intense drought. For the eastern massasauga rattlesnake, the risk of unit-wide extirpation due to a catastrophic drought varies by analysis unit and by the level of drought considered. Experts believe drought intensities of magnitude D2 or higher are likely to make the species more vulnerable to overwinter mortality and cause catastrophic impacts to eastern massasauga rattlesnake populations. In the central and eastern analysis units, the annual frequency rate for a D3 or D4 drought is zero, so there is little to no risk of unit-wide extirpation regardless of how broadly dispersed the species is within the unit. In the eastern analysis unit, the annual frequency rate for a D2 drought is also zero. Portions of the central analysis unit are at risk of a D2-level catastrophic drought; populations in the southern portion of the central analysis unit and scattered portions in the north are at risk from such a drought. In the western analysis unit, the risk of unit-wide extirpation based on the frequency of a D3 drought is low, but the risk of losing clusters of populations within the western analysis unit is notable; 5 of the 8 population clusters are vulnerable to a catastrophic drought. The probability of unit-wide extirpation in the western analysis unit is notably higher with D2 frequency rates; 7 of the 8 clusters of populations are at risk of D2-level catastrophic drought. Thus, the probability of losing most populations within the western analysis unit due to a catastrophic drought is high.
The most prominent risk factors affecting the eastern massasauga rattlesnake include habitat loss and fragmentation, especially through development and vegetative succession, road mortality, hydrologic alternation resulting in drought or flooding, persecution, collection, and mortality of individuals as a result of post-emergent (after hibernation) prescribed fire and mowing. Habitat loss includes direct habitat destruction of native land types (
Vegetative succession is a major contributor to habitat loss (Johnson and Breisch 1993, pp. 50-53; Reinert and Buskar 1992, pp. 56-58). The open vegetative structure, typical of eastern massasauga rattlesnake habitat, provides the desirable thermoregulatory areas, increases prey densities by enhancing the growth of sedges and grasses, and provides retreat sites. Degradation of eastern massasauga rattlesnake habitat typically happens through woody vegetation encroachment or the introduction of nonnative plant species. These events alter the structure of the habitat and make it unsuitable for the eastern massasauga rattlesnake by reducing and eventually eliminating thermoregulatory and retreat areas. Fire suppression has led to the widespread loss of open canopy habitats through succession (Kingsbury 2002, p. 37). Alteration in habitat structure and quality can also affect eastern massasauga rattlesnakes by reducing the forage for the species' prey base (Kingsbury 2002, p. 37).
An effective tool for controlling vegetative succession is the use of prescribed fire, which kills or temporarily sets back the growth of woody vegetation, retards the growth of undesirable species, and stimulates the response of prairie species (Johnson
Roads, bridges, and other structures constructed in eastern massasauga rattlesnake habitat fragment the snakes' habitat and impact the species both through direct mortality as snakes are killed trying to cross these structures (Shepard
Because of the fear and negative perception of snakes, many people have a low interest in snakes or their conservation and consequently large numbers of snakes are deliberately killed (Whitaker and Shine 2000, p. 121; Alves
Assessing the occurrence of the above-mentioned risk factors, we found that 97 percent of the presumed extant eastern massasauga rattlesnake populations have at least one risk factor (with some degree of impact on the species) currently affecting the site. Unmanaged vegetative succession is the most commonly occurring risk factor, with 75 percent of sites being impacted by succession. Vegetative succession makes eastern massasauga rattlesnake habitat unsuitable by reducing or eliminating thermoregulatory and retreat areas. Post-emergent fire is the second most common risk factor (69 percent of sites), and fragmentation is the third most common factor (67 percent of sites). Some form of habitat loss or modification is occurring at 52 percent of the sites; 17 percent of these sites are at risk of total habitat loss (all habitat at the site being destroyed or becoming unusable by the species). Among the other risk factors considered, water fluctuation, collection or persecution, and road mortality occur at 38 percent, 35 percent, and 15 percent of the sites, respectively.
We also considered the magnitude of impact of the various risk factors. The Faust model indicates that the risk factors most likely to push a population to quasi-extirpation within 25 years (high magnitude risk factors) are late-stage vegetative succession, high habitat fragmentation, moderate habitat fragmentation, total habitat loss, and moderate habitat loss or modification. Our analysis shows that 84 percent of eastern massasauga rattlesnake populations are impacted by at least one high magnitude risk factor, and 63 percent are affected by multiple high magnitude risk factors. These risk factors are chronic and are expected to continue with a similar magnitude of impact into the future, unless ameliorated by increased implementation of conservation actions. Furthermore, these multiple factors are not acting independently, but are acting together, which can result in cumulative effects that lower the overall viability of the species.
In addition to the above risk factors, other factors may be affecting individuals. Disease (whether new or currently existing at low levels but increasing in prevalence) is another emerging and potentially catastrophic stressor to eastern massasauga rattlesnake populations. For example, snake fungal disease (SFD) is an emerging disease found in populations of wild snakes in the eastern and midwestern United States, and the eastern massasauga rattlesnake is one of the species that has recently been diagnosed with SFD (Sleeman 2013, p. 1; Allender
Of the 267 sites with extant eastern massasauga populations, 64 percent (171) occur on land (public and private) that is considered protected from development; development may result in loss or fragmentation of habitat. Signed candidate conservation agreements with assurances (CCAAs) with the Service exist for two of these populations. These CCAAs include actions to mediate the stressors acting upon the populations and provide management prescriptions to perpetuate eastern massasauga rattlesnakes on these sites. For example, at an additional 22 sites, habitat restoration or management, or both, is occurring. Information is not available for these sites to know if habitat management has mediated the current risk factors acting upon the populations; the Faust model, however, included these activities in the projections of trends, and, thus, our future condition analyses considered these activities and assumed that ongoing restoration would continue into the future. Lastly, another 18 populations have conservation plans in place. Although these plans are intended to manage for the eastern massasauga rattlesnake, sufficient site-specific information is not available to assess whether these restoration or management activities are currently ameliorating the stressors acting upon the population. Thus, we were unable to include the potential beneficial impacts into our quantitative analyses.
To assess the future resiliency, representation, and redundancy of the eastern massasauga rattlesnake, we used the Faust model results to predict the number of self-sustaining populations likely to persist over the next 10, 25, and 50 years, and extrapolated those proportions to the remaining presumed extant populations to forecast the number of self-sustaining populations likely to persist at the future time scales. We then predicted the change in representation and redundancy.
The projected future resiliency (the number of self-sustaining populations) varies across the eastern massasauga rattlesnake's range. In the western analysis unit, 83 percent of the modeled populations are projected to have a declining trajectory and 94 percent of the populations a low probability of persistence (
We calculated the future extent of occurrence (representation) for the 57 modeled populations (Faust model) and
We assessed the ability of eastern massasauga rattlesnake populations to withstand catastrophic events (redundancy) by predicting the number of self-sustaining populations in each analysis unit and the spatial dispersion of those populations relative to future drought risk.
The future redundancy (the number and spatial dispersion of self-sustaining populations) across the eastern massasauga rattlesnake's range varies. In the western analysis unit, the risk of analysis-unit-wide extirpations from either a D2 or D3 catastrophic drought is high, given the low number of populations forecasted to be extant. Coupling this with a likely concurrent decline in population clusters (reduced spatial dispersion), the risk of analysis-unit-wide extirpation is likely even higher. Thus, the level of redundancy in the western analysis unit is projected to decline into the future.
Conversely, in the eastern analysis unit, there is little to no risk of a D2- or D3-level drought, and consequently the probability of unit-wide extirpation due to a catastrophic drought is very low. Thus, redundancy, from a catastrophic drought perspective, is not expected to decline over time in the eastern analysis unit.
Similarly, in the central analysis unit, there is little to no risk of a D3 catastrophic drought. The southern and northern portions of the central analysis unit, however, are at risk of a D2-level catastrophic drought. Losses of populations in these areas may lead to portions of the central analysis unit being extirpated and will also increase the probability of analysis-unit-wide extirpation. However, the risk of analysis-unit-wide extirpation will likely remain low given the presumed persistence of multiple populations scattered throughout low drought risk areas. Thus, from a drought perspective, the level of redundancy is not likely to be noticeably reduced in the central analysis unit (see Figure 4.3 (p. 60) in the SSA report for a detailed map). A caveat to this conclusion, however, is that the forecasted decline in extent of occurrence suggests our data are too coarse to tease out whether the forecasted decline in populations will lead to substantial losses in spatial distribution, and, thus, the risk of analysis-unit-wide extirpation might be higher than predicted. Therefore, the future trend in the level of redundancy in the central analysis unit is less clear than for either the western analysis unit or the eastern analysis unit.
Given the loss of populations to date, portions of the eastern massasauga rattlesnake's range are in imminent risk of extirpation in the near term. Specifically, our analysis suggests there is a high risk of extirpation of the western analysis unit and southern portions of the central and eastern analysis units within 10 to 25 years. Although self-sustaining populations are expected to persist, loss of populations within the central and eastern analysis units are expected to continue as well, and, thus, those populations are at risk of extirpation in the future. These losses have led to reductions in resiliency and redundancy across the range and may lead to irreplaceable loss of adaptive diversity across the range of the eastern massasauga rattlesnake, thereby leaving the eastern massasauga rattlesnake less able to adapt to a changing environment into the future. Thus, the viability of the eastern massasauga rattlesnake has and is projected to continue to decline over the next 50 years.
The reader is directed to the SSA for a more detailed discussion of our evaluation of the biological status of the eastern massasauga rattlesnake and the influences that may affect its continued existence. Our conclusions are based upon the best available scientific and commercial data.
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination.
Until recently, the Service has presented its evaluation of information under the five listing factors in an outline format, discussing all of the information relevant to any given factor and providing a factor-specific conclusion before moving to the next factor. However, the Act does not require findings under each of the factors, only an overall determination as to status (
We have carefully assessed the best scientific and commercial data available regarding the past, present, and future threats to the eastern massasauga rattlesnake and how those threats are affecting the species now and into the future. The species faces an array of threats that have and will likely continue (often increasingly) to contribute to declines at all levels (individual, population, and species). The loss of habitat was historically, and continues to be, the threat with greatest impact to the species (Factor A), either through development or through changes in habitat structure due to vegetative succession. Disease, new or increasingly prevalent, is another emerging and potentially catastrophic threat to eastern massasauga rattlesnake populations (Factor C). As population sizes decrease, localized impacts, such as collection and persecution of individuals, also increases the risk of extinction (Factor B). These risk factors are chronic and are expected to
The species' viability is also affected by losses of populations from historical portions of its range, which may have represented unique genetic and ecological diversity. The species is extirpated from Minnesota and Missouri, and many populations have been lost in the western part of the species' range. Rangewide, the extent of occurrence is predicted to decline by 65 percent by year 50. Actual losses in extent of occurrence will likely be greater than estimated because of the methodology used in our analysis, as discussed above.
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” A key statutory difference between an endangered species and a threatened species is the timing of when a species may be in danger of extinction, either now (endangered species) or in the foreseeable future (threatened species). Based on the biology of the eastern massasauga rattlesnake and the degree of uncertainty of future predictions, we find that the “foreseeable future” for the species is best defined as 50 years. Forecasting to 50 years, the current threats are still reliably foreseeable at the end of that time span based on models, available information on threats impacting the species, and other analyses; however, we cannot reasonably predict future conditions for the species beyond 50 years. Our uncertainty in forecasting the status of the species beyond 50 years is also increased by our methodology of extrapolating from a subset of modeled populations to all extant or potentially extant populations.
We find that the eastern massasauga rattlesnake is likely to become endangered throughout its entire range within the foreseeable future based on the severity and pervasiveness of threats currently impacting the species. We find that the eastern massasauga rattlesnake is likely to be on the brink of extinction within the foreseeable future due to the projected loss of populations rangewide (loss of resiliency and redundancy) and the projected loss of its distribution within large portions of its range. This loss in distribution could represent a loss of genetic and ecological adaptive diversity, as well as a loss of populations from parts of the range that may provide future refugia in a changing climate. Furthermore, many remaining populations are currently experiencing high magnitude threats. Although these high magnitude threats are not currently pervasive rangewide, they are likely to become pervasive in the foreseeable future as they expand and impact additional populations throughout the species' range. Therefore, on the basis of the best available scientific and commercial data, we propose listing the eastern massasauga rattlesnake as a threatened species in accordance with sections 3(20) and 4(a)(1) of the Act.
We find that an endangered species status is not appropriate for the eastern massasauga rattlesnake. In assessing whether the species is in danger of extinction, we used the plain language understanding of this phrase as meaning “presently in danger of extinction.” We considered whether extinction is a plausible condition as the result of the established, present condition of the eastern massasauga rattlesnake. Based on the species' present condition, we find that the species is not currently on the brink of extinction. The timeframe for conditions that render the species on the brink of extinction is beyond the present. While the magnitude of threats affecting populations is high, threats are not acting at all sites at a sufficient magnitude to result in the species presently being on the brink of extinction. Additionally, some robust populations still exist, and we anticipate they will remain self-sustaining.
The SSA results represent the best-case scenario for this species. For example, the analysis treated populations of unknown status as if they were all extant, likely resulting in an overestimate of species' viability. Thus, we considered whether treating the populations with an “unknown” status as currently extant in the analysis had an effect on the status determination. We examined whether the number of self-sustaining populations would change significantly over time if we instead assumed that all populations with an “unknown” status were extirpated. The results are a more severe projected decline in eastern massasauga rattlesnake's status than our analysis projects when we assign the unknown status populations to the “extant” category, but not to the extent that we would determine the species to be currently in danger of extinction.
Under the Act and our implementing regulations, a species may warrant listing if it is an endangered or threatened species throughout all or a significant portion of its range. Because we have determined that eastern massasauga rattlesnake is threatened throughout all of its range, no portion of its range can be “significant” for purposes of the definitions of “endangered species” and “threatened species.” See the Final Policy on Interpretation of the Phrase “Significant Portion of Its Range” in the Endangered Species Act's Definitions of “Endangered Species” and “Threatened Species” (79 FR 37578; July 1, 2014).
Critical habitat is defined in section 3(5)(A) of the Act as: (i) The specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) Essential to the conservation of the species and (II) that may require special management considerations or protection; and (ii) specific areas outside the geographic area occupied by a species at the time it is listed, upon a determination that such areas are essential for the conservation of the species.
Conservation is defined in section 3(3) of the Act as the use of all methods and procedures that are necessary to bring any endangered or threatened species to the point at which listing under the Act is no longer necessary.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, we designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following circumstances exist: (1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or (2) such designation of critical habitat would not be beneficial to the species. We have determined that both circumstances apply to the eastern massasauga rattlesnake. This determination involves a weighing of the expected increase in threats associated with a critical habitat designation against the benefits gained by a critical habitat designation. An explanation of this “balancing” evaluation follows.
Poaching and unauthorized collection (Factor B) of the eastern massasauga rattlesnake for the pet trade is a factor contributing to declines, and remains a threat with significant impact to this species, commanding high black market value. For example, an investigation into reptile trafficking reports documented 35 eastern massasauga rattlesnakes (representing nearly one entire wild source population) collected in Canada and smuggled into the United States, most destined for the pet trade (Thomas 2010, unpaginated). Snakes in general are known to be feared and persecuted by people, and venomous species even more so (Ohman and Mineka 2003, p. 7; Whitaker and Shine 2000, p. 121). As a venomous snake, the eastern massasauga rattlesnake is no exception, with examples of roundups or bounties for them persisting through the mid-1900s (Bushey 1985, p. 10; Vogt 1981; Wheeling, IL, Historical Society Web site accessed 2015), and more recent examples of persecution in Pennsylvania (Jellen 2005, p. 11) and Michigan (Baily
Section 7(a)(2) of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, we determine destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional (or retain those physical and biological features that relate to the ability of the area to periodically support the species) to serve its intended conservation role for the species. Critical habitat only provides protections where there is a Federal nexus, that is, those actions that come under the purview of section 7 of the Act. Critical habitat designation has no application to actions that do not have a Federal nexus. Section 7(a)(2) of the Act mandates that Federal agencies, in consultation with the Service, evaluate the effects of their proposed actions on any designated critical habitat. Similar to the Act's requirement that a Federal agency action not jeopardize the continued existence of listed species, Federal agencies have the responsibility not to implement actions that would destroy or adversely modify designated critical habitat. Critical habitat designation alone, however, does not require that a Federal action agency implement specific steps toward species recovery. Eastern massasauga rattlesnakes primarily occur on non-Federal lands. The eastern massasauga rattlesnake does occur on land managed by the Service (Wisconsin), National Park Service (Indiana), U.S. Army Corps of Engineers (Illinois and Wisconsin), and U.S. Forest Service (Michigan). We anticipate that some actions on non-Federal lands will have a Federal nexus (for example, requirement for a permit to discharge dredge and fill material from the U.S. Army Corps of Engineers) for an action that may adversely affect
Another potential benefit to the eastern massasauga rattlesnake from designating critical habitat is that such a designation serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. Generally, providing this information helps focus and promote conservation efforts by other parties by clearly delineating areas of high conservation value for the affected species. However, simply publicizing the proposed listing of the species also serves to notify and educate landowners, State and local governments, and the public regarding important conservation values. Furthermore, we have worked with State conservation agencies and the Association of Zoos and Aquariums (Eastern Massasauga Rattlesnake Species Survival Plan) to develop outreach and education materials that target a diverse audience, including public and private landowners, organizations, and the media. The eastern massasauga rattlesnake outreach actions implemented to date include producing and distributing brochures and informational Web sites, working with media outlets (newspaper and television) on eastern massasauga stories, and giving presentations to conservation agencies or the public. In addition, the Service provides a staff advisor to the Eastern Massasauga Rattlesnake Species Survival Plan, which provides a unique opportunity to help frame messaging about this species to many thousands of visitors to North American zoos. Due to the extensive outreach and conservation efforts already underway that benefit the eastern massasauga rattlesnake, we find that the designation of critical habitat would provide limited additional outreach value.
Upon reviewing the available information, we have determined that the designation of critical habitat would increase the threat to eastern massasauga rattlesnakes from persecution, unauthorized collection, and trade. We find that the risk of increasing this threat to a significant degree by publishing location information in a critical habitat designation outweighs the benefits of designating critical habitat. A limited number of U.S. species listed under the Act have commercial value in trade. The eastern massasauga rattlesnake is one of them. Due to the market demand and willingness of individuals to collect eastern massasauga rattlesnakes without authorization, and the willingness of others to kill them out of fear or wanton dislike, we have determined that any action that publicly discloses the location of eastern massasauga rattlesnakes (such as critical habitat) puts the species in further peril. Many populations of the eastern massasauga rattlesnake are small, and the life history of the species makes it vulnerable to additive loss of individuals (for example, loss of reproductive adults in numbers that would exceed those caused by predation and other non-catastrophic natural factors), requiring a focused and comprehensive approach to reducing threats. Several measures are currently being implemented to address the threat of persecution and unauthorized collection and trade of eastern massasauga rattlesnakes, and additional measures will be implemented if the species is listed under the Act. One of the basic measures to protect eastern massasauga rattlesnakes from unauthorized collection and trade is restricting access to information pertaining to the location of the species' populations. Publishing maps and narrative descriptions of eastern massasauga rattlesnake critical habitat would significantly affect our ability to reduce the threat of persecution, as well as unauthorized collection and trade. Therefore, based on our determination that critical habitat designation would increase the degree of threat to the eastern massasauga rattlesnake, and, at best, provide nominal benefits for this taxon, we find that the increased threat to the eastern massasauga rattlesnake from the designation of critical habitat significantly outweighs any benefit of designation.
We have determined that the designation of critical habitat would increase persecution, unauthorized collection, and trade threats to the eastern massasauga rattlesnake. The eastern massasauga rattlesnake is highly valued in the pet trade, and that value is likely to increase as the species becomes rarer, and as a venomous species, it also is the target of persecution. Critical habitat designation may provide some benefits to the conservation of the eastern massasauga rattlesnake, for example, by identifying areas important for conservation. We have determined, however, that the benefits of designating critical habitat for the eastern massasauga rattlesnake are minimal. We have concluded that, even if some benefit from designation may exist, the increased threat to the species from unauthorized collection and persecution outweighs any benefit to the species. A determination to not designate critical habitat also supports the measures taken by the States to control and restrict information on the locations of the eastern massasauga rattlesnake and to no longer make location and survey information readily available to the public. We have, therefore, determined in accordance with 50 CFR 424.12(a)(1) that it is not prudent to designate critical habitat for
Conservation measures provided to species listed as endangered or threatened species under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing results in public awareness, and conservation by Federal, State, Tribal, and local agencies, private organizations, and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline concurrently or shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (composed of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outline, draft recovery plan, and the final recovery plan will be available on our Web site (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, Tribes, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
Although the eastern massasauga rattlesnake is only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for this species. Additionally, we invite you to submit any new information on this species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as an endangered or threatened species and with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
Federal agency actions within the species' habitat that may require conference or consultation or both as described in the preceding paragraph include management and any other landscape-altering activities on Federal lands administered by the Service (Upper Mississippi National Wildlife and Fish Refuge, Wisconsin), U.S. Forest Service (Huron-Manistee National Forest, Michigan), National Park Service (Indiana Dunes National Lakeshore, Indiana), or military lands administered by branches of the Department of Defense (Fort Grayling, Michigan); flood control projects (Lake Carlyle, Illinois) and issuance of section 404 Clean Water Act (33 U.S.C. 1251
Under section 4(d) of the Act, the Service has discretion to issue regulations that we find necessary and advisable to provide for the conservation of threatened species. The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to threatened wildlife. The prohibitions of section 9(a)(1) of the Act, as applied to threatened wildlife and codified at 50 CFR 17.31, make it illegal for any person subject to the jurisdiction of the United States to take (including harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) threatened wildlife within the United States or on the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. It is also illegal to
We may issue permits to carry out otherwise prohibited activities involving threatened wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.32. With regard to threatened wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, for economic hardship, for zoological exhibition, for educational purposes, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
It is our policy, as published in the
(1) Pre-emergent fire: Prescribed burns to control vegetation occurring prior to eastern massasauga rattlesnake emergence from hibernacula (typically in late March to early April); and
(2) Pre-emergent mowing: Mowing of vegetation prior to eastern massasauga rattlesnake emergence from hibernacula.
Based on the best available information, the following activities may potentially result in a violation of section 9 of the Act; this list is not comprehensive:
(1) Development of land or the conversion of native land to agricultural land, including the construction of any related infrastructure (
(2) Certain dam construction: In an area where the dam alters the habitat from native land types (
(3) Post-emergent prescribed fire: Prescribed burns to control vegetation that are conducted after snakes have emerged from their hibernacula and are thus exposed to the fire;
(4) Post-emergent mowing: Mowing of vegetation after snakes have emerged from hibernacula can cause direct mortality by contact with blades or being run over by tires on mower;
(5) Certain pesticide use;
(6) Water level manipulation: Flooding or hydrologic drawdown affecting eastern massasauga rattlesnake individuals or habitat, particularly hibernacula;
(7) Certain research activities: Collection and handling of eastern massasauga rattlesnake individuals for research that may result in displacement or death of the individuals; and
(8) Poaching or collecting individuals.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Chicago Ecological Services Field Office (see
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this proposed rule are the staff members of the Chicago Ecological Services Field Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; 4201-4245, unless otherwise noted.
(h) * * *
Agricultural Marketing Service, USDA.
Notice: Call for nominations.
The National Organic Standards Board (NOSB) was established to assist in the development of standards for substances to be used in organic production and to advise the Secretary on the implementation of the Organic Foods Production Act of 1990 (OFPA). Through this Notice, the USDA is requesting nominations to fill one (1) unexpected vacancy on the NOSB for an environmentalist/resource conservationist position. The Secretary of Agriculture will appoint one person to this position to serve on the NOSB for the remainder of the term for this position, which began in January 24, 2015, and goes through January 23, 2020.
Written nominations must be postmarked on or before 30 days from publication of this Notice
Nomination applications are to be mailed to Michelle Arsenault, USDA-AMS-NOP, 1400 Independence Avenue SW., Room 2648-S., Ag Stop 0268, Washington, DC 20250; or electronically sent via Email to:
Michelle Arsenault, (202) 720-0081; Email:
The OFPA of 1990, as amended (7 U.S.C. Section 6501
The NOSB is composed of 15 members; including 4 organic producers, 2 organic handlers, a retailer, 3 environmentalists/resource conservationists, 3 public/consumer representatives, a scientist, and a certifying agent. Through this Notice, USDA is seeking nominations to fill one (1) unexpected vacancy on the NOSB for an environmentalist/resource conservationist position. The Secretary of Agriculture will appoint one person to this position immediately to serve for the remainder of the term that began in January 24, 2015, and goes through January 23, 2020.
As per the OFPA, individuals seeking appointment to the NOSB at this time must have expertise in areas of environmental protection and resource conservation as identified under section 6515 of this title. Other selection criteria includes multiple factors, such as: Understanding of organic principles and practical experience in the organic community; demonstrated experience and interest in organic production and organic certification; demonstrated experience with respect to agricultural products produced and handled on certified organic farms; a commitment to the integrity of the organic food and fiber industry; demonstrated experience in the development of public policy such as participation on public or private advisory boards, boards of directors or other comparable organizations; support of consumer and public interest organizations; participation in standards development or involvement in educational outreach activities; the ability to evaluate technical information and to fully participate in Board deliberation and recommendations; the willingness to commit the time and energy necessary to assume Board duties; and other such factors as may be appropriate for specific positions.
To nominate yourself or someone else, please submit: A resume, a cover letter, and a Form AD-755, which can be accessed at:
If USDA receives a request under the Freedom of Information Act (FOIA) (5 U.S.C. 552), for records relating to NOSB nominations, your application materials may be released to the requester. Prior to the release of the information, personally identifiable information protected by the FOIA Privacy Act will be redacted.
Nominations are open to all individuals without regard to race, color, religion, gender, national origin, age, mental or physical disability, marital status, or sexual orientation. To ensure that the recommendations of the NOSB take into account the needs of the diverse groups that are served by the Department, membership on the NOSB shall include, to the extent practicable, individuals with demonstrated ability to represent minorities, women, and persons with disabilities.
The information collection requirements concerning the nomination process have been previously cleared by the Office of Management and Budget (OMB) under OMB Control No. 0505-0001.
U.S. Census Bureau, Commerce.
Notice.
The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.
To ensure consideration, written comments must be submitted on or before November 30, 2015.
Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW., Washington, DC 20230 (or via the Internet at
Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Lisa McNelis, U.S. Census Bureau, Economic Reimbursable Surveys Division, 4600 Silver Hill Road, Washington, DC 20233-6900; (888) 340-7525 (or via the Internet at
The United States Census Bureau plans to continue to conduct the Survey of State Government Research and Development (SGRD) on behalf of the National Science Foundation (NSF) to measure research and development performed and funded by state governments in the United States.
The NSF Act of 1950, as amended, includes a statutory charge to “provide a central clearinghouse for the collection, interpretation, and analysis of data on scientific and engineering resources and to provide a source of information for policy formulation by other agencies in the Federal Government.” Under the aegis of this legislative mandate, NSF has sponsored surveys of research and development (R&D) since 1953, including since 2006 the Survey of State Government R&D. The Census Bureau's authorization to undertake this work is found at 13 U.S.C. Section 8(b) which provides that the Census Bureau “may make special statistical compilations and surveys for departments, agencies, and establishments of the Federal government, the government of the District of Columbia, the government of any possession or area (including political subdivisions thereof) . . . State or local agencies, or other public and private persons and agencies.”
The Survey of State Government R&D is the only comprehensive source of state government research and development expenditure data collected on a nationwide scale using uniform definitions, concepts, and procedures. The collection covers the expenditures of all agencies in the fifty state governments, the District of Columbia, and Puerto Rico that perform or fund R&D. The National Science Foundation has coordinated with the Census Bureau for the data collection. The NSF uses this collection to satisfy, in part, its need to collect research and development expenditures data.
Fiscal data provided by respondents aid data users in measuring the effectiveness of resource allocation. The products of this data collection make it possible for data users to obtain information on such things as expenditures according to
In order to increase the timeliness of the statistics, we plan to change the collection from a biennial survey which collected two years of data to an annual survey collecting one year of data. The state coordinators will no longer be asked to monitor agency response. As a result of this change, the average burden for state coordinators will decrease from 4 hours to 1 hour per response. We are also changing the response mode for state coordinators from a web form to an emailed Excel spreadsheet. We are making changes to the content of the web form which agency respondents are asked to complete. The changes are designed to capture specific information on source of funds (
The survey announcements and forms used in the research and development survey are:
The Census Bureau will use a web-based collection strategy. State governors are emailed a request to appoint a state coordinator for the survey. Governors are asked to respond within 30 days. State coordinators are then emailed an Excel spreadsheet asking them to identify state agencies that may be active R&D performers. State coordinators are asked to respond within 30 days. State agencies identified
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.
National Institute of Standards and Technology, Department of Commerce.
Notice of closed meeting.
The Judges Panel of the Malcolm Baldrige National Quality Award (Judges Panel) will meet in closed session Monday through Friday, November 2-6, 2015, from 8:30 a.m. until 5:30 p.m. Eastern Time each day. The purpose of this meeting is to review recommendations from site visits, and recommend 2015 Malcolm Baldrige National Quality Award recipients. The meeting is closed to the public in order to protect the proprietary data to be examined and discussed at the meeting.
The meeting will be held Monday through Friday, November 2-6, 2015, from 8:30 a.m. until 5:30 p.m. Eastern Time each day. The entire meeting will be closed to the public.
The meeting will be held at the National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, Maryland 20899.
Robert Fangmeyer, Director, Baldrige Performance Excellence Program, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 1020, Gaithersburg, Maryland 20899-1020, telephone number (301) 975-2360, email
15 U.S.C. 3711a(d)(1) and the Federal Advisory Committee Act, as amended, 5 U.S.C. App.
Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. app., notice is hereby given that the Judges Panel will meet Monday through Friday, November 2-6, 2015, from 8:30 a.m. until 5:30 p.m. Eastern Time each day. The Judges Panel is composed of twelve members, appointed by the Secretary of Commerce, chosen for their familiarity with quality improvement operations and competitiveness issues of manufacturing companies, service companies, small businesses, health care providers, and educational institutions. Members are also chosen who have broad experience in for-profit and nonprofit areas. The purpose of this meeting is to review recommendations from site visits, and recommend 2015 Malcolm Baldrige National Quality Award recipients. The meeting is closed to the public in order to protect the proprietary data to be examined and discussed at the meeting.
The Chief Financial Officer and Assistant Secretary for Administration, with the concurrence of the Acting Assistant General Counsel for Administration, formally determined on May 19, 2015, pursuant to Section 10(d) of the Federal Advisory Committee Act, as amended by Section 5(c) of the Government in Sunshine Act, Public Law 94-409, that the meeting of the Judges Panel may be closed to the public in accordance with 5 U.S.C. 552b(c)(4) because the meeting is likely to disclose trade secrets and commercial or financial information obtained from a person which is privileged or confidential; and 5 U.S.C. 552b(c)(9)(B) because for a government agency the meeting is likely to disclose information that could significantly frustrate implementation of a proposed agency action. The meeting, which involves examination of current Award applicant data from U.S. organizations and a discussion of these data as compared to the Award criteria in order to recommend Award recipients, will be closed to the public.
National Institute of Standards & Technology, Department of Commerce.
Notice of public workshop.
NIST announces the Synthetic Biology Standards Consortium (SBSC)-Planning and Progress Workshop to be held on Tuesday November 3, 2015 from 9:00 a.m.-5:00 p.m. Pacific time. The SBSC is a standards setting consortium focused on the shared standards development needs of consortium participants. It will provide a forum for collaborative work through the formation of technical standards-setting working groups. Working groups are organized around a clear vision of specific metrology products—standards, including reference materials; reference
The Synthetic Biology Standards Consortium (SBSC)—Planning and Progress Workshop will be held on Tuesday, November 3, 2015 from 9:00 a.m.-5:00 p.m. Pacific Time.
The meeting will be held at the Quadrus Conference Center, 2400 Sand Hill Road, Menlo Park, CA 94025. To register, go to
For further information contact Matthew Munson, Sarah Munro, and Marc Salit by email at
A robust metrology infrastructure for the field of synthetic biology will enable coordination of labor and reuse of materials, driving economic growth. Metrology products—standards, including reference materials; reference data; reference methods; and documentary standards—can enable business-to-business transactions at scale. The intent of the NIST-hosted Synthetic Biology Standards Consortium (SBSC) is to collectively establish infrastructure to support a fully integrated global synthetic biology enterprise. NIST will provide standards development support for some consortium activities, as well as facilitation and technical leadership.
The SBSC has been convened as a standards setting consortium focused on the shared standards development needs of consortium members. It will provide a forum for collaborative work through the formation of technical standards-setting working groups. Successful working groups will be organized around a clear vision of specific metrology products that will enable interoperability and reproducibility.
Examples of metrology products include a reference material such as a standard proteome set from whole cell lysates to be used as a benchmark for mass spectroscopy; reference data such as a DNA watermark repository; a reference method for DNA sequence verification; and a documentary standard for minimum information standards for biological protocol interoperability.
The goals of the workshop are to discuss working group progress and plans with the broad consortium, develop a timeline of deliverables for metrology products to be produced by each working group, and collaboratively design and draft relevant documents.
The SBSC Planning and Progress Workshop will be held on Tuesday, November 3, 2015 from 9:00 a.m.-5:00 p.m. Pacific time. The workshop will be held at the Quadrus Conference Center, 2400 Sand Hill Road, Menlo Park, CA 94025. To register, go to
There is no cost for participating in the consortium or the workshop. No proprietary information will be shared at the workshop.
15 U.S.C. 272(b) and (c).
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; request for comments.
NMFS reviewed the Alaska, Atlantic, and Pacific regional marine mammal stock assessment reports (SARs) in accordance with the Marine Mammal Protection Act. SARs for marine mammals in the Alaska, Atlantic, and Pacific regions were revised according to new information. NMFS solicits public comments on the draft 2015 SARs.
Comments must be received by December 29, 2015.
The 2015 draft SARs are available in electronic form via the Internet at
Copies of the Alaska Regional SARs may be requested from Marcia Muto, Alaska Fisheries Science Center, NMFS, 7600 Sand Point Way NE., BIN 15700, Seattle, WA 98115-0070.
Copies of the Atlantic, Gulf of Mexico, and Caribbean Regional SARs may be requested from Peter Corkeron, Northeast Fisheries Science Center, 166 Water St., Woods Hole, MA 02543.
Copies of the Pacific Regional SARs may be requested from Jim Carretta, Southwest Fisheries Science Center, 8604 La Jolla Shores Drive, La Jolla, CA 92037-1508.
You may submit comments, identified by NOAA-NMFS-2015-0108, by any of the following methods:
NMFS will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.
Shannon Bettridge, Office of Protected Resources, 301-427-8402,
Section 117 of the Marine Mammal Protection Act (MMPA) (16 U.S.C. 1361
The MMPA requires NMFS and FWS to review the SARs at least annually for strategic stocks and stocks for which significant new information is available, and at least once every three years for non-strategic stocks. The term “strategic stock” means a marine mammal stock: (A) for which the level of direct human-caused mortality exceeds the potential biological removal level; (B) which, based on the best available scientific information, is declining and is likely to be listed as a threatened species under the Endangered Species Act (ESA) within the foreseeable future; or (C) which is listed as a threatened species or endangered species under the ESA. NMFS and the FWS are required to revise a SAR if the status of the stock has changed or can be more accurately determined. NMFS, in conjunction with the Alaska, Atlantic, and Pacific independent Scientific Review Groups (SRGs), reviewed the status of marine mammal stocks as required and revised reports in the Alaska, Atlantic, and Pacific regions to incorporate new information.
NMFS solicits public comments on the draft 2015 SARs.
In the Alaska region, SARs for 31 Alaska stocks (15 “strategic”, 16 “non-strategic”) were updated. All stocks were reviewed and the following stocks were revised for 2015: Steller sea lion, western U.S.; northern fur seal, eastern Pacific; bearded seal, Alaska; ringed seal, Alaska; beluga whale, Cook Inlet; killer whale, AT1 transient; harbor porpoise, Southeast Alaska; harbor porpoise, Gulf of Alaska; harbor porpoise, Bering Sea; sperm whale, North Pacific; humpback whale, Western North Pacific; humpback whale, Central North Pacific; fin whale, Northeast Pacific; right whale, Eastern North Pacific; bowhead whale, Western Arctic; harbor seal (12 stocks); ribbon seal, Alaska; Pacific white-sided dolphin, Central North Pacific; Dall's porpoise, Alaska; and minke whale, Alaska. Information on the remaining Alaska region stocks can be found in the final 2014 reports (Allen and Angliss, 2015).
Most revisions to the Alaska SARs included updates of abundance and/or mortality and serious injury estimates, including revised abundance estimates for the 12 stocks of harbor seals and for the two stocks of humpback whales. No changes in stock status occurred.
In the Atlantic region (including the Atlantic Ocean, Gulf of Mexico, and U.S. territories in the Caribbean), 43 reports for 69 stocks were updated. Of the updated stocks, 51 stocks are “strategic,” and 18 are “non-strategic.” Two common bottlenose dolphin stocks, the Gulf of Mexico northern coastal and Gulf of Mexico western coastal, changed in status from strategic to non-strategic. This change is a technical correction, and not due to a change in abundance, PBR, mortality estimates, or ESA listing status.
All stocks were reviewed and reports for the following strategic stocks were revised for 2015: North Atlantic right whale; humpback whale, Gulf of Maine; fin whale, Western North Atlantic (WNA); sei whale, Nova Scotia; sperm whale, Gulf of Mexico; Bryde's whale, Gulf of Mexico; and the following common bottlenose dolphin stocks: WNA northern migratory coastal; WNA southern migratory coastal; WNA South Carolina (SC)/Georgia (GA) coastal; WNA northern Florida coastal; WNA central Florida coastal; Northern NC Estuarine System; Southern NC Estuarine System; Northern SC Estuarine System; Charleston Estuarine System; Northern GA/Southern SC Estuarine System; Central GA Estuarine System; Southern GA Estuarine System; Jacksonville Estuarine System; Indian River Lagoon Estuarine System; Gulf of Mexico bay, sound, and estuary (27 stocks) Barataria Bay; Mississippi Sound, Lake Borgne, Bay Boudreau; St. Joseph Bay; and Choctawhatchee Bay.
Reports for the following non-strategic stocks were revised for 2015: Minke whale, Canadian east coast; Risso's dolphin, WNA; long-finned pilot whale, WNA; short-finned pilot whale, WNA; short-finned pilot whale, Gulf of Mexico; Atlantic white-sided dolphin, WNA; short-beaked common dolphin, WNA; harbor porpoise, Gulf of Maine/Bay of Fundy; harbor seal, WNA; gray seal, WNA; pantropical spotted dolphin, Gulf of Mexico; Risso's dolphin, Gulf of Mexico; Atlantic spotted dolphin, continental shelf and oceanic; and the following common bottlenose dolphin stocks: WNA offshore; Gulf of Mexico continental shelf; Gulf of Mexico northern coastal; Gulf of Mexico western coastal; and Gulf of Mexico eastern coastal.
Information on the remaining Atlantic region stocks can be found in the final 2014 reports (Waring
Most revisions to the Atlantic SARs included updates of abundance and/or mortality and serious injury estimates. No changes in stock status occurred.
In the Pacific region (waters along the west coast of the United States, within waters surrounding the main and Northwest Hawaiian Islands, and within waters surrounding U.S. territories in the Western Pacific), SARs were revised for 8 stocks under NMFS jurisdiction (5 “strategic” and 3 “non-strategic” stocks).
All stocks were reviewed and reports for the following strategic stocks were revised for 2015: Hawaiian monk seal; Southern Resident killer whale; false killer whale, Main Hawaiian Islands Insular; false killer whale, Hawaii Pelagic; and blue whale, Eastern North Pacific. Reports for the following non-strategic stocks were revised for 2015: false killer whale, Northwestern Hawaiian Islands; Bryde's whale, Eastern Tropical Pacific; and Northern fur seal, California. Information on the remaining Pacific region stocks can be found in the final 2014 reports (Carretta
New abundance estimates are available for three stocks in the Pacific Islands region (Hawaiian monk seal, Hawaii Pelagic and Northwestern Hawaiian Islands false killer whales) and two U.S. west coast stocks (Southern Resident killer whale and California northern fur seal). The stock range and boundaries of the three Hawaiian stocks of false killer whales were recently reevaluated based on new information on the occurrence and movements of each stock. The three stocks have partially overlapping ranges. No changes in stock status occurred.
A stock assessment report for the Eastern Tropical Pacific stock of Bryde's whale has been reinstated into the Pacific reports in response to a regular and increasing presence of this species in southern California waters. The Eastern Tropical Pacific Bryde's whale report last appeared in the Pacific stock assessments in 2007.
The genus of Hawaiian monk seal has been changed from
The report for Eastern North Pacific blue whales includes new information on historic whaling removals, the population's status relative to carrying capacity, and risk of ship strikes to the population.
Department of the Army, DoD.
Notice of open subcommittee meeting.
The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the Remember Subcommittee of the Advisory Committee on Arlington National Cemetery (ACANC). The meeting is open to the public. For more information about the Committee and the Remember Subcommittee, please visit
The Remember Subcommittee will meet from 09:00 a.m. to 10:00 a.m. on Wednesday, October 14, 2015.
Arlington National Cemetery Welcome Center, Conference Room, Arlington National Cemetery, Arlington, VA 22211.
Ms. Renea Yates; Designated Federal Officer for the committee and the Remembrance Subcommittee, in writing at Arlington National Cemetery, Arlington VA 22211, or by email at
Due to circumstances beyond the control of the Designated Federal Officer and the Department of Defense, the Advisory Committee on Arlington National Cemetery was unable to provide public notification, as required by 41 CFR 102-3.150(a), of its scheduled meeting of the Remember Subcommittee on October 14, 2015. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement. This subcommittee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in the Government Act of 1976 (U.S.C. 552b, as amended) and 41 Code of the Federal Regulations (CFR 102-3.150).
Department of the Army, DoD.
Notice of a partially closed meeting; Correction.
Pursuant to the Federal Advisory Committee Act of 1972, the Government in the Sunshine Act of 1976 and title 41 of the Code of Federal Regulations, the Department of the Army announces a meeting of the Army Science Board.
Army Science Board, Designated Federal Officer, 2530 Crystal Drive, Suite 7098, Arlington, VA 22202; LTC Stephen K. Barker, the committee's Designated Federal Officer (DFO), at (703) 545-8652 or email:
Due to circumstances beyond the control of the Designated Federal Officer and the Department of Defense, the U.S. Army Science Board was unable to provide public notification of its meeting of October 6, 2015, as required by 41 CFR 102-3.150(a). Accordingly, the Advisory Committee Management Officer for the
Pursuant to the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (U.S.C. 552b, as amended) and 41 Code of Federal Regulations (CFR) § 102-3.140 through 160, the Department of the Army announces the following committee meeting:
The DFO will review all timely submissions with the Board's executive committee and ensure they are provided to the specific study members as necessary before, during, or after the meeting. After reviewing written comments, the study chairs and the DFO may choose to invite the submitter of the comments to orally present their issue during a future open meeting.
The DFO, in consultation with the executive committee, may allot a specific amount of time for members of the public to present their issues for discussion.
Office of the Administrative Assistant to the Secretary of the Army (OAA-AAHS), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by November 30, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Department of the Army, Military Surface Deployment and Distribution Command, (AMSSD-SP), 1 Soldier Way, ATTN: C. Sue Kennedy, Scott Air Force Base, Illinois 62225-5006, or call Department of the Army Reports Clearance Officer at (703) 428-6440.
SDDC works with industry partners in several program areas, Global Domestic Distribution Program, Freight Global Distribution Program, Personal Property Traffic Management Program, Transportation Engineering Agency, Army Ammunition & Explosives and several more. Most industry partners only provide services in one or two of the program areas, so the survey design provides for transparently skipping respondents only to the sections that are relevant to them. To make performance improvement in the operations of these programs areas, SDDC plans to undertake voluntary surveys of our “partners” in industry for 3 years from the approval/renewal date.
Department of the Army, DoD.
Notice of open subcommittee meeting.
The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the Explore Subcommittee of the Advisory Committee on Arlington National Cemetery (ACANC). The meeting is open to the public. For more information about the Committee and the Explore Subcommittee, please visit
The Explore Subcommittee will meet from 10:00 a.m. to 11:00 a.m. on Wednesday, October 14, 2015.
Arlington National Cemetery Welcome Center, Conference Room, Arlington National Cemetery, Arlington, VA 22211.
Ms. Renea Yates; Designated Federal Officer for the committee and the Explore Subcommittee, in writing at Arlington National Cemetery, Arlington, VA 22211, or by email at
Due to circumstances beyond the control of the Designated Federal Officer and the Department of Defense, the Advisory Committee on Arlington National Cemetery was unable to provide public notification, as required by 41 CFR 102-3.150(a), of its scheduled meeting of the Explore Subcommittee on October 14, 2015. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement. This subcommittee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in the Government Act of 1976 (U.S.C. 552b, as amended) and 41 Code of the Federal Regulations (CFR 102-3.150).
Office of the Administrative Assistant to the Secretary of the Army (OAA-RPA), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by November 30, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Military Surface Deployment and Distribution Command, 709 Ward Drive, Bldg. 1990, Scott Air Force Base, IL 62225-1604,
DD Form 361 is essential for documenting any loss, damage, or other discrepancy, which may result from the movement of Government freight by commercial transportation companies (carries). As insurers of goods transported under the bill of lading contract carriers are responsible to the extent provided by law, for the delivery of goods as tendered by or for the Government.
Office of the Administrative Assistant to the Secretary of the Army, (OAA-RPA), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by November 30, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Department of the Army, Military Surface Deployment and Distribution Command, 661 Sheppard Place, Ft. Eustis, VA 23604, ATTN: (Richard Cody), or call the Department of the Army Reports Clearance Officer at (703) 428-6440.
Summary of Information Collection: The DoD tender format was developed to take advantage of improved information collection technology and to connect with ongoing initiatives to implement automated systems to file tenders, select carriers, quote rates, and audits. The disciplined data fields of the tenders will facilitate the Electronic Data Interchange of tender data between carriers and SDDC, also between SDDC subordinate commands and DoD shippers. This initiative ultimately will permit electronic filing of the tender and eliminate mailing paper documents, which are manually processed.
Office of the Administrative Assistant to the Secretary of the Army, (OAA-AAHS), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by November 30, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Military Surface Deployment and Distribution Command, 1 Soldier Way, Scott Air Force Base, Illinois, 62225-5006; email to
The Freight Carrier Registration Program will be a minimum burden to the carrier industry. The information SDDC collects can now be accessed through the DoD Web site. That will expedite the time to approve the carrier to do business with the DoD.
Department of the Army, DoD.
Notice of open meeting.
The Department of the Army is publishing this notice to announce
The WHINSEC Board of Visitors will meet from 8 a.m. to 12 p.m. on Thursday, November 5, 2015.
Western Hemisphere Institute for Security Cooperation, Bradley Hall, 7301 Baltzell Avenue, Building 396, Fort Benning, GA 31905.
Mr. Richard Procell, Acting Executive Secretary for the Committee, in writing at USACGSC, 100 Stimson Avenue, Fort Leavenworth, KS 66027-2301, by email at
The committee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), 41 CFR 102-3.140(c), and 41 CFR 102-3.150.
Department of the Army, DoD.
Notice of open subcommittee meeting.
The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the Honor Subcommittee of the Advisory Committee on Arlington National Cemetery (ACANC). The meeting is open to the public. For more information about the Committee and the Honor Subcommittee, please visit
The Honor Subcommittee will meet from 11:00 a.m. to 12:00 p.m. on Wednesday, October 14, 2015.
Arlington National Cemetery Welcome Center, Conference
Ms. Renea Yates; Designated Federal Officer for the committee and the Honor Subcommittee, in writing at Arlington National Cemetery, Arlington VA 22211, or by email at
Due to circumstances beyond the control of the Designated Federal Officer and the Department of Defense, the Advisory Committee on Arlington National Cemetery was unable to provide public notification, as required by 41 CFR 102-3.150(a), of its scheduled meeting of the Honor Subcommittee on October 14, 2015. Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement. This subcommittee meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in the Government Act of 1976 (U.S.C. 552b, as amended) and 41 Code of the Federal Regulations (CFR 102-3.150).
Office of the Administrative Assistant to the Secretary of the Army (OAA-AHS), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by November 30, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the U.S. Army Human Resources Command, (HRC) ATTN: Ms. Denise L. Camacho, 200 Stovall Street, Alexandria, Virginia 22332-0314, or call the Department of the Army Reports Clearance Officer at (703) 428-6440.
The DA Form 3126-1 is initiated by the school desiring to host a unit and is countersigned by a representative of the Secretary of the Army. The contract is necessary to establish a mutual agreement between the secondary institution and the U.S. Government. The Commanding General, Human Resources Command, is responsible for administering the JROTC program and overall policy. Region commanders are responsible for operating and administering the JROTC training conducted with the areas.
Department of the Army, DoD.
Notice of open committee meeting.
The Department of the Army is publishing this notice to announce the following Federal advisory committee meeting of the Advisory Committee on Arlington National Cemetery (ACANC). The meeting is open to the public.
The Committee will meet from 9:30 a.m.-3:30 p.m. on Thursday, October 15, 2015.
Arlington National Cemetery Welcome Center, Conference Room, Arlington National Cemetery, Arlington, VA 22211.
Ms. Renea Yates; Designated Federal Officer for the Committee, in writing at Arlington National Cemetery, Arlington VA 22211, or by email at
For more information about the Committee, please visit
Due to circumstances beyond the control of the Designated Federal Officer and the Department of Defense, the Advisory Committee on Arlington National Cemetery was unable to provide public notification of its meeting of October 15, 2015, as required by 41 CFR 102-3.150(a). Accordingly, the Advisory Committee Management Officer for the Department of Defense, pursuant to 41 CFR 102-3.150(b), waives the 15-calendar day notification requirement.
This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C., Appendix, as amended), the Sunshine in the Government Act of 1976 (U.S.C. 552b, as amended) and 41 CFR 102-3.150.
Defense Acquisition Regulations System, Department of Defense (DoD).
Notice and request for comments regarding a proposed extension of an approved information collection requirement.
In compliance with section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35), DoD announces the proposed extension of a public information collection requirement and seeks public comment on the provisions thereof. DoD invites comments on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of DoD, including whether the information will have practical utility; (b) the accuracy of the estimate of the burden of the proposed information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including the use of automated collection techniques or other forms of information technology. The Office of Management and Budget (OMB) has approved this information collection for use through January 31, 2016. DoD proposes that OMB extend its approval for use for three additional years beyond the current expiration date.
DoD will consider all comments received by November 30, 2015.
You may submit comments, identified by OMB Control Number 0704-0321, using any of the following methods:
Mail: Defense Acquisition Regulations System, Attn: Mr. Mark Gomersall, OUSD (AT&L) DPAP (DARS), Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.
Comments received generally will be posted without change to
Mr. Mark Gomersall, at 571-372-6099.
This information collection includes requirements relating to DFARS part 232, Contract Financing, and the related clause at DFARS 252.232-7002, Progress Payments for Foreign Military Sales Acquisitions. DFARS 232.502-4-70(a) prescribes use of the clause at DFARS 252.232-7002 in any contract that provides for progress payments and contains FMS requirements. The clause at 252.232-7002 requires each contractor whose contract includes FMS requirements to submit a separate progress payment request for each progress payment rate and to submit a supporting schedule that distinguishes the contract's FMS requirements from U.S. requirements.
Department of Defense.
Notice.
The Department of Defense is publishing this notice to announce an open meeting of the Strategic Environmental Research and Development Program, Scientific Advisory Board (SAB). This meeting will be open to the public.
Wednesday, October 21, 2015, from 8:30 a.m to 4:40 p.m and Thursday, October 22, 2015, from 8:30 a.m to 4:05 p.m
901 N. Stuart Street, Suite 200, Arlington, VA 22203.
Dr. Anne Andrews, SERDP Office, 4800 Mark Center Drive, Suite 17D08, Alexandria, VA 22350-3605; or by telephone at (571) 372-6565.
This meeting is being held under the provisions of the Federal Advisory Committee Act of 1972 (5 U.S.C. Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150. This notice is published in accordance with Section 10(a)(2) of the Federal Advisory Committee Act (Pub. L. 92-463).
Pursuant to 5 U.S.C. 552b and 41 CFR 102-3.140 through 102-3.165, and the availability of space, this meeting is open to the public. Seating is on a first-come basis.
The purpose of the October 21-22, 2015 meeting is to review new start research and developing projects requesting Strategic Environmental Research and Development Program funds as required by the SERDP Statute, U.S. Code—Title 10, Subtitle A, Part IV, Chapter 172, § 2904. The full agenda follows:
Pursuant to 41 CFR 102-3.140, and section 10(a)(3) of the Federal Advisory Committee Act of 1972, the public or interested organizations may submit written statements to the Strategic Environmental Research and Development Program, Scientific Advisory Board. Written statements may be submitted to the committee at any time or in response to an approved meeting agenda.
All written statements shall be submitted to the Designated Federal Officer (DFO) for the Strategic Environmental Research and Development Program, Scientific Advisory Board. The DFO will ensure that the written statements are provided to the membership for their consideration. Contact information for the DFO can be obtained from the GSA's FACA Database at
Time is allotted at the close of each meeting day for the public to make comments. Oral comments are limited to 5 minutes per person.
Defense Threat Reduction Agency (DTRA), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by November 30, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
• Federal eRulemaking Portal:
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Defense Threat Reduction Agency, Office of Small Business Programs (DTRA/B), 8725 John J. Kingman Road, MSC 6201, Ft. Belvoir, VA 22060-6201, or call (703) 767-7889, or email
Respondents are small businesses, large businesses, and universities that have received DTRA contract awards greater than $100,000 since October 1, 2002, major Indefinite Delivery Indefinite Quantity (IDIQ) subcontractors, and vendors that have bid unsuccessfully on DTRA contracts greater than $100,000 since October 1, 2002. DTRA plans to utilize this survey information in subsequent business process reengineering initiatives which leverage our industry partnerships to better support the warfighter. Further, DTRA is required under the Defense Federal Acquisition Regulation Supplement (DFARS) to maintain an active industry outreach program. DTRA plans to use the survey results to develop constructive agendas for subsequent outreach conferences with our contractor community.
Office of the Secretary of Defense, DoD.
Notice to add a new System of Records.
The Office of the Secretary of Defense proposes to add a new system of records, DPFPA 06, entitled “Internal Affairs Records System” to document investigations of alleged Pentagon Force Protection Agency employee misconduct, fraud, waste, and abuse.
Comments will be accepted on or before November 2, 2015. This proposed action will be effective the day following the end of the comment period unless comments are received which result in a contrary determination.
You may submit comments, identified by docket number and title, by any of the following methods:
*
*
Ms. Cindy Allard, Chief, OSD/JS Privacy Office, Freedom of Information Directorate, Washington Headquarters Service, 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0461.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on July 22, 2015, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Internal Affairs Records System.
Pentagon Force Protection Agency (PFPA), 9000 Defense Pentagon, Washington, DC 20301-9000.
PFPA employees who are either the subject of or associated with an internal affairs investigation by the Office of Professional Responsibility (OPR).
Any witness or victims outside of PFPA who are connected with an OPR investigation.
PFPA employees:
Name (including former names and aliases), Social Security Number (SSN), DoD Identification Number (DoD ID Number), driver's license (state, number, and expiration date), gender, race/ethnicity, home address, home/work/cell phone numbers, home/work email addresses, date and place of birth, country of birth, height, weight, hair/eye color, build, facial hair, employment information (name, address, and phone number of employer), education information (degree, certification), security clearance level, disability information (what type), Office of Professional Responsibility case number, Incident Crime Information System case number, and law enforcement data (criminal arrest history, Federal Bureau of Investigation/State ID numbers). Additional data for PFPA employees includes marital status, length of service, supervisor's name and phone number, and records of investigations to include Reports of Investigation, Information Reports and Case Summaries.
Witness or victims:
Name, home address, home/work/cell phone number, and date and place of birth.
10 U.S.C. 2674, Operation and control of Pentagon Reservation and defense facilities in National Capital Region; DoD Directive 5105.68, Pentagon Force Protection Agency; Administrative Instruction 30, Force Protection of the Pentagon; and E.O. 9397 (SSN), as amended.
To document investigations of alleged Pentagon Force Protection Agency employee misconduct, fraud, waste, and abuse. The records may be used in law enforcement, judicial, or adjudicative proceedings including litigation. Records are also used to identify alleged offenders, witnesses or victims, to document facts and evidence, and to respond to congressional inquiries as appropriate. Used as a management tool for statistical analysis, tracking, reporting, evaluation program effectiveness, and conducting research.
Routine uses of records maintained in the system, including categories of users and the purposes of such uses:
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained herein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
Law Enforcement Routine Use: If a system of records maintained by a DoD Component to carry out its functions indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or by regulation, rule, or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the agency concerned, whether federal, state, local, or foreign, charged with the responsibilities of investigating or prosecuting such violation or charged with enforcing or implementing the statute, rule, regulation, or order issued pursuant thereto.
Disclosure When Requesting Information Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use to a federal, state, or local agency maintaining civil, criminal, or other relevant enforcement information or other pertinent information, such as current licenses, if necessary to obtain information relevant to a DoD Component decision concerning the hiring or retention of an employee, the issuance of a security clearance, the letting of a contract, or the issuance of a license, grant, or other benefit.
Disclosure of Requested Information Routine Use: A record from a system of records maintained by a DoD Component may be disclosed to a federal agency, in response to its request, in connection with the hiring or retention of an employee, the issuance
Congressional Inquiries Disclosure Routine Use: Disclosure from a system of records maintained by a DoD Component may be made to a congressional office from the record of an individual in response to an inquiry from the congressional office made at the request of that individual.
Disclosure to the Department of Justice for Litigation Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use to any component of the Department of Justice for the purpose of representing the Department of Defense, or any officer, employee or member of the Department in pending or potential litigation to which the record is pertinent.
Disclosure of Information to the National Archives and Records Administration Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use to the National Archives and Records Administration for the purpose of records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.
Disclosure to the Merit Systems Protection Board Routine Use: A record from a system of records maintained by a DoD Component may be disclosed as a routine use to the Merit Systems Protection Board, including the Office of the Special Counsel for the purpose of litigation, including administrative proceedings, appeals, special studies of the civil service and other merit systems, review of OPM or component rules and regulations, investigation of alleged or possible prohibited personnel practices; including administrative proceedings involving any individual subject of a DoD investigation, and such other functions, promulgated in 5 U.S.C. 1205 and 1206, or as may be authorized by law.
Data Breach Remediation Purposes Routine Use: A record from a system of records maintained by a Component may be disclosed to appropriate agencies, entities, and persons when (1) The Component suspects or has confirmed that the security or confidentiality of the information in the system of records has been compromised; (2) the Component has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Component or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Components efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
The DoD Blanket Routine Uses set forth at the beginning of the Office of the Secretary of Defense (OSD) compilation of systems of records notices may apply to this system. The complete list of DoD Blanket Routine Uses can be found online at:
Paper file folders and electronic storage media.
Name, SSN, DoD ID number, or driver's license number, and date of birth.
Records are maintained in controlled areas accessible only to authorized DoD personnel, including systems users, system administrators, and authorized contractors who have a need-to-know in the performance of official duties and who are properly screened and cleared. Physical entry is restricted by the use of locks, guards, identification badges, key cards, and closed circuit TV. Paper records are stored in locked cabinets in secured offices which are further protected by an access control system. Access to personal information is further restricted by the use of Common Access Card and user ID/passwords, intrusion detection system, encryption, firewalls and DoD public key infrastructure certificates. Data in transit and at rest is encrypted. Administrative procedures, including periodic security audits, regular monitoring of users' security practices, and methods to ensure only authorized personnel access Personally Identifiable Information (PII).
Destroy/Delete 15 years after the close of the investigation.
Chief, Office of Professional Responsibility, Pentagon Force Protection Agency, 9000 Defense Pentagon, Washington, DC 20301-9000.
Individuals seeking to determine whether information about themselves is contained in a closed investigation in this system should address written inquiries to the Chief, Office of Professional Responsibility, Pentagon Force Protection Agency, 9000 Defense Pentagon, Washington, DC 20301-9000.
PFPA employees: Signed, written requests should contain individual's full name, SSN, DoD ID number, driver's license number, and date of birth.
Witness or victims: Signed, written requests should contain the individual's full name, home address, home/work/cell phone number, and date and place of birth.
The existence of an active investigation or the non-existence of a record will be neither confirmed nor denied.
Individuals seeking access to records about themselves in a closed investigation should address written inquiries to the Office of the Secretary of Defense/Joint Staff, Freedom of Information Act Requester Service Center, 1155 Defense Pentagon, Washington, DC 20301-1155.
PFPA employees: Signed, written requests should include full name, SSN, DoD ID number, driver's license number, date of birth, and the number of this system of records notice.
Witness or victims: Signed, written requests should include full name, home address, home/work/cell phone number, and date and place of birth.
The existence of an active investigation or the non-existence of a record will be neither confirmed nor denied.
An exemption rule has been published, and this Privacy Act system of records is exempt from the amendment and appeal provisions described in 5 U.S.C. 552a(f).
Open investigations are exempt from the Access to Records provisions established in 5 U.S.C. 552a(d).
Individuals involved in or witness to the incident or inquiry, PFPA officers and investigators, state and local law enforcement, and Federal departments and agencies.
This system of records is used by the DoD for a law enforcement purpose (j)(2) and (k)(2), and the records contained herein are used for criminal,
An exemption rule for this system has been promulgated in accordance with requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c), and (e) and published in 32 CFR part 311. For additional information contact the system manager.
Deputy Chief Management Officer, Department of Defense (DoD).
Notice of federal advisory committee meeting.
The DoD is publishing this notice to announce two days of meetings of the National Commission on the Future of the Army (“the Commission”). The meetings will be closed to the public.
Dates of the closed meetings: Thursday, October 15, 2015, from 8 a.m. to 5:30 p.m. and Friday, October 16, 2015, from 8 a.m. to 5:30 p.m.
Address of Closed Meetings, October 15 and 16, 2015: Institute for Defense Analyses, 4850 Mark Center Dr., Alexandria, VA 22311.
Mr. Don Tison, Designated Federal Officer, National Commission on the Future of the Army, 700 Army Pentagon, Room 3E406, Washington, DC 20310-0700, Email:
This meeting will be held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
During the closed meeting on Thursday, October 15, 2015, the Commission will be briefed on the classified war plan selected for analytical review, discuss the process and procedures for the conduct of the Classified Analytical Review and begin the Classified Analytical Review using classified war plans and operational scenarios to examine the size and structure options for the future of the Army.
During the closed meeting on Friday, October 16, 2015, the Commission will complete the Classified Analytical Review and discuss the results.
October 15, 2015—Closed Meeting: The Commission will hold a closed meeting to conduct a classified analytical review using current war plans while applying predetermined variables to develop realistic results. Speakers include analysts from Institute for Defense Analyses (IDA), Center for Army Analysis, TRADOC Analysis Center, RAND Corporation. All presentations and resulting discussion are classified.
October 16, 2015—Closed Meeting: The Commission will complete the classified analytical review and discuss the results in a closed meeting. The results will be used in the development of recommendations for the final report due on February 1, 2016. Speakers include analysts from IDA, Center for Army Analysis, TRADOC Analysis Center, RAND Corporation. All presentations and resulting discussion are classified.
In accordance with applicable law, 5 U.S.C. 552b(c) and 41 CFR 102-3.155, the DoD has determined that the meetings scheduled for October 15 and 16, 2015, will be closed to the public. Specifically, the Assistant Deputy Chief Management Officer, with the coordination of the DoD FACA Attorney, has determined in writing that these two meetings will be closed to the public because they will discuss matters covered by 5 U.S.C. 552b(c)(1).
Pursuant to section 10(a)(3) of the FACA and 41 CFR 102-3.105(j) and 102-3.140, the public or interested organizations may submit written comments to the Commission in response to the stated agenda of the closed meetings or the Commission's mission. The Designated Federal Officer (DFO) will review all submitted written statements. Written comments should be submitted to Mr. Donald Tison, DFO, via facsimile or electronic mail, the preferred modes of submission. Each page of the comment must include the author's name, title or affiliation, address, and daytime phone number. All comments received before Wednesday, October 14, 2015, will be provided to the Commission before the October 15, 2015, meeting. Comments received after Wednesday, October 14, 2015, will be provided to the Commission before its next meeting. All contact information may be found in the
The DoD sponsor for the Commission is the Deputy Chief Management Officer. The Commission is tasked to submit a report, containing a comprehensive study and recommendations, by February 1, 2016 to the President of the United States and the Congressional defense committees. The report will contain a detailed statement of the findings and conclusions of the Commission, together with its recommendations for such legislation and administrative actions it may consider appropriate in light of the results of the study. The comprehensive study of the structure of the Army will determine whether, and how, the structure should be modified to best fulfill current and anticipated mission requirements for the Army in a manner consistent with available resources.
Office of the Secretary of Defense, DoD.
Notice to add a new System of Records.
The Office of the Secretary of Defense proposes to add a new system of records, DPFPA 07, entitled “Counterintelligence Management Information System (CIMIS)” to conduct and exercise overall responsibility within PFPA for all matters pertaining to acts involving counterintelligence (CI) activities against PFPA employees, U.S. property, or interests. Also used as a management tool for statistical analysis, tracking, reporting, evaluating program effectiveness, and conducting research.
Comments will be accepted on or before October 30, 2015. This proposed
You may submit comments, identified by docket number and title, by any of the following methods:
*
*
Ms. Cindy Allard, Chief, OSD/JS Privacy Office, Freedom of Information Directorate, Washington Headquarters Service, 1155 Defense Pentagon, Washington, DC 20301-1155, or by phone at (571) 372-0461.
The Office of the Secretary of Defense notices for systems of records subject to the Privacy Act of 1974 (5 U.S.C. 552a), as amended, have been published in the
The proposed system report, as required by 5 U.S.C. 552a(r) of the Privacy Act of 1974, as amended, was submitted on July 30, 2015, to the House Committee on Oversight and Government Reform, the Senate Committee on Governmental Affairs, and the Office of Management and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated February 8, 1996 (February 20, 1996, 61 FR 6427).
Counterintelligence Management Information System (CIMIS).
Pentagon Force Protection Agency (PFPA), 9000 Defense Pentagon, Washington, DC 20301-9000.
Any individual involved, or suspected of being involved, in intelligence collection on behalf of a foreign government or foreign terror organization which may harm PFPA employees, U.S. property or interests. Individuals involved in or suspected of being involved in National Security Crimes of assassination, sedition, subversion, treason, espionage, sabotage or terrorism. Individuals who provide information that is relevant to the case, such as victims or witnesses, and individuals who report such crimes or acts.
Data on suspect: Name; other names used (former and aliases); other identification (ID) numbers (
Name; DoD ID number; work/home/cell phone numbers; and employer information (
Law Enforcement Reports; National Crime Information Center (NCIC); Intelligence Information Reports (IIR).
Individuals may voluntarily offer additional personal information in an effort to establish their identity. While not specifically requested, the information will be retained in the record if it is deemed beneficial to the inquiry.
10 U.S.C. 2674, Operation and control of Pentagon Reservation and defense facilities in National Capital Region; 18 U.S.C. 794, Gathering or Delivering Defense Information to Aid Foreign Government; E.O. 12333, United States Intelligence Activities; E.O. 12968, Access to Classified Information; DoD Directive (DoDD) 5105.68, Pentagon Force Protection Agency (PFPA); DoDD 5200.27, Acquisition of Information Concerning Persons and Organizations not Affiliated with the Department of Defense; DoDD 5240.01, DoD Intelligence Activities, as amended; DoDD 5240.02, Counterintelligence; DoDD 5240.06, DoD Counterintelligence Awareness and Reporting (CIAR); DoD Instruction (DoDI) O-5240.21, Counterintelligence Inquiries; and Administrative Instruction 30, Force Protection on the Pentagon Reservation.
To conduct and exercise overall responsibility within PFPA for all matters pertaining to acts involving counterintelligence (CI) activities against PFPA employees, U.S. property, or interests. Also used as a management tool for statistical analysis, tracking, reporting, evaluating program effectiveness, and conducting research.
In addition to those disclosures generally permitted under 5 U.S.C. 552a(b) of the Privacy Act of 1974, as amended, the records contained herein may specifically be disclosed outside the DoD as a routine use pursuant to 5 U.S.C. 552a(b)(3) as follows:
To Federal counterintelligence and law enforcement agencies that administer programs or employ individuals involved in an incident or inquiry.
If a system of records maintained by a DoD Component to carry out its functions indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or by regulation, rule, or order issued pursuant thereto, the relevant records in the system of records may be referred, as a routine use, to the agency concerned, whether federal, state, local, or foreign, charged with the responsibility of investigating or prosecuting such violation or charged with enforcing or implementing the
Disclosure from a system of records maintained by a DoD Component may be made to a congressional office from the record of an individual in response to an inquiry from the congressional office made at the request of that individual.
A record from a system of records maintained by a DoD Component may be disclosed as a routine use to any component of the Department of Justice for the purpose of representing the Department of Defense, or any officer, employee or member of the Department in pending or potential litigation to which the record is pertinent.
A record from a system of records maintained by a DoD Component may be disclosed as a routine use to the National Archives and Records Administration for the purpose of records management inspections conducted under authority of 44 U.S.C. 2904 and 2906.
A record from a system of records maintained by a Component may be disclosed to appropriate agencies, entities, and persons when (1) The Component suspects or has confirmed that the security or confidentiality of the information in the system of records has been compromised; (2) the Component has determined that as a result of the suspected or confirmed compromise there is a risk of harm to economic or property interests, identity theft or fraud, or harm to the security or integrity of this system or other systems or programs (whether maintained by the Component or another agency or entity) that rely upon the compromised information; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Components efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm.
The DoD Blanket Routine Uses set forth at the beginning of the Office of the Secretary of Defense (OSD) compilation of systems of records notices may apply to this system. The complete list of DoD Blanket Routine Uses can be found online at:
Electronic storage media.
Name, date of birth, and other identification (DoD ID number, passport, VISA or driver's license number).
Electronically stored records are maintained in “fail-safe” system software with password-protected access. Access to these records is role-based and is limited to those individuals requiring access in performance of their official duties. Entry to the area is restricted by the use of cipher and combination locks, security guards, identification badges and closed circuit TV (CCTV). Data in transit and at rest is encrypted and computer servers are scanned to assess system vulnerabilities. Encryption of backups containing sensitive PII is in place. Firewalls are in place to control the incoming and outgoing data traffic based on an applied rule set. DoD Public Key Infrastructure Certificates are used to authenticate authorized users. Periodic security audits are maintained to document access to data. Regular monitoring of user's security practice is conducted and methods are used to ensure only authorized personnel have access to PII. All individuals granted access to this system of records receives annual Information Assurance and Privacy Act training.
Close annually upon determination that the individual is no longer a threat to DoD, the Pentagon, Pentagon Reservation or DoD Facilities within the Capitol Region (NCR). Destroy 25 year(s) after cut off.
Cut off after determination person(s) are no longer a CI threat to DoD, the Pentagon, Pentagon Reservation or DoD Facilities within the NCR. Destroy/delete 90 days after cut off.
Pentagon Force Protection Agency (PFPA), 9000 Defense Pentagon, Washington, DC 20301-9000.
An exemption rule has been published, and this Privacy Act system of records is exempt from the notification provisions described in 5 U.S.C. 552a(e)(4)(H).
An exemption rule has been published, and this Privacy Act system of records is exempt from the access provisions described in 5 U.S.C. 552a(d).
An exemption rule has been published, and this Privacy Act system of records is exempt from the amendment and appeal provisions described in 5 U.S.C. 552a(f).
PFPA officers and investigators, state and local law enforcement, Federal departments and agencies, and intelligence agencies.
This system of records is used by the Department of Defense for a law enforcement purpose (k)(2), and the records contained herein are used for criminal, civil, and administrative enforcement requirements. As such, allowing individuals full exercise of the Privacy Act would compromise the existence of any criminal, civil, or administrative enforcement activity. This system of records is exempt from the following provisions of 5 U.S.C. 552a section (c)(3), (d), (e)(1), (e)(4)(G) through (I), and (f) of the Act.
An exemption rule for this system has been promulgated in accordance with requirements of 5 U.S.C. 553(b)(1), (2), and (3), (c), and (e) and published in 32 CFR part 311. For additional information contact the system manager.
Office of the Administrative Assistant to the Secretary of the Army (OAA-AAHS), DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by November 30, 2015.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Any associated form(s) for this collection may be located within this same electronic docket and downloaded for review/testing. Follow the instructions at
To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Department of the Army, U.S. Military Academy, Institutional Research & Analysis, Office of Policy, Planning & Analysis, ATTN: Dr. William Burke, West Point, New York 10966-5000, or call Department of the Army Reports Clearance Officer at (703) 428-6440.
The information will be collected via seven surveys, each with content appropriate to graduates of engineering and engineering related courses of study at the U.S. Military Academy. The surveys will go to graduates currently serving as officers in the U.S. Army and to graduates not currently serving. Respondents will be allowed to choose between completing a mailed survey or an Internet based survey.
Deputy Chief Management Officer, Department of Defense (DoD).
Notice of Federal Advisory Committee Meeting.
The DoD is publishing this notice to announce a meeting of the National Commission on the Future of the Army (“the Commission”). The meeting will be partially closed to the public.
Date of the Open Meeting: Thursday, October 22, 2015, from 9 a.m. to 12 p.m. Date of the Closed Meeting: Thursday, October 22, 2015, from 1:30 p.m. to 4:30 p.m.
Address of Open Meeting, October 22, 2015: Polk Conference Room, Room 12158, James Polk Building, 2521 S. Clark St., Arlington, VA 22202.
Address of Closed Meeting, October 22, 2015: Rm 12110, 5th Floor, Zachary Taylor Building, 2530 Crystal Dr., Arlington, VA 22202.
Mr. Don Tison, Designated Federal Officer, National Commission on the Future of the Army, 700 Army Pentagon, Room 3E406, Washington, DC 20310-0700, Email:
This meeting will be held under the provisions of the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended), the Government in the Sunshine Act of 1976 (5 U.S.C. 552b, as amended), and 41 CFR 102-3.150.
During the open meeting on Thursday, October 22, 2015, the Commission will hear Sub-committee interim reports, a statement from the Chief of the National Guard Bureau, and comments on Army Modernization. The Public will have the opportunity to provide verbal comments.
During the closed meeting on Thursday, October 22, 2015, the Commission will conclude a discussion of Classified Analytical Review from the October 16, 2015 closed meeting, followed by classified Subcommittee Interim reports.
October 22, 2015—Open Meeting: The Commission will hear comments from the representatives from the National Guard, a discussion on Army modernization from representatives of the Army G8, subcommittees will provide interim reports and comments from members of the public.
October 22, 2015—Closed Meeting: The Commission will conclude a discussion started during the Classified Analytical Review in the October 16, 2015 closed meeting followed by subcommittee representatives presenting classified initial findings and suggested topics for deliberation. Speakers include, but are not limited to analysts from IDA, Center for Army Analysis, TRADOC Analysis Center, RAND Corporation. All presentations and resulting discussion are classified.
In accordance with applicable law, 5 U.S.C. 552b(c) and 41 CFR 102-3.155, the DoD has determined that the portion of the meeting scheduled for Thursday, October 22, 2015, from 1:30 p.m. to 4:30 p.m. will be closed to the public.
Pursuant to 41 CFR 102-3.140 through 102-3.165 and the availability of space, the meeting scheduled for October 22, 2015 from 9 a.m. to 12 p.m.at the James Polk Building is open to the public. Seating is limited and pre-registration is strongly encouraged. Media representatives are also encouraged to register. Members of the media must comply with the rules of photography and video filming in the James Polk Building. The closest public parking facility is located in the basement and along the streets. Visitors will be required to present one form of photograph identification. Visitors to the James Polk Office Building will be screened by a magnetometer, and all items that are permitted inside the building will be screened by an x-ray device. Visitors should keep their belongings with them at all times. The following items are strictly prohibited in the James Polk Office Building: Any pointed object,
Pursuant to section 10(a)(3) of the FACA and 41 CFR 102-3.105(j) and 102-3.140, the public or interested organizations may submit written comments to the Commission in response to the stated agenda of the open and/or closed meeting or the Commission's mission. The Designated Federal Officer (DFO) will review all submitted written statements. Written comments should be submitted to Mr. Donald Tison, DFO, via facsimile or electronic mail, the preferred modes of submission. Each page of the comment must include the author's name, title or affiliation, address, and daytime phone number. All comments received before Wednesday, October 21, 2015, will be provided to the Commission before the October 22, 2015, meeting. Comments received after Wednesday, October 21, 2015, will be provided to the Commission before its next meeting. All contact information may be found in the
In addition to written statements, fifty minutes will be reserved for individuals or interest groups to address the Commission on October 22, 2015. Those interested in presenting oral comments to the Commission must summarize their oral statement in writing and submit with their registration. The Commission's staff will assign time to oral commenters at the meeting; no more than five minutes each for individuals. While requests to make an oral presentation to the Commission will be honored on a first come, first served basis, other opportunities for oral comments will be provided at future meetings.
Individuals and entities who wish to attend the public meeting on Thursday, October 22, 2015 are encouraged to register for the event with the DFO using the electronic mail and facsimile contact information found in the
The DoD sponsor for the Commission is the Deputy Chief Management Officer. The Commission is tasked to submit a report, containing a comprehensive study and recommendations, by February 1, 2016 to the President of the United States and the Congressional defense committees. The report will contain a detailed statement of the findings and conclusions of the Commission, together with its recommendations for such legislation and administrative actions it may consider appropriate in light of the results of the study. The comprehensive study of the structure of the Army will determine whether, and how, the structure should be modified to best fulfill current and anticipated mission requirements for the Army in a manner consistent with available resources.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice; extension of comment period.
The comment period for the Draft Feasibility Study With Integrated Environmental Impact Statement (EIS), Ala Wai Canal Project, Oahu, HI published in the
Mr. Derek Chow, U.S. Army Corps of Engineers, Honolulu District, 808-835-4026 or via email at
Office of Postsecondary Education (OPE), Department of Education (ED).
Notice.
In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. chapter 3501
Interested persons are invited to submit comments on or before November 30, 2015.
To access and review all the documents related to the information
For specific questions related to collection activities, please contact Karen Duke, (202) 219-7067.
The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.
Department of Energy.
Notice of intent to prepare a Supplement to the Draft Northern Pass Transmission Line Project Environmental Impact Statement (EIS) (DOE/EIS-0463) and announcing the extension of the public comment period and postponement of public hearings on the Draft EIS.
In August 2015, the U.S. Department of Energy (DOE) received an amendment to the July 2013 Northern Pass Transmission Line Project Presidential permit amended application.
The August 2015 application amendment changed the proposed transmission line route by adding three miles of buried transmission line adjacent to a road not previously analyzed, added two new transition stations and increased the total amount of proposed buried transmission line from approximately 8 miles to approximately 60 miles. In addition, the amendment proposed a minor shift in the international border crossing location and identified some other project changes. The proposed transmission line route and associated changes in the amended application is a new “Applicant's Preferred Alternative.”
The Supplement to the Draft EIS will present an analysis of the new Applicant's Preferred Alternative. This analysis will compare the new proposed transmission line route and configuration (above ground/underground) against the alternatives currently presented in the Draft EIS. To accommodate public review and comment on both the Draft EIS and the Supplement to the Draft EIS, DOE is extending the public comment period until December 31, 2015. DOE has canceled the public hearings on the Draft EIS that were to be held in October 2015 and will reschedule those hearings after the Supplement to the Draft EIS is issued.
DOE extends the current public comment period that was to close on October 29, 2015, to December 31, 2015. DOE will conduct public hearings on the Draft EIS and the Supplement to the Draft EIS prior to the close of the public comment period on December 31, 2015. DOE will announce dates, times and locations of the rescheduled public hearings after issuance of the Supplement to the Draft EIS, which is expected in November 2015.
Requests for individuals to be added to the document mailing list (to receive a paper or electronic copy of the Draft EIS and/or Supplement to the Draft EIS) should be addressed to: Brian Mills, Office of Electricity Delivery and Energy Reliability (OE-20), U.S. Department of Energy, 1000 Independence Avenue SW., Washington, DC 20585; by email to
The public comment period on the Draft EIS started on July 31, 2015, with publication in the
The August 31, 2015 application amendment changed the proposed transmission line route by adding three miles of buried transmission line adjacent to a road not previously analyzed, added two new transition stations (one in Bridgewater and one in Bethlehem; both would transition the transmission line between aboveground and buried) of approximately one acre each, and increased the amount of proposed buried transmission line from approximately 8 miles to approximately 60 miles. In addition, the amendment proposed a minor shift (less than 100 feet) in the international border crossing location, changed the project size from 1,200 MW to 1,000 MW with a potential transfer capability of 1,090 MW and included other design changes (
Take notice that on September 22, 2015, Oncor Electric Delivery Company LLC submitted its tariff filing: Oncor TFO Tariff Rate Changes, to be effective 9/15/2015.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
This is a supplemental notice in the above-referenced proceeding of Burgess Capital LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is October 14, 2015.
The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at
Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.
The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email
Take notice that the Commission received the following electric rate filings:
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that on September 22, 2015, Oncor Electric Delivery Company LLC submitted its tariff filing: Oncor Tex-La Tariff Rate Changes, to be effective 9/15/2015.
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. On or before the comment date, it is not necessary to serve motions to intervene or protests on persons other than the Applicant.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Description: Report Filing: 2015-09-24_SA 2770 Refund Report of ATC-City of Sun Prairie CFA to be effective N/A.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
1. By letter filed September 15, 2015, Joseph Weinert informed the Commission that the exemption from licensing for the Lower Bear Creek Power Plant Project, FERC No. 6942, originally issued May 9, 1983,
2. Holly Parrish and Kevin Bezner are now the exemptees of the Lower Bear Creek Power Plant Project, FERC No. 6942. All correspondence should be forwarded to: Holly Parrish and Kevin Bezner, 4239 Fairway View Drive, Loomis, CA 95650.
On August 11, 2015, Shenango Dam Hydroelectric Company, LLC, filed an application for a preliminary permit, pursuant to section 4(f) of the Federal Power Act (FPA), proposing to study the feasibility of hydropower at the U.S. Army Corps of Engineers' (Corps) Shenango dam located on the Shenango River, near the Borough of Sharpsburg, Mercer County, Pennsylvania. The sole purpose of a preliminary permit, if issued, is to grant the permit holder priority to file a license application during the permit term. A preliminary permit does not authorize the permit holder to perform any land-disturbing activities or otherwise enter upon lands or waters owned by others without the owners' express permission.
The proposed Shenango Hydroelectric Project would consist of the following: (1) Five bulb turbines/generators having a total installed capacity of 2,500 kilowatts to be installed on the upstream face of the existing dam in five of the seven discharge conduits; (2) a proposed steel equipment building 11 feet wide by 40 feet long housing the switchgear and transformer; (3) a 400-foot-long, 14.7-kilovolt transmission line extending to an existing FirstEnergy transmission system; and (4) appurtenant facilities. The proposed project would have an average annual generation of 10,000 megawatthours.
Deadline for filing comments, motions to intervene, competing applications (without notices of intent), or notices of intent to file competing applications: 60 days from the issuance of this notice. Competing applications and notices of intent must meet the requirements of 18 CFR 4.36.
The Commission strongly encourages electronic filing. Please file comments, motions to intervene, notices of intent, and competing applications using the Commission's eFiling system at
More information about this project, including a copy of the application, can be viewed or printed on the “eLibrary” link of the Commission's Web site at
Take notice that on September 23, 2015, pursuant to Rule 207 of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.207(a), section 219 of the Federal Power Act, 16 U.S.C. 824(s), and Order No. 679,
Any person desiring to intervene or to protest this filing must file in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211, 385.214). Protests will be considered by the Commission in determining the appropriate action to be taken, but will not serve to make protestants parties to the proceeding. Any person wishing to become a party must file a notice of intervention or motion to intervene, as appropriate. Such notices, motions, or protests must be filed on or before the comment date. Anyone filing a motion to intervene or protest must serve a copy of that document on the Petitioner.
The Commission encourages electronic submission of protests and interventions in lieu of paper using the “eFiling” link at
This filing is accessible on-line at
Federal Housing Finance Agency.
30-Day Notice of Submission of Information Collection for Approval from the Office of Management and Budget.
In accordance with the requirements of the Paperwork
Interested persons may submit comments on or before October 30, 2015.
Submit comments to the Office of Information and Regulatory Affairs of the Office of Management and Budget, Attention: Desk Officer for the Federal Housing Finance Agency, Washington, DC 20503, Fax: 202-395-6974, Email:
•
•
•
We will post all public comments we receive without change, including any personal information you provide, such as your name and address, email address, and telephone number, on the FHFA Web site at
Jonathan F. Curtis, Financial Analyst, by email at
Section 10b of the Federal Home Loan Bank Act (Bank Act) establishes the requirements for making Federal Home Loan Bank (Bank) advances to nonmember mortgagees, which are referred to as “Housing Associates” in FHFA's regulations.
Part 1264 of FHFA's regulations implements the statutory eligibility requirements and establishes uniform review criteria the Banks must use in evaluating applications from entities that wish to be certified as a Housing Associate. Specifically, § 1264.4 implements the statutory eligibility requirements and provides guidance to an applicant on how it may satisfy those requirements.
In part 1266 of FHFA's regulations, subpart B governs Bank advances to Housing Associates that have been approved under part 1264. Section 1266.17 establishes the terms and conditions under which a Bank may make advances to Housing Associates.
The OMB control number for the information collection, which expires on September 30, 2015, is 2590-0001. The likely respondents include entities applying to be certified as a Housing Associate and current Housing Associates.
FHFA estimates the total annualized hour burden imposed upon respondents by this information collection to be 336 hours (28 hours for applicants + 308 hours for current Housing Associates), based on the following calculations:
FHFA estimates that the total annual average number of entities applying to be certified as a Housing Associate over the next three years will be 2, with one response per applicant. The estimate for the average hours per application is 14 hours. Therefore, the estimate for the total annual hour burden for all applicants is 28 hours (2 applicants × 1 response per applicant × 14 hours = 28 hours).
FHFA estimates that the total annual average number of existing Housing Associates over the next three years will be 77, with one response per Housing Associate required to comply with the regulatory reporting requirements. The estimate for the average hours per response is 4 hours. Therefore, the estimate for the total annual hour burden for current Housing Associates is 308 hours (77 certified Housing Associates × 1 response per associate × 4 hours = 308 hours).
In accordance with the requirements of 5 CFR 1320.8(d), FHFA published a request for public comments regarding this information collection in the
In response to this notice, FHFA requests written comments on the following: (1) Whether the collection of information is necessary for the proper performance of FHFA functions, including whether the information has practical utility; (2) the accuracy of FHFA's estimates of the burdens of the collection of information; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The Commission hereby gives notice of the filing of the following agreement under the Shipping Act of 1984. Interested parties may submit comments on the agreement to the Secretary, Federal Maritime Commission, Washington, DC 20573, within twelve days of the date this notice appears in the
By Order of the Federal Maritime Commission.
The companies listed in this notice have given notice under section 4 of the Bank Holding Company Act (12 U.S.C. 1843) (BHC Act) and Regulation Y, (12 CFR part 225) to engage
Each notice is available for inspection at the Federal Reserve Bank indicated. The notice also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the question whether the proposal complies with the standards of section 4 of the BHC Act.
Unless otherwise noted, comments regarding the applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 15, 2015.
A. Federal Reserve Bank of Cleveland (Nadine Wallman, Vice President) 1455 East Sixth Street, Cleveland, Ohio 44101-2566:
1.
The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841
The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications will also be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States.
Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 30, 2015.
A. Federal Reserve Bank of Richmond (Adam M. Drimer, Assistant Vice President) 701 East Byrd Street, Richmond, Virginia 23261-4528:
1.
Office of Mission Assurance, General Services Administration (GSA).
Notice of request for comments regarding an existing OMB information collection.
Under the provisions of the Paperwork Reduction Act, the Regulatory Secretariat Division will be submitting to the Office of Management and Budget (OMB) a request to review and approve a previously approved information collection requirement regarding the collection of personal data for background investigations for child
Submit comments regarding this burden estimate or any other aspect of this collection of information, including suggestions for reducing this burden to: Office of Information and Regulatory Affairs of OMB, Attention: Desk Officer for GSA, Room 10236, NEOB, Washington, DC 20503. Additionally, submit a copy to GSA by any of the following methods:
•
•
Mr. Grady Hannah, Security Officer, Office of Mission Assurance, GSA by telephone at 202-219-0273 or email
Homeland Security Presidential Directive (HSPD) 12 “Policy for a Common Identification Standard for Federal Employees and Contractors” requires the implementation of a governmentwide standard for secure and reliable forms of identification for Federal employees and contractors. OMB's implementing instructions requires all contract employees requiring routine access to federally controlled facilities for greater than six (6) months to receive a background investigation. The minimum background investigation is the National Agency Check with Written Inquiries or NACI and the Office of Personnel Management offers a childcare NACI (CNACI).
However, there is no requirement in the law or HSPD-12 that requires child care employees to be subject to the NACI/CNACI since employees of child care providers are neither government employees nor government contractors. The child care providers are required to complete the criminal history background checks mandated in the Crime Control Act of 1990, Public Law 101-647, dated November 29, 1990, as amended by Public Law 102-190, dated December 5, 1991. These statutes require that each employee of a child care center located in a Federal building or in leased space must undergo a background check.
According to GSA policy, child care workers (as described above) will need to submit the following:
1. An original signed copy of a
2. Two sets of fingerprints on FBI Fingerprint Cards, for FD-87 and/or electronic prints from an enrollment center.
3. Electronically submit the e-qip (SF85) application for completion of the CNACI.
This is not a request to collect new information; this is a request to change the form that is currently being used to collect this information. The new GSA forms will be less of a public burden.
Public comments are particularly invited on: Whether this collection of information is necessary and whether it will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected.
Office of Federal High-Performance Green Buildings, Office of Government-Wide Policy, General Services Administration (GSA).
Meeting notice.
Notice of this meeting is being provided according to the requirements of the Federal Advisory Committee Act, 5 U.S.C. App. 10(a)(2). This notice provides the agenda and schedule for the October 28, 2015 meeting of the Green Building Advisory Committee (the Committee). The meeting is open to the public and the site is accessible to individuals with disabilities. Interested individuals must register to attend as instructed below under
Mr. Ken Sandler, Designated Federal Officer, Office of Federal High-Performance Green Buildings, Office of Government-wide Policy, General Services Administration, 1800 F Street NW., Washington, DC 20405, telephone 202-219-1121 (note: this is not a toll-free number). Additional information about the Committee, including meeting materials, will be available on-line at
Contact Ken Sandler at
Detailed agendas, background information and updates for the meeting will be posted on GSA's Web site at
Agency for Toxic Substances and Disease Registry (ATSDR), Department of Health and Human Services (HHS).
Notice with comment period.
The Agency for Toxic Substances and Disease Registry (ATSDR), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995 (PRA). This notice invites comment on the three-year extension of information collection clearance for the “Prospective Birth Cohort Study Involving Environmental Uranium Exposure in the Navajo Nation” project (OMB Control No. 0923-0046; expiration date 05/31/2016). The purpose of the study is to examine the potential association between environmental contaminants (
Written comments must be received on or before November 30, 2015.
You may submit comments, identified by Docket No. ATSDR-2015-0005 by any of the following methods:
•
•
All public comment should be submitted through the Federal eRulemaking portal (Regulations.gov) or by U.S. mail to the address listed above.
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review
Prospective Birth Cohort Study Involving Environmental Uranium Exposure in the Navajo Nation (U01), (OMB Control No. 0923-0046, Expiration Date 02/29/2016)—Extension—Agency for Toxic Substances and Disease Registry (ATSDR).
The Navajo Nation is the largest Alaska Native/American Indian Reservation in the United States. From 1948 to 1986, many uranium mining and milling operations took place in the Navajo Nation, leaving a large amount of uranium contamination on the reservation. The House Committee on Oversight and Government Reform requested that federal agencies develop a plan to address health and environmental impacts of uranium contamination in the Navajo Nation.
As a result in 2013, ATSDR and its research partners (University of New Mexico Community Environmental Health Program [UNM-CEHP], Navajo Area Indian Health Service [NAIHS], Navajo Nation Division of Health [NNDOH], Navajo Nation Environmental Protection Agency [NNEPA], and Navajo culture and language specialists) initiated a research study titled “Prospective Birth Cohort Study Involving Environmental Uranium Exposure in the Navajo Nation” (OMB Control No. 0923-0048; expiration date 02/29/2016). The goal of the research is to better understand and prevent unfavorable child and maternal health outcomes potentially related to prenatal exposures to uranium. As ATSDR has received supplemental funding to continue the study, a three-year extension for PRA clearance is requested to allow further recruitment of mother-infant pairs.
Participants include Native American mothers from age 14 to 45 with verification of pregnancy who have lived in the study area for at least 5 years. Also, participants must consent to receive prenatal care and deliver at one of the healthcare facilities that are taking part in the study.
Since 2013, over 525 mother-infant pairs and over 160 fathers have been enrolled. Biological sample analysis, surveys, and developmental screenings are performed during for each participant. An estimated 675 biomonitoring samples have been analyzed for 36 metals/metalloids including uranium, arsenic, lead and mercury. Home environmental assessments (HEAs) consist of gamma radiation surveys, indoor air radon tests, and dust sample analysis of the participants' primary residence during pregnancy, and over 400 HEAs have been completed to date. Study participants receive report back letters on their biomonitoring and HEA results to inform them of uranium and other heavy metals in their bodies and in and around their home environment.
The survey instruments for pregnant mothers include the following: Enrollment Survey, Ages and Stages Questionnaire (ASQ-I), Mullen Stages of Early Development (MSEL), Postpartum Surveys, and Food Frequency Questionnaire/WIC Intake. An enrollment survey for fathers who agree to participate is also administered. Follow-up assessments including the Ages & Stages Questionnaire and biomonitoring at 2, 6, 9 and 12 months are currently being conducted for the 387 infants delivered to date.
Community Health and Environmental Research Specialists (CHERS) administer the surveys using a CDC-approved electronic data entry system. Survey instruments are used to collect demographic information and to assess potential environmental health risks and mother-child interactions. The final format of the survey instruments is based on review and input from the Navajo Nation community liaison group and associated Navajo staff to address issues such as cultural sensitivity, comprehension and language translation.
There is no cost to the respondents other than their time to participate in the study. The total estimated annual burden hours equals 4,455.
Agency for Toxic Substances and Disease Registry (ATSDR), Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS)
Notice with comment period.
The Agency for Toxic Substances and Disease Registry (ATSDR), as part of its continuing efforts to reduce public burden and maximize the utility of government information, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995. This notice invites comment on a proposed extension of the information collection entitled “ATSDR Exposure Investigations (EIs)” (OMB Control No. 0923-0048, Expiration Date 5/31/2016). EIs are used by ATSDR as part of its Public Health Assessment (PHA) process to identify whether exposure to contaminants have occurred in communities and to make recommendations for how to lower or eliminate exposure.
Written comments must be received on or before November 30, 2015.
You may submit comments, identified by Docket No. ATSDR-2015-0006 by any of the following methods:
•
•
To request more information on the proposed project or to obtain a copy of the information collection plan and instruments, contact the Information Collection Review Office, Centers for Disease Control and Prevention, 1600 Clifton Road NE., MS-D74, Atlanta, Georgia 30329; phone: 404-639-7570; Email:
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. In addition, the PRA also requires Federal agencies to provide a 60-day notice in the
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology; and (e) estimates of capital or start-up costs and costs of operation, maintenance, and purchase of services to provide information. Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
ATSDR Exposure Investigations (EIs), (OMB Control No. 0923-0048, Expiration Date 5/31/2016)—Extension—Agency for Toxic Substances and Disease Registry (ATSDR).
The Agency for Toxic Substances and Disease Registry (ATSDR) is requesting a three-year extension of this generic clearance to allow the agency to conduct exposure investigations (EIs), through methods developed by ATSDR. After a chemical release or suspected release into the environment, EIs are usually requested by officials of a state health agency, county health departments, the Environmental Protection Agency (EPA), the general public, and ATSDR staff.
EI results are used by public health professionals, environmental risk managers, and other decision makers to determine if current conditions warrant intervention strategies to minimize or eliminate human exposure. For example, three of the EIs that ATSDR conducted in the past three years include the Colorado Smelter (CO—blood lead and urine arsenic), ASARCO Hayden Smelter Site (AZ—blood lead and urine arsenic), and Decatur (AL—perfluorochemicals [PFCs] in serum).
The site is a former smelter located in Pueblo, Colorado. Past sampling found elevated levels of lead and arsenic in residential soils and a slag pile associated with the smelter. ATSDR sampled blood lead levels (BLLs) in children and adults and found seven children that had BLLs near or exceeding the level of 5 micrograms per deciliter (mg/dL) (a level identified by ATSDR as a level of concern for lead effects in children). One adult had an elevated level of arsenic in their urine. Speciation of the sample determined that it was primarily organic arsenic, probably resulting from eating seafood.
• The local health department conducted a Healthy Homes Inspection for these families having children with elevated BLLs and ATSDR recommended that the children follow up with their primary care provider.
• On June 10, 2014, the local health department obtained a six year grant from the EPA Region 8 to conduct health education, BLL screening, assist in the coordination of developmental and cognitive evaluations in affected
• On December 11, 2014, EPA listed the Colorado Smelter site on the National Priority List (NPL).
The community is located in the vicinity of the ASARCO Hayden Smelter, which has been operating for 100 years as a copper ore processer. The processing has resulted in lead and arsenic contamination in the surrounding residential area and in tailing piles used for recreation. Limited sampling of the community in the past found elevated BLLs and arsenic in urine. Based on community concerns, EPA requested that ATSDR conduct an EI to assess potential exposure of the community to lead and arsenic.
• In April, 2015, ATSDR collected 83 BLL and 58 urine arsenic samples from the community.
• Participants have been notified of their results and the EI report is being prepared.
Perfluorochemicals (PFC) are a class of organofluorine compounds that are used in a variety of industrial and consumer products including fire-fighting foams; personal care and cleaning products; and oil, stain, grease, and water repellent coatings. These coatings are used on carpet, textiles, leather, “non-stick” cookware, and paper wrappers used on fast food items. As a result, United States (U.S.) general population exposure to PFCs is common.
In 2007, PFCs were released by a chemical manufacturer near Decatur, AL, and impacted environmental media in the area. In 2010, ATSDR conducted an EI to assess exposure of residents to PFCs in blood. PFCs were found in the serum of people that regularly used the public water system in the area as their primary drinking water source.
Recommendations of the EI included continued monitoring for PFCs in the public water supply and continued biological PFC testing in the community to determine if PFCs in the community had been reduced.
Based on the results of the 2010 EI, ATSDR is preparing to conduct another EI at the site in 2016 (approved by OMB on 8/10/2015), including biological sampling of serum and urine to:
• Compare individuals' current serum PFC concentrations with their 2010 serum PFC concentrations.
• Compare individuals' serum PFC concentrations to the national population reference values (NHANES 2011-2012).
• Calculate the biological half-life for each PFC species using paired blood and urine PFC concentrations to improve the understanding of the pharmacokinetic behavior of these compounds in humans.
• Evaluate the potential existence of non-drinking water PFC exposure pathways through physiologically-based pharmacokinetic (PBPK) modeling.
All of ATSDR's targeted biological assessments (
Questionnaires, appropriate to the specific contaminant, are generally needed in about half of the EIs (at most approximately 12 per year) to assist in interpreting the biological or environmental sampling results. ATSDR collects contact information (
The number of questions can vary depending on the number of chemicals being investigated, the route of exposure (
Typically, the number of participants in an individual EI ranges from 10 to 100. Participation is completely voluntary, and there are no costs to participants other than their time. Based on a maximum of 12 EIs per year and 100 participants each, the estimated annualized burden hours are 600.
Comments and questions about the information collection described above should be directed to the Office of Information and Regulatory Affairs, Attn: OMB Desk Officer for ACF, Office of Management and Budget, Paperwork Reduction Project, 725 17th Street NW., Washington, DC 20503; FAX: (202) 395-7285; email:
Administration for Community Living, HHS.
Notice.
Monday, November 9, 2015 from 9:00 a.m. to 4:30 p.m.; and Tuesday, November 10, 2015 from 9:30 a.m. to 4:00 p.m.
These meetings will be open to the general public.
These meetings will be held in the Holiday Inn Capitol Hotel, Capitol Ballroom, located at 550 C Street SW., Washington, DC 20024. The hotel's phone number is: (202) 479-4000. Individuals who would like to participate via conference call may do so by dialing toll-free #: 888-469-0957, when prompted enter pass code: 8955387. Individuals whose full participation in the meeting will require special accommodations (
The PCPID acts in an advisory capacity to the President and the Secretary of Health and Human Services on a broad range of topics relating to programs, services and support for individuals with intellectual disabilities. The PCPID executive order stipulates that the Committee shall: (1) Provide such advice concerning intellectual disabilities as the President or the Secretary of Health and Human Services may request; and (2) provide advice to the President concerning the following for people with intellectual disabilities: (A) Expansion of educational opportunities; (B) promotion of homeownership; (C) assurance of workplace integration; (D) improvement of transportation options; (E) expansion of full access to community living; and (F) increasing access to assistive and universally designed technologies.
Food and Drug Administration, HHS.
Notice; request for notification of participation.
The Food and Drug Administration (FDA) is issuing this notice to request that industry trade associations, whose members include drug companies currently engaged in development or manufacture of biosimilar biological products in the U.S., or drug companies intending to engage in these activities during the period of FY 2018-2022, notify FDA of their intent to participate in industry stakeholder meetings in support of timely reauthorization of the Biosimilar User Fee Act of 2012 (BsUFA). The statutory authority for BsUFA expires at the end of September 2017. At that time, new legislation will be required for FDA to continue collecting user fees to fund the biosimilar biological product review process. The Federal Food, Drug, and Cosmetic Act (the FD&C Act) requires that FDA engage in negotiations with regulated industry to develop recommendations to present to Congress with respect to the reauthorization of BsUFA. The purpose of this request for notification is to ensure that qualifying industry organizations notify FDA of their intention to participate in the planned negotiation process.
Submit notification of intention to participate by October 30, 2015.
Submit notification of intention to participate in FDA-industry user fee negotiations by email to
Sandra Benton, Food and Drug Administration, Center for Drug Evaluation and Research, 10903 New Hampshire Ave., Bldg. 51, Rm. 6340, Silver Spring, MD 20993, 301-796-1042, FAX: 301-847-3529;
FDA is requesting that industry trade associations, whose members include drug companies currently engaged in development or manufacture of biosimilar biological products in the U.S., or drug companies intending to engage in these activities during the period of FY 2018-2022, notify the Agency of their intent to participate in FDA-industry negotiations on the reauthorization of BsUFA. BsUFA authorizes FDA to collect fees from the biosimilar biological product industry for certain activities relating to biosimilar biological product development, for certain types of applications and supplements for approval of biosimilar biological products, on establishments where approved biosimilar biological products are made, and on biosimilar biological products after approval. BsUFA fees finance critical and measurable aspects of FDA's biosimilar biological product review program. The statutory authority for BsUFA expires at the end of September 2017. Without new legislation, FDA will no longer be able to collect user fees for future fiscal years to fund the biosimilar biological product review process. Section 744I(e) (21 U.S.C. 379j-53(e)) of the FD&C Act requires that FDA, in developing reauthorization recommendations to present to Congress, consult with a range of public and industry stakeholders including representatives from patient and consumer advocacy groups,health care professionals, scientific and academic experts, and the regulated industry. FDA will initiate this process on December 18, 2015, by holding a public meeting at which these key stakeholders and other members of the public will be given an opportunity to present their views on reauthorization. The FD&C Act further requires that after negotiations with the regulated industry are concluded, FDA shall present those recommendations for public review and comment, and finally transmit recommendations to Congress, revised as necessary based on public input, not later than January 15, 2017.
Consistent with FDA's approach to the Prescription Drug User Fee Act (PDUFA) industry stakeholder meetings, the BsUFA industry stakeholder meetings will include industry trade associations that represent biosimilar biological product manufacturers rather than individual companies. Accordingly, FDA is issuing this
Please notify FDA if you are a trade association interested in participating in this process by providing an email to
Office of the Secretary, HHS.
Notice.
In compliance with section 3507(a)(1)(D) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, has submitted an Information Collection Request (ICR), described below, to the Office of Management and Budget (OMB) for review and approval. The ICR is for revision of the approved information collection assigned OMB control number 0990-0281, scheduled to expire on November 30, 2015. Comments submitted during the first public review of this ICR will be provided to OMB. OMB will accept further comments from the public on this ICR during the review and approval period.
Comments on the ICR must be received on or before October 30, 2015.
Submit your comments to
Information Collection Clearance staff,
When submitting comments or requesting information, please include the OMB control number 0990-0281 for reference.
The information collected will be used by ODPHP to improve its communication, products, and services that support key office activities including: Healthy People, Dietary Guidelines for Americans, Physical Activity Guidelines for Americans, healthfinder.gov, and increasing health care quality and patient safety. ODPHP communicates through its Web sites (
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in section 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meetings.
The meetings will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in sections 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable materials, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
Pursuant to section 10(d) of the Federal Advisory Committee Act, as amended (5 U.S.C. App.), notice is hereby given of the following meeting.
The meeting will be closed to the public in accordance with the provisions set forth in section 552b(c)(4) and 552b(c)(6), title 5 U.S.C., as amended. The grant applications and the discussions could disclose confidential trade secrets or commercial property such as patentable material, and personal information concerning individuals associated with the grant applications, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed project or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The Substance Abuse and Mental Health Services Administration (SAMHSA)'s Center for Substance Abuse Prevention (CSAP) aims to address two of SAMHSA's top substance abuse prevention priorities: Underage drinking (UAD; age 12 to 20) and prescription drug misuse and abuse (PDM; age 12 to 25) through the Strategic Prevention Framework Partnerships For Success (SPF-PFS) program. The program is scheduled through September 2018 to systematically collect and maintain community sub-recipient information, quarterly progress reports (QPR) and outcomes data submitted by the PFS grantees through the online Program for Evaluation in Prevention Contract (PEP-C) Management Reporting Tool (MRT). This data collection will place a new emphasis on the SPF-PFS impact on outcomes related to Prescription Drug Misuse, including the prevalence of prescription drug misuse and related consequences such as prescription drug poisonings and overdoses. SAMHSA is requesting approval for data collection through the PEP-C MRT using the instruments listed below:
•
•
•
These SPF-PFS performance monitoring measures will primarily be tools for SAMHSA project officers to systematically collect data to monitor grant program performance and outcomes along with grantee technical assistance needs. In addition to assessing activities related to and progress through the SPF steps, the performance monitoring instruments covered in this statement collect data to assess the following grantee required specific performance measures:
• Number of training and technical assistance activities per funded community provided by the grantee to support communities;
• Reach of training and technical assistance activities (numbers served) provided by the grantee;
• Percentage of subrecipient communities that submit data to the grantee data system.
The instruments also collect data to provide information for the following PFS required Government Performance and Results Act (GPRA) measure:
• Number of sub-recipient communities that improved on one or more targeted NOMs indicators (Outcome).
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 2-1057, One Choke Cherry Road, Rockville, MD 20857 or email her a copy at
In compliance with Section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995 concerning opportunity for public comment on proposed collections of information, the Substance Abuse and Mental Health Services Administration (SAMHSA) will publish periodic summaries of proposed projects. To request more information on the proposed projects or to obtain a copy of the information collection plans, call the SAMHSA Reports Clearance Officer on (240) 276-1243.
Comments are invited on: (a) Whether the proposed collections of information are necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.
The Substance Abuse and Mental Health Services Administration (SAMHSA), Center for Substance Abuse Prevention (CSAP) is requesting from the Office of Management and Budget (OMB) approval for the revision of data collection activities for the cross-site evaluation of the Minority Substance Abuse/HIV Prevention Program (MAI), which includes both youth and adult questionnaires. This revision includes the inclusion of 4 cohorts, substantial revisions to the youth and adult questionnaires, updates to the data used to estimate response rates and expected numbers of participants by service duration (see Table 1 below), and addition of two brief forms to collect dosage information. The current approval is under OMB No. 0930-0298, which expires on 2/29/16.
This cross-site evaluation supports two of SAMHSA's 6 Strategic Initiatives: Prevention of Substance Abuse and Mental Illness and Health Care and Health Systems Integration. It builds on evaluations of data collected by ten previous cohorts of grantees funded by SAMHSA's CSAP to provide substance abuse and HIV prevention services for minority populations. The first two cohorts were planning grant programs and the rest were service grant programs. The goals for the Cohort 3-10 grants were to add, increase, or enhance integrated substance abuse (SA) and HIV prevention services by providing supportive services and strengthening linkages between service providers for at-risk minority populations. Cohorts 1-3 previously received clearance under OMB No. 0930-0208 and Cohort 6—10 grants previously received clearance under OMB No. 0930-0298. Since neither the Cohort 4 nor Cohort 5 Programs were cross-site studies, they did not require OMB clearance. The grant period for Cohort 9 and 10 grants will end on 9/30/2015.
The cohorts of grantees funded by the MAI and included in this clearance request are:
• Minority Serving Institutions (MSI) in Partnerships with Community-Based Organizations (CBO): 29 three-year grants funded at the end of FY 2013 (MSI CBO 2013).
• Minority Serving Institutions (MSI) in Partnerships with Community-Based Organizations (CBO): 21 three-year grants funded at the end of FY 2014 (MSI CBO 2014).
• Minority Serving Institutions (MSI) in Partnerships with Community-Based Organizations (CBO): 34 three-year grants were funded in FY 2015 (MSI CBO 2015).
• Capacity Building Initiative (CBI): 54 five-year grants were funded in 2015 (CBI 2015).
MSI CBO grantees are Historically Black Colleges/Universities, Hispanic Serving Institutions, American Pacific Islander Serving Institutions, or Tribal Colleges/Universities in partnership with community based organizations in their surrounding communities. MSI CBO grantees are required to provide integrated substance abuse (SA), Hepatitis C (HCV), and HIV prevention services to young adults. The CBI grantees are community-level domestic, public and private nonprofit entities, federally recognized American Indian/Alaska Native Tribes and tribal organizations, and urban Indian organizations. CBI grantees will use grant funds for building a solid infrastructure for integrated SA, HIV, and HCV prevention service provision and implementing evidence-based prevention interventions using the SPF process. The target population for the CBI grantees will be at-risk minority adolescents and young adults. All MAI grantees are expected to provide leadership and coordination on the planning and implementation of SAMHSA's Strategic Prevention Framework (SPF) and to target minority populations, as well as other high risk groups residing in communities of color with high prevalence of SA and HIV/AIDS. The primary objectives of the cross-site evaluation are to:
• Assess the success of the MAI in reducing risk factors and increasing protective factors associated with the transmission of the Human Immunodeficiency Virus (HIV), Hepatitis C Virus (HCV) and other sexually-transmitted diseases (STD).
• Measure the effectiveness of evidence-based programs and infrastructure development activities such as: Outreach and training, mobilization of key stakeholders, substance abuse and HIV/AIDS counseling and education, testing, referrals to appropriate medical treatment and/or other intervention strategies (
• Investigate intervention types and features that yield the best outcomes for specific population groups.
• Assess the extent to which access to health care was enhanced for population groups and individuals vulnerable to behavioral health disparities residing in communities targeted by funded interventions.
• Assess the process of adopting and implementing the Strategic Prevention Framework (SPF) with the target populations.
Continuing the cross-site evaluation will assist SAMHSA/CSAP in promoting and disseminating optimally effective prevention programs, counseling, health education, and referrals to appropriate medical treatment and/or other intervention strategies The MAI grantees are expected to provide an effective prevention process, direction, and a common set of goals, expectations, and accountabilities to be adapted and integrated at the community level. Grantees have substantial flexibility in choosing their individual evidence-based programs, but must base this selection on and build it into the five steps of the SPF. These SPF steps consist of assessing local needs, building service capacity specific to SA and HIV prevention services, developing a strategic prevention plan, implementing evidence-based interventions, and evaluating their outcomes. Grantees are also required to provide HIV and HCV testing and counseling services and referrals to appropriate treatment options. Grantees must also conduct ongoing monitoring and evaluation of their projects to assess program effectiveness including Federal reporting of the Government Performance and Results Act (GPRA) of 1993, The GPRA Modernization Act of 2010, SAMHSA/CSAP National Outcome Measures (NOMs), and the Department of Health and Human Services Core HIV Indicators.
As part of the cross-site evaluation, survey data will be collected through self-report questionnaires administered to program participants. All grantees will use two questionnaires, one for youth aged between 12 and 17 and one for adults aged 18 and older. Participants in services lasting 30 days or longer will complete all three sections of the questionnaires at three time points (baseline, exit, follow-up), taking an average of 37 (youth) or 32 (adult) minutes per survey. Participants in services lasting 2-29 days will complete the first two sections of the questionnaires at two time points (baseline, exit), taking an average of 26 (youth) or 23 (adult) minutes to complete each survey. Participants in single-day services will complete Section 1 and 3-5 items from Section 2 at one time point (at exit), taking an average of 13 minutes for both youth and adult questionnaires. The revised youth questionnaire contains 94 questions, of which 24 relate to HIV/AIDS and the revised adult questionnaire contains 79 items, 29 of which relate to HIV/AIDS. This represents a substantial reduction from the current OMB-approved versions of the Youth and Adult Questionnaires (128 and 122 items, respectively; OMB No. 0930-0298).
In addition to the shortened versions of the Youth and Adult Questionnaires, SAMHSA is requesting approval for two brief forms for collecting dosage data. Program staff will complete the Individual Dosage Form after each one-on-one service encounter with every participant to provide information on the types of services delivered during the encounter and the duration of each service type. The form takes approximately three minutes to complete. Program staff will complete the Group Dosage Form after each group-format service encounter to provide similar information, with the addition of a list of the unique identification numbers of all participants attending the session. A typical group session is expected to have approximately 20 attendees and a typical Group Dosage Form takes about eight minutes to complete.
Respondent burden and intrusiveness have been limited to the extent possible while providing sufficient power to fulfill the cross-site evaluation's objectives. Procedures such as the use of unique identification numbers in place of personal identification information, security measures at grant sites for limiting access to completed forms, and analysis guidelines that limit the reporting of outcome results for subgroups with small sample sizes, safeguard the privacy and confidentiality of participants. Every effort has been made to coordinate cross-site data collection with local data collection efforts in an attempt to minimize respondent burden.
The cross-site evaluation results will have significant implications for the substance abuse and HIV/AIDS prevention fields, the allocation of grant funds, and other evaluation activities conducted by multiple Federal, State, and local government agencies. They will be used to develop federal policy in support of SAMHSA/CSAP program initiatives, inform the public of program outcomes and lessons learned, improve existing programs, and promote
The following table displays estimates of the annualized hour burden for data collection using the Youth and Adult Questionnaires and the Individual and Group Dosage Forms. The expected numbers of participants by service duration and the numbers of completed dosage forms were estimated based on analysis of the data submitted by Cohort 7-10 grantees. The numbers are adjusted for expected response rates, also estimated based on data analysis. Program staff will complete an Individual Dosage Form for each one-on-one service encounter with every participant, spending an estimated three minutes per form. A typical grantee is expected to complete 1,316 Individual Dosage Forms per year. A group Dosage Form will be completed for each group session held by the funded programs, and will take approximately eight minutes to complete. A typical grantee is expected to offer approximately 26 group sessions per year.
Send comments to Summer King, SAMHSA Reports Clearance Officer, Room 2-1057, One Choke Cherry Road, Rockville, MD 20857 or email her a copy at
Advisory Council on Historic Preservation.
Notice of Program Comment amendment.
The Advisory Council on Historic Preservation has amended the referenced Program Comment which avoids duplicate reviews under Section 106 of the National Historic Preservation Act regarding telecommunications projects that undergo Section 106 review by the Federal Communications Commission under existing Nationwide Programmatic Agreements. The amendments extend the duration of the Program Comment, add agencies that can use the Program Comment, and provide for a monitoring system.
The amendments were adopted by the ACHP on September 24, 2015.
Address all questions concerning the Program Comment amendments to Charlene Vaughn, Office of Federal Agency Programs, Advisory Council on Historic Preservation, 401 F Street NW., Washington, DC 20001-2637. You may submit electronic questions to:
Charlene Vaughn, (202) 517-0207,
Section 106 of the National Historic Preservation Act, 54 U.S.C. 306108 (Section 106), requires federal agencies to consider the effects of their undertakings on historic properties and to provide the Advisory Council on Historic Preservation (ACHP) a reasonable opportunity to comment with regard to such undertakings. The ACHP has issued the regulations that set forth the process through which Federal agencies comply with these duties. Those regulations are codified under 36 CFR part 800 (Section 106 regulations).
Under Section 800.14(e) of those regulations, agencies can request the ACHP to provide a “Program Comment” on a particular category of undertakings in lieu of conducting individual reviews of each individual undertaking under such category, as set forth in 36 CFR 800.3 through 800.7. An agency can meet its Section 106 responsibilities with regard to the effects of particular aspects of those undertakings by taking into account ACHP's Program Comment and following the steps set forth in that comment.
On October 23, 2009, the ACHP issued the referenced Program Comment to the U.S. Department of Agriculture Rural Utilities Service (RUS), the U.S. Department of Commerce National Telecommunications and Information Administration (NTIA), and the Federal Emergency Management Agency (FEMA) to relieve them from conducting duplicate reviews under Section 106 when those agencies assist a telecommunications project subject to Section 106 review by the Federal Communications Commission (FCC). The FCC complies with its Section 106 responsibilities through its Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings Approved by the FCC and the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (FCC NPAs).
For background on that original Program Comment, and its text before these amendments, please refer to 74 FR 60280-60281 (November 20, 2009).
On August 21, 2015, the ACHP received a request from RUS, NTIA, and the Federal Emergency Management Agency (FEMA) to amend the referenced Program Comment.
The issuance of the original Program Comment was intended to assist agencies to expeditiously allocate American Recovery and Reinvestment
The extension of the duration of the Program Comment is therefore necessary to continue streamlining the Section 106 review. In addition, several new agencies are now involved in these undertakings and need to be accommodated by the Program Comment to avoid delays in project approval. One of those agencies, FirstNet may or may not provide financial assistance for such towers and collocations in the future, but is the entity responsible for ensuring the building, deployment, and operation of the nationwide public safety broadband network, which will likely include the construction of communications towers and the collocation of equipment on existing facilities.
Accordingly, the ACHP membership voted in favor of amending the Program Comment via an unassembled vote on September 24, 2015. The Program Comment has been amended to:
1. Allow all components of the Department of Homeland Security (DHS), the Federal Railroad Administration (FRA), the Federal Transit Authority (FTA), and the First Responder Network Authority (FirstNet) to use the Program Comment, and specify how to add new agencies to the Program Comment in the future;
2. Insert three new paragraphs explaining the purpose and need of the amendments listed above;
3. Extend the duration of the Program Comment to September 30, 2025;
4. Add a system to monitor the use of the Program Comment;
5. Cite Presidential Memoranda consistent with the streamlining intent of the Program Comment; and
6. Add technical edits to reflect the effective date of these amendments and changes to the statutory citation to Section 106 of the National Historic Preservation Act.
RUS sought input from stakeholders on the proposed amendments to the Program Comment. Thereafter, the ACHP became more directly involved in the consultation by holding meetings, requesting and considering comments by stakeholders, holding conference calls with them, and making changes to the draft amendments accordingly. Overall, the majority of State Historic Preservation Officers (SHPOs), Tribal Historic Preservation Officers (THPOs), and Indian tribes that commented endorsed the amendment of the Program Comment.
Comments from several stakeholders raised issues beyond the amendments outlined above. Since addressing those issues in the text of the Program Comment itself would unnecessarily clutter it, those issues are addressed in this
1. How the scope of the Federal Communications Commission (FCC) Nationwide Programmatic Agreements does not include federal or tribal lands, and therefore the scope of the Program Comment is similarly limited. The FCC NPAs, by their own terms, do not apply on tribal lands. Since this Program Comment relies on compliance carried out by the FCC through the FCC NPAs, the Program Comment would similarly not cover these undertakings on tribal lands.
Regarding the applicability of the Program Comment on federal lands, it must be noted that of the roughly 635-640 million acres of federal lands, 628 million acres are managed by the Forest Service, the National Park Service, the Bureau of Land Management, the Fish and Wildlife Service, and the Department of Defense. “Federal Land Ownership: Overview and Data,” Congressional Research Service, February 8, 2012. The Program Comment does not apply to any of these agencies or other agencies typically known as land managing agencies. When these land managing agencies issue special use permits, or other approvals, for the construction or location of telecommunications facilities on the lands they manage, they have to comply with Section 106 through means other than the FCC NPAs or this Program Comment.
2. How the Program Comment relies on FCC compliance with Section 106 for the same projects through their Nationwide Programmatic Agreements, and their e-106 and Tower Construction Notification Systems. The Program Comment exempts the named agencies from having to separately comply with Section 106 regarding certain telecommunications facilities and collocations when the FCC has or will comply with Section 106 for those same facilities and collocations through its NPAs. The FCC conducts such Section 106 compliance following the processes and exemptions of those NPAs, and using its related e-106 system and Tower Construction Notification System (TCNS) which are known to most practitioners. Some SHPO stakeholders wanted us to note that some of them do not use the FCC's e-106 system.
3. How the Program Comment, as originally issued and as amended, has always required subject agencies to inform the SHPOs and THPOs or Indian Tribes when their undertakings are covered by this Program Comment. As stated in Section IV of the original Program Comment: “Whenever RUS, NTIA, or FEMA uses this Program Comment for such undertakings, RUS, NTIA or FEMA will apprise the relevant State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO) of the use of this Program Comment for the relevant communications facilities construction or modification component.” The amended Program Comment retains this language, with changes to simply note the new agencies that are now being added to the Program Comment.
On a somewhat related note, some SHPOs raised concerns about the need to address the effects of the non-tower components of undertakings. As specified in the second paragraph of Section IV of the Program Comment, the RUS, NTIA, DHS, FRA, FTA, FirstNet are responsible for the Section 106 review of those non-tower components of their undertakings.
4. The purpose, and success, of the original Program Comment in the context of the American Recovery and Reinvestment Act (ARRA). In 2009, the American Recovery and Reinvestment Act (ARRA) provided NTIA and RUS with $7.2 billion to expand access to broadband services in the United States. The purpose of the original Program Comment was to expedite broadband expansion by relieving these agencies from conducting duplicate Section 106 reviews when those agencies have Section 106 responsibilities for a telecommunications project subject to Section 106 review by the FCC.
Since it went into effect, the Program Comment has met this purpose. The Program Comment helped RUS, NTIA, and FEMA to spend their ARRA funding for broadband deployment without unnecessary delays. The success of the Program Comment is also reflected in the agencies' request to expand its duration and add new agencies to it.
Finally, the ACHP has not received complaints about the implementation of the Program Comment. The amendments nevertheless, provide for a monitoring system to better ensure the Program Comment is working as intended.
5. How the FCC handles discovery situations under its Nationwide Programmatic Agreement. Since the Program Comment relies on FCC compliance with its NPAs, the discovery provisions of those NPAs are
The text of the amended Program Comment is included below:
Program Comment for Streamlining Section 106 Review for Wireless Communications Facilities Construction and Modification Subject to Review Under the FCC Nationwide Programmatic Agreement and/or the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (as amended on September 24, 2015).
Due to their role in providing financial assistance and/or carrying out other responsibilities for undertakings that involve the construction of communications towers and collocation of communications equipment on existing facilities, the Rural Utilities Service (RUS), the National Telecommunications and Information Administration (NTIA), the Department of Homeland Security (DHS), the Federal Railroad Administration (FRA), the Federal Transit Administration (FTA), and the First Responder Network Authority (FirstNet) are required to comply with Section 106 of the National Historic Preservation Act, 54 U.S.C. 306108, and its implementing regulations at 36 CFR part 800 (Section 106 review) for such undertakings. Some of those communications towers and antennas are also federal undertakings of the Federal Communications Commission (FCC), and therefore undergo, or are exempted from, Section 106 review under the Nationwide Programmatic Agreement for Review of Effects on Historic Properties for Certain Undertakings Approved by the FCC (FCC Nationwide PA) and the Nationwide Programmatic Agreement for the Collocation of Wireless Antennas (FCC Collocation PA). The FCC Nationwide PA was executed by the FCC, the Advisory Council on Historic Preservation (ACHP), and the National Conference of State Historic Preservation Officers (NCSHPO) on October 4, 2004. The FCC Collocation PA was executed by the FCC, ACHP, and NCSHPO on March 16, 2001. The undertakings addressed by the FCC Nationwide PA primarily include the construction and modification of communications towers. The undertakings addressed by the FCC Collocation PA include the collocation of communications equipment on existing structures and towers.
This Program Comment is intended to streamline Section 106 review of the construction and modification of communications towers and antennas for which FCC and RUS, NTIA, DHS, FRA, FTA, or FirstNet share Section 106 responsibility. Such streamlining is consistent with the broad purpose of the Presidential Memorandum: Unleashing the Wireless Broadband Revolution dated June 28, 2010, Executive Order 13616: Accelerating Broadband Infrastructure Deployment, dated June 14, 2012, and the Presidential Memorandum: Expanding Broadband Deployment and Adoption by Addressing Regulatory Barriers and Encouraging Investment and Training, dated March 23, 2015.
The term “DHS,” as used in this Program Comment, refers to all of that agency's operational and support components. For a list of such components, you may refer to:
Nothing in this Program Comment alters or modifies the FCC Nationwide PA or the FCC Collocation PA (collectively, the FCC NPAs), or imposes Section 106 responsibilities on the FCC for elements of a RUS, NTIA, DHS, FRA, FTA, or FirstNet undertaking that are unrelated to a communications facility within the FCC's jurisdiction or are beyond the scope of the FCC NPAs.
The Program Comment, as originally issued in October 23, 2009, only covered RUS, NTIA, and the Federal Emergency Management Agency (FEMA). Because of the successful implementation of this Program Comment, as originally issued, the DHS sought to expand its participation beyond FEMA to all of its components which provide federal assistance for the construction and modification of communications towers, and the collocation of communications equipment on existing structures and towers. Three additional agencies, the FRA, which supports railroading with funding that may be used to improve safety and rail infrastructure, the FTA, which provides financial assistance to eligible applicants to support public transportation, and FirstNet, an independent authority within the NTIA that was created by Congress in 2012, also wished to become part of Program Comment in order to benefit from the efficiencies in the timely delivery of their respective programs.
DHS, FRA and FTA provide financial assistance to applicants for various undertakings, including the construction of communications towers and collocation of communications equipment on existing facilities. Conversely, FirstNet is the entity responsible for ensuring the building, deployment, and operation of the nationwide public safety broadband network, which will likely include the construction of communications towers and the collocation of equipment on existing facilities. DHS, FRA, FTA and FirstNet must therefore comply with Section 106 for these undertakings. Some of the communications towers and collocated communications equipment assisted by DHS components, FRA, FTA and FirstNet are also the FCC's undertakings, and therefore undergo Section 106 review governed by the FCC NPAs.
Accordingly, the ACHP amended this Program Comment on September 24, 2015, to add all DHS components, FRA, FTA and FirstNet to the list of agencies subject to the terms of the Program Comment along with RUS, NTIA, and FEMA, and to extend its period of applicability, which originally would have ended on September 30, 2015.
This Program Comment was originally issued by the ACHP on October 23, 2009 pursuant to 36 CFR 800.14(e), and was subsequently amended, effective on September 24, 2015 pursuant to its Stipulation VI.
This Program Comment, as originally issued, went into effect on October 23, 2009. It was subsequently amended to its current version on September 24, 2015, effective on that date.
RUS, NTIA, DHS, FRA, FTA, and FirstNet will not need to comply with Section 106 with regard to the effects of communications facilities construction or modification that has either undergone or will undergo Section 106 review, or is exempt from Section 106 review, by the FCC under the FCC Nationwide PA and/or the FCC Collocation PA. For purposes of this program comment, review under the FCC Nationwide PA means the historic preservation review that is necessary to complete the FCC's Section 106 responsibility for an undertaking that is subject to the FCC Nationwide PA.
When an RUS, NTIA, DHS, FRA, FTA, or FirstNet undertaking includes
Whenever RUS, NTIA, DHS, FRA, FTA, or FirstNet uses this Program Comment for such undertakings, RUS, NTIA, DHS, FRA, FTA, or FirstNet will apprise the relevant State Historic Preservation Officer (SHPO) or Tribal Historic Preservation Officer (THPO) of the use of this Program Comment for the relevant communications facilities construction or modification component.
No later than March 1, 2016, the FCC, RUS, NTIA, DHS, FRA, FTA, and FirstNet will inform the ACHP as to the reporting system that they will utilize to collectively provide annual reports to the ACHP. The intent of the annual reports will be to enable the monitoring of the use of the Program Comment.
The ACHP may amend this Program Comment after consulting with FCC, RUS, NTIA, DHS, FRA, FTA, FirstNet, and other parties, as appropriate and publishing notice in the
If any other Federal agency wishes to take advantage of this Program Comment, it may notify the ACHP to that effect. An amendment, as set forth above, is needed in order to add such an agency to this Program Comment.
This Program Comment will terminate on September 30, 2025, unless it is amended to extend the period in which it is in effect.
The ACHP may extend the Program Comment for an additional five years beyond 2025 through an amendment per Stipulation VI of this Program Comment.
The ACHP may terminate this Program Comment, pursuant to 36 CFR 800.14(e)(6), by publication of a notice in the
36 CFR 800.14(e).
U.S. Customs and Border Protection, Department of Homeland Security.
Notice.
Notice is hereby given, pursuant to CBP regulations, that Camin Cargo Control, Inc., has been approved to gauge and accredited to test petroleum and certain petroleum products for customs purposes for the next three years as of August 27, 2014.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.12 and 19 CFR 151.13, that Camin Cargo Control, Inc., 230 Marion Ave., Linden, NJ 07036, has been approved to gauge and accredited to test petroleum and certain petroleum products for customs purposes, in accordance with the provisions of 19 CFR 151.12 and 19 CFR 151.13. Camin Cargo Control, Inc., is approved for the following gauging procedures for petroleum and certain petroleum products set forth by the American Petroleum Institute (API):
Camin Cargo Control, Inc., is accredited for the following laboratory analysis procedures and methods for petroleum and certain petroleum products set forth by the U.S. Customs and Border Protection Laboratory Methods (CBPL) and American Society for Testing and Materials (ASTM):
Anyone wishing to employ this entity to conduct laboratory analyses and gauger services should request and receive written assurances from the entity that it is accredited or approved by the U.S. Customs and Border Protection to conduct the specific test or gauger service requested. Alternatively, inquiries regarding the specific test or gauger service this entity is accredited or approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security.
Notice of approval of SGS North America, Inc., as a commercial gauger.
Notice is hereby given, pursuant to CBP regulations, that SGS North America, Inc., has been approved to gauge petroleum and certain petroleum products for customs purposes for the next three years as of July 29, 2014.
The approval of SGS North America, Inc., as a commercial gauger became effective on July 29, 2014. The next triennial inspection date will be scheduled for July 2017.
Approved Gauger and Accredited Laboratories Manager, Laboratories and Scientific Services Directorate, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Suite 1500N, Washington, DC 20229, tel. 202-344-1060.
Notice is hereby given pursuant to 19 CFR 151.13, that SGS North America, Inc., 6624 Langley Dr., Baton Rouge, LA 70809, has been approved to gauge petroleum and certain petroleum products for customs purposes, in accordance with the provisions of 19 CFR 151.13. SGS North America, Inc., is approved for the following gauging procedures for petroleum and certain petroleum products set forth by the American Petroleum Institute (API):
Anyone wishing to employ this entity to conduct gauger services should request and receive written assurances from the entity that it is approved by the U.S. Customs and Border Protection to conduct the specific gauger service requested. Alternatively, inquiries regarding the specific gauger service this entity is approved to perform may be directed to the U.S. Customs and Border Protection by calling (202) 344-1060. The inquiry may also be sent to
U.S. Customs and Border Protection, Department of Homeland Security (DHS).
Committee Management; Notice of Federal Advisory Committee Meeting.
The Advisory Committee on Commercial Operations to U.S. Customs and Border Protection (COAC) will meet on October 29, 2015 in Washington, DC. The meeting will be open to the public.
The Advisory Committee on Commercial Operations to U.S. Customs and Border Protection (COAC) will meet on Thursday, October 29, 2015, from 1:00 p.m. to 4:00 p.m. EDT. Please note that the meeting may close early if the committee has completed its business.
Feel free to share this information with other interested members of your organization or association.
Members of the public who are pre-registered and later require cancellation, please do so in advance of the meeting by accessing one (1) of the following links:
The meeting will be held at the International Trade Commission building, in Courtroom B, 500 E Street SW., Washington, DC 20436. There will be signage posted directing visitors to the location of Courtroom B.
For information on facilities or services for individuals with disabilities or to request special assistance at the meeting, contact Ms. Wanda Tate, Office of Trade Relations, U.S. Customs and Border Protection at (202) 344-1661 as soon as possible.
To facilitate public participation, we are inviting public comment on the issues to be considered by the committee prior to the formulation of recommendations as listed in the “Agenda” section below.
Comments must be submitted in writing no later than October 19, 2015, and must be identified by Docket No. USCBP-2015-0043, and may be submitted by
•
•
•
•
There will be multiple public comment periods held during the meeting on October 29, 2015. Speakers are requested to limit their comments to two (2) minutes or less to facilitate greater participation. Contact the individual listed below to register as a speaker. Please note that the public comment period for speakers may end before the time indicated on the schedule that is posted on the CBP Web page,
Ms. Wanda Tate, Office of Trade Relations, U.S. Customs and Border Protection, 1300 Pennsylvania Avenue NW., Room 3.5A, Washington, DC 20229; telephone (202) 344-1440; facsimile (202) 325-4290.
Notice of this meeting is given under the
The Advisory Committee on Commercial Operations to U.S. Customs and Border Protection (COAC) will hear from the following subcommittees on the topics listed below and then will review, deliberate, provide observations, and formulate recommendations on how to proceed on those topics:
1. The Trade Modernization Subcommittee will discuss the progress of the Center of Excellence and Expertise (CEE) Working Group which is addressing the topics of uniformity and levels of service across all of the CEEs. The subcommittee will also discuss the formation of two new working groups, the International Engagement & Trade Facilitation Working Group and the Future Role of Global Supply Chain Parties Working Group.
2. The Global Supply Chain Subcommittee will discuss recommendations related to the use of electronic cargo security devices and their impact on CBP operations. The Pipeline Working Group will provide recommendations pertaining to clear definitions on in-transit pipeline movements and related topics. The subcommittee will also discuss Customs—Trade Partnership Against Terrorism (C-TPAT), land ports of entry (Canada and Mexico), ocean cargo, in-transit movements and the Air Cargo Advance Screening pilot (ACAS).
3. The Exports Subcommittee Manifest Working Group will continue its review of the
4. The One U.S. Government Subcommittee will discuss progress of the Automated Commercial Environment (ACE) Single Window effort and the COAC recommendations. The subcommittee will provide input on trade readiness and partner government agencies' readiness for the upcoming November 1, 2015, ACE implementation of Single Window. There will also be an update from the North American Single Window Vision Working Group. In addition, the Consumer Product Safety Commission (CPSC) and the Food and Drug Administration (FDA) will provide updates on previous COAC recommendations.
5. The Trade Enforcement and Revenue Collection Subcommittee will discuss the establishment of the 14th Term Intellectual Property Rights Working Group, the Trade Enforcement Vision Working Group, and progress made on the Antidumping and Countervailing Duty Working Group.
6. The Trusted Trader Subcommittee will report on the Trusted Trader Pilot and discussions on the implementation of the second phase for testing U.S. Customs and Border Protection (CBP) and partner government agency trade benefits.
Meeting materials will be available by October 26, 2015, at:
Federal Emergency Management Agency, DHS.
Final Notice.
New or modified Base (1-percent annual chance) Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, and/or regulatory floodways (hereinafter referred to as flood hazard determinations) as shown on the indicated Letter of Map Revision (LOMR) for each of the communities listed in the table below are finalized. Each LOMR revises the Flood Insurance Rate Maps (FIRMs), and in some cases the Flood Insurance Study (FIS) reports, currently in effect for the listed communities. The flood hazard determinations modified by each LOMR will be used to calculate flood insurance premium rates for new buildings and their contents.
The effective date for each LOMR is indicated in the table below.
Each LOMR is available for inspection at both the respective Community Map Repository address listed in the table below and online through the FEMA Map Service Center at
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The Federal Emergency Management Agency (FEMA) makes the final flood hazard determinations as shown in the LOMRs for each community listed in the table below. Notice of these modified flood hazard determinations has been published in newspapers of local circulation and 90 days have elapsed since that publication. The Deputy Associate Administrator for Mitigation has resolved any appeals resulting from this notification.
The modified flood hazard determinations are made pursuant to section 206 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
For rating purposes, the currently effective community number is shown and must be used for all new policies and renewals.
The new or modified flood hazard information is the basis for the floodplain management measures that the community is required either to adopt or to show evidence of being already in effect in order to remain qualified for participation in the National Flood Insurance Program (NFIP).
This new or modified flood hazard information, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities.
This new or modified flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings, and for the contents in those buildings. The changes in flood hazard determinations are in accordance with 44 CFR 65.4.
Interested lessees and owners of real property are encouraged to review the final flood hazard information available at the address cited below for each community or online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
The Federal Emergency Management Agency (FEMA) is accepting comments on Recovery Policy
Comments must be received by November 2, 2015.
Comments must be identified by docket ID FEMA-2015-0020 and may be submitted by one of the following methods:
Howard Stronach, Public Assistance Division, FEMA, 202-646-3834.
You may submit your comments and material by the methods specified in the
FEMA is requesting comment on a proposed policy describing FEMA's procedures for implementing section 705 of the Robert T. Stafford Disaster Relief and Emergency Assistance Act. Specifically, it sets forth guidelines FEMA proposes to follow to determine whether section 705(c) applies to bar FEMA from deobligating grant funding. The proposed policy does not have the force or effect of law.
FEMA seeks comment on the proposed policy, which is available online at
42 U.S.C. 5205.
Federal Emergency Management Agency, DHS.
Notice.
This notice lists communities where the addition or modification of Base Flood Elevations (BFEs), base flood depths, Special Flood Hazard Area (SFHA) boundaries or zone designations, or the regulatory floodway (hereinafter referred to as flood hazard determinations), as shown on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports, prepared by the Federal Emergency Management Agency (FEMA) for each community, is appropriate because of new scientific or technical data. The FIRM, and where applicable, portions of the FIS report, have been revised to reflect these flood hazard determinations through issuance of a Letter of Map Revision (LOMR), in accordance with Title 44, Part 65 of the Code of Federal Regulations (44 CFR part 65). The LOMR will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings. For rating purposes, the currently effective community number is shown in the table below and must be used for all new policies and renewals.
These flood hazard determinations will become effective on the dates listed in the table below and revise the FIRM panels and FIS report in effect prior to this determination for the listed communities.
From the date of the second publication of notification of these changes in a newspaper of local circulation, any person has 90 days in which to request through the community that the Deputy Associate Administrator for Mitigation reconsider the changes. The flood hazard determination information may be changed during the 90-day period.
The affected communities are listed in the table below. Revised flood hazard information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Submit comments and/or appeals to the Chief Executive Officer of the community as listed in the table below.
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
The specific flood hazard determinations are not described for each community in this notice. However, the online location and local community map repository address where the flood hazard determination information is available for inspection is provided.
Any request for reconsideration of flood hazard determinations must be submitted to the Chief Executive Officer of the community as listed in the table below.
The modifications are made pursuant to section 201 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4105, and are in accordance with the National Flood Insurance Act of 1968, 42 U.S.C. 4001
The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP).
These flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. The flood hazard determinations are in accordance with 44 CFR 65.4.
The affected communities are listed in the following table. Flood hazard determination information for each community is available for inspection at both the online location and the respective community map repository address listed in the table below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
Federal Emergency Management Agency, DHS.
Notice.
This notice amends the notice of a major disaster declaration for the State of West Virginia (FEMA-4236-DR), dated August 7, 2015, and related determinations.
Dean Webster, Office of Response and Recovery, Federal Emergency
The notice of a major disaster declaration for the State of West Virginia is hereby amended to include the following area among those areas determined to have been adversely affected by the event declared a major disaster by the President in his declaration of August 7, 2015.
Jackson County for Public Assistance.
The following Catalog of Federal Domestic Assistance Numbers (CFDA) are to be used for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora Brown Fund; 97.032, Crisis Counseling; 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); 97.046, Fire Management Assistance Grant; 97.048, Disaster Housing Assistance to Individuals and Households In Presidentially Declared Disaster Areas; 97.049, Presidentially Declared Disaster Assistance—Disaster Housing Operations for Individuals and Households; 97.050, Presidentially Declared Disaster Assistance to Individuals and Households—Other Needs; 97.036, Disaster Grants—Public Assistance (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.
Federal Emergency Management Agency, DHS.
Notice.
Comments are requested on proposed flood hazard determinations, which may include additions or modifications of any Base Flood Elevation (BFE), base flood depth, Special Flood Hazard Area (SFHA) boundary or zone designation, or regulatory floodway on the Flood Insurance Rate Maps (FIRMs), and where applicable, in the supporting Flood Insurance Study (FIS) reports for the communities listed in the table below. The purpose of this notice is to seek general information and comment regarding the preliminary FIRM, and where applicable, the FIS report that the Federal Emergency Management Agency (FEMA) has provided to the affected communities. The FIRM and FIS report are the basis of the floodplain management measures that the community is required either to adopt or to show evidence of having in effect in order to qualify or remain qualified for participation in the National Flood Insurance Program (NFIP). In addition, the FIRM and FIS report, once effective, will be used by insurance agents and others to calculate appropriate flood insurance premium rates for new buildings and the contents of those buildings.
Comments are to be submitted on or before December 29, 2015.
The Preliminary FIRM, and where applicable, the FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables below. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
You may submit comments, identified by Docket No. FEMA-B-1532, to Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
Luis Rodriguez, Chief, Engineering Management Branch, Federal Insurance and Mitigation Administration, FEMA, 500 C Street SW., Washington, DC 20472, (202) 646-4064, or (email)
FEMA proposes to make flood hazard determinations for each community listed below, in accordance with section 110 of the Flood Disaster Protection Act of 1973, 42 U.S.C. 4104, and 44 CFR 67.4(a).
These proposed flood hazard determinations, together with the floodplain management criteria required by 44 CFR 60.3, are the minimum that are required. They should not be construed to mean that the community must change any existing ordinances that are more stringent in their floodplain management requirements. The community may at any time enact stricter requirements of its own or pursuant to policies established by other Federal, State, or regional entities. These flood hazard determinations are used to meet the floodplain management requirements of the NFIP and also are used to calculate the appropriate flood insurance premium rates for new buildings built after the FIRM and FIS report become effective.
The communities affected by the flood hazard determinations are provided in the tables below. Any request for reconsideration of the revised flood hazard information shown on the Preliminary FIRM and FIS report that satisfies the data requirements outlined in 44 CFR 67.6(b) is considered an appeal. Comments unrelated to the flood hazard determinations also will be considered before the FIRM and FIS report become effective.
Use of a Scientific Resolution Panel (SRP) is available to communities in support of the appeal resolution process. SRPs are independent panels of experts in hydrology, hydraulics, and other pertinent sciences established to review conflicting scientific and technical data and provide recommendations for resolution. Use of the SRP only may be exercised after FEMA and local communities have been engaged in a collaborative consultation process for at least 60 days without a mutually acceptable resolution of an appeal. Additional information regarding the SRP process can be found online at
The watersheds and/or communities affected are listed in the tables below. The Preliminary FIRM, and where applicable, FIS report for each community are available for inspection at both the online location and the respective Community Map Repository address listed in the tables. For communities with multiple ongoing Preliminary studies, the studies can be identified by the unique project number and Preliminary FIRM date listed in the tables. Additionally, the current effective FIRM and FIS report for each community are accessible online through the FEMA Map Service Center at
I. Watershed-based studies:
II. Non-watershed-based studies:
Office of the Assistant Secretary for Community Planning and Development, HUD.
Notice of intent to prepare an EIS.
This provides notice to the public, agencies, and Indian tribes that the City of New York—Department of Housing Preservation & Development (HPD), as the Responsible Entity in accordance with 24 CFR 58.2(a)(7), and the lead agency in accordance with City Environmental Quality Review (CEQR), Executive Order No. 91, and the New York State Environmental Quality Review Act (SEQRA), 6 NYCRR 617, intend to prepare a Draft Environmental Impact Statement (EIS) for the Lambert Houses Redevelopment Project. The EIS will be compliant with the National Environmental Policy Act (NEPA) and CEQR. The EIS will satisfy requirements of SEQR (6 NYCRR 617.8) and CEQR (Sections 6-08 and 6-12 of Executive Order No. 91 of 1977 as amended), which require that state and local government agencies consider the environmental consequences of projects over which they have discretionary authority before acting on those projects. The project is subject to NEPA due to the reassignment of project-based rental assistance contracts through HUD and potential future construction financing from HPD (made available through HUD). This notice has been prepared in accordance with the Council on Environmental Quality (CEQ) regulations at 40 CFR parts 1500-1508.
A Draft EIS will be prepared for the proposed action described herein. Comments relating to the Draft EIS are requested and will be accepted by the contact person listed below. When the Draft EIS is completed, a notice will be sent to individuals and groups known to have an interest in the Draft EIS and particularly in the environmental impact issues identified therein. Any person or agency interested in receiving a notice and making comment on the Draft EIS should contact the person listed below up to 30 days following publication of this notice.
The EIS will be a NEPA document intended to satisfy requirements of federal environmental statutes. In accordance with specific statutory authority applicable to HUD's Section 8 project-based rental assistance program and HOME program, and HUD's regulations at 24 CFR part 58 (Environmental Review Procedures for Entities Assuming HUD Environmental Responsibilities), HUD has provided for assumption of its NEPA authority and NEPA lead agency responsibility by the City of New York. The EIS will be a CEQR document intended to satisfy State and City environmental statutes as described above.
All interested agencies, tribes, groups, and persons are invited to submit written comments on the project named in this notice and on the Draft EIS to the contact person shown in this notice. The office of the contact person should receive comments and all comments so received will be considered prior to the preparation and distribution of the Draft EIS. Particularly solicited is information on reports or other environmental studies planned or completed in the project area, major issues that the EIS should consider, recommended mitigation measures, and alternatives associated with the proposed action. Federal agencies having jurisdiction by law, special expertise, or other special interest should report their interest and indicate their readiness to aid in the EIS effort as a “Cooperating Agency.”
Patrick Blanchfield, Executive Director of Environmental Planning, City of New York—Department of Housing Preservation & Development, 100 Gold Street, Room 7A-3, New York, NY 10038; email:
HPD, acting under authority of HUD's regulations at 24 CFR part 58, in cooperation with other interested agencies, will prepare an EIS to analyze potential impacts of the Lambert Houses Redevelopment Project.
HPD, on behalf of the project sponsor, Phipps Houses, is seeking approval of several discretionary actions (the “Proposed Actions”) to facilitate the redevelopment of Lambert Houses, an existing residential and commercial development occupying approximately 12 acres in the East Tremont neighborhood of the Bronx, New York (“the Proposed Project”). The Project Area includes parcels 1, 3, 5, and 10 in the northern section of the Bronx Park South Large-Scale Residential Development (LSRD). Parcel 1 (Block 3138, Lot 1) is an approximately 2.9-acre parcel located along the west side of Boston Road between East 180th Street and Bronx Park South and is comprised of a group of four interconnected six-story buildings containing 237 residential units. Parcel 3 (Block 3132, Lot 1) is an approximately 4.5-acre parcel located along the west side of Boston Road between East 179th and East 180th Streets which currently contains 325 residential units in seven interconnected six-story buildings. Parcel 5 (Block 3140, Lot 7) is an approximately 1.8-acre parcel located at the southeast corner of Boston Road and East 180th Street which currently contains 169 residential units in a group of three interconnected six-story buildings. Parcel 10 (Block 3139, Lots 1 and 19) is an approximately 2.5-acre parcel bounded to the west by Boston Road, to the south by East Tremont Avenue, to the east by the Bronx River Greenway, and to the north by East 179th Street. Parcel 10 currently contains one two-story building containing approximately 48,610 sq. ft., including an approximately 39,490 sq. ft. of retail uses and a 375-space parking garage. An approximately 3,720-sq. ft. city-owned lot (Block 3139, Lot 50) just south of Parcel 10 would be conveyed to Phipps Houses and become part of Parcel 10. This lot currently contains seating, trees and plantings. In total, the approximately 12-acre Project Area contains five groupings of six-story buildings containing 731 residential units, and one two-story building containing approximately 39,490 sq. ft. of retail use and 375 parking spaces.
Construction of the Proposed Project has a Build Year of 2029, as construction would occur over a build out period of approximately 15 years. During construction of the Proposed Project, current tenants would be relocated from buildings to be demolished to other locations within the Lambert Houses development. Once relocated, the unoccupied buildings would be demolished and construction of new buildings would proceed. Tenants of the next buildings to be demolished would be relocated within the Lambert Houses Project Area to the newly constructed buildings, and the demolition and construction process would begin again. This process would be repeated through completion of the Proposed Project. Overall, the Proposed Project would redevelop the Project Area with the following:
• A total of approximately 1,665 residential units at the completion of the project, for an increment of approximately 934 units over the No Action condition. The proposed residential units would all be affordable.
• Approximately 61,100 sq. ft. of retail, for an increment of 21,610 sq. ft. over the No-Action condition.
• A new public school of approximately 86,608 sq. ft. on a portion of Parcel 10. It is expected that this school would be a 500-seat elementary school.
• A reduction in the amount of parking at the site, for a total of 110 spaces.
In order to address a projected shortfall of seats in the project area's public schools, the New York City School Construction Authority (SCA) will be given an option to acquire the site for proposed school for a nominal fee. If SCA were to decline to exercise this option and construct the school, a residential building with approximately 55 units would be constructed in its place. The environmental impacts of the scenario in which a residential building would replace the school will be analyzed in the Alternatives chapter of the EIS.
The Proposed Project would be facilitated by the following discretionary actions:
• Disposition of City-owned property (Block 3139, Lot 50) and designation as an Urban Development Action Area Project (UDAAP).
• Zoning Map Amendment to rezone Parcels 1, 3 and 5 from R7-1 and Parcel 10 from R7-1/C1-4 as follows:
• Establishment of a new LSRD consisting of Parcels 1, 3, 5, 10, as well as Block 3139, Lot 50. The remainder of the Bronx Park South LSRD is proposed to become a new LSRD based on a separate action sponsored by the Association of New York Catholic Homes.
• Authorizations under ZR Section 78-311 and Special Permits under ZR Section 78-312:
· To permit distribution of the total floor area, lot coverage and number of dwelling units permitted by the applicable district regulations to be distributed without regard for zoning lot lines or zoning district boundaries.
· To permit the total open space required by the applicable district regulations to be distributed without regard for zoning lot lines or zoning district boundaries.
· To permit variations in the front height and setback regulations including variation in the maximum height and number of stories of the front wall within the initial setback distance, modification of the initial setback distance, and to permit penetration of the sky exposure plane.
· To modify the required rear yard setback for tall buildings per Section 23-663.
· To permit an interim condition in which the minimum distance between buildings is waived between the new Building 3A and the existing building to the south.
• Special Permit pursuant to ZR 74-53 to permit the provision of off-street
• Zoning text amendment to modify ZR Section 78-42 to permit a reduction of parking requirements for affordable housing units in LSRDs in Community District 6 in the Borough of the Bronx.
• Zoning text amendment consistent with the City's proposed Mandatory Inclusionary Housing text amendment.
• Coastal zone consistency determination.
• Site plan approval by the Mayor and City Council pursuant to SCA requirements for the proposed school on Parcel 10.
The Proposed Project may also seek funding from HPD, the New York City Housing Development Corporation (HDC), New York State Homes and Community Renewal (HCR), and other State agencies for affordable housing construction. In addition, the Proposed Project would require approval by HUD of the reassignment of project-based rental assistance contracts, and may also seek HOME funds or other federal funding originating from HUD.
The Proposed Project is intended to improve the quality of life for current Lambert Houses residents while increasing the number of affordable housing units in the Project Area. The Project Area is underdeveloped, with less floor area than even the current zoning districts allow, and less density than much of the surrounding neighborhood. The existing buildings were constructed between 1970 and 1973 and have antiquated and inefficient building systems. Furthermore, the configuration and circulation plan of the buildings, with multiple entrances and egresses, compromise building security by making control of access difficult. The retail space currently on the site is inefficient, with storefronts set back far from the street wall, poor frontage, and inadequate storage space for merchants.
The proposed new LSRD and associated special permits and authorizations, including waivers of height and setback requirements, are being requested in order to allow for the redistribution of floor area across the entire project area, creating a site plan, building layout and design superior to what would be allowed as‐of‐right under the current LSRD.
Alternatives to the Proposed Project will be analyzed in the EIS. Typically, the Alternatives section in an EIS examines development options that would tend to reduce project-related impacts. The full range of alternatives will be defined when the full extent of the Proposed Project's impacts is identified, but at this time, it is anticipated that they will include the following:
The No Action Alternative assumes that the existing uses in the Project Area would remain.
This alternative would analyze an additional 55 residential units on Parcel 10 (no school would be proposed).
If significant adverse impacts are identified in the EIS, this alternative would describe the modifications to the project that would be needed to avoid any such impacts.
Other possible alternatives may be developed in consultation with the project sponsor, DCP, and HPD during the EIS preparation process and may be suggested by the public during the scoping of the EIS.
The proposed project may constitute an action significantly affecting the quality of the human environment and an EIS will be prepared on this project in accordance with CEQR and NEPA. Responses to this notice will be used to: (1) Determine significant environmental issues, (2) identify data that the EIS should address, and (3) identify agencies and other parties that will participate in the EIS process and the basis for their involvement.
A public EIS scoping meeting will be held at 4:00 p.m. on Wednesday, October 21, 2015 at the Daly Community Room located at 921 E. 180th Street, Bronx, New York 10460. The EIS scoping meeting, which will also satisfy the scoping meeting requirement for SEQR/CEQR, will provide an opportunity for the public to learn more about the project and provide input to the environmental process. At the meeting, an overview of the project will be presented and members of the public will be invited to comment on the proposed project and the scope of work for the environmental analyses in the EIS. Written comments and testimony concerning the scope of the EIS will be accepted by HPD at this meeting and will also be accepted until the close of business on November 2, 2015. In accordance with 40 CFR 1501.7 affected Federal, State, and local agencies, any affected Native American tribe, and other interested parties will be sent a scoping notice. To satisfy the requirements of 6 NYCRR 617.8, the scoping hearing will be preceded by a public notice published in the New York State Department of Environmental Conservation (DEC) Environmental Notice Bulletin (ENB) and the New York City Record at least 30 days prior to the hearing date.
The following subject areas will be analyzed in the combined EIS for probable environmental impacts: Land Use, Zoning, and Public Policy; Socioeconomic Conditions; Community Facilities and Services; Open Space; Shadows; Historic Resources; Urban Design/Visual Resources; Natural Resources; Hazardous Materials; Water and Sewer Infrastructure; Solid Waste and Sanitation Services; Energy; Transportation (including traffic, parking, pedestrian conditions, and transit); Air Quality; Greenhouse Gas Emissions; Noise; Neighborhood Character; Construction Impacts; Public Health; and Environmental Justice.
Questions may be directed to the individual named in this notice under the heading
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (U.S. Fish and Wildlife Service) have sent an Information Collection Request (ICR) to Office of Management and Budget (OMB) for review and approval. We summarize the ICR below and describe the nature of the collection and the estimated burden and cost. This information collection is scheduled to expire on September 30, 2015. We may not conduct or sponsor and a person is not required to respond
You must submit comments on or before October 30, 2015.
Send your comments and suggestions on this information collection to the Desk Officer for the Department of the Interior at OMB-OIRA at (202) 395-5806 (fax) or
To request additional information about this ICR, contact Hope Grey at
Authorities and implementing regulations establish the purposes of the grant programs and the types of projects to be funded. Some list eligibility criteria as well as activities ineligible for funding. The authorities and implementing regulations for the competitive programs establish preferences or ranking factors for the selection of projects to be funded. These legal requirements make it essential for an awarding agency to have certain information so that it funds only eligible projects, and, in the case of competitive programs, to select those projects that will result in the greatest return on the Federal investment.
Some grants are mandatory and receive funds according to a formula set by law or policy. Other grants are discretionary, and we award them based on a competitive process. Mandatory grant recipients must give us specific, detailed project information during the application process so that we can ensure that projects are eligible for the mandatory funding, are substantial in character and design, and comply with all applicable Federal laws. All grantees must submit financial and performance reports that contain information necessary for us to track costs and accomplishments.
In February 2014, OMB approved our request to use a new electronic system (Wildlife Tracking and Reporting Actions for the Conservation of Species (Wildlife TRACS)) to collect application and performance reporting information on our grant programs. OMB assigned OMB Control No. 1018-0156, which expires February 28, 2017. Wildlife TRACS allows us to take advantage of newer technology and gives applicants direct access to enter project information that can be used to submit an application through
We may require all States to directly enter project information and performance reporting into Wildlife TRACS by October 1, 2016. We continue to offer training and support to States on entering information into the new system. When States fully engage in directly entering all application and project performance reporting into Wildlife TRACS, we expect there will be a reduction in the burden to report the information. States will become more adept with experience, and efficiencies of the electronic system will be realized starting in the second full year of use. A majority of WSFR-administered projects are continuations of similar actions and/or at the same locations. Wildlife TRACS is designed to ease the administrative burden of applying for and reporting on grants for projects that fall into these parameters. The table above reflects the burden reduction that we expect over the next 3 years. Not all grantees will directly enter information into Wildlife TRACS. We will enter information when we determine that it is not efficient or in the best interest of
To apply for financial assistance funds, you must submit an application that describes in substantial detail project locations, benefits, funding, and other characteristics. Materials to assist applicants in formulating project proposals are available on Grants.gov. We use the application to determine:
• Eligibility.
• Scale of resource values or relative worth of the project.
• If associated costs are reasonable and allowable.
• Potential effect of the project on environmental and cultural resources.
• How well the proposed project will meet the purposes of the program's establishing legislation.
• If the proposed project is substantial in character and design.
• For competitive programs, how the proposed project addresses ranking criteria.
Persons or entities receiving grants must submit periodic performance reports that contain information necessary for us to track costs and accomplishments. Information for amendments to grants will be collected as needed.
We will collect the following information under OMB Control No. 1018-0109:
Applications.
• Summary and project narratives that describe the proposed project;
• Need for assistance;
• Approach;
• Timelines;
• Budget information including a budget narrative;
• Geospatial entry of project location;
• Project status (active, completed, etc.);
• Project leader contact information;
• Partner information;
• Objectives, including output measures and desired future values;
• Public description;
• Action status (active, completed, etc.);
• Summary trend information, as applicable;
• Estimated costs, by action. (non-auditable);
• Effectiveness measures (initially for State Wildlife Grants);
• Plan information (for projects connected to plans);
• Information related to outcomes; and
• Addressing ranking factors, as required by competitive grant programs.
For research and demonstration assistance requests:
• A biographical sketch of the program director with the following information: Name, address, telephone number, background, and other qualifying experience for the project; and
• The name, training, and background for other key personnel engaged in the project.
For real property acquisition projects:
• Maps, images, and other data that reflect project location and benefits;
• Transactions, such as dates, method of transfer, title holder, and seller;
• Identifiers, such as State and Federal Record ID, parcel number, and property name;
• Values such as appraised value, purchase price and other cost information, and acres or acre feet;
• Encumbrances;
• Partners;
• Copies of any options, purchase agreements, mineral assessment reports, and draft conservation easements; and
• Information needed for legal compliance; and copies of documents that demonstrate the grantee complied with 49 CFR 24, 2 CFR 200, program regulations, and other mandatory legal requirements.
Amendments. Most grantees must explain and justify requests for amendments to terms of the grant. We use this information to determine the eligibility and allowability of activities and to comply with the requirements of 2 CFR 200.
Performance Reports. All grantees must submit performance reports in the format requested by the Service. We use this information to ensure that the grantee is accomplishing the work on schedule and to identify any problems that the grantee may be experiencing in accomplishing that work. Grantees submit annual reports; however, reporting periods may be adjusted according to regulations at 2 CFR 200.328. Reports may include:
• A comparison of actual accomplishments with the goals and objectives established for the period, the findings of the investigator, or both.
• Reasons why established goals were not met, if appropriate.
• Other pertinent information including, when appropriate, (1) analysis and explanation of cost overruns or high unit costs and (2) for land acquisition projects, a copy of the deed or other conveyance document and a copy of the Notice of Federal Participation.
On June 1, 2015, we published in the
Whether or not the collection of information is necessary, including whether or not the information will have practical utility.
Accuracy of our estimate of the burden for this collection of information.
(1) The performance report that was previously one paragraph in length must now be reported through multiple tabs within Wildlife TRACS to produce a lengthy report;
(2) The ability to copy forward a project will not produce the burden reduction the Service suggests;
(3) The reports contain redundant information; and
(4) Performance reports change from year to year, so significant time must still be spent to update pertinent information.
(1) Data entry fields in Wildlife TRACS are designed to guide the user to make choices that will build the project information, increasing accuracy and efficiency. This does not affect the length of reports;
(2) Once the baseline information for an ongoing project is entered, Wildlife TRACS allows the information to be copied forward. This improves efficiency in that the user will not be required to repeat entering all information for continued projects or new, similar projects. Once a project is copied forward, adjustments can be made in selected fields to reflect desired changes from the existing, copied project. We remind users that the Wildlife TRACS function to copy projects forward is an option for users as an efficiency, but doing so is not a requirement. States may choose which method of input is most efficient and effective for their needs;
(3) Reports are created from information in the fields, so if there is redundant information it is because that is what the user entered; and
(4) Users will not be required to pull out reports and make changes; the adjustments will be made through logical changes in applicable fields. In addition, when a project is copied forward, it becomes a new project with new performance reporting. There is no requirement under the current reporting system to revise performance information on a completed project based on other projects, nor will it be a requirement when using Wildlife TRACS.
(1) States must complete Wildlife TRACS data entry before a grant can be approved. The addition of Wildlife TRACS to the grant approval process is excessive and not necessary for the review and approval of grant applications;
(2) Using Wildlife TRACS for grant approval may put a State agency at risk of reverting apportionments;
(3) The requirement to enter data into Wildlife TRACS prior to a grant award results in a duplication of effort, having to submit the grant proposal twice; and
(4) Wildlife TRACS was proposed as a reporting tool and never was supposed to affect the application process.
(1) Wildlife TRACS is not used to approve grants, but rather to approve projects. Grantees are not required to enter data for projects funded with one of WSFR's competitive grant programs until after we award a grant. Grantees are required to enter project information and receive approval prior to project start for projects funded under one of WSFR's mandatory grant programs. However, the Service does not award mandatory grants based on Wildlife TRACS data entry. Mandatory grants are apportioned according to a formula set by law. Entering information for mandatory grant projects allows Service staff the opportunity to review projects to assure they meet program requirements and are substantial in character and design. This process reduces risk and helps States avoid unallowable, unnecessary, or undesirable expenditures;
(2) It is the responsibility of the State to avoid reverting funds. The time required to approve a grant is not related to Wildlife TRACS, but to the availability of WSFR staff to review the proposal, and the completeness of the State's submittal. When States fully engage in Wildlife TRACS, they can use the workflow tool to help save time and more efficiently commit funds;
(3) As stated above, Wildlife TRACS is not a grant-approval tool, so there is no duplication of effort. However, Wildlife TRACS gives users an option to enter information into Wildlife TRACS that can then produce a report that may be used to supplement/support a grant application; and
(4) Wildlife TRACS is a reporting tool. In order to report on project performance, we must know what the project is and be able to compare achievements against the proposal. Wildlife TRACS allows users to enter project information so that the Service can easily see objectives and compare them to achievements.
Ways to enhance the quality, utility, and clarity of the information to be collected.
Ways to minimize the burden of collection of information on respondents.
We again invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask OMB or us to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
Fish and Wildlife Service, Interior.
Notice of document availability.
We, the U.S. Fish and Wildlife Service (Service), announce the availability of the final Recovery Plan for the Coterminous United States Population of Bull Trout, including six final recovery unit implementation plans, under the Endangered Species Act of 1973, as amended (Act). The recovery plan includes specific goals, objectives, and criteria that should be met in order to consider removing the species from the Federal List of Endangered and Threatened Wildlife.
An electronic copy of the recovery plan is available at
Michael Carrier, State Supervisor, U.S. Fish and Wildlife Service, Idaho Fish and Wildlife Office, at the above Boise address; telephone (208) 378-5243. If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 1-800-877-8339.
In November 1999, all populations of bull trout (
Recovery of endangered and threatened animals and plants is a primary goal of our endangered species program. To help guide the recovery effort, we prepare recovery plans for most listed species. Recovery plans describe actions considered necessary for conservation of the species, establish criteria for downlisting or delisting, and estimate time and cost for implementing recovery measures.
Section 4(f) of the Act requires that public notice, and an opportunity for public review and comment, be provided during recovery plan development. For the coterminous population of bull trout, three separate draft bull trout recovery plans were completed in 2002 and 2004. The 2002 draft recovery plan (USFWS 2002) addressed bull trout populations within the Columbia, St. Mary-Belly, and Klamath River basins and included individual chapters for 24 separate recovery units. In 2004, draft recovery plans were developed for the Coastal-Puget Sound drainages in western Washington, including two recovery unit chapters (USFWS 2004a), and for the Jarbidge River in Nevada (USFWS 2004b). These draft recovery plans were not finalized, but they have served to identify recovery actions across the range of the species, and provide the framework for implementing numerous recovery actions by our partner agencies, local working groups, and others with an interest in bull trout conservation. A revised draft recovery plan, addressing the overall recovery strategy for bull trout throughout its range in the coterminous United States, was made available for public comment from September 4 through December 3, 2014 (79 FR 52741). Subsequently, from June 4 through July 20, 2015 (80 FR 31916), we made available for public comment our proposed modifications to the recovery criteria, as well as six associated draft recovery unit implementation plans (RUIPs), supplemental recovery planning documents which describe more detailed site-specific conservation actions and implementation schedules for each of the six recovery units (Coastal, Klamath, Mid-Columbia, Columbia Headwaters, Upper Snake, and St. Mary).
We considered information we received from public comments and peer reviewers in our preparation of the final recovery plan. Updated information was incorporated into the final recovery plan and the six final RUIPs as appropriate, and substantive issues and comments, together with our responses, are summarized in appendices. Comments relating to overall recovery strategy and criteria are addressed in an appendix to the final recovery plan, while those comments specific to individual recovery units are addressed in appendices to each RUIP.
The primary recovery strategy for bull trout in the coterminous United States that we describe in the recovery plan is to: (1) Conserve bull trout so that they are geographically widespread across representative habitats and demographically stable in six recovery units; (2) effectively manage and ameliorate the primary threats in each of six recovery units at the core area scale such that bull trout are not likely to become endangered in the foreseeable future; (3) build upon the numerous and ongoing conservation actions implemented on behalf of bull trout since their listing in 1999, and improve our understanding of how various threat factors potentially affect the species; (4) use that information to work cooperatively with our partners to design, fund, prioritize, and implement effective conservation actions in those areas that offer the greatest long-term benefit to sustain bull trout and where recovery can be achieved; and (5) apply adaptive management principles to implementing the bull trout recovery program to incorporate new information.
Bull trout population status is stable or increasing in some core areas. However, in developing this recovery plan, we also acknowledge that despite our best conservation efforts, it is possible that some existing bull trout core areas may become extirpated due to various factors, including the effects of small populations and isolation. Our current approach to developing recovery criteria and necessary recovery actions for bull trout is intended to ensure adequate conservation of genetic diversity, life history features, and broad geographical representation of bull trout populations while acknowledging some local extirpations may occur.
We may initiate an assessment of whether recovery has been achieved and delisting is warranted when the recovery criteria below have been met in each recovery unit. Alternatively, if recovery criteria are met in an individual recovery unit, we may initiate an assessment of whether it is possible to designate that recovery unit as a distinct population segment and if
For the Coastal, Mid-Columbia, and Upper Snake Recovery Units, the recovery criteria provide that primary threats must be managed effectively in at least 75 percent of all core areas, representing 75 percent or more of bull trout local populations within each of these three recovery units. For the Columbia Headwaters Recovery Unit, the recovery criteria provide that primary threats must be managed effectively in at least 75 percent of complex core areas and at least 75 percent of simple core areas, representing 75 percent or more of bull trout local populations within the recovery unit. For the Klamath and St. Mary Recovery Units, the recovery criteria provide that all primary threats must be managed effectively in all existing core areas, representing all existing local populations. In addition, because 9 of the 17 known local populations in the Klamath Recovery Unit have been extirpated and others are significantly imperiled and require active management, we believe that the geographic distribution of bull trout within this recovery unit needs to be substantially expanded before it can be considered to have met recovery goals. To achieve recovery, we seek to add seven additional local populations distributed among the three core areas (two in the Upper Klamath Lake core area, three in the Sycan core area, and two in the Upper Sprague core area). In recovery units where shared foraging/migratory/overwintering (FMO) habitat outside core areas has been identified, connectivity and habitat in these shared FMO areas should be maintained in a condition sufficient for regular bull trout use and successful dispersal among the connecting core areas for those core areas to meet the criterion.
If threats are effectively managed at these thresholds, we expect that bull trout populations will respond accordingly and reflect the biodiversity principles of resiliency, redundancy, and representation. Specifically, achieving the recovery criteria in each recovery unit would result in geographically widespread and demographically stable local bull trout populations within the range of natural variation, with their essential cold water habitats connected to allow their diverse life history forms to persist into the foreseeable future; therefore, the species would be brought to the point where the protections of the Act are no longer necessary.
The authority for this action is section 4(f) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
Fish and Wildlife Service, Interior.
Notice of receipt of applications for permit.
We, the U.S. Fish and Wildlife Service, invite the public to comment on the applications to conduct certain activities with endangered species and migratory birds. With some exceptions, the Endangered Species Act (ESA) prohibits activities with listed species unless Federal authorization is acquired that allows such activities. The public is also invited to comment on the following applications for approval to conduct certain activities with bird species covered under the Wild Bird Conservation Act of 1992, which was enacted to ensure that exotic bird species are not harmed by international trade and to encourage wild bird conservation programs in countries of origin.
We must receive comments or requests for documents on or before October 30, 2015.
•
•
We will post all comments on
If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.
For how to obtain copies of the complete applications, and how to submit written data or comments, see
Please make your comments as specific as possible. Please confine your comments to issues for which we seek comments in this notice, and explain the basis for your comments. Include sufficient information with your comments to allow us to authenticate any scientific or commercial data you include.
The comments and recommendations that will be most useful and likely to influence agency decisions are: (1) Those supported by quantitative information or studies; and (2) Those that include citations to, and analyses of, the applicable laws and regulations. We will not consider or include in our administrative record comments we receive after the close of the comment period (see
Comments, including names and street addresses of respondents, will be available for public review on regulations.gov and at the address found in
To help us carry out our conservation responsibilities for affected species, and in consideration of section 10(a)(1)(A) of the Endangered Species Act of 1973, as amended (16 U.S.C. 1531
The applicant requests a permit to import four captive-bred Philippine crocodile (
The applicant requests a permit to import one female captive-bred Andean condor (
The applicant requests a permit to export one female captive-bred Golden Lion Tamarin (
The applicant requests a permit to purchase in interstate commerce two captive-born male African leopards (
The applicant requests a permit to import biological samples from 129 brush-tailed bettong (
The applicant requests a permit to export and re-import 18 captive-born tigers (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species to enhance species propagation or survival: Radiated tortoise (
The applicant requests a captive-bred wildlife registration under 50 CFR 17.21(g) for the following species to enhance species propagation or survival: Radiated tortoise (
The following applicants each request a permit to import the sport-hunted trophy of one male bontebok (
The public is invited to comment on the following applications for approval to conduct certain activities with bird species covered under the Wild Bird Conservation Act of 1992 (16 U.S.C. 4901-4916). This notice is provided pursuant to section 112(4) of the Wild Bird Conservation Act of 1992, 50 CFR 15.26(c).
The applicant seeks to establish a cooperative breeding program for Taita falcon (
The applicant seeks to establish a cooperative breeding program for grey parrot (
You may submit your comments and materials concerning this notice by one of the methods listed in
If you submit a comment via
We will post all hardcopy comments on
Wild Bird Conservation Act of 1992 (16 U.S.C. 4901-4916).
Fish and Wildlife Service, Interior.
Notice; request for comments.
We (U.S. Fish and Wildlife Service) will ask the Office of Management and Budget (OMB) to approve the information collection (IC) described below. As required by the Paperwork Reduction Act of 1995 and as part of our continuing efforts to reduce paperwork and respondent burden, we invite the general public and other Federal agencies to take this opportunity to comment on this IC. This IC is scheduled to expire on February 29, 2016. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number.
To ensure that we are able to consider your comments on this IC, we must receive them by November 30, 2015.
Send your comments on the IC to the Information Collection Clearance Officer, U.S. Fish and Wildlife Service, MS BPHC, 5275 Leesburg Pike, Falls Church, VA 22041-3803 (mail); or
To request additional information about this IC, contact Hope Grey at
This information collection is associated with regulations implementing the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703
The regulations in the Code of Federal Regulations (CFR) at 50 CFR 21.47 (Aquaculture Depredation Order) authorize aquaculture producers and the U.S. Department of Agriculture (APHIS—Wildlife Services) in 13 States to take double-crested cormorants when the birds are found committing or about to commit depredations on commercial freshwater aquaculture stocks. The regulations at 50 CFR 21.48 (Public Resource Depredation Order) authorize State fish and wildlife agencies, APHIS—Wildlife Services, and federally recognized tribes in 24 States to take double-crested cormorants to prevent depredations on the public resources of fish, wildlife, plants, and their habitats.
Both 50 CFR 21.47 and 21.48 impose reporting and recordkeeping requirements on those operating under the depredation orders. We use the information collected to:
• Help assess the impact of the depredation orders on double-crested cormorant populations.
• Protect nontarget migratory birds or other species.
• Ensure that agencies and individuals are operating in accordance with the terms, conditions, and purpose of the orders.
• Help gauge the effectiveness of the orders at mitigating cormorant-related damages.
We invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. We will include or summarize each comment in our request to OMB to approve this IC. Before including your address, phone number,
National Invasive Species Council, Office of the Secretary, Interior.
Request for nominations.
The U.S. Department of the Interior, on behalf of the interdepartmental National Invasive Species Council (NISC), proposes to appoint new members to the Invasive Species Advisory Committee (ISAC). The Secretary of the Interior, acting as administrative lead, is requesting nominations for qualified persons to serve as members of the ISAC.
Nominations must be postmarked by November 30, 2015.
Nominations should be sent to Jamie K. Reaser, Executive Director, National Invasive Species Council (OS/NISC), Regular/Express Mail: 1849 C Street NW. (Mailstop 3530), Washington, DC 20240.
Kelsey Brantley, Program Specialist and ISAC Coordinator, at (202) 208-4122, fax: (202) 208-4118, or by email at
Executive Order (EO) 13122 authorized the National Invasive Species Council (NISC) to provide interdepartmental coordination, planning, and leadership for the Federal Government on the prevention, eradication, and control of invasive species. NISC is currently comprised of thirteen Federal Departments and Agencies. The Co-chairs of NISC are the Secretaries of the Interior, Agriculture, and Commerce. The Invasive Species Advisory Committee (ISAC) advises NISC. NISC is requesting nominations for individuals to serve on the ISAC.
NISC provides high-level interdepartmental coordination of Federal invasive species actions and works with other Federal and non-Federal groups to address invasive species issues at the national level. NISC duties, as outlined in EO 13112 are to: Oversee implementation of EO 13112, while working to ensure that the Federal agency activities concerning invasive species are coordinated, complementary, cost-efficient, and effective; encourage planning and action at local, tribal, state, regional, and ecosystem-based level to achieve strategic goals; develop recommendations for international cooperation; work with the Council on Environmental Quality (CEQ) to develop guidance to Federal Agencies pursuant to the National Environmental Policy Act (NEPA); facilitate development of a coordinated network among Federal Agencies to document, evaluate, and monitor invasive species impacts; and prepare, issue (implement), and update a National Invasive Species Management Plan (Management Plan).
ISAC is chartered under the Federal Advisory Committee Act (FACA; 5 U.S.C. App. 2). At the request of NISC, ISAC provides advice to NISC member Departments and Agencies on topics related to NISC's aforementioned duties. As a multi-stakeholder advisory committee, ISAC is intended to play a key role in recommending plans and actions to be taken at local, tribal, State, regional, and ecosystem-based levels to achieve the goals and objectives of the Management Plan. It is hoped that, collectively, ISAC will represent the views of the broad range of individuals and communities knowledgeable of and affected by invasive species.
Prospective members of ISAC need to have substantial expertise in the prevention, eradication, and/or control of invasive species, as well as to demonstrate a high degree of capacity for: advising individuals in leadership positions, team work, project management, tracking relevant Federal government programs and policy making procedures, and networking with and representing their peer-community of interest. ISAC members need not be scientists. Membership from a wide range of disciplines and professional sectors is encouraged. At this time, we are particularly interested in applications from representatives of tribes, states, non-governmental organizations, the private sector, and large-scale land management entities (urban and rural).
After consultation with the other members of NISC, the Secretary of the Interior will appoint members to ISAC. NISC will select members based on their individual qualifications, as well as the overall need to achieve a balanced representation of viewpoints, subject matter expertise, regional knowledge, and representation of communities of interests. ISAC member terms are limited to three (3) years from their date of appointment to ISAC. Following completion of their first term, an ISAC member may request consideration for reappointment to an additional term. Reappointment is not guaranteed.
Typically, the ISAC meets twice per year (spring and fall). Between these meetings, ISAC members are expected to participate in committee work via conference calls and email exchanges. Members of the ISAC and its subcommittees serve without pay. However, while away from their homes or regular places of business in the performance of services of the ISAC, members may be reimbursed for travel expenses, including per diem in lieu of subsistence, in the same manner as persons employed intermittently in the government service, as authorized by section 5703 of title 5, United States Code. Employees of the Federal Government ARE NOT eligible for nomination or appointment to ISAC. Individuals who are federally registered lobbyists are ineligible to serve on all FACA and non-FACA boards, committees, or councils in an individual capacity. The term “individual capacity” refers to individuals who are appointed to exercise their own individual best judgment on behalf of the government, such as when they are designated Special Government Employees, rather than being appointed to represent a particular interest.
Nominations should include a resume providing an adequate description of the nominee's qualifications, including information that would enable the Department of the Interior to make an informed decision regarding meeting the membership requirements of the Committee and permit the Department of the Interior to contact a potential member.
Any interested person or entity may nominate one or more qualified individuals for membership on the ISAC. Self-nominations are also accepted. Persons or entities submitting nomination packages on the behalf of others must confirm that the individual(s) is/are aware of their nomination. Nominations must be postmarked no later than November 30, 2015 to Jamie K. Reaser, Executive Director, National Invasive Species
Office of the Secretary, Office of Financial Management, Department of the Interior.
Notice and request for comments.
In compliance with the Paperwork Reduction Act of 1995, the Office of Financial Management, Office of the Secretary, Department of the Interior has submitted a request for renewal of this information collection to the Office of Management and Budget (OMB), and requests public comments on this submission.
OMB has up to 60 days to approve or disapprove the information collection request, but may respond after 30 days; therefore, public comments should be submitted to OMB by October 30, 2015, in order to be assured of consideration.
Send your written comments by facsimile (202) 395-5806 or email (
Requests for additional information or copies of the
This notice identifies an information collection activity that the Office of Financial Management has submitted to OMB for approval for the Department and its bureaus to continue to collect information from proposed donors relative to their relationship(s) with the Department. The Department and its individual bureaus have gift acceptance authorities. In support of the variety of donation authorities in the Department and increasing numbers of donations, it is the policy of the Department to ask those proposing to donate gifts valued at $25,000 or more to provide information regarding their relationship with the Department. The purpose of this policy is to ensure that the acceptance of a gift does not create legal or ethical issues for the Department, its bureaus, or potential donors. The information will be gathered through the use of a form that collects information relevant to the acceptability of the proposed donation in conformance with the Department's donations policy. The form is completed and certified by the prospective donor then submitted to the Department or its bureau for review. Having the donor certify his or her interactions with the Department gives the staff vetting the proposed donation basic information to be verified, resulting in a more efficient and timely donation review process. The information collected is as follows:
(1)
(2) Annual reporting and record keeping burden.
(3) Description of the need and use of the information: This information will provide Department staff with the basis for beginning the evaluation as to whether the Department will accept the proposed donation. The authorized employee will receive the donor certification form in advance of accepting the proposed donation. The employee will then review the totality of circumstances surrounding the proposed donation to determine whether the Department can accept the donation and maintain its integrity, impartiality, and public confidence.
(4) As required under 5 CFR 1320.8(d), a
The Department of the Interior invites comments on:
(a) Whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(b) The accuracy of the agency's estimate of the burden of the collection and 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 collection techniques or other forms of information technology.
“Burden” means the total time, effort, or financial resources expended by persons to generate, maintain, retain, disclose, or provide information to or for a federal agency. This includes the time needed to review instructions; to develop, acquire, install and utilize technology and systems for the purpose of collecting, validating and verifying information, processing and maintaining information, and disclosing and providing information; to train personnel and to be able to respond to a collection of information, to search data sources, to complete and review the collection of information; and to transmit or otherwise disclose the information.
It is our policy to make all comments available to the public for review. Before including Personally Identifiable Information (PII), such as your address, phone number, email address, or other personal information in your comment(s), you should be aware that your entire comment (including PII) may be made available to the public at any time. While you may ask us in your comment to withhold PII from public view, we cannot guarantee that we will be able to do so.
If you wish to view any comments received, you may do so by scheduling an appointment via the contact information provided in the
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.
Office of the Secretary, Interior.
Notice.
The Indian Gaming Regulatory Act provides for a three-person National Indian Gaming Commission. One member, the Chair, is appointed by the President with the advice and consent of the Senate. Two associate members are appointed by the Secretary of the Interior. Before appointing members, the Secretary is required to provide public notice of a proposed appointment and allow a comment period. Notice is hereby given of the proposed appointment of E. Sequoyah Simermeyer as an associate member of the National Indian Gaming Commission for a term of 3 years.
Submit comments on or before October 30, 2015.
Send comments to the Director, Office of the Executive Secretariat and Regulatory Affairs, U.S. Department of the Interior, 1849 C Street NW., Mail Stop 7328, Washington, DC 20240.
Mr. Michael Hoenig, National Indian Gaming Commission, c/o Department of the Interior, 1849 C Street NW., Mail Stop 1621, Washington, DC 20240; telephone (202) 632-7003; facsimile (202) 632-7066.
The Indian Gaming Regulatory Act, 25 U.S.C. 2701
The Secretary proposes to appoint E. Sequoyah Simermeyer as an associate member of the Commission for a term of 3 years. Mr. Simermeyer is well qualified to be a member of the National Indian Gaming Commission by virtue of his extensive background and experience in a broad spectrum of Native American issues.
In his current position at the United States Senate Committee on Indian Affairs, Mr. Simermeyer has provided legislative proposals, committee reports, and extensive briefing materials on matters that impact Federal relations with American Indians, Alaska Natives, and tribal governments. He has further experience serving as the deputy chief of staff and counselor to the Assistant Secretary for Indian Affairs. Mr. Simermeyer has taught undergraduate and graduate courses pertaining to Indian law and leadership development, and has served on the board of many law associations, often serving as president. His leadership and community outreach has aided in the educational and social service needs of Native Americans.
Mr. Simermeyer's wide experience in community service, legal affairs, and organizational administration make him a highly qualified candidate for membership on the National Indian
Mr. Simermeyer does not have any financial interests that would make him ineligible to serve on the Commission under 25 U.S.C. 2704(b)(5)(B) or (C).
Any person wishing to submit comments on this proposed appointment of E. Sequoyah Simermeyer may submit written comments to the address listed above. Comments must be received by October 30, 2015.
Bureau of Land Management, Interior.
Notice of public meeting.
In accordance with the Federal Land Policy and Management Act of 1976 (FLPMA), and the Federal Advisory Committee Act of 1972 (FACA), the U.S. Department of the Interior, Bureau of Land Management (BLM) Northern California Resource Advisory Council will meet as indicated below.
The meeting will be held Thursday and Friday, Nov. 5 and 6, 2015, at the Red Lion Hotel, 1929 Fourth Street, Eureka, California. On Nov. 5, the council will convene at 9 a.m. and depart for a field tour focused on aspects of the California Coastal National Monument. Members of the public are welcome. They must provide their own transportation, meals and beverages. On Nov. 6, the council will convene a business meeting at 8 a.m. in the Red Lion Hotel Conference Center. The meeting is open to the public. Public Comments will be accepted at 11 a.m.
Nancy Haug, BLM Northern California District manager, (530) 224-2160; or Joseph J. Fontana, public affairs officer, (530) 252-5332. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339, to contact the above individual during normal business hours. The FIRS is available 24 hours a day, 7 days a week, to leave a message or question with the above individual. You will receive a reply during normal business hours.
The 15-member council advises the Secretary of the Interior, through the BLM, on a variety of planning and management issues associated with public land management on BLM-administered lands in northern California and far northwest Nevada. At this meeting the RAC will discuss land use planning issues affecting public lands managed by the BLM Redding and Arcata Field Offices and land use plan amendments for sage grouse conservation affecting the Eagle Lake and Applegate Field Offices. All meetings are open to the public. Members of the public may present written comments to the council. Each formal council meeting will have time allocated for public comments. Depending on the number of persons wishing to speak, and the time available, the time for individual comments may be limited. Members of the public are welcome on field tours, but they must provide their own transportation and meals. Individuals who plan to attend and need special assistance, such as sign language interpretation and other reasonable accommodations, should contact the BLM as provided above.
National Park Service, Interior.
Notice; request for comments.
We (National Park Service, NPS) have sent an Information Collection Request (ICR) to OMB for review and approval. We summarize the ICR below and describe the nature of the collection and the estimated burden and cost. This information collection is scheduled to expire on September 30, 2015. We may not conduct or sponsor and a person is not required to respond to a collection of information unless it displays a currently valid OMB control number. However, under OMB regulations, we may continue to conduct or sponsor this information collection while it is pending at OMB.
You must submit comments on or before October 30, 2015.
Send your comments and suggestions on this information collection to the Desk Officer for the Department of the Interior at OMB-OIRA at (202) 395-5806 (fax) or
To request additional information about this ICR, contact Lisa Deline at
The National Register of Historic Places (National Register) is the official Federal list of districts, sites, buildings, structures, and objects significant in American history, architecture, archeology, engineering, and culture. National Register properties have significance to the history of communities, States, or the Nation. The National Historic Preservation Act of 1966 requires the Secretary of the Interior to maintain and expand the National Register, and to establish criteria and guidelines for including properties on the National Register.
National Register properties must be considered in the planning for Federal or federally assisted projects, and listing on the National Register is required for eligibility for Federal rehabilitation tax incentives. Listing on the National Register provides formal recognition of a property's historical, architectural, or archeological significance based on national standards used by every State. The listing places no obligations on private property owners, and there are no restrictions on the use, treatment, transfer, or disposition of private property.
The National Park Service administers the National Register. Nominations
• NPS Form 10-900 (National Register of Historic Places Registration Form).
• NPS Form 10-900-a (National Register of Historic Places Continuation Sheet).
• NPS Form 10-900-b (National Register of Historic Places Multiple Property Documentation Form).
These forms and supporting documentation go to the Historic Preservation Office where the property is located. The State Historic Preservation Officer, Federal Preservation Officer, or Tribal Historic Preservation Officer can take one of several options:
• Reject the property.
• Ask for more information.
• In the case of the State Historic Preservation Officer, list the property just with the State.
• Send the forms to NPS for listing on the National Register.
Once we receive the forms, we conduct a similar review process to determine eligibility for listing on the National Register.
On January 28, 2015, we published in the
We published an amended notice on June 26, 2015 (80 FR 36845). The amended notice extended the comment date and provided the public with more detailed information about the five types of package submissions that we receive along with additional information on the respective burden estimates. We solicited comments for 60 days ending on August 25, 2015. We received comments from nine States:
We again invite comments concerning this information collection on:
• Whether or not the collection of information is necessary, including whether or not the information will have practical utility;
• The accuracy of our estimate of the burden for this collection of information;
• Ways to enhance the quality, utility, and clarity of the information to be collected; and
• Ways to minimize the burden of the collection of information on respondents.
Comments that you submit in response to this notice are a matter of public record. Before including your address, phone number, email address, or other personal identifying information in your comment, you should be aware that your entire comment, including your personal identifying information, may be made publicly available at any time. While you can ask OMB in your comment to withhold your personal identifying information from public review, we cannot guarantee that it will be done.
Office of Natural Resources Revenue, Interior.
Notice of extension.
To comply with the Paperwork Reduction Act of 1995 (PRA), the Office of Natural Resources Revenue (ONRR) is notifying the public that we have submitted to the Office of Management and Budget (OMB) an information collection request (ICR) to renew approval of the paperwork requirements in the regulations under 30 CFR parts 1202, 1206, and 1207. This notice also provides the public a second opportunity to comment on the paperwork burden of these regulatory requirements.
OMB has up to 60 days to approve or disapprove this information collection request but may respond after 30 days; therefore, you should submit your public comments to OMB by October 30, 2015, for the assurance of consideration.
You may submit your written comments directly to the Desk Officer for the Department of the Interior (OMB Control Number 1012-0002), Office of Information and Regulatory Affairs, OMB, by email to
For any questions, contact Mr. Luis Aguilar, telephone (303) 231-3418, or email at
The Secretary of the United States Department of the Interior is responsible for mineral resource development on Federal and Indian lands and the Outer Continental Shelf (OCS). Under various laws, the Secretary's responsibility is to manage mineral resources production on Federal and Indian lands and the OCS, collect royalties due, and distribute the funds collected under those laws. The Secretary also has a trust responsibility to manage Indian lands and seek advice and information from Indian beneficiaries. ONRR performs the minerals revenue management functions for the Secretary and assists the Secretary in carrying out the Department's trust responsibility for Indian lands. Public laws pertaining to mineral leases on Federal and Indian lands are available at
Information collections that we cover in this ICR are found at 30 CFR part 1202, subparts C and J, which pertain to royalties; part 1206, subparts B and E, which govern the valuation of oil and gas produced from leases on Indian lands; and part 1207, which pertains to recordkeeping. Indian Tribes and individual Indian mineral owners receive all royalties generated from their lands. Determining product valuation is essential to ensure that Indian Tribes and individual Indian mineral owners receive payment on the full value of the minerals removed from their lands. Failure to collect the data that we describe in this ICR could result in the undervaluation of leased minerals on Indian lands. All data reported is subject to subsequent audit and adjustment.
Regulations at 30 CFR part 1206, subpart B, govern the valuation for royalty purposes of all oil produced from Indian oil and gas leases (Tribal and allotted), except leases on the Osage Indian Reservation, and are consistent with mineral leasing laws, other applicable laws, and lease terms. Generally, these regulations provide that lessees determine the value of oil based upon the higher of (1) the gross proceeds under an arm's-length contract; or (2) major portion analysis. The value that a lessee determines may be eligible for a transportation allowance.
From information collected on Form ONRR-4110, Oil Transportation Allowance Report, ONRR and Tribal audit personnel evaluate (1) whether lessee-reported transportation allowances are within regulatory allowance limitations and calculated under applicable regulations; and (2) whether the lessees reported and paid the proper amount of royalties. Lessees must use Form ONRR-4110 for both arm's-length and non-arm's-length contracts.
Regulations at 30 CFR part 1206, subpart E, govern the valuation for royalty purposes of natural gas produced from Indian oil and gas leases (Tribal and allotted). These regulations apply to all gas production from Indian oil and gas leases, except leases on the Osage Indian Reservation.
Most Indian leases contain the requirement to perform accounting for comparison (dual accounting) for gas produced from the lease. Lessees must elect to perform actual dual accounting as defined in 30 CFR 1206.176, or alternative dual accounting as defined in 30 CFR 1206.173. Lessees use Form ONRR-4410, Accounting for Comparison [Dual Accounting], to certify that dual accounting is not required on an Indian lease or to make
The regulations require lessees to submit Form ONRR-4411, Safety Net Report, when they sell gas production from an Indian oil or gas lease beyond the first index pricing point. The safety net calculation establishes the minimum value, for royalty purposes, of natural gas production from Indian oil and gas leases. This reporting requirement ensures that Indian lessors receive all royalties due and aids ONRR compliance efforts.
From information collected on Form ONRR-4295, Gas Transportation Allowance Report, ONRR and Tribal audit personnel evaluate (1) whether lessee-reported transportation allowances are within regulatory allowance limitations and calculated under applicable regulations; and (2) whether the lessees reported and paid the proper amount of royalties.
From information collected on Form ONRR-4109, Gas Processing Allowance Summary Report, ONRR and Tribal audit personnel evaluate (1) whether lessee-reported processing allowances are within regulatory allowance limitations and calculated under applicable regulations; and (2) whether the lessees reported and paid the proper amount of royalty.
Lessees must submit Form ONRR-4393, Request to Exceed Regulatory Allowance Limitation, for both Federal and Indian leases to request to exceed the regulatory allowance limitation. Most of the burden hours are incurred on Federal leases; therefore, OMB approved the form under OMB Control Number 1012-0005, pertaining to Federal oil and gas leases. However, we include a discussion of the form in this ICR, as well as the burden hours for Indian leases. To request permission to exceed a regulatory allowance limit, lessees must (1) submit a letter to ONRR explaining why a higher allowance limit is necessary; and (2) provide supporting documentation, including a completed Form ONRR-4393. This form provides ONRR with the data necessary to make a decision whether to approve or deny the request.
We are requesting OMB's approval to continue to collect this information. Not collecting this information would limit the Secretary's ability to discharge fiduciary duties and may also result in the inability to confirm the accurate royalty value to Indian Tribes and individual Indian mineral owners. ONRR protects proprietary information that it receives and does not collect items of a sensitive nature. The requirement to report is mandatory for Form ONRR-4410, Accounting for Comparison [Dual Accounting], and for Form ONRR-4411, Safety Net Report, under certain circumstances. For all other forms in this collection, the requirement to report is required to obtain a benefit.
We have not included in our estimates certain requirements performed in the normal course of business that are considered usual and customary. The following chart shows the estimated burden hours by CFR section and paragraph:
To comply with the public consultation process, we published a notice in the
If you wish to comment in response to this notice, you may send your comments to the offices listed under the
Bureau of Ocean Energy Management (BOEM), Interior.
Request for Feedback.
BOEM invites public comment on the aspects of BOEM's renewable energy program that stakeholders have found to be successful, and those program areas where there appear to be opportunities for improvement.
Stakeholders should submit comments electronically or postmarked no later than December 29, 2015.
Comments should be submitted in one of the two following ways:
1.
2.
Mary Borcherding, BOEM Office of Renewable Energy Programs, 45600 Woodland Road, VAM-OREP, Sterling, Virginia 20166, (703) 787-1826 or
This notice is published pursuant to subsection 8(p) of the Outer Continental Shelf (OCS) Lands Act (43 U.S.C. 1337(p)), added by section 388 of the Energy Policy Act of 2005, and the implementing regulations at 30 CFR 585.116. This regulatory provision states that the Director, “may . . . solicit information from industry and other relevant stakeholders (including State and local agencies), as necessary, to evaluate the state of the offshore renewable energy industry, including the identification of potential challenges or obstacles to its continued development. Such requests for information may relate to the identification of environmental, technical, regulatory, or economic matters that promote or detract from continued development of renewable energy technologies on the OCS. From the information received, the Director may evaluate certain refinements to the OCS Alternative Energy Program that promote development of the industry in a safe and environmentally responsible manner, and that ensure fair value for use of the Nation's OCS.”
Since BOEM promulgated its renewable energy regulations in 2009, BOEM has made substantial progress in planning and leasing for renewable energy development on the OCS. BOEM has issued nine commercial wind energy leases, generated more than $14.5 million in winning bids from offshore wind lease sales, and established 13 intergovernmental task forces with Federal, State, local, and tribal partners to assist in identifying areas for potential renewable energy development.
Now that BOEM's Renewable Energy Program has gained experience in implementing its regulations, it is appropriate to evaluate and assess our existing processes. BOEM believes stakeholder feedback is crucial to this effort. To that end, BOEM invites comments and feedback on any aspects of BOEM's Renewable Energy Program that our governmental partners, the offshore renewable energy industry, and other affected stakeholders have found to be particularly effective. At the same time, BOEM is also interested in constructive criticism and feedback. Therefore, BOEM requests recommendations for improving aspects of our program that stakeholders believe to be ineffective or unnecessarily burdensome, and requests descriptions of the benefits those program changes would create. BOEM will use the information submitted to inform our strategic planning efforts and in determining whether and how we should change our existing renewable energy processes, including, if warranted, our regulations.
For more information about BOEM's renewable energy efforts, please visit:
BOEM will protect privileged or confidential information that you submit as required by the Freedom of Information Act (FOIA). Exemption 4 of FOIA applies to trade secrets and commercial or financial information that you submit that is privileged or confidential. If you wish to protect the confidentiality of such information, clearly mark it and request that BOEM treat it as confidential. BOEM will not disclose such information, except as required by FOIA. Please label privileged or confidential information “Contains Confidential Information” and consider submitting such information as a separate attachment.
However, BOEM will not treat as confidential any aggregate summaries of such information or comments not containing such information. Additionally, BOEM may not treat as confidential the legal title of the commenting entity (
On the basis of the record
Pursuant to section 207.18 of the Commission's rules, the Commission also gives notice of the commencement of the final phase of its investigations. The Commission will issue a final phase notice of scheduling, which will be
On August 11, 2015, AK Steel Corporation (West Chester, Ohio), ArcelorMittal USA, LLC (Chicago, Illinois), Nucor Corporation (Charlotte, North Carolina), SSAB Enterprises, LLC (Lisle, Illinois), Steel Dynamics, Inc. (Fort Wayne, Indiana), and United States Steel Corporation (Pittsburgh, Pennsylvania) filed a petition with the Commission and Commerce, alleging that an industry in the United States is materially injured or threatened with material injury by reason of subsidized imports of hot-rolled steel from Brazil, Korea, and Turkey and LTFV imports of hot-rolled steel from Australia, Brazil, Japan, Korea, the Netherlands, Turkey, and the United Kingdom. Accordingly, effective August 11, 2015, the Commission, pursuant to sections 703(a) and 733(a) of the Tariff Act of 1930 (19 U.S.C. 1671b(a) and 1673b(a)), instituted countervailing duty investigation Nos. 701-TA-545-547 and antidumping duty investigation Nos. 731-TA-1291-1297 (Preliminary).
Notice of the institution of the Commission's investigations and of a public conference to be held in connection therewith was given by posting copies of the notice in the Office of the Secretary, U.S. International Trade Commission, Washington, DC, and by publishing the notice in the
The Commission made these determinations pursuant to sections 703(a) and 733(a) of the Tariff Act of 1930 (19 U.S.C. 1671b(a) and 1673b(a)). It completed and filed its determinations in these investigations on September 25, 2015. The views of the Commission are contained in USITC Publication 4570 (October 2015), entitled
By order of the Commission.
Notice of application.
Registered bulk manufacturers of the affected basic classes, and applicants therefore, may file written comments on or objections to the issuance of the proposed registration in accordance with 21 CFR 1301.33(a) on or before November 30, 2015.
Written comments should be sent to: Drug Enforcement Administration, Attention: DEA
The Attorney General has delegated her authority under the Controlled Substances Act to the Administrator of the Drug Enforcement Administration (DEA), 28 CFR 0.100(b). Authority to exercise all necessary functions with respect to the promulgation and implementation of 21 CFR part 1301, incident to the registration of manufacturers, distributors, dispensers, importers and exporters of controlled substances (other than final orders in connection with suspension, denial, or revocation of registration) has been redelegated to the Deputy Assistant Administrator of the DEA Office of Diversion Control (“Deputy Assistant Administrator”) pursuant to section 7 of 28 CFR part 0, appendix to subpart R.
In accordance with 21 CFR 1301.33(a), this is notice that on July 15, 2015, Cerilliant Corporation, 811 Paloma Drive, Suite A, Round Rock, Texas 78665-2402, applied to be registered as a bulk manufacturer of the following basic classes of controlled substances:
The company plans to manufacture small quantities of the listed controlled substances to make reference standards which will be distributed to their customers.
Notice of registration.
Noramco, Inc. applied to be registered as a manufacturer of certain basic classes of controlled substances. The Drug Enforcement Administration (DEA) grants Noramco, Inc. registration as a manufacturer of those controlled substances.
By notice dated April 14, 2015, and published in the
The DEA has considered the factors in 21 U.S.C. 823(a) and determined that the registration of Noramco, Inc. to manufacture the basic classes of controlled substances is consistent with the public interest and with United States obligations under international treaties, conventions, or protocols in effect on May 1, 1971. The DEA investigated the company's maintenance of effective controls against diversion by inspecting and testing the company's physical security systems, verifying the company's compliance with state and local laws, and reviewing the company's background and history.
Therefore, pursuant to 21 U.S.C. 823(a), and in accordance with 21 CFR 1301.33, the above-named company is granted registration as a bulk manufacturer of the basic classes of controlled substances:
The company plans to manufacture the above-listed controlled substances in bulk for distribution to its customers.
On September 24, 2015, the Department of Justice lodged a proposed Consent Decree with the United States District Court of the Virgin Islands in the lawsuit entitled
The Consent Decree resolves Clean Air Act violations alleged in the Complaint filed by the United States on October 30, 2014. The violations alleged in the Complaint with respect to VIWAPA's St. Thomas facility include VIWAPA's failure to properly operate and/or maintain its water injection systems on its gas turbine units, failure to operate in compliance with NO
The Consent Decree requires VIWAPA to generate a high percentage of its KWh from liquid propane gas or liquid natural gas and renewables, to implement a spare parts inventory program, to control NO
The Department of Justice will receive, for a period of thirty (30) days from the date of this publication, comments relating to the Consent Decree. Comments should be addressed to the Assistant Attorney General for the Environmental and Natural Resources Division, and should refer to
During the public comment period, the Consent Decree may be examined and downloaded at this Justice Department Web site:
On September 24, 2015, the Department of Justice lodged a proposed Consent Decree with the United States District Court for the Western District of Pennsylvania in the lawsuit entitled
The United States and Commonwealth of Pennsylvania Department of Environmental Protection filed this lawsuit under the Clean Air Act and Pennsylvania Air Pollution Control Act against INDSPEC Chemical Corporation, seeking injunctive relief and civil penalties for alleged violations of the regulations that govern leak detection and repair of equipment at its chemical manufacturing facility in Petrolia, Pennsylvania. The Complaint alleges violations of Section 112 of the Clean Air Act, 42 U.S.C. 7412, and the implementing regulations at 40 CFR part 63, and violations of Sections 4006.1 and 4006.6 of the Pennsylvania Air Pollution Control Act of January 8, 1960, Public Law 2119,
The publication of this notice opens a period for public comment on the proposed Consent Decree. Comments should be addressed to the Assistant Attorney General, Environment and Natural Resources Division, and should refer to
During the public comment period, the proposed Consent Decree may be examined and downloaded at this Justice Department Web site:
Please enclose a check or money order for $14.25 (25 cents per page reproduction cost) payable to the United States Treasury.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until November 30, 2015.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, please contact Larry Penninger,
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4. The applicable component within the Department of Justice is the Bureau of Alcohol, Tobacco, Firearms and Explosives.
5.
ATF F 3310.11 is the method used to determine compliance with the provision of the Crime Bill. The title of this form “Federal Firearms Licensee Firearms Inventory Theft/Loss Report,” satisfies the provisions of the Act which requires that licensees report the theft or loss of firearms to the Attorney General and the appropriate authorities. The information on this form is required by 18 U.S.C. 923(g)(6).
A separate form is required for each theft/loss report. The form must be prepared in ink, signed and dated. Upon completion of this form by the licensee reporting the theft or loss of firearms, the original will be forwarded to the Firearms Interstate Theft Program Manager and a copy will be retained as part of the licensee's permanent records.
6.
7.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.
Bureau of Alcohol, Tobacco, Firearms and Explosives, Department of Justice.
60-Day notice.
The Department of Justice (DOJ), Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), will be submitting the following information collection request to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act of 1995.
Comments are encouraged and will be accepted for 60 days until November 30, 2015.
If you have comments especially on the estimated public burden or associated response time, suggestions, or need a copy of the proposed information collection instrument with instructions or additional information, Tracey Robertson,
Written comments and suggestions from the public and affected agencies concerning the proposed collection of information are encouraged. Your comments should address one or more of the following four points:
1.
2.
3.
4. The applicable component within the Department of Justice is the Bureau of Alcohol, Tobacco, Firearms and Explosives.
5.
6.
7.
If additional information is required contact: Jerri Murray, Department Clearance Officer, United States Department of Justice, Justice Management Division, Policy and Planning Staff, Two Constitution Square, 145 N Street NE., 3E.405B, Washington, DC 20530.
National Science Foundation.
Notice of Permit Applications Received under the Antarctic Conservation Act of 1978, Public Law 95-541.
The National Science Foundation (NSF) is required to publish a notice of permit applications received to conduct activities regulated under the Antarctic Conservation Act of 1978. NSF has published regulations under the Antarctic Conservation Act at title 45 part 671 of the Code of Federal Regulations. This is the required notice of permit applications received.
Interested parties are invited to submit written data, comments, or views with respect to this permit application by October 30, 2015. This application may be inspected by interested parties at the Permit Office, address below.
Comments should be addressed to Permit Office, Room 755, Division of Polar Programs, National Science Foundation, 4201 Wilson Boulevard, Arlington, Virginia 22230.
Li Ling Hamady, ACA Permit Officer, at the above address or
The National Science Foundation, as directed by the Antarctic Conservation Act of 1978 (Pub. L. 95-541), as amended by the Antarctic Science, Tourism and Conservation Act of 1996, has developed regulations for the establishment of a permit system for various activities in Antarctica and designation of certain animals and certain geographic areas requiring special protection. The regulations establish such a permit system to designate Antarctic Specially Protected Areas.
James Droney, Vice President of Itinerary and Destination Planning, The World of Redinsea II, Ltd., 1551 Sawgrass Corporate Parkway, Suite 200, Fort Lauderdale, FL 33323.
Waste permit: The applicant wishes to fly small, battery operated, remotely controlled copters (Unmanned Aerial Systems or UASs) equipped with cameras to take commercial photos and film of the Antarctic. The UASs would not be flown over concentrations of birds or mammals or over Antarctic Specially Protected Areas or Historic Sites and Monuments. The UASs would only be flown by operators with extensive experience (>20 hours), who are pre-approved by the Expedition Leader. Several measures would be taken to prevent against loss of the UAS or damage to the environment including painting them a highly visible color; only flying when the wind is less than 25 knots; flying for only 15 minutes at a time to preserve battery life; having prop guards on propeller tips, a flotation device if operated over water, and a “go home” feature in case of loss of control link or low battery; having an observer on the lookout for wildlife, people, and other hazards; having a Zodiac on standby in case of an unplanned water landing; and ensuring that the separation between the operator and UAV does not exceed an operational range of 500 meters. The applicant is seeking a Waste Permit to cover any accidental releases that may result from flying a UAS.
Antarctic Peninsula region.
December 23, 2015 to March 31, 2020.
Pursuant to delegation by the Commission,
This Board is being established pursuant to a Notice of Hearing and Opportunity to Petition for Leave to Intervene regarding the May 25, 2010 application filed by PSEG Power, LLC and PSEG, Nuclear, LLC (applicants) pursuant to Subpart A of 10 CFR part 52 for an early site permit for the PSEG site to be located in Salem County, New Jersey.
The Board is comprised of the following administrative judges:
All correspondence, documents, and other materials shall be filed in accordance with the NRC E-Filing rule.
Rockville, Maryland.
Overseas Private Investment Corporation (OPIC).
Notice and request for comments.
Under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35), agencies are required to publish a Notice in the
The proposed changes to OPIC-248 clarify existing questions, incorporate sector-specific development impact questions, and eliminate ineffective questions in an effort to harmonize development impact indicators with other Development Finance Institutions (“DFIs”). OPIC is a signatory to a “Memorandum of Understanding” with 25 partnering DFIs to harmonize developmental impact metrics where possible. The goal of this effort is to reduce the burden on clients that seek financing from multiple DFIs and to instill best practices in the collection and the reporting on OPIC's developmental impacts. In order to minimize the reporting burden on respondents, OPIC has designed OPIC-248 as an electronic form that has multiple drop-down options, in which the respondent only responds to questions that are applicable to their investment.
Comments must be received within thirty (30) calendar days of publication of this Notice.
Mail all comments and requests for copies of the subject form to OPIC's Agency Submitting Officer: James Bobbitt, Overseas Private Investment Corporation, 1100 New York Avenue NW., Washington, DC 20527. See
OPIC Agency Submitting Officer: James Bobbitt, (202) 336-8558.
OPIC received no comments in response to the sixty (60) day notice published in
Pursuant to Section 19(b)(1)
The Exchange proposes to reflect a change to the average portfolio duration of the PIMCO Intermediate Municipal Bond Active Exchange-Traded Fund. The Fund is currently listed and traded on the Exchange under NYSE Arca Equities Rule 8.600. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Commission has approved a proposed rule change relating to listing and trading on the Exchange of shares (“Shares”) of the PIMCO Intermediate Municipal Bond Active Exchange-Traded Fund (“Fund”) under NYSE Arca Equities Rule 8.600,
According to the Registration Statement and the Prior Release, the average portfolio duration of the Fund normally varies from three to eight years, based on PIMCO's forecast for interest rates.
Going forward, the average portfolio duration of the Fund normally would vary within (negative) 2 years to positive 4 years of the portfolio duration of the securities comprising the Barclays 1-15 Year Municipal Bond Index (“Index”), as calculated by PIMCO, which as of June 30, 2015 was 5.11 years.
The Adviser represents that the proposed change to the average portfolio duration of the Fund is consistent with the Fund's investment objective, and will further assist the Adviser to achieve such investment objective. Except for the change noted above, all other representations made in the Prior Release remain unchanged.
The Adviser represents that the investment objective of the Fund is not changing.
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest. The Exchange believes that the change to the average portfolio duration of the Fund will not adversely impact investors or Exchange trading. Such change would accommodate a duration that, while generally comparable to the existing average portfolio duration normally of three to eight years, will provide the Fund with additional flexibility in managing the duration of the Fund's holdings using the average portfolio duration of the Barclays 1-15 Year Municipal Bond Index, as calculated by PIMCO, as the benchmark against which the Fund's average portfolio duration would be measured. Further, a more flexible duration bandwidth will allow the Fund to respond more effectively to changing market conditions. The Index's average duration, as calculated by PIMCO, is typically published monthly, while the Fund's average portfolio duration is typically available daily, on the Fund's Web site.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange believes the proposed rule change will enhance competition among issues of exchange-traded funds that invest in municipal securities.
No written comments were solicited or received with respect to the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On March 6, 2015, BATS Exchange, Inc., BATS-Y Exchange, Inc., BOX Options Exchange LLC, C2 Options Exchange, Incorporated, Chicago Board Options Exchange, Incorporated, Chicago Stock Exchange, Inc., EDGA Exchange, Inc., EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc., International Securities Exchange, LLC, ISE Gemini, LLC, Miami International Securities Exchange LLC, NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC, The NASDAQ Stock Market LLC, National Stock Exchange, Inc., New York Stock Exchange LLC, NYSE MKT LLC, and NYSE Arca, Inc. (collectively, “SROs” or “Participants”) filed with the Securities and Exchange Commission (“Commission” or “SEC”) pursuant to Section 11A of the Securities Exchange Act of 1934 (“Act”),
The Commission adopted Rule 613 on July 11, 2012, to require the SROs to jointly submit an NMS plan to create, implement, and maintain a consolidated audit trail (“CAT NMS Plan”).
Amendment No. 1 included a provision providing that no SRO shall vote in the process narrowing the set of Shortlisted Bidders if a Bid submitted by the SRO or an Affiliate of the SRO is a Shortlisted Bid or if the SRO or its Affiliate is included as a material subcontractor as part of a Bid (a
In Amendment No. 2, the SROs propose to modify the Selection Plan to require that an SRO that is a Bidding Participant be recused from voting in
The SROs reiterate that the Selection Plan balances the competing goals of ensuring all SROs participate meaningfully in the process of developing the CAT NMS Plan and mitigating potential conflicts of interest related to the involvement of a bidding SRO through information barriers and the voting limitations.
After careful review, the Commission finds that Amendment No. 2 is appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, and to remove impediments to, and perfect the mechanisms of, a national market system. By extending the aforementioned recusal requirement to both selection rounds, Amendment No. 2 adds an additional procedural safeguard that is designed to further the fairness and impartiality of the Plan Processor selection.
For the reasons discussed above, the Commission finds that Amendment No. 2 is appropriate in the public interest, for the protection of investors and the maintenance of fair and orderly markets, and to remove impediments to, and perfect the mechanisms of, a national market system, or otherwise in furtherance of the purposes of the Act.
By the Commission.
Pursuant to Section 19(b)(1)
The Exchange proposes to reflect a change to the secondary benchmark index applicable to shares of the PIMCO Global Advantage® Inflation-Linked Bond Active Exchange-Traded Fund. The Fund is currently listed and traded on the Exchange under NYSE Arca Equities Rule 8.600. The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the self-regulatory organization included statements concerning the purpose of, and basis for, the proposed rule change and discussed any comments it received on the proposed rule change. The text of those statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant parts of such statements.
The Commission has approved a proposed rule change relating to listing and trading on the Exchange of shares (“Shares”) of the PIMCO Global Advantage® Inflation-Linked Bond Active Exchange-Traded Fund (“Fund”) under NYSE Arca Equities Rule 8.600,
According to the Registration Statement and the Prior Release, the Fund utilizes the PIMCO Global Advantage Inflation-Linked Bond Index® as a secondary benchmark. Going forward, the Fund proposes to utilize the PIMCO Global Advantage Inflation-Linked Bond Index® (USD Partially Hedged) as the Fund's secondary benchmark. The proposal would change the secondary benchmark used by the Fund from an unhedged version of the index to one that is partially-hedged.
The Adviser represents that the proposed change to the secondary benchmark index is consistent with the Fund's investment objective, and will further assist the Adviser to achieve such investment objective. The Adviser further represents that the change to the secondary benchmark index may better optimize the risk/return profile of the Fund as compared to the prior secondary benchmark index. Except for the change noted above, all other representations made in the Prior Release remain unchanged.
Although the investment objective of the Fund is not changing, it will be indirectly affected by the proposed change because the Fund's investment objective is to seek “total return which exceeds that of its benchmark indexes, consistent with prudent investment management.”
The basis under the Act for this proposed rule change is the requirement under Section 6(b)(5)
The proposed rule change is designed to perfect the mechanism of a free and open market and, in general, to protect investors and the public interest. The proposed change to the Fund's secondary benchmark index will not adversely impact investors or Exchange trading. The proposal would change the secondary benchmark used by the Fund from an unhedged version of the index to one that is partially-hedged. The Adviser represents that the proposed change to the secondary benchmark index is consistent with the Fund's investment objective and will further assist the Adviser to achieve such investment objective. The Adviser further represents that the change to the secondary benchmark index may better optimize the risk/return profile of the Fund as compared to the prior secondary benchmark index. Except for the change noted above, all other representations made in the Prior Release remain unchanged.
The Exchange does not believe that the proposed rule change will impose any burden on competition that is not necessary or appropriate in furtherance of the purpose of the Act. The Exchange believes the proposed rule change will enhance competition among issues of exchange-traded funds that invest in fixed income securities.
No written comments were solicited or received with respect to the proposed rule change.
Because the proposed rule change does not (i) significantly affect the protection of investors or the public interest; (ii) impose any significant burden on competition; and (iii) become operative for 30 days from the date on which it was filed, or such shorter time as the Commission may designate, if consistent with the protection of investors and the public interest, the proposed rule change has become effective pursuant to Section 19(b)(3)(A) of the Act
At any time within 60 days of the filing of such proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is necessary or appropriate in the public interest, for the protection of investors, or otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings under Section 19(b)(2)(B) of the Act
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Brent J. Fields, Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
On July 29, 2015, The NASDAQ Stock Market LLC (“Exchange” or “NASDAQ”), filed with the Securities and Exchange Commission (“Commission”), pursuant to section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”)
The Exchange proposes to list and trade Shares of the Fund, an actively managed exchange-traded fund (“ETF”), under NASDAQ Rule 5735, which governs the listing and trading of “Managed Fund Shares” on the Exchange. The Shares will be offered by the Trust, which was established as a Delaware statutory trust on December 10, 2014.
The Fund's investment objective is to seek current income consistent with preservation of capital and daily liquidity. Under normal market conditions,
In order to enhance income, the Fund intends to enter into securities lending, repurchase agreement, and/or reverse
Securities lending allows the Fund to retain ownership of the securities loaned and, at the same time, to earn additional income. Loans will be made only to parties who have been reviewed and deemed satisfactory by the Adviser, pursuant to guidelines adopted by the Trust's Board of Trustees, and which provide collateral under master agreements issued by SIFMA (The Securities Industry and Financial Markets Association) or ISLA (International Securities Lending Association), which is either (i) 102% cash, or (ii) 102%-115% U.S. Treasury securities of the market value of the loaned securities. The collateral is marked-to-market daily. When the Fund lends portfolio securities, its investment performance will continue to reflect changes in the value of the securities loaned, and the Fund will also receive a fee or interest on the collateral.
The Fund also may enter into repurchase and reverse repurchase agreements with broker/dealers, institutional investors, banks, and insurance and/or reinsurance companies located in the member countries of the OECD. Repurchase transactions involve the purchase of securities with an agreement to resell the securities at an agreed-upon price, date, and interest payment. Reverse repurchase transactions involve the sale of securities with an agreement to repurchase the securities at an agreed-upon price, date, and interest payment, and have the characteristics of borrowing. With respect to repurchase agreements and reverse repurchase agreements, proceeds (collateral) received under master agreements issued by SIFMA or ICMA (International Capital Markets Association) must be equal to or greater than the market value of the sold securities and (i) cash, (ii) U.S Treasury securities, or (iii) debt securities secured by U.S. Treasury securities (such debt securities typically will be issued pursuant to Rule 144A and will be secured by a pledge to the note holder of U.S. Treasury securities with a market value equal to or greater than the face value of the debt security). All collateral will have a maturity of three months or less. The collateral is marked-to-market daily and valued in accordance with the Fund's valuation procedures. The price paid to repurchase the security reflects interest accrued during the term of the agreement.
In order to seek its investment objective, the Fund will not employ other strategies outside of the above-described “Principal Investments.” The Exchange represents that the Fund will not use derivative instruments, including options, swaps, forwards, and futures contracts, both listed and over-the-counter. The Fund will not invest in leveraged, inverse, or leveraged inverse exchange-traded products and will not be operated as a “leveraged ETF” designed to seek a multiple of the performance of an underlying reference asset.
In addition, according to the Exchange, the Fund's securities lending and reverse repurchase agreement transactions will be made in accordance with the 1940 Act and consistent with the Fund's investment objectives and policies, and will not be used to multiply the risks and returns of income producing assets. The Fund will comply with the regulatory requirements of the Commission to maintain assets as “cover,” and maintain segregated accounts as needed. With respect to the reverse repurchase agreements entered into by the Fund that involve obligations to make future payments to third parties, the Fund, in accordance with applicable federal securities laws, rules, and interpretations thereof, will “set aside” liquid assets, or engage in other measures to “cover” open positions with respect to such transactions. These procedures will be adopted consistent with section 18 of the 1940 Act and related Commission guidance. In addition, the Fund will include appropriate risk disclosure in its offering documents, including leveraging risk. Leveraging risk is the risk that certain transactions of the Fund, including the Fund's use of reverse repurchase agreements, may give rise to leverage, causing the Fund's Shares to be more volatile than if they had not been leveraged.
Under normal market conditions, the Fund will invest substantially all, but not less than, 80% of its net assets (exclusive of collateral with respect to securities lending, repurchase, and reverse repurchase agreement transactions), plus any borrowings for investment purposes, in U.S. Treasury securities, which include bills, notes, and bonds issued by the U.S. Treasury, that have remaining maturities of greater than or equal to one month and less than three months.
The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid securities, including repurchase and reverse repurchase agreements maturing in more than seven days, and other illiquid assets (calculated at the time of investment). The Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of the Fund's net assets are held in illiquid securities or other illiquid assets. Illiquid securities and other illiquid assets include securities subject to contractual or other restrictions on resale and other instruments that lack readily available markets, as determined in accordance with Commission staff guidance.
The Fund intends to qualify for, and to elect to be treated as, a regulated investment company under subchapter M of the Internal Revenue Code of 1986.
After careful review, the Commission finds that the proposed rule change is consistent with the requirements of section 6 of the Act
The Commission also finds that the proposal to list and trade the Shares on the Exchange is consistent with section 11A(a)(1)(C)(iii) of the Act,
A basket composition file, which will include the security names and quantities of securities and other assets required to be delivered in exchange for Shares, if applicable, together with estimates and actual cash components, will be publicly disseminated prior to the opening of the Exchange via the National Securities Clearing Corporation. The basket will represent one “Creation Unit” of the Fund. The NAV will be determined on each business day as of the close of trading (ordinarily 4:00 p.m. E.T.) on the New York Stock Exchange, now under the umbrella of the Intercontinental Exchange.
The Commission further believes that the proposal to list and trade the Shares is reasonably designed to promote fair disclosure of information that may be necessary to price the Shares appropriately and to prevent trading when a reasonable degree of transparency cannot be assured. The Exchange states that the Adviser is not registered as a broker-dealer and is not affiliated with a broker-dealer.
The Exchange represents that the Shares are deemed to be equity securities, thus rendering trading in the Shares subject to the Exchange's existing rules governing the trading of equity securities. In support of this proposal, the Exchange has made representations, including the following:
(1) The Shares will be subject to Rule 5735, which sets forth the initial and continued listing criteria applicable to Managed Fund Shares.
(2) The Exchange has appropriate rules to facilitate transactions in the Shares during all trading sessions.
(3) FINRA, on behalf of the Exchange, will communicate as needed regarding trading in the Shares with other markets and other entities that are members of the Intermarket Surveillance Group (“ISG”),
(4) Prior to the commencement of trading, the Exchange will inform its members in an Information Circular of the special characteristics and risks associated with trading the Shares. Specifically, the Information Circular will discuss the following: (a) The procedures for purchases and redemptions of Shares in creation units (and that Shares are not individually redeemable); (b) Nasdaq Rule 2111A, which imposes suitability obligations on Nasdaq members with respect to recommending transactions in the Shares to customers; (c) how information regarding the Intraday Indicative Value and the Disclosed Portfolio is disseminated; (d) the risks involved in trading the Shares during the Pre-Market and Post-Market Sessions when an updated Intraday Indicative Value will not be calculated or publicly disseminated; (e) the requirement that members deliver a prospectus to investors purchasing newly issued Shares prior to or concurrently with the confirmation of a transaction; and (f) trading information.
(5) For initial and continued listing, the Fund must be in compliance with Rule 10A-3 under the Act.
(6) Under normal market conditions, the Fund will invest substantially all, but in any event not less than 80%, of its net assets (exclusive of collateral with respect to securities lending, repurchase, and reverse repurchase agreement transactions) in U.S. Treasury securities, which include bills, notes, and bonds issued by the U.S. Treasury, that have remaining maturities of greater than or equal to one month and less than three months. In order to seek its investment objective, the Fund will not employ other strategies outside of the above-described “Principal Investments.”
(7) The Fund may hold up to an aggregate amount of 15% of its net assets in illiquid securities, including repurchase and reverse repurchase agreements maturing in more than seven days, and other illiquid assets (calculated at the time of investment). The Fund will monitor its portfolio liquidity on an ongoing basis to determine whether, in light of current circumstances, an adequate level of liquidity is being maintained, and will consider taking appropriate steps in order to maintain adequate liquidity if, through a change in values, net assets, or other circumstances, more than 15% of the Fund's net assets are held in illiquid securities or other illiquid assets.
(8) Loans will be made only to parties who have been reviewed and deemed satisfactory by the Adviser, pursuant to guidelines adopted by the Trust's Board of Trustees, and which provide collateral under master agreements issued by SIFMA or ISLA, which is either (i) 102% cash, or (ii) 102%-115% U.S. Treasury securities of the market value of the loaned securities. With respect to repurchase agreements and reverse repurchase agreements, proceeds (collateral) received under master agreements issued by SIFMA or ICMA must be equal to or greater than the market value of the sold securities and (i) cash, (ii) U.S Treasury securities, or (iii) debt securities secured by U.S. Treasury securities. All collateral will have a maturity of three months or less.
(9) The Fund may enter into securities lending, repurchase agreement, and/or reverse repurchase agreement transactions in an amount equal to not more than 33% of the Fund's total assets, consistent with the requirements of the 1940 Act.
(10) The Fund's investments will be consistent with its investment objective. The Fund will not use derivative instruments, including options, swaps, forwards, and futures contracts, both listed and over-the-counter. The Fund will not invest in leveraged, inverse, or leveraged inverse exchange-traded products and will not be operated as a “leveraged ETF” designed to seek a multiple of the performance of an underlying reference asset.
(11) The Fund's securities lending and reverse repurchase agreement transactions will be made in accordance with the 1940 Act and consistent with the Fund's investment objectives and policies, and will not be used to multiply the risks and returns of income producing assets. The Fund will comply with the regulatory requirements of the Commission to maintain assets as “cover,” and maintain segregated accounts as needed. With respect to the reverse repurchase agreements entered into by the Fund that involve obligations to make future payments to third parties, the Fund, in accordance with applicable federal securities laws, rules, and interpretations thereof, will “set aside” liquid assets, or engage in other measures to “cover” open positions with respect to such transactions. These procedures will be adopted consistent with Section 18 of the 1940 Act and related Commission guidance. In addition, the Fund will include appropriate risk disclosure in its offering documents, including leveraging risk. Leveraging risk is the risk that certain transactions of the Fund, including the Fund's use of reverse repurchase agreements, may give rise to leverage, causing the Fund's Shares to be more volatile than if they had not been leveraged.
(12) A minimum of 50,000 Shares will be outstanding at the commencement of trading on the Exchange.
This approval order is based on all of the Exchange's representations, including those set forth above and in the Notice, and the Exchange's description of the Fund. The Commission notes that the Fund and the Shares must comply with the initial and continued listing criteria in Nasdaq Rule 5735 for the Shares to be listed and traded on the Exchange.
For the foregoing reasons, the Commission finds that the proposed rule change is consistent with section 6(b)(5) of the Act
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Social Security Administration.
Notice of Senior Executive Service Performance Review Board Membership.
Title 5, U.S. Code, 4314(c)(4), requires that the appointment of Performance Review Board members be published in the
The following persons will serve on the Performance Review Board which oversees the evaluation of performance appraisals of Senior Executive Service members of the Social Security Administration:
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the individual known as Sally-Anne Frances Jones, also known as Sally Anne Jones, also known as Sally Jones, also known as Umm Hussain al-Britani, also known as Sakinah Hussain poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the organization known as Jaysh Rijal al-Tariq al-Naqshabandi also known as Army of the Men of the Naqshbandi Order also
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Based upon a review of the administrative record assembled in this matter pursuant to Section 219 of the Immigration and Nationality Act, as amended (8 U.S.C. 1189 (“INA”), and in consultation with the Attorney General and the Secretary of the Treasury, I have concluded that there is a sufficient factual basis to find that Ansar Bayt al-Maqdis, also known under the aliases listed above, uses the alias ISIL Sinai Province, also known as Islamic State-Sinai Province, also known as Wilayat Sinai, also known as Sinai Province, also known as The State of Sinai, also known as the Islamic State in the Sinai, as its primary name.
Therefore, pursuant to Section 219(b) of the INA, as amended (8 U.S.C. 1189(b)), I hereby amend the designation of Ansar Bayt al-Maqdis as a foreign terrorist organization to include the following new aliases: ISIL Sinai Province, also known as Islamic State-Sinai Province, also known as Wilayat Sinai, also known as Sinai Province, also known as The State of Sinai, also known as the Islamic State in the Sinai, as additional aliases.
This determination shall be published in the
Based upon a review of the Administrative Record assembled in this matter, and in consultation with the Attorney General and the Secretary of the Treasury, I conclude that there is a sufficient factual basis to find that the relevant circumstances described in section 219 of the Immigration and Nationality Act, as amended (hereinafter “INA”) (8 U.S.C. 1189), exist with respect to as Jaysh Rijal al-Tariq al-Naqshabandi also known as Army of the Men of the Naqshbandi Order also known as Armed Men of the Naqshabandi Order also known as Naqshbandi Army also known as Naqshabandi Army also known as Men of the Army of al-Naqshbandia Way also known as Jaysh Rajal al-Tariqah al-Naqshbandia also known as JRTN also known as JRN also known as AMNO.
Therefore, I hereby designate the aforementioned organization and its aliases as a foreign terrorist organization pursuant to section 219 of the INA.
This determination shall be published in the
Based upon a review of the administrative record assembled in this matter, and in consultation with the Attorney General and the Secretary of the Treasury, I have concluded that there is a sufficient factual basis to find that the Islamic State of Iraq and the Levant uses the additional aliases the Islamic State, ISIL, and ISIS. Therefore, pursuant to Section 1(b) of Executive Order 13224, I hereby amend the designation of the Islamic State of Iraq and the Levant as a Specially Designated Global Terrorist to include the Islamic State, ISIL, and ISIS as aliases.
This determination shall be published in the
Based upon a review of the administrative record assembled in this matter pursuant to Section 219 of the Immigration and Nationality Act, as amended (8 U.S.C. 1189 (“INA”), and in consultation with the Attorney General and the Secretary of the Treasury, I have
This determination shall be published in the
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the individual known as Emilie Konig, poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the individual known as Boubaker Ben Habib Ben Ali Hakim, also known as Boubakeur al-Hakim, also known as Boubakeur el-Hakim, also known as Boubaker el Hakim, also known as Abou al Moukatel, also known as Abou Mouqatel, also known as Abu-Muqatil al-Tunisi, committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the individual known as Maxime Hauchard, also known as Abou Abdallah Al Faransi, committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the individual known as Peter Cherif, also known as
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Based upon a review of the administrative record assembled in this matter, and in consultation with the Attorney General and the Secretary of the Treasury, I have concluded that there is a sufficient factual basis to find that Ansar Bayt al-Maqdis, also known under the aliases listed above, uses the alias ISIL Sinai Province, also known as Islamic State-Sinai Province, also known as Wilayat Sinai, also known as Sinai Province, also known as The State of Sinai, also known as the Islamic State in the Sinai, as its primary name.
Therefore, pursuant to Section 1(b) of Executive Order 13224, I hereby amend the designation of Ansar Bayt al-Maqdis as a Specially Designated Global Terrorist to include the following new aliases: ISIL Sinai Province, also known as Islamic State-Sinai Province, also known as Wilayat Sinai, also known as Sinai Province, also known as The State of Sinai, also known as Islamic State in the Sinai, as additional aliases.
This determination shall be published in the
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the entity known as Mujahidin Indonesia Timur (MIT), also known as Mujahideen Indonesia Timor, also known as Mujahidin of Eastern Indonesia, also known as Mujahidin Indonesia Barat, also known as Mujahidin Indonesia Timor, also known as Mujahidin of Western Indonesia (MIB) committed, or poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Acting under the authority of and in accordance with section 1(b) of Executive Order 13224 of September 23, 2001, as amended by Executive Order 13268 of July 2, 2002, and Executive Order 13284 of January 23, 2003, I hereby determine that the individual known as Gulmurod Khalimov, poses a significant risk of committing, acts of terrorism that threaten the security of U.S. nationals or the national security, foreign policy, or economy of the United States.
Consistent with the determination in section 10 of Executive Order 13224 that “prior notice to persons determined to be subject to the Order who might have a constitutional presence in the United States would render ineffectual the blocking and other measures authorized in the Order because of the ability to transfer funds instantaneously,” I determine that no prior notice needs to be provided to any person subject to this determination who might have a constitutional presence in the United States, because to do so would render ineffectual the measures authorized in the Order.
This notice shall be published in the
Susquehanna River Basin Commission.
Notice.
The Susquehanna River Basin Commission will hold a public hearing on October 29, 2015, in Grantville, Pennsylvania. At this public hearing, the Commission will hear testimony on
The public hearing will convene on October 29, 2015, at 7 p.m. The public hearing will end at 9 p.m. or at the conclusion of public testimony, whichever is sooner. The deadline for the submission of written comments is November 9, 2015.
The public hearing will be conducted at the East Hanover Township Municipal Building, Main Hall, 8848 Jonestown Road, Grantville, PA 17028 (parking lot entry off of Manada Gap Road; see
Jason Oyler, General Counsel, telephone: (717) 238-0423, ext. 1312; fax: (717) 238-2436. Information concerning the applications for these projects is available at the SRBC Water Resource Portal at
The public hearing will cover the following projects:
Interested parties may appear at the hearing to offer comments to the Commission on any project listed above. The presiding officer reserves the right to limit oral statements in the interest of time and to otherwise control the course of the hearing. Rules of conduct will be posted on the Commission's Web site,
Pub. L. 91-575, 84 Stat. 1509
Federal Aviation Administration, Transportation.
Notice.
The Federal Aviation Administration (FAA) and the National Park Service (NPS) are inviting interested persons to apply to fill one upcoming opening on the National Parks Overflights Advisory Group (NPOAG) Aviation Rulemaking Committee (ARC). The upcoming opening will represent Native American interests. The selected member will serve a 3-year term.
Persons interested in applying for the NPOAG opening representing Native American interests need to apply by October 30, 2015.
Keith Lusk, Special Programs Staff, Federal Aviation Administration, Western-Pacific Region Headquarters, P.O. Box 92007, Los Angeles, CA 90009-2007, telephone: (310) 725-3808, email:
The National Parks Air Tour Management Act of 2000 (the Act) was enacted on April 5, 2000, as Public Law 106-181. The Act required the establishment of the advisory group within 1 year after its enactment. The NPOAG was established in March 2001. The advisory group is comprised of a balanced group of representatives of general aviation, commercial air tour operations, environmental concerns, and Native American tribes. The Administrator of the FAA and the Director of NPS (or their designees) serve as ex officio members of the group. Representatives of the Administrator and Director serve alternating 1-year terms as chairman of the advisory group.
In accordance with the Act, the advisory group provides “advice, information, and recommendations to the Administrator and the Director—
(1) On the implementation of this title [the Act] and the amendments made by this title;
(2) On commonly accepted quiet aircraft technology for use in commercial air tour operations over a national park or tribal lands, which will receive preferential treatment in a given air tour management plan;
(3) On other measures that might be taken to accommodate the interests of visitors to national parks; and
(4) At the request of the Administrator and the Director, safety, environmental, and other issues related to commercial air tour operations over a national park or tribal lands.”
The NPOAG ARC is made up of one member representing general aviation, three members representing the commercial air tour industry, four
The current NPOAG consists of Heidi Williams representing general aviation; Alan Stephen, Mark Francis, and Matthew Zuccaro representing commercial air tour operators; Michael Sutton, Nicholas Miller, Mark Belles, and Dick Hingson representing environmental interests; and Leigh Kuwanwisiwma and Martin Begaye representing Native American interests. Mr. Begaye's 3-year membership expires on October 9, 2015.
In order to retain balance within the NPOAG ARC, the FAA and NPS are seeking candidates interested in filling Mr. Begaye's soon to be expiring seat. The open seat to be filled will represent Native American interests. The FAA and NPS invite persons interested in representing Native American interests on the ARC to contact Mr. Keith Lusk (contact information is written above in
On June 18, 2010, President Obama signed a Presidential Memorandum directing agencies in the Executive Branch not to appoint or re-appoint federally registered lobbyists to advisory committees and other boards and commissions. Therefore, before appointing an applicant to serve on the NPOAG, the FAA and NPS will require the prospective candidate to certify that they are not a federally registered lobbyist.
In accordance with part 211 of title 49 Code of Federal Regulations (CFR), this document provides the public notice that by a document dated April 25, 2015, the Historic Railroad Equipment Association (HREA) has petitioned the Federal Railroad Administration (FRA) for a waiver of compliance from certain provisions of the Federal railroad safety regulations contained at 49 CFR part 215—Railroad Freight Car Safety Standards and part 223—Safety Glazing Standards—Locomotives, Passenger Cars and Cabooses. FRA assigned the petition Docket Number FRA-2015-0043.
Mr. David Kloke, the principal partner in HREA, is the builder and operator of the Lincoln Funeral Car replica currently on exhibition to celebrate the 150th anniversary of the operation of the Lincoln Funeral Train in 1865. Mr. Kloke is also the builder of the Leviathan #63 and the York, reproductions of 1860s era steam locomotives that are currently in operation. The Lincoln Funeral Car is to be pulled by these locomotives at various tourist railroads to commemorate the operation of the Lincoln Funeral Train. HREA requests a waiver from 49 CFR 215.123—
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
•
•
•
•
Communications received by November 16, 2015 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
In accordance with part 211 of Title 49 of the Code of Federal Regulations (CFR), this document provides the public notice that by a document dated July 30, 2015, the American Short Line and Regional Railroad Association
A copy of the petition, as well as any written communications concerning the petition, is available for review online at
Interested parties are invited to participate in these proceedings by submitting written views, data, or comments. FRA does not anticipate scheduling a public hearing in connection with these proceedings since the facts do not appear to warrant a hearing. If any interested party desires an opportunity for oral comment, they should notify FRA, in writing, before the end of the comment period and specify the basis for their request.
All communications concerning these proceedings should identify the appropriate docket number and may be submitted by any of the following methods:
•
•
•
•
Communications received by November 16, 2015 will be considered by FRA before final action is taken. Comments received after that date will be considered as far as practicable.
Anyone is able to search the electronic form of any written communications and comments received into any of our dockets by the name of the individual submitting the comment (or signing the document, if submitted on behalf of an association, business, labor union, etc.). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its processes. DOT posts these comments, without edit, including any personal information the commenter provides, to
BNSF Railway Company (BNSF) has filed a verified notice of exemption under 49 CFR part 1152 subpart F-
BNSF has certified that: (1) No local traffic has moved over the Line for at least two years; (2) there is no overhead traffic on the Line that would have to be rerouted over other lines; (3) no formal complaint filed by a user of rail service on the Line (or by a state or local government entity acting on behalf of such user) regarding cessation of service over the Line either is pending with the Surface Transportation Board (Board) or with any U.S. District Court or has been decided in favor of a complainant within the two-year period; and (4) the requirements at 49 CFR 1105.7(c) (environmental report), 49 CFR 1105.11 (transmittal letter), 49 CFR 1105.12 (newspaper publication), and 49 CFR 1152.50(d)(1) (notice to governmental agencies) have been met.
As a condition to this exemption, any employee adversely affected by the abandonment shall be protected under
Provided no formal expression of intent to file an offer of financial assistance (OFA) has been received, this exemption will become effective on October 30, 2015, unless stayed pending reconsideration. Petitions to stay that do not involve environmental issues,
A copy of any petition filed with the Board should be sent to BNSF's representative: Karl Morell & Associates, 655 15th Street NW., Suite 225, Washington, DC 20005.
If the verified notice contains false or misleading information, the exemption is void
BNSF has filed a combined environmental and historic report that addresses the effects, if any, of the abandonment on the environment and historic resources. OEA will issue an environmental assessment (EA) by October 5, 2015. Interested persons may obtain a copy of the EA by writing to OEA (Room 1100, Surface Transportation Board, Washington, DC 20423-0001) or by calling OEA at (202) 245-0305. Assistance for the hearing impaired is available through the Federal Information Relay Service at (800) 877-8339. Comments on environmental and historic preservation matters must be filed within 15 days after the EA becomes available to the public.
Environmental, historic preservation, public use, or interim trail use/rail banking conditions will be imposed, where appropriate, in a subsequent decision.
Pursuant to the provisions of 49 CFR 1152.29(e)(2), BNSF shall file a notice of consummation with the Board to signify that it has exercised the authority granted and fully abandoned the Line. If consummation has not been effected by BNSF's filing of a notice of consummation by September 30, 2016, and there are no legal or regulatory barriers to consummation, the authority to abandon will automatically expire.
Board decisions and notices are available on our Web site at “
By the Board, Rachel D. Campbell, Director, Office of Proceedings.
Department of the Treasury
Notice.
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before October 30, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by emailing
Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before October 30, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission(s) may be obtained by email at
Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection requests to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before October 30, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by emailing
Department of the Treasury.
Notice.
The Department of the Treasury will submit the following information collection request to the Office of Management and Budget (OMB) for review and clearance in accordance with the Paperwork Reduction Act of 1995, Public Law 104-13, on or after the date of publication of this notice.
Comments should be received on or before October 30, 2015 to be assured of consideration.
Send comments regarding the burden estimate, or any other aspect of the information collection, including suggestions for reducing the burden, to (1) Office of Information and Regulatory Affairs, Office of Management and Budget, Attention: Desk Officer for Treasury, New Executive Office Building, Room 10235, Washington, DC 20503, or email at
Copies of the submission may be obtained by emailing
Notification of Citizens Coinage Advisory Committee public meeting.
Pursuant to United States Code, Title 31, section 5135(b)(8)(C), the United States Mint announces the Citizens Coinage Advisory Committee (CCAC) public meeting scheduled for October 7-8, 2015.
October 8 9:00 a.m. to 12:30 p.m.
In accordance with 31 U.S.C. 5135, the CCAC:
• Advises the Secretary of the Treasury on any theme or design proposals relating to circulating coinage, bullion coinage, Congressional Gold Medals, and national and other medals.
• Advises the Secretary of the Treasury with regard to the events, persons, or places to be commemorated by the issuance of commemorative coins in each of the five calendar years succeeding the year in which a commemorative coin designation is made.
• Makes recommendations with respect to the mintage level for any commemorative coin recommended.
William Norton, United States Mint Liaison to the CCAC; 801 9th Street NW., Washington, DC 20220; or call 202-354-7200.
Any member of the public interested in submitting matters for the CCAC's consideration is invited to submit them by fax to the following number: 202-756-6525.
31 U.S.C. 5135(b)(8)(C).
Veterans Health Administration, Department of Veterans Affairs.
Notice.
The Office of Public and Intergovernmental Affairs (OPIA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before November 30, 2015.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Joshua McCoy at (202) 461-0456.
Under the PRA of 1995 (Pub. L. 104-13; 44 U.S.C. 3501-3521), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. This request for comment is
With respect to the following collection of information, OPIA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of OPIA's functions, including whether the information will have practical utility; (2) the accuracy of OPIA's estimate of the burden of the proposed collection of information; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or the use of other forms of information technology.
The information will be used by VA to evaluate multiple criteria to confirm grantee eligibility, to score grantee proposals according to application criteria, and to ensure program efficacy and appropriate use of grant funds. The application information will indicate whether and to what extent a grant program is likely to be successful in meeting the program's intent for providing adaptive sports opportunities for disabled veterans and members of the Armed Forces.
By direction of the Secretary.
Department of Veterans Affairs (VA).
Notice of Amendment to System of Records.
As required by the Privacy Act of 1974, 5 U.S.C. 552a(e), notice is hereby given that the Department of Veterans Affairs (VA) is amending the system of records currently entitled “Blood Donor Information—VA” (04VA115) as set forth in the
Comments on this new system of records must be received no later than October 30, 2015. If no public comment is received during the period allowed for comment or unless otherwise published in the
Written comments concerning the proposed amended system of records may be submitted by: Mail or hand-delivery to Director, Regulations Management (02REG), Department of Veterans Affairs, 810 Vermont Avenue NW., Room 1068, Washington, DC 20420; fax to (202) 273-9026; or email to
Veterans Health Administration (VHA) Privacy Act Officer, Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420; telephone (704) 245-2492.
The system number is changed from 04VA115 to 04VA10P4D to reflect the current organizational alignment.
The System Location has been amended to add that records are located at each of the health care facilities that currently or previously collected donor blood.
Categories of Individuals Covered by the System has been amended to remove government or private agencies.
The Category of Records in the System is being amended to add other unique identifiers. The sentence VA maintains a record of the individual to whom the blood or blood component was transfused and the medical facility where the product was transfused and/or stored is being removed. Final disposition is being defined as transferred, transfused, or discarded.
The Authority for Maintenance of the System is being amended to replace Title 42, Code of Federal Regulations, section 493.1107 with Title 42, Code of Federal Regulations, section 493.1105.
The Storage section is being amended to add electronic media. This section is also being amended to remove magnetic tape and disk. The Retrievability section is being amended to add other unique identifiers.
The Retention and Disposal section is being amended to remove that paper records and information are maintained and disposed of in accordance with records disposition authority approved by the Archivist of the United States. The new language will state that these records are disposed of in accordance with Section VIII-Laboratory Services of the VHA Records Control Schedule 10-1, Item number 113-31/36.
The System Manager and Address is being amended to remove Strategic Healthcare Group (SHG) (115), and add (10P4D).
The Report of Intent to Amend a System of Records Notice and an advance copy of the system notice have been sent to the appropriate Congressional committees and to the Director of the Office of Management and Budget (OMB) as required by 5 U.S.C. 552a(r) (Privacy Act) and guidelines issued by OMB (65 FR 77677), December 12, 2000.
The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Robert L. Nabors II, Chief of Staff, approved this document on September 18, 2015, for publication.
Dated: September 21, 2015.
Blood Donor Information—VA
Blood Donor records are maintained at each of the Department of Veterans Affairs (VA) health care facilities that currently or previously collected donor blood. Addresses are listed in VA Appendix I of the biennial publication of Privacy Act Issuances.
Individuals who donate or have donated blood at a Veterans Health Administration (VHA) health care facility or blood bank for patient care under routine or emergency conditions.
Blood donor records contain sufficient information (
1. Title 38, United States Code, sections 501(a) and 501(b).
2. Title 21, Code of Federal Regulations, parts 200-299 and parts 600-680.
3. Title 42, Code of Federal Regulations, section 493.1105.
The information and records are used to track the donor medical history, donation interval(s), results of donor testing, report positive or abnormal test results, and blood and/or blood components produced from the donation.
VA may disclose protected health information pursuant to the following routine uses where required by law, or required or permitted by 45 CFR parts 160 and 164.
1. Disclosure may be made to answer requests for information from Federal, State, local, and tribal medical facilities regarding the source from which blood was received. Such requests may be initiated by a qualified medical practitioner in the event that a donor's or patient's medical condition warrants it.
2. Disclosure may be made of blood availability, location, quantity on hand, and blood type for use by the area donor collection coordinators to answer and fill requests from health care facilities in need of type-specific blood.
3. VA may disclose on its own initiative any information in this system, except the names and home addresses of Veterans and their dependents, which is relevant to a suspected or reasonably imminent violation of law, whether civil, criminal or regulatory in nature and whether arising by general or program statute or by regulation, rule or order issued pursuant thereto, to a Federal, State, local, tribal, or foreign agency charged with the responsibility of investigating or prosecuting such violation, or charged with enforcing or implementing the statute, regulation, rule or order. On its own initiative, VA may also disclose the names and addresses of Veterans and their dependents to a Federal agency charged with the responsibility of investigating or prosecuting civil, criminal or regulatory violations of law, or charged with enforcing or implementing the statute, regulation, rule or order issued pursuant thereto.
4. Disclosure from a system of records maintained by this component may be made to a Congressional office from the record of an individual in response to an inquiry from the Congressional office made at the request of that individual.
5. A record from a system of records maintained by this component may be disclosed as a routine use to the General Services Administration for the purpose of records management inspections conducted under authority of Title 44 United States Code.
6. A record from a system of records maintained by this component may be disclosed as a routine use to the National Archives and Records Administration for the purpose of records management inspections conducted under authority of title 44 United States Code.
7. Disclosure of relevant information may be made to individuals, organizations, private or public agencies, etc., with whom VA has a contract or agreement to perform such services as VA may deem practicable for the purposes of laws administered by VA, in order for the contractor or subcontractor to perform the services of the contract or agreement.
8. VA may disclose information from this system of records to the Department of Justice (DoJ), either on VA's initiative or in response to DoJ's request for the information, after either VA or DoJ determines that such information is relevant to DoJ's representation of the United States or any of its components in legal proceedings before a court or adjudicative body, provided that, in each case, the agency also determines prior to disclosure that release of the records to the DoJ is a use of the information contained in the records that is compatible with the purpose for which VA collected the records. VA, on its own initiative, may disclose records in this system of records in legal proceedings before a court or administrative body after determining that the disclosure of the records to the court or administrative body is a use of the information contained in the records that is compatible with the purpose for which VA collected the records.
9. Disclosure to other Federal agencies may be made to assist such agencies in preventing and detecting possible fraud or abuse by individuals in their operations and programs.
10. VA may, on its own initiative, disclose any information or records to appropriate agencies, entities, and persons when (1) VA suspects or has confirmed that the integrity or confidentiality of information in the system of records has been compromised; (2) the Department has determined that as a result of the suspected or confirmed compromise, there is a risk of embarrassment or harm to the reputations of the record subjects, harm to economic or property interests, identity theft or fraud, or harm to the security, confidentiality, or integrity of this system or other systems or programs (whether maintained by the Department or another agency or disclosure is to agencies, entities, or persons whom VA determines are reasonably necessary to assist or carry out the Department's efforts to respond to the suspected or confirmed compromise and prevent, minimize, or remedy such harm. This routine use permits disclosures by the Department to respond to a suspected or confirmed data breach, including the conduct of any data breach analysis, as the terms are defined in 38 U.S.C. 5727 or provision of credit protection services as provided in 38 U.S.C. 5724.
Paper documents, electronic media.
1. All VA blood donor manual records are indexed by name and social security number or other unique identifier of donor, cross-indexed by blood type.
2. Automated records are indexed by name, unique identifier, social security number, blood type, antibodies and date of last donation.
1. Access to VA working space and medical record storage areas is restricted to VA employees on a “need to know” basis. Generally, VA file areas are locked after normal duty hours and are protected from outside access by the Federal Protective Service. Employees file records and file records of public figures or otherwise sensitive medical record files are stored in separate locked files. Strict control measures are enforced to ensure that disclosure is limited to a “need to know” basis.
2. Strict control measures are enforced to ensure that access to and disclosure from all records including electronic files are limited to VA employees whose official duties warrant access to those files. The system recognizes authorized employees by a series of individually unique passwords/codes, and the employees are limited to only that information in the file, which is needed in the performance of their official duties.
The records are disposed of in accordance with Section VIII-Laboratory Services of the VHA Records Control Schedule 10-1, Item number 113-31/36, National Archives and Records Administration under the National Archives Job No. N1-15-02-04.
Chief Consultant, Diagnostic Services, (10P4D), Department of Veterans Affairs, 810 Vermont Avenue NW., Washington, DC 20420.
Individuals seeking information concerning the existence and/or content of a blood donor information record pertaining to themselves must submit a written request or apply in person to the VA health care facility where the donation occurred. All inquiries must reasonably identify the portion of the blood donor information record desired and the approximate date(s) that service was provided.
Additionally, inquiries should include the individual's full name, social security number, and home address at the time of medical service, if known.
Blood donors, patients of VA medical care facilities or duly authorized representatives seeking information regarding access to or who are contesting VA health facility records may write, call or visit the VHA facility where medical service was provided or volunteered.
1. Blood donor.
2. Private hospitals and local blood banks.
3. Private physicians.
4. Non-VA Laboratories.
Fish and Wildlife Service, Interior.
Proposed rule.
We, the U.S. Fish and Wildlife Service (Service), propose to list 10 animal species, including the band-rumped storm-petrel (
We will accept comments received or postmarked on or before November 30, 2015. Comments submitted electronically using the Federal eRulemaking Portal (see
You may submit comments by one of the following methods:
(1)
(2)
We request that you send comments only by the methods described above. We will post all comments on
Field Supervisor, Pacific Islands Fish and Wildlife Office, 300 Ala Moana Boulevard, Honolulu, HI 96850; by telephone at 808-792-9400; or by facsimile at 808-792-9581. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 800-877-8339.
• Habitat loss and degradation due to urbanization; nonnative, feral ungulates (hoofed mammals,
• Predation or herbivory by nonnative, feral ungulates; rats; slugs; ants; and wasps.
• Inadequate existing regulatory mechanisms to prevent the introduction and spread of nonnative plants and animals.
• Stochastic events such as landslides, flooding, drought, and hurricanes.
• Human activities such as recreational use of anchialine pools, dumping of nonnative fish and trash into anchialine pools, and manmade structures and artificial lighting.
• Vulnerability to extinction due to small numbers of individuals and occurrences and lack of regeneration.
• Competition with nonnative plants and nonnative invertebrates.
The effects of climate change are likely to exacerbate the impacts of these threats, and may become a threat in the future.
We intend that any final action resulting from this proposed rule will be based on the best scientific and commercial data available and be as accurate and as effective as possible. Therefore, we request comments or information from the public, including land owners and land managers, other concerned governmental agencies, the scientific community, industry, or any other interested parties, concerning this proposed rule. We particularly seek comments concerning:
(1) The biology, range, and population trends of these species, including:
(a) Biological or ecological requirements, including habitat requirements for feeding, breeding, and sheltering;
(b) Genetics and taxonomy;
(c) Historical and current range, including distribution patterns;
(d) Historical and current population levels, and current and projected trends; and
(e) Past and ongoing conservation measures for these species, their habitats, or both.
(2) Factors that may affect the continued existence of these species, which may include habitat modification or destruction, overutilization, disease, predation, the inadequacy of existing
(3) Biological, commercial trade, or other relevant data concerning any threats (or lack thereof) to these species and existing regulations that may be addressing those threats.
(4) Empirical data or other scientific information describing the specific impacts of climate change on the habitat, life history, and/or ecology of these species, for example, the species' biological response, or likely response, to changes in habitat resulting from climate-change related changes in ambient temperature, precipitation, drought, storm severity, or sea level.
(5) Additional information concerning the historical and current status, range, distribution, and population size of these species, including the locations of any additional populations of these species.
Please include sufficient information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include.
Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, will not be considered in making a determination, as section 4(b)(1)(A) of the Act (16 U.S.C. 1531
You may submit your comments and materials concerning this proposed rule by one of the methods listed in the
If you submit information via
Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on
Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the
In accordance with our joint policy on peer review published in the
All 49 species proposed for listing as endangered species are candidate species (79 FR 72450, December 5, 2014). Candidate species are those taxa for which the U.S. Fish and Wildlife Service (we or Service) has sufficient information on their biological status and threats to propose them for listing under the Act, but for which the development of a listing regulation has been precluded to date by other higher priority listing activities. The current candidate species addressed in this proposed rule include the following 10 animal species: The band-rumped storm-petrel (
On May 4, 2004, the Center for Biological Diversity petitioned the Secretary of the Interior to list 225 species of plants and animals, including 27 of the 49 candidate species listed above, as endangered or threatened under the provisions of the Act. Since then, we have published our annual findings on the May 4, 2004, petition in the CNORs dated May 11, 2005 (70 FR 24870), September 12, 2006 (71 FR 53756), December 6, 2007 (72 FR 69034), December 10, 2008 (73 FR 75176), November 9, 2009 (74 FR 57804), November 10, 2010 (75 FR 69222), October 26, 2011 (76 FR 66370), November 21, 2012 (77 FR 69994), November 22, 2013 (78 FR 70104), and December 5, 2014 (79 FR 72450).
Table 1A (plants) and Table 1B (animals), below, provide the common name, scientific name, and range (by Hawaiian Island) for the 49 species addressed in this proposed rule.
The State of Hawaii consists of eight “main” larger Hawaiian Islands, and a long chain of older, eroded islands and atolls referred to as the Northwestern Hawaiian Islands (NWHI). These islands are formed as the Pacific plate passes over a volcanic “hot spot,” an ongoing process over the last 40 million years (Clague
The Northwestern Hawaiian Islands extend more than 1,000 mi (1,600 km) beyond Kauai and include (from southeast to northwest) Nihoa Island (171 acres (ac) (69 hectares (ha))), Necker Island (46 ac (19 ha)), French Frigate Shoals (an atoll with multiple islets totalling 0.1 square (sq) mi (0.2 sq km)), Gardner Pinnacles (2 islets, 6 ac (2.5 ha) with 940 sq mi (2,435 sq km) of surrounding reef), Maro Reef (mostly submerged), Laysan Island (1,016 ac (411 ha)), Lisianski Island (364 ac (147 ha)), Pearl and Hermes Atoll (submerged reef with 7 sandy islets totaling 89 ac (36 ha)), Midway Atoll (2.5 sq mi (6 sq km), consisting of three islands: Sand, Eastern, and Spit), and Kure Atoll (4 sq mi (10 sq km), with two islands: Green and Sand, totaling 213 ac (86 ha)) (Juvik and Juvik 1998, p. 304). All of the NWHI except Kure Atoll are within the U.S. Fish and Wildlife Service's Hawaiian Islands National Wildlife Refuge or Midway Atoll National Wildlife Refuge. In 2006, all of the NWHI were designated as the Papahanaumokuakea Marine National Monument (Monument); in 2010, the Monument was inscribed as a World Heritage Site. The Monument is managed in partnership by the Department of Commerce's National Oceanic and Atmospheric Administration, the Department of the Interior, and the State of Hawaii.
The island of Kauai, the northernmost of the eight main Hawaiian Islands, is 552 sq mi (1,430 sq km) in area (Foote
The island of Oahu (600 sq mi (1,557 sq km)), the third oldest and third largest of the eight main Hawaiian Islands, is located southeast of Kauai and northwest of Molokai (Foote
The island of Molokai (260 sq mi (673 sq km)), the fifth largest of the eight main Hawaiian Islands, lies southeast of Oahu. The island is formed from three shield volcanoes, resulting in the east and west Molokai Mountains and the Kalaupapa Peninsula (Juvik and Juvik 1998, pp. 11, 13). The taller and larger east Molokai Mountain rises 4,970 ft (1,514 m) above sea level and comprises roughly 50 percent of the island's area (Juvik and Juvik 1998, pp. 11). Precipitous cliffs line the windward coast and deep valleys dissect the coastal area. Annual rainfall on the windward side of the island is 75 to more than 150 in (200 to more than 375 cm) (Giambelluca and Schroeder 1998, p. 50).
The island of Lanai (140 sq mi (364 sq km)), the sixth largest of the eight main Hawaiian Islands, is located southeast of Molokai and southwest of west Maui. Lanai was formed from a single shield volcano and is located in the rain shadow of the west Maui Mountains (Clague
The island of Maui (729 sq mi (1,888 sq km)), the second largest of the eight main Hawaiian Islands, is located southeast of Molokai and northwest of Hawaii Island (Juvik and Juvik 1998, p. 14). It arose from two shield volcanoes resulting in formation of the west Maui Mountains, which are about 1.3 million years old, and the east Maui Mountains (Haleakala volcano), about 750,000 years old (Juvik and Juvik 1998, p. 14), which are connected by the central Maui isthmus. The highest point on west Maui is Puu Kukui at 5,788 ft (1,764 m), which receives 400 in (1,020 cm) rainfall per year (Juvik and Juvik 1998, p. 14; Wagner
The island of Kahoolawe (45 sq mi (116 sq km)), the smallest of the eight main Hawaiian Islands, is located south of east Maui, and was formed from a single shield volcano (Clague
The island of Hawaii, the largest, highest, and youngest of the eight main Hawaiian Islands, is also the easternmost and southernmost island in the chain. At 4,038 sq mi (10,458 sq km), it comprises approximately two-thirds of the land area of the State of Hawaii, giving rise to its common name, the “Big Island.” Five large shield volcanoes make up the island: Mauna Kea at 13,796 ft (4,205 m) and Kohala at 5,480 ft (1,670 m), both extinct volcanoes; Hualalai at 8,270 ft (2,520 m), a dormant volcano; and Mauna Loa (13,677 ft (4,169 m)) and Kilauea (4,093 ft (1,248 m)), both active volcanoes (McDonald
In this document, we have analyzed the threats to each of the 49 species individually to determine the appropriate status of each species on its own merits under the Act. However, because many of these species, and particularly those that share the same habitat types (ecosystems), share a similar suite of threats, we have organized the 49 species addressed in this proposed rule by common ecosystem for efficiency, to reduce repetition for the reader, and to reduce publication costs.
In addition, as an ancillary benefit of assessing the threats to the 49 species using shared ecosystems as an organizational tool, we have laid the groundwork for better addressing threats to these species, should they be listed. In the Hawaiian Islands, native species occurring in the same habitat types depend on many of the same physical and biological features and the successful functioning of specific ecosystems to survive. Because species that share ecosystems face a suite of shared threats, managing or eliminating these threats holistically at an ecosystem level is more cost effective and should lead to better resource protection for all native species. This approach is in accord with the primary stated purpose of the Act (see section 2(b)): “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.”
On all the main Hawaiian Islands, vegetation on land with rich soils was cultivated and altered by the early Hawaiians and, more recently, converted to commercial agricultural and urban use (Gagne and Cuddihy 1999, p. 45). Intentional and inadvertent introduction of alien plant and animal species has also contributed to the reduction in range of native vegetation. Throughout this proposed rule, the terms “alien,” “feral,” “nonnative,” and “introduced” all refer to species that are not native to the Hawaiian Islands. Most of the candidate species included in this proposed rule persist on steep slopes,
Each of the 49 Hawaiian Islands species is found in one or more of the 11 ecosystems types described in this proposed rule: anchialine pool, coastal, lowland dry, lowland mesic, lowland wet, montane wet, montane mesic, montane dry, subalpine, dry cliff, and wet cliff (see Table 2).
Eleven distinct ecosystems (anchialine pool, coastal, lowland dry, lowland mesic, lowland wet, montane mesic, montane wet, montane dry, subalpine, dry cliff, and wet cliff) on the main eight Hawaiian Islands and NWHI currently harbor or historically harbored one or more of the 49 species under consideration for listing as endangered in this proposed rule. These ecosystems are described below.
The anchialine pool ecosystem is found on Oahu, Molokai, Maui, Kahoolawe, and Hawaii Island. Anchialine pools are land-locked bodies of water that have indirect underground connections to the sea and show tidal fluctuations in water level. These pools are mixohaline (brackish), with salinities typically ranging from 2 parts per thousand (ppt) to concentrations just below that of sea water (32 ppt), although some pools are recorded as having salinities as high as 41 ppt (Maciolek 1983, pp. 607-612; Brock
Over 80 percent of the State's anchialine pools are found on the island of Hawaii, with a total of approximately 600 to 650 pools distributed over 130 sites along all but the island's northernmost and steeper northeastern shorelines. On east Maui, eight locations along the north and south coasts have anchialine pools (some containing more than one pool,
The coastal ecosystem is found on all of the main Hawaiian Islands and the NWHI, with the highest native species diversity in the least populated areas and associated islets. The coastal ecosystem includes mixed herblands, shrublands, and grasslands, from sea level to 980 ft (300 m) elevation, generally within a narrow zone above the influence of waves to within 330 ft (100 m) inland, sometimes extending farther inland if strong prevailing onshore winds drive sea spray and sand dunes into the lowland zone (TNCH 2006). The coastal ecosystem is typically dry, with annual rainfall of less than 20 in (50 cm); however, windward rainfall may be high enough (up to 40 in (100 cm)) to support mesic-associated and sometimes wet-associated vegetation (Gagne and Cuddihy 1999, pp. 54-66). Biological diversity is low to moderate in this ecosystem, but may include some specialized plants and animals such as nesting seabirds, the endangered plant
The lowland dry ecosystem is found on all the main Hawaiian Islands and includes shrublands and forests generally below 3,300 ft (1,000 m) elevation that receive less than 50 in (130 cm) annual rainfall, or are in otherwise prevailingly dry substrate conditions that range from weathered reddish silty loams to stony clay soils, rocky ledges with very shallow soil, or relatively recent little-weathered lava (Gagne and Cuddihy 1999, p. 67). Areas consisting of predominantly native species in the lowland dry ecosystem are now rare and are best represented on the leeward sides of the islands (Gagne and Cuddihy 1999, p. 67; TNCH 2006). Native biological diversity is low to moderate in this ecosystem, and includes specialized animals and plants such as the Hawaiian owl (pueo) and
The lowland mesic ecosystem is found on all the main Hawaiian Islands except Kahoolawe and Niihau, and includes a variety of grasslands, shrublands, and forests, generally below 3,300 ft (1,000 m) elevation, that receive between 50 and 75 in (130 and 190 cm) annual rainfall (Gagne and Cuddihy 1999, p. 75; TNCH 2006). Native biological diversity is high in this system (TNCH 2006). The following plants proposed for listing as endangered in this rule reported currently or historically from this ecosystem are:
The lowland wet ecosystem is generally found below 3,300 ft (1,000 m) elevation on the windward sides of the main Hawaiian Islands, except for Kahoolawe and Niihau (Gagne and Cuddihy 1999, p. 85; TNCH 2006). These areas include a variety of wet grasslands, shrublands, and forests that receive greater than 75 in (190 cm) annual rainfall, or are in otherwise wet substrate conditions (TNCH 2006). This system is best developed in wet valleys and slopes on Kauai, Oahu, Molokai, Maui, and Hawaii Island (TNCH 2006). Native biological diversity is high in this system (TNCH 2006). The following
The montane wet ecosystem is composed of natural communities (grasslands, shrublands, forests, and bogs) at elevations between 3,300 and 6,500 ft (1,000 and 2,000 m), in areas where annual rainfall is greater than 75 in (190 cm) (TNCH 2006). This system is found on all of the main Hawaiian Islands except Niihau and Kahoolawe (TNCH 2006). Native biological diversity is moderate to high (TNCH 2006). The following plants proposed for listing as endangered in this rule reported currently or historically from this ecosystem are:
The montane mesic ecosystem is composed of natural communities (forest and shrublands) found at elevations between 3,300 and 6,500 ft (1,000 to 2,000 m), in areas where annual rainfall is between 50 and 75 in (130 and 190 cm), or are in otherwise mesic substrate conditions (TNCH 2006). This system is found on Kauai, Molokai, Maui, and Hawaii Island (Gagne and Cuddihy 1999, pp. 97-99; TNCH 2007). Native biological diversity is moderate, and this habitat is important for Hawaiian forest birds (Gagne and Cuddihy 1999, pp. 98-99; TNCH 2006). The following plants proposed for listing as endangered in this rule reported currently or historically from this ecosystem are:
The montane dry ecosystem is composed of natural communities (one grassland type, shrublands, forests) found at elevations between 3,300 and 6,500 ft (1,000 and 2,000 m), in areas where annual rainfall is less than 50 in (130 cm), or are in otherwise dry substrate conditions (TNCH 2006). This system is found on Maui and Hawaii Island, and is best developed in the saddle region between mountains on Hawaii Island, with rich native plant communities (Gagne and Cuddihy 1999, pp. 93-97; TNCH 2007). The following plants proposed for listing as endangered in this rule reported currently or historically from this ecosystem are:
The subalpine ecosystem is composed of natural communities (grasslands, shrublands, forests) at elevations between 6,500 and 9,800 ft (2,000 and 3,000 m), in areas where annual rainfall is seasonal, between 15 and 40 in (38 and 100 cm), or are in otherwise dry substrate conditions (TNCH 2006). Native biodiversity is not high in this system, but contains specialized invertebrates and plants adapted to dry, exposed conditions (Gagne and Cuddihy 1999, p. 107). Because rainfall is low in this area, fog drip is an important moisture source (Gagne and Cuddihy 1999, p. 110). The following plants proposed for listing as endangered in this rule reported currently or historically from this ecosystem are:
The dry cliff ecosystem is composed of vegetation communities occupying steep slopes (greater than 65 degrees) in areas that receive less than 75 in (190 cm) of annual rainfall, or are in otherwise dry substrate conditions (TNCH 2006). This ecosystem is found on all the main Hawaiian Islands except Niihau, and is best represented along the leeward slopes of Lanai, Maui, the Waianae Mountains of Oahu, and Kauai (TNCH 2006). A variety of shrublands occur within this ecosystem (TNCH 2006). Native biological diversity is low to moderate (TNCH 2006). The following plants proposed for listing as endangered in this rule reported currently or historically from this ecosystem are:
The wet cliff ecosystem is generally composed of shrublands on near-vertical slopes (greater than 65 degrees) in areas that receive more than 75 in (190 cm) annual rainfall, or are in otherwise wet substrate conditions (TNCH 2006). This system is found on all the main islands except for Niihau and Kahoolawe (TNCH 2006). Native biological diversity is low to moderate (TNCH 2006). The following plants proposed for listing as endangered in this rule reported currently or historically from this ecosystem are:
The Act directs us to determine whether any species is an endangered species or a threatened species because
The summaries below include only brief lists of factors affecting each species. Each of these factors is fully considered, in detail, in the section “Summary of Factors Affecting the 49 Species Proposed for Listing,” below.
Twenty-eight of the plant species proposed for listing and described below were evaluated for their vulnerability to climate change as part of a comprehensive vulnerability analysis of native Hawaiian plants, as indicated in Table 3 (Fortini
Feral pigs, goats, and black-tailed deer (
The remaining occurrences of
Feral pigs modify and destroy the habitat of
The remaining occurrences of
The greatest threats to this species currently are the low numbers of occurrences and individuals, its limited range, poor seedling recruitment, and loss of pollinators and dispersal agents (Oppenheimer and Lorence 2012, p. 20). Rats and slugs are noted as a threat to
Historically, this fern was known from near sea level to 4,400 ft (1,350 m) on Oahu, Maui, and Hawaii Island (Hillebrand 1888, p. 572; Medeiros
Feral pigs modify and destroy the habitat of
The remaining occurrences of
Feral pigs modify and destroy the habitat of
Habitat for any remaining individuals of
Feral pigs and goats modify and destroy the habitat of
The remaining occurrences of
This fern is historically known from the islands of Kauai, Maui, and Hawaii, on rocky stream banks and in wet forest, in the lowland mesic and lowland wet ecosystems (Oppenheimer and Bustamente 2014, p. 103; Palmer 2003, pp. 109-111; PEPP 2014, p. 95; HBMP 2010; TNCH 2007).
Feral pigs modify and destroy habitat of
The remaining occurrence of
Feral goats, mouflon, and sheep modify and destroy the habitat of
The remaining occurrences of
Typical habitat for this species is dry forest at 6,500 ft (2,000 m), in the montane dry ecosystem (O'Connor 1999, p. 1547). Historically,
Habitat destruction by feral goats, sheep, and mouflon is a threat to the habitat of
The remaining occurrence of
Historically, this species was found on the island of Hawaii at Wao Kele O Puna NAR, Waiakea Forest Reserve (FR), Pahoa, and Hakalau Nui. On Maui, this species was known from Wailuaiki and Waikamoi in the Koolau FR, and from Papaaea and Kipahulu. On Molokai, this species was known from Keopukaloa, Pukoo, Honomuni, Halawa, and Kaluaaha (HBMP 2010). On Kauai, this species ranged across the island, and was known from Halelea, Kealia, Moloaa, and Lihue-Koloa FRs, including Hanakapiai Valley, Mahaulepu, and east Wahiawa Bog. Currently,
Habitat modification and destruction by feral pigs, goats, and deer negatively affects
The remaining occurrences of
Feral pigs, goats, axis deer, and cattle modify and destroy the habitat of
The remaining occurrences of
Nonnative plants modify and destroy the habitat of
The remaining occurrences of
Historically, this subspecies was found in widely distributed occurrences on the islands of Kauai, Oahu, Molokai, Maui, and Hawaii Island (HBMP 2010). On Kauai, this subspecies was wide-ranging across the mountains and into coastal areas (HBMP 2010). On Oahu,
Nonnative ungulates modify and destroy habitat on all of the islands where
The remaining occurrences of
Historically,
Feral pigs and goats modify and destroy habitat of
The remaining occurrences of
Feral pigs modify and destroy the habitat of
Feral pigs have been documented to modify and destroy habitat of other rare and endangered native plant species at the same location on Mt. Haupu, Kauai (Lorence
The remaining occurrence of
Typical habitat for this species is dry to mesic forest in the dry cliff (Kauai, Oahu, Lanai, and Maui), lowland dry (Oahu, Lanai, and Maui), and lowland mesic (Oahu, Molokai, Lanai, and Maui) ecosystems (TNCH 2007; HBMP 2010). Historically,
Feral pigs (Oahu, Maui, Kauai), goats (Maui, Kauai), mouflon and sheep (Lanai), axis deer (Lanai, Maui), and black-tailed deer (Kauai) modify and destroy habitat of
Historically,
On Hawaii, the status of the individuals at Alakahi Gulch is uncertain after a strong earthquake in 2006; the individual found at Kailikaula Stream was last observed in 2011, and is vulnerable to landslides (Hadway 2013, in litt.), and the individual at Kalopa has not been confirmed since 1999 (Agorastos 2010 and 2011, in litt.; Conry 2012, in litt.; Hadway 2013, in litt.). More than 100 propagated individuals have been outplanted at Kipuka Puaulu and Kipuka Ki in Hawaii Volcanoes National Park; however, survivorship of these individuals is unknown (Pratt 2005, in litt.; Agorastos 2007, pers. comm.; Bio 2008, in litt.; HBMP 2010; Pratt 2011, in litt.; Conry 2012, in litt.). Feral pigs and goats modify and destroy the habitat of
Feral pigs, sheep, mouflon, and cattle on Hawaii Island modify and destroy the habitat of
The remaining occurrences of
Historically,
Feral pigs and goats modify and destroy the habitat of
The remaining occurrence of
Feral pigs, goats, and axis deer modify and destroy the habitat of
The remaining occurrences of
Axis deer (Maui and Lanai), mouflon, sheep, and goats (Lanai), and cattle (Hawaii Island) modify and destroy the habitat of
The remaining occurrences of
Habitat modification and destruction by feral pigs affect the range and abundance of
Based on our evaluation of habitat degradation and loss by feral pigs and nonnative plants, fruit predation by rats, and the small number and reduced range of remaining individuals, we find that this species should be listed throughout all of its range, and, therefore, we find that it is unnecessary to analyze whether it is endangered or threatened in a significant portion of its range.
Historically, this variety was found on Molokai (Halawa Valley and Waiahewahewa Gulch), on Oahu (on the coast between Diamond Head and Koko Head, and along the Waimanalo coast), on Maui (Wailuku area), and on Lanai (along the Munro trail) (HBMP 2010; MNTF 2010, in litt.). Currently,
Goats and axis deer modify and destroy the habitat of
The remaining occurrences of
Historically,
Feral pigs, mouflon, and cattle modify and destroy the habitat of
The remaining occurrences of
Historically,
Feral pigs, goats, axis deer, black-tailed deer, and cattle modify and destroy the habitat of
The remaining occurrences of
Feral goats modify and destroy the habitat of
The remaining occurrences of
Feral pigs, goats, and black-tailed deer modify and destroy the habitat of
The remaining occurrences of
Feral pigs modify and destroy the habitat of
The remaining occurrences of
Feral pigs, goats, axis deer, and cattle modify and destroy the habitat of
The remaining occurrences of
Feral pigs and goats modify and destroy the habitat of
The remaining occurrences of
Historically,
Feral pigs, mouflon, and cattle modify and destroy the habitat of
The remaining occurrences of
Historically,
Axis deer and cattle modify and destroy the habitat of
The remaining occurrences of
Feral pigs modify and destroy the habitat of
Any remaining occurrences of
Feral pigs destroy and modify the habitat of
The remaining occurrences of
The band-rumped storm-petrel (
When not at nesting sites, adult band-rumped storm-petrels spend their time foraging on the open ocean (Slotterback 2002, p. 7). Food is taken from the ocean surface and consists mostly of small fish and squid (Slotterback 2002, p. 7; Harris 1969, p. 105). Nests are placed in crevices, holes, and protected ledges along cliff faces, where a single egg is laid (Allan 1962, p. 274-275; Harris 1969, pp. 104-105; Slotterback 2002, p. 11). Adults visit the nest site after dark, where they can be detected by their distinctive calls. In Hawaii, adults establish nesting sites in April or May, and the nesting season occurs during the summer months. The incubation period averages 42 days (Harris 1969, p. 109), and the young reach fledging stage in 64 to 70 days (Allan 1962, p. 285; Harris 1969, p. 109).
The band-rumped storm-petrel is found in several areas of the subtropical Pacific and Atlantic Oceans (del Hoyo 1992
Populations in Japan and Galapagos total as many as 23,000 pairs (Boersma and Groom 1993, p. 114); however, a recent survey on Hidejima Island revealed only 117 burrows, some of which were occupied by Leach's storm petrels (Biodiversity Center of Japan 2014, p. 1). Surveyors noted that the nesting area had been affected by extensive erosion caused by the 2011 earthquake and tsunami (Biodiversity Center of Japan 2014, p. 1). When Polynesians arrived about 1,500 years ago, the band-rumped storm-petrel probably was common on all of the main Hawaiian Islands (Harrison
Band-rumped storm-petrels are regularly observed in coastal waters around Kauai, Niihau, and Hawaii Island (Harrison
Predation by nonnative animals on nests and adults during the breeding season is the greatest threat to the Hawaiian population of the band-rumped storm-petrel. These predators include feral cats (
Bees in the genus
Bees in the family Colletidae are also referred to as plasterer bees because they line their nests with a self-secreted, cellophane-like material. Eggs hatch and develop into larvae (immature stage) and as larvae grow, they molt through three successive stages (instars), then change into pupae (a resting form) in which they metamorphose and emerge as adults (Michener 2000, p. 24). The diet of the larval stage is unknown, although it is presumed the larvae feed on stores of pollen and nectar collected and deposited in the nest by the adult female.
Habitat destruction and modification by urbanization and land use conversion leads to the direct fragmentation of foraging and nesting areas of
The remaining populations of
Nests of
Historically,
Habitat destruction and modification due to urbanization and land use conversion leads to fragmentation and eventual loss of, foraging and nesting areas for
The remaining populations of
Nests of
Historically,
Habitat destruction and modification by urbanization and land use conversion leads to fragmentation of, and eventual loss of, foraging and nesting areas of
The remaining populations of
Most adult
Historically,
Because
Because the first collection of
Habitat destruction and modification by feral pigs leads to fragmentation, and eventual loss, of foraging and nesting areas of
Most of the coastal and lowland dry habitat of
The nesting habits of
Habitat destruction and modification by feral pigs leads to fragmentation, and eventual loss, of foraging and nesting areas of
The orangeblack Hawaiian damselfly (
Habitat for this species is standing or very slow-moving water. The naiads are active swimmers and rest on exposed areas of the bottom on submerged vegetation (Williams 1936, p. 314). They have been observed breeding in garden pools, large reservoirs, pools of an intermittent stream, a pond formed behind a cobble bar at the seaward terminus of a large stream, coastal springs, and freshwater marshes (Polhemus 1996, pp. 36, 42-45; Williams 1936, pp. 239, 310). In 1913, Perkins (p. clxxviii) described it as a common insect in Honolulu gardens and in lowland districts generally, not usually partial to the mountains, though in the Kona district of Hawaii Island it was common in stagnant pools up to elevations of about 3,000 ft (900 m).
The orangeblack Hawaiian damselfly was once Hawaii's most abundant damselfly species because it utilizes a variety of aquatic habitats for breeding sites. Historically, the orangeblack Hawaiian damselfly probably occurred on all of the main Hawaiian Islands (except Kahoolawe) in suitable aquatic habitat within the coastal, lowland dry, and lowland mesic ecosystems (Perkins 1913, p. clxxviii; Zimmerman 1948a, p. 379; Polhemus 1996, p. 30). Its historical range on Kauai is unknown. On Oahu, it was recorded from Honolulu, Kaimuki, Koko Head, Pearl City, Waialua, the Waianae Mountains, and Waianae (Polhemus 1996, pp. 31, 33). On Molokai, it was known from Kainalu, Meyer's Lake (Kalaupapa Peninsula), Kaunakakai, Mapulehu, and Palaau (Polhemus 1996, pp. 33-41). On Lanai, small populations occurred on Maunalei Gulch, and in ephemeral coastal ponds at the mouth of Maunalei Gulch drainage, at Keomuku, and in a mixohaline habitat at Lopa (Polhemus 1996, pp. 37-41; HBMP 2010). On Maui, this species was recorded from an unspecified locality in the west Maui Mountains (Polhemus 1996, pp. 41-42; Polhemus
Currently, the orangeblack Hawaiian damselfly occurs on five islands. In 1994, on Oahu, a very small population was discovered in pools of an intermittent stream at the Tripler Army Medical Facility (Englund 2001, p. 256). On Molokai, populations occur at the mouths of Pelekunu and Waikolu streams, and at the Palaau wetlands on the south coast (Polhemus 1996, p. 47). On Lanai, a large population occurs in an artificial pond at Koele (Polhemus 1996, p. 47). The species is present on Maui at Ukumehame stream (west Maui) and near anchialine pools at La Perouse Bay (leeward east Maui) (Polhemus
Past and present land use and water management practices, including agriculture, urban development, ground water development, feral ungulates, and destruction of perched aquifer and surface water resources, modify and destroy habitat of the orangeblack Hawaiian damselfly (Harris
The remaining populations and habitat of the orangeblack Hawaiian damselfly are at risk; numbers are decreasing on Oahu, Molokai, Lanai, Maui, and Hawaii Island, and both the species and its habitat continue to be negatively affected by modification and destruction by development and water management practices and by nonnative plants, combined with predation by nonnative fish and nonnative invertebrates. Competition with nonnative insects is a potential threat to the orangeblack Hawaiian damselfly. Because of these threats, we find that this species should be listed throughout all of its range, and, therefore, we find that it is unnecessary to analyze whether it is endangered or threatened in a significant portion of its range.
The anchialine pool shrimp
Although anchialine pools are widespread, being found in areas such as Saudi Arabia, Madagascar, Fiji, and other Indo-Pacific islands, the total area they occupy globally is extremely small (Maciolek 1983, pp. 607-612). While many species of anchialine pool shrimp have disjunct, global distributions, most geographic locations contain some endemic taxa (
Like other anchialine pool shrimp species,
Habitat modification and destruction by human activities is a threat to
The remaining populations of
Under the Act, we have the authority to consider for listing any species, subspecies, or, for vertebrates, any distinct population segment (DPS) of these taxa if there is sufficient information to indicate that such action may be warranted. To guide the implementation of the DPS provisions of the Act, we and the National Marine Fisheries Service (National Oceanic and Atmospheric Administration—Fisheries) published the Policy Regarding the Recognition of Distinct Vertebrate Population Segments Under the Endangered Species Act (DPS Policy) in the
Under the DPS Policy, a population segment of a vertebrate taxon may be considered discrete if it satisfies either one of the following conditions: (1) It is markedly separated from other populations of the same taxon as a consequence of physical, physiological, ecological, or behavioral factors (quantitative measures of genetic or morphological discontinuity may provide evidence of this separation); or (2) it is delimited by international governmental boundaries within which differences in control of exploitation, management of habitat, conservation status, or regulatory mechanisms exist that are significant in light of section 4(a)(1)(D) of the Act. The Hawaii population of the band-rumped storm-petrel meets the first criterion: it is markedly separated from other populations of this species by physical
The band-rumped storm-petrel is widely distributed in the tropics and subtropics, with breeding populations in numerous island groups in the Atlantic and in Hawaii, Galapagos, and Japan in the Pacific (Harrison 1983, p. 274; Carboneras
Band-rumped storm-petrels from Hawaii are likely to encounter individuals from other populations only very rarely. The approximate distances from Hawaii to other known breeding sites are much greater than the birds' average foraging range of 860 mi (1,200 km): 4,000mi (6,600 km) to Japan and 4,600 mi (7,400 km) to Galapagos (the two other Pacific populations), and 7,900 mi (12,700 km) to Madeira, 7,300 mi (11,700 km) to the Azores, and 9,700 mi (15,600 km) to Ascension Island (in the Atlantic). Data from at-sea surveys of the eastern tropical Pacific conducted since 1988 show that the density of band-rumped storm-petrels attenuates north and northwest of Galapagos and that the species rarely occurs in a broad area southeast of Hawaii (Pitman, Ballance, and Joyce 2015, unpublished). This pattern suggests a gap in the at-sea distribution of this species, and low likelihood of immigration on an ecological timescale, between Hawaii and Galapagos. We are not aware of any data describing the at-sea distribution of this species between Hawaii and Japan, but the absence of breeding records from western Micronesia (Pyle and Engbring 1985, p. 59) suggests there is a distributional gap between these two archipelagoes as well. Other than occasional encounters in their foraging habitat, the vast expanses of ocean between Japan, Hawaii, and Galapagos provide for no other sources of potential connectivity between band-rumped storm-petrel populations in the Pacific, such as additional breeding sites.
Even those disparate breeding populations of pelagic seabirds that do overlap at sea may remain largely isolated otherwise and exhibit genetic differentiation (
We have determined that the Hawaii population of the band-rumped storm-petrel is discrete from the rest of the taxon because its breeding and foraging range are markedly separated from those of other populations. The Hawaii population is geographically isolated from populations in Japan and Galapagos, as well as from populations in very distant island groups in the central and western Atlantic Ocean. Molecular evidence indicates that the genetic structure of the species reflects the spatial or temporal separation of individual populations; the scant molecular data from Hawaii suggest that this holds for the Hawaii population as well.
Under our DPS Policy, once we have determined that a population segment is discrete, we consider its biological and ecological significance to the larger taxon to which it belongs. This consideration may include, but is not limited to: (1) Evidence of the persistence of the discrete population segment in an ecological setting that is unusual or unique for the taxon, (2) evidence that loss of the population segment would result in a significant gap in the range of the taxon, (3) evidence that the population segment represents the only surviving natural occurrence of a taxon that may be more abundant elsewhere as an introduced population outside its historical range, or (4) evidence that the discrete population segment differs markedly from other populations of the species in its genetic characteristics. We have found substantial evidence that the Hawaii population of the band-rumped storm-petrel meets two of the significance criteria listed above: the loss of this population would result in a significant gap in the range of the taxon, and this population persists in a unique ecological setting. As described above, the physical isolation that defines the discreteness of Hawaii population is likely reflected in genetic differentiation from other populations, but at this time we lack sufficient data to consider genetic characteristics per se in our determination of the Hawaii population's significance to the rest of the taxon. Genetic patterns on an ocean-basin or species-wide scale, however, have implications for connectivity and potential gaps in the band-rumped storm-petrel's range (described below).
Dispersal between populations of seabird species with ranges fragmented by large expanses of ocean may play a vital role in the persistence of individual populations (Bicknell
The loss of this population would result in a significant gap in the range of the band-rumped storm-petrel. As noted above, seabirds in the order Procellariiformes, including the band-rumped storm-petrel, exhibit very high natal site fidelity, and so are slow to recolonize extirpated areas or range-
The Hawaii population of the band-rumped storm-petrel is significant also because it persists in a unique ecological setting. This is the only population of the species known to nest at high-elevation sites (above 6,000 ft (1,800 m; Banko
We have determined that the Hawaii population of band-rumped storm-petrel is significant to the rest of the taxon. Its loss would result in a gap in the range of the species of more than 8,500 mi (13,680 km), reducing and potentially precluding connectivity between the two remaining populations in the Pacific Basin. In addition, the Hawaii population nests at high elevation on some islands, constituting a unique ecological setting represented nowhere else in the species' breeding range.
We have evaluated the Hawaii population of band-rumped storm-petrel to determine if it meets the definition of a DPS, considering its discreteness and significance as required by our policy. We have found that this population is markedly separated from other populations by geographic distance, and this separation is likely reflected in the population's genetic distinctiveness. The Hawaii population is significant to the rest of the species because its loss would result in a significant gap in the species' range; Hawaii is located roughly half-way between the other two populations in the Pacific Ocean, and little or no evidence exists of current overlap at sea between the Hawaii population and either the Japan or Galapagos populations. The Hawaii population of band-rumped storm-petrel also nests at high elevation in Hawaii—conditions at high elevation constitute an ecological setting unique to the species. We conclude that the Hawaii population of band-rumped storm-petrel is a distinct vertebrate population segment under our 1996 DPS Policy (61 FR 4722), and that it warrants review for listing under the Act. Therefore, we have incorporated the Hawaii DPS of the band-rumped storm-petrel in our evaluation of threats stressors affecting the other 48 species addressed in this proposed rule (summarized above; see also “Summary of Factors Affecting the 49 Species Proposed for Listing,” below).
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; and (E) other natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination. Each of these factors is discussed below.
In considering what factors might constitute threats to a species, we must look beyond the mere exposure of the species to the factor to evaluate whether the species responds to the factor in a way that causes actual impacts to the species. If there is exposure to a factor and the species responds negatively, the factor may be a threat, and, during the status review, we attempt to determine how significant a threat it is. The threat is significant if it drives, or contributes to, the risk of extinction of the species such that the species warrants listing as an endangered or threatened species as those terms are defined by the Act. However, the identification of factors that could impact a species negatively may not be sufficient to warrant listing the species under the Act. The information must include evidence sufficient to show that these factors are operative threats that act on the species to the point that the species meets the definition of an endangered or threatened species under the Act. That evidence is discussed below for each of the species proposed for listing in this rule.
If we determine that the level of threat posed to a species by one or more of the five listing factors is such that the species meets the definition of either endangered or threatened under section 3 of the Act, that species may then be proposed for listing. The Act defines an endangered species as “in danger of extinction throughout all or a significant portion of its range,” and a threatened species as “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The threats to each of the individual 49 species proposed for listing in this
Each of the species proposed for listing in this proposed rule is adversely affected by the threats to the ecosystems on which it depends. There is information available on many of the threats that act on Hawaiian ecosystems, and for some ecosystems, there is a growing body of literature regarding these threats (
The following threats affect the species proposed for listing in one or more of the ecosystems addressed in this proposed rule:
(1) Foraging and trampling of native plants by nonnative ungulates, including feral pigs, goats, axis deer, black-tailed deer, mouflon, sheep, and cattle, which can result in severe erosion of watersheds. Foraging and trampling events destabilize soils that support native plant communities, bury or damage native plants, have adverse water quality effects due to runoff over exposed soils, and can negatively affect burrows and nesting areas used by the band-rumped storm-petrel.
(2) Disturbance of soils by feral pigs from rooting, which can create fertile seedbeds for nonnative plants.
(3) Increased nutrient availability and changes to nutrient cycling processes as a result of rooting by pigs in nitrogen-poor soils, which facilitates establishment of nonnative plants, as they are more adapted to nutrient-rich soils than native plants, and rooting activity creates open areas in forests allowing nonnative plants to completely replace native stands.
(4) Ungulate destruction of seeds and seedling of native plants, and facilitation of distribution of seeds of nonnative plants, promoting conversion of disturbed areas from native to nonnative vegetative communities.
(5) Damage by rat herbivory to plant propagules, seedlings, or native trees, which changes forest composition and structure.
(6) Feeding on or defoliation of native plants by nonnative invertebrates (
(7) Competition for food and nesting sites of the
(8) Predation by nonnative vertebrates such as fish, rats, cats, mongoose, and barn owls.
(9) Predation by nonnative invertebrates such as ants, wasps, and backswimmers.
(10) Water extraction leading to conversion of wetlands and surface fresh water resources, and changes to anchialine pools.
(11) Habitat modification and destruction by ungulates and fires, resulting in loss of forage plants used by
(12) Injury and mortality of the band-rumped storm-petrel caused by artificial lighting, communication towers, and power lines.
Each of the above threats is discussed in more detail below, and summarized in Table 3.
The Hawaiian Islands are located over 2,000 miles (mi) (3,200 kilometers (km)) from the nearest continent. This isolation has allowed the few plants and animals that arrived by wind, water, or bird, to evolve into many highly varied and endemic species. The only native terrestrial mammals on the Hawaiian Islands include two bat taxa, the Hawaiian hoary bat (
Past land use practices such as agriculture or urban development have resulted in little or no native vegetation below 2,000 ft (600 m) throughout the Hawaiian Islands (TNC 2006), largely impacting the anchialine pool, coastal, lowland dry, and lowland mesic ecosystems, including streams and wetlands that occur within these areas. Hawaii's agricultural industries (
Development and urbanization of anchialine pool, coastal, lowland dry, and lowland mesic ecosystems on Oahu, Molokai, Maui, Lanai, and Hawaii Island are a threat to the following species proposed for listing in this rule:
• On Oahu, the plants
• On Molokai, the plants
• On Maui, the plants
• On Lanai, the plants
• On Hawaii Island, the orangeblack Hawaiian damselfly and the anchialine pool shrimp
Although we are unaware of any comprehensive, site-by-site assessment of wetland development in Hawaii (Erikson and Puttock 2006, p. 40), Dahl (1990, p. 7) estimated that at least 12 percent of lowland to upper-elevation wetlands in Hawaii had been converted to non-wetland habitat by the 1980s. If only coastal plain (below 1,000 ft (300 m)) marshlands and wetlands are considered, it is estimated that 30 percent were developed or converted to agricultural use (Kosaka 1990, in litt.). Records show the reduction in area of these marshlands and wetlands that provided habitat for many damselfly species, including the orangeblack Hawaiian damselfly (Englund 2001, p. 256; Rees and Reed 2013, Fig 2S). Once modified, these areas then lack the aquatic habitat features that the orangeblack Hawaiian damselfly requires for essential life-history needs, such as pools of intermittent streams, ponds, and coastal springs (Polhemus 1996, pp. 30-31, 36). Although the filling of wetlands is regulated by section 404 of the Clean Water Act (33 U.S.C. 1251
On Hawaii Island, it is estimated that up to 90 percent of the anchialine pools have been destroyed or altered by human activities, including bulldozing and filling of pools (Brock 2004, p. i; Bailey-Brock and Brock 1993, p. 354). Dumping of trash and nonnative fish has impacted anchialine pools on this island (Brock 2004, pp. 13-17) (see “E. Other Natural or Manmade Factors Affecting Their Continued Existence,” below). Brock also noted that garbage like bottles and cans appear to have no net negative impact, while the dumping of used oil, oil filters, and grease has resulted in the disappearance of a related anchialine pool shrimp
Destruction and modification of
Nonnative ungulates have greatly impacted the native vegetation, as well as the native fauna, of the Hawaiian Islands. Impacts to the native species and ecosystems accelerated following the arrival of Captain James Cook in 1778. The Cook expedition and subsequent explorers intentionally introduced a European race of pigs (
The destruction or modification of habitat by pigs currently affects five of the ecosystems (lowland dry, lowland mesic, lowland wet, montane wet, and montane mesic). Feral pigs are known to cause deleterious impacts to ecosystem processes and functions throughout their worldwide distribution (Campbell and Long 2009, p. 2319). Pigs have been described as having the most pervasive and disruptive nonnative influences on the unique ecosystems of the Hawaiian Islands and are widely recognized as one of the greatest current threats (Aplet
Feral pigs are extremely destructive and have both direct and indirect impacts on native plant communities. While rooting in the earth in search of invertebrates and plant material, pigs directly impact native plants by disturbing and destroying vegetative cover, and by trampling plants and seedlings. It has been estimated that at a conservative rooting rate of 2 square yards (sq yd) (1.7 sq m) per minute and only 4 hours of foraging per day, a single pig could disturb over 1,600 sq yd (1,340 sq m) (or approximately 0.3 ac (0.1 ha)) of groundcover per week (Anderson
Feral goats currently destroy and modify habitat in nine of the described ecosystems (coastal, lowland dry, lowland mesic, lowland wet, montane wet, montane mesic, montane dry, dry cliff, and wet cliff). Goats, native to the Middle East and India, were successfully introduced to the Hawaiian Islands in the late 1700s. Actions to control populations began in the 1920s (Tomich 1986, pp. 152-153); however, goats still occupy a wide variety of habitats on all the main islands (except for Kahoolawe; see below), where they consume native vegetation, trample roots and seedlings, strip tree bark, accelerate erosion, and promote the invasion of nonnative plants (van Riper and van Riper 1982, pp. 34-35; Stone 1985, p. 261; Kessler 2010, pers. comm.). Kahoolawe was negatively impacted by ungulates beginning in 1793, with the introduction of goats and the addition of sheep (up to 15,000) and cattle (about 900) by ranchers between 1858 and 1941, with the goat population estimated to be as high as 50,000 individuals by 1988 (KIRC 2014, in litt.; KIRC 2015, in litt.). Beginning in 1941, the U.S. military used the entire island as a bombing range; for over 50 years, and in 1994, control of Kahoolawe was
Axis deer destroy and modify 8 of the 11 ecosystems (coastal, lowland dry, lowland mesic, lowland wet, montane mesic, montane wet, montane dry, and dry cliff). Axis deer were introduced to the Hawaiian Islands for hunting opportunities on Molokai in 1868, on Lanai in 1920, and on Maui in 1959 (Hobdy 1993, p. 207; Erdman 1996, pers. comm.
On Molokai, axis deer likely occur at all elevations from sea level to almost 5,000 ft (1,500 m) at the summit area (Kessler 2011, pers. comm.). The most current population estimate for axis deer on the island of Molokai is between 4,000 and 5,000 individuals (Anderson 2003, p. 119). Little management for deer control has been implemented on Molokai, and this figure from more than a decade ago is likely an underestimate of the axis deer population on this island today (Scott
While axis deer are managed as game animals on these three islands, the State does not permit their introduction to other Hawaiian Islands. Recently (2010-2011), there was an illegal introduction of axis deer to Hawaii Island as a game animal (Kessler 2011, pers. comm.; Aila 2012, in litt.), and deer have now been observed across the southern portion of the island including in Kohala, Kau, Kona, and Mauna Kea (HDLNR 2011, in litt.). The Hawaii Department of Land and Natural Resources—Division of Forestry and Wildlife (HDLNR-HDOFAW) has developed a response-and-removal plan, including a partnership now underway with the Hawaii Department of Agriculture (HDOA), the Big Island Invasive Species Committee (BIISC), Federal natural resource management agencies, ranchers, farmers, private landowners, and concerned citizens (Big Island.com, June 6, 2011). Also, in response to the introduction of axis deer to Hawaii Island, the Hawaii Invasive Species Council drafted House Bill 2593 to amend House Revised Statutes (H.R.S.) 91, which allows agencies to adopt emergency rules in the instances of imminent peril to public health, including to livestock and poultry health (BigIsland.com 2011, in litt.; Martin 2012, in litt.). This emergency rule became permanent on June 21, 2012, when House Bill 2593 was enacted into law as Act 194 (State of Hawaii 2012, in litt.).
The following species proposed for listing in this rule are at risk from the activities of axis deer:
Black-tailed deer destroy and modify habitat in 5 of the 11 ecosystems (lowland mesic, lowland wet, montane wet, montane mesic, and dry cliff). The black-tailed deer is one of nine subspecies of mule deer (Natural History Museum 2015, in litt.). On Kauai, black-tailed deer were first introduced in 1961, for the purpose of sport hunting (Tomich 1986, pp. 131-134). Currently, these deer are limited to the western side of the island, where they feed on a variety of native (
Four of the described ecosystems on Hawaii Island (lowland wet, montane wet, montane dry, and wet cliff), are currently affected by habitat modification and destruction due to the activities of domestic sheep. Sheep were introduced to Hawaii Island in 1791, when Captain Vancouver brought five rams and two ewes from California (Tomich 1986, pp. 156-163). Soon after, stock was brought from Australia, Germany, and the Mediterranean for sheep production (Tomich 1986, pp. 156-163; Cuddihy and Stone 1990, pp. 65-66). By the early 1930s, herds reached close to 40,000 individuals (Scowcroft and Conrad 1992, p. 627). Capable of acquiring the majority of their water needs by consuming vegetation, sheep can inhabit dry forests in remote regions of Mauna Kea and Mauna Loa, including the saddle between the two volcanoes. Feral sheep browse and trample native vegetation and have decimated large areas of native forest and shrubland on Hawaii Island (Tomich 1986, pp. 156-163; Cuddihy and Stone 1990, pp. 65-66). Browsing results in the erosion of top soil that alters moisture regimes and micro-environments, leading to the loss of native plant and animal taxa (Tomich 1986, pp. 156-163; Cuddihy and Stone 1990, pp. 65-66). In addition, nonnative plant seeds are dispersed into native forest by adhering to sheep's wool coats (DOFAW 2002, p. 3). In 1962, game hunters intentionally crossbred feral sheep with mouflon sheep and released them on Mauna Kea, where they have done extensive damage to the montane dry ecosystem (Tomich 1986, pp. 156-163). Over the past 30 years, attempts to protect the vegetation of Mauna Kea and the saddle area between the two volcanoes have been only sporadically effective (Hess 2008, pp. 1, 4). Currently, a large population of sheep (and mouflon hybrids) extends from Mauna Kea into the saddle and northern part of Mauna Loa, including State forest reserves, where they trample and browse all vegetation, including endangered plants (Hess 2008, p. 1). One study estimated as many as 2,500 mouflon within just the Kau district of the Kahuku Unit (Volcanoes National Park) in 2006 (Hess
Mouflon sheep destroy and modify habitat in 7 of the 11 described ecosystems on Maui, Lanai, and Hawaii Island (coastal, lowland dry, lowland mesic, montane wet, montane mesic, montane dry, subalpine). Native to Asia Minor, mouflon sheep were introduced to the islands of Lanai and Hawaii in the 1950s as a managed game species, and are now widely established on these islands (Tomich 1986, pp. 163-168; Cuddihy and Stone 1990, p. 66; Hess 2008, p. 1). Due to their high reproductive rate, the original population of 11 mouflon on the island of Hawaii increased to more than 2,500 individuals in 36 years, even though hunted as a game animal (Hess 2008, p. 3). Mouflon have decimated vast areas of native shrubland and forest through grazing, browsing, and bark stripping (Stone 1985, p. 271; Cuddihy and Stone 1990, pp. 63, 66; Hess 2008, p. 3). Mouflon also create trails and pathways through vegetation, resulting in soil compaction and increased runoff and erosion. In some areas, the interaction of browsing and soil compaction has led to a shift from native forest to grassy scrublands (Hess 2008, p. 3). Mouflon only gather in herds when breeding, thus complicating control techniques and hunting efficiency (Hess 2008, p. 3; Ikagawa 2011, in litt.). Currently, many of the current and proposed fence exclosures on Hawaii Island constructed to protect rare species and habitat are only 4 ft (1.3 m) in height, as they are designed to exclude feral pigs, goats, and sheep; however, in actuality, a fence height of at least 6 ft (2 m) is necessary to exclude mouflon (Ikagawa 2011, in litt.). Seven of the 39 plant species (
Cattle destroy and modify habitat in 7 of the 11 ecosystems on Maui and Hawaii Island (coastal, lowland dry, lowland mesic, lowland wet, montane wet, montane mesic, and montane dry). Cattle, the wild progenitors of which were native to Europe, northern Africa, and southwestern Asia, were introduced to the Hawaiian Islands in 1793, and large feral herds (as many as 12,000 on the island of Hawaii) developed as a result of restrictions on killing cattle decreed by King Kamehameha I (Cuddihy and Stone 1990, p. 40). While small cattle ranches were developed on Kauai, Oahu, Molokai, west Maui, and Kahoolawe, very large ranches of tens of thousands of acres were created on east Maui and Hawaii Island (Stone 1985, pp. 256, 260; Broadbent 2010, in litt.). Large areas of native forest were quickly converted to grassland through the combined logging of native koa and establishment of cattle ranches (Tomich 1986, p. 140; Cuddihy and Stone 1990, p. 47). Feral cattle can be found today on the islands of Molokai, Maui, and Hawaii. Feral cattle eat native vegetation, trample roots and seedlings, cause erosion, create disturbed areas into which alien plants invade, and spread seeds of alien plants carried in their feces and on their bodies. The forest in areas grazed by cattle rapidly degrades into grassland pasture, and plant cover remains reduced for many years following removal of cattle from an area. Increased nitrogen availability through the feces of cattle contributes to the ingress of nonnative plant species
In summary, 37 of the 39 plant species (all except
Ten of the 11 ecosystems (all but the anchialine pool ecosystem) are currently at risk of habitat destruction and modification by nonnative plants. Native vegetation on all of the main Hawaiian Islands has undergone extreme alteration because of past and present land management practices, including ranching, deliberate introduction of nonnative plants and animals, and agriculture (Cuddihy and Stone 1990, pp. 27, 58). The original native flora of Hawaii (present before human arrival) consisted of about 1,000 taxa, 89 percent of which are endemic (Wagner
Nonnative plants adversely impact native habitat in Hawaii by: (1) Modifying the availability of light; (2) altering soil-water regimes; (3) modifying nutrient cycling; and (4) altering fire regimes of native plant communities (
Alteration of fire regimes represents an ecosystem-level change caused by the invasion of nonnative plants, mainly grasses (D'Antonio and Vitousek 1992, p. 73). Grasses generate standing dead material that burns readily, and grass tissues with large surface-to-volume ratios dry out quickly, contributing to flammability (D'Antonio and Vitousek 1992, p. 73). The finest size classes of grass material ignite and spread fires under a broader range of conditions than do woody fuels or even surface litter (D'Antonio and Vitousek 1992, p. 73). The grass life form allows rapid recovery following fire; there is little above-ground structure. Grasslands also support a microclimate in which surface temperatures are hotter, contributing to drier vegetative conditions that favor fire (D'Antonio and Vitousek 1992, p. 73). In summary, nonnative plants directly and indirectly affect 44 species (36 plants, the orangeblack Hawaiian damselfly, and all 7 yellow-faced bees) proposed for listing in this rule, by modifying or destroying their habitat, by removing their native host plants, or by direct competition. Below, we have organized lists of the nonnative plants reported to negatively affect each of 10 of the 11 ecosystems (the anchialine pool ecosystem is not included). These lists include a total of 115 nonnative plant species with the specific negative effects they have on native ecosystems and the proposed species.
Nonnative Plants in the Coastal Ecosystem: Nonnative plants threatening the coastal ecosystem plants proposed for listing (
Nonnative Plants in the Lowland Dry Ecosystem: Nonnative plants threatening the lowland dry ecosystem plants proposed for listing (
Nonnative Plants in the Lowland Mesic Ecosystem: Nonnative plants threatening the lowland mesic ecosystem plants proposed for listing (
Nonnative Plants in the Lowland Wet Ecosystem: Nonnative plants threatening the lowland wet ecosystem plants proposed for listing (
Nonnative Plants in the Montane Wet Ecosystem: Nonnative plants threatening the montane wet ecosystem plants proposed for listing (
Nonnative Plants in the Montane Mesic Ecosystem: Nonnative plants threatening the montane mesic ecosystem plants proposed for listing (
Nonnative Plants in the Montane Dry Ecosystem: Nonnative plants threatening the montane dry ecosystem plants proposed for listing (
Nonnative Plants in the Subalpine Ecosystem: Nonnative plants threatening the subalpine ecosystem plants proposed for listing (
Nonnative Plants in the Dry Cliff Ecosystem: Nonnative plants threatening the dry cliff ecosystem plants proposed for listing (
Nonnative Plants in the Wet Cliff Ecosystem: Nonnative plants threatening the wet cliff ecosystem plants proposed for listing (
Specific Nonnative Plant Species Impacts: Destruction and modification of habitat, and competition, by nonnative plants represent ongoing threats to 45 species (36 plants, the band-rumped storm-petrel, the orangeblack Hawaiian damselfly, and all 7 yellow-faced bees) proposed for listing in this rule throughout their ranges. Nonnative plants adversely affect microhabitat by modifying availability of light and nutrient cycling processes, and by altering soil-water regimes. Some nonnative plants may release chemicals that inhibit growth of other plants. They also alter fire regimes leading to incursions of fire-tolerant, nonnative plant species in native habitat. These competitive advantages allow nonnative plants to convert native-dominated plant communities to nonnative plant communities (Cuddihy and Stone 1990, p. 74; Vitousek 1992, pp. 33-35).
The Hawaii Weed Risk Assessment (HWRA) is cited in many of the descriptions below. This assessment was created as a research collaboration between the University of Hawaii and the U.S. Forest Service for use in Hawaii and other high Pacific islands (
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
Six of the 11 ecosystems (coastal, lowland dry, lowland mesic, montane mesic, montane dry, and subalpine) are at risk of destruction and modification by fire. Fire is an increasing, human-exacerbated threat to native species and ecosystems in Hawaii. The pre-settlement fire regime in Hawaii was characterized by infrequent, low-severity events, as few natural ignition sources existed (Cuddihy and Stone 1990, p. 91; Smith and Tunison 1992, pp. 395-397). It is believed that prior to human colonization, fuel was sparse in wet plant communities and only seasonally flammable in mesic and dry plant communities. The only ignition sources were volcanism and lightning (Baker
Because of the greater frequency, intensity, and duration of fires that have resulted from the human alteration of landscapes and the introduction of nonnative plants, especially grasses, fires are now more destructive to native Hawaiian ecosystems (Brown and Smith 2000, p. 172), and a single grass-fueled fire often kills most native trees and shrubs in the area (D'Antonio and Vitousek 1992, p. 74). Fire destroys dormant seeds of these native species, as well as the individual plants and animals themselves, even in steep, inaccessible areas or near streams and ponds. Successive fires remove habitat for native species by altering microclimate conditions, creating conditions more favorable to nonnative plants. Nonnative grasses (
For many decades, fires have impacted rare or endangered species and their habitat on Molokai, Lanai, and Maui (Gima 1998, in litt.; Hamilton 2009, in litt.; Honolulu Advertiser 2010, in litt.; Pacific Disaster Center 2011, in litt.). These three islands experienced approximately 1,290 brush fires between 1972 and 1999 that burned a total of 64,250 ac (26,000 ha) (County of Maui 2009, ch. 3, p. 3; Pacific Disaster Center 2011, in litt.). Between 2000 and 2003, the annual number of wildfires on these islands jumped from 118 to 271; several of these alone burned more than 5,000 ac (2,023 ha) (Pacific Disaster Center 2011, in litt.). On Molokai, between 2003 and 2004, three wildfires each burned 10,000 ac (4,050 ha) (Pacific Disaster Center 2011, in litt.). From August through early September 2009, a wildfire burned approximately 8,000 ac (3,237 ha), including 600 ac (243 ha) of the remote Makakupaia section of the Molokai Forest Reserve, a small portion of TNC's Kamakou Preserve, and encroached on Onini Gulch, Kalamaula, and Kawela (Hamilton 2009, in litt.). Species proposed for listing in this rule at risk of wildfire on Molokai include the plants
Several wildfires have occurred on Lanai in the last decade. In 2006, a wildfire burned 600 ac (243 ha) between Manele Road and the Palawai Basin, about 3 mi (4 km) south of Lanai City (The Maui News 2006, in litt.). In 2007, a brush fire at Mahana burned about 30 ac (12 ha), and in 2008, another 1,000 ac (405 ha) were burned by wildfire in the Palawai Basin (The Maui News 2007, in litt.; KITV Honolulu 2008, in litt.). Species proposed for listing in this
On west Maui, wildfires burned more than 8,650 ac (3,501 ha) between 2007 and 2010 (Honolulu Advertiser 2010, in litt.; Shimogawa 2010, in litt.). These fires encroached into the West Maui Forest Reserve, on the ridges of Olowalu and Kealaloloa, habitat for several endangered plants. On east Maui, in 2007, a fire consumed over 600 ac (240 ha), increasing invasion of the area by nonnative
Several recent fires on Oahu in the Waianae Mountain range have impacted rare or endangered species. Between 2004 and 2005, wildfires burned more than 360 ac (146 ha) in Honouliuli Preserve, home to more than 90 rare and endangered plants and animals (TNC 2005, in litt.). In 2006, a fire at Kaena Point State Park burned 60 ac (24 ha), and encroached on endangered plants in Makua Military Training Area. In 2007, there was a significant fire at Kaukonahua that crossed 12 gulches, eventually encompassing 5,655 ac (2,289 ha) and negatively impacted eight endangered plant species and their habitat (
In 2012 on Kauai, a wildfire that was possibly started by an unauthorized camping fire burned 40 ac (16 ha) in the Na Pali-Kona Forest Reserve on Milolii Ridge, forcing closure of a hiking trail. Fortunately, several threatened and endangered plants in the adjacent Kula Natural Area Reserve were not impacted (KITV 2012, in litt.). The same year, another wildfire burned over 650 ac (260 ha) on Hikimoe Ridge, and threatened the Puu Ka Pele section of Waimea Canyon State Park (Hawaii News Now 2012, in litt.; Star Advertiser 2012, in litt.). Species proposed for listing in this rule at risk of wildfire on Kauai include the plants
In the driest areas on the island of Hawaii, wildfires are exacerbated by the uncontrolled growth of nonnative grasses such as
In summary, fire is a threat to 15 plant species (
Ten of the 11 ecosystems (all except the anchialine pool ecosystem) are at risk of habitat destruction and modification by hurricanes. Hurricanes exacerbate the impacts from other threats such as habitat modification and destruction by ungulates and competition with nonnative plants. By destroying native vegetation, hurricanes open the forest canopy, thus modifying the availability of light, and create disturbed areas conducive to invasion by nonnative pest species (see “Specific Nonnative Plant Species Impacts,” above) (Asner and Goldstein 1997, p. 148; Harrington
Hurricanes affecting Hawaii were only rarely reported from ships in the area from the 1800s until 1949. Between 1950 and 1997, 22 hurricanes passed near or over the Hawaiian Islands, 5 of which caused serious damage (Businger 1998, pp. 1-2). In November 1982, Hurricane Iwa struck the Hawaiian Islands with wind gusts exceeding 100 (mph) (160 kmh, 87 knots), causing extensive damage, especially on the islands of Kauai, Niihau, and Oahu (Businger 1998, pp. 2, 6). Many forest trees were destroyed (Perlman 1992, pp. 1-9), which opened the canopy and facilitated the invasion of nonnative plants into native forest (Kitayama and Mueller-Dombois 1995, p. 671). Hurricances therefore have the potential to exacerbate the threat of competition with nonnative plants, as described in “Habitat Destruction and Modification by Nonnative Plants,” above. In September 1992, Hurricane Iniki, a category 4 hurricane with maximum sustained winds of 130 mph (209 kmh, 113 knots), passed directly over the island of Kauai and close to the island of Oahu, causing significant damage to Kauai and along Oahu's southwestern coast (Blake
In summary, hurricanes can exacerbate other habitat threats, such as competition with nonnative plants, as well as result in direct habitat destruction. This is a particular problem for the plant
Habitat destruction and modification by landslides, rockfalls, treefall, flooding, erosion, and drought affect all 11 ecosystems (singly or in combination). Landslides, rockfalls, treefall, flooding, and erosion destabilize substrates, damage and destroy individual plants, and alter hydrological patterns resulting in changes to native plant and animal communities. In the open sea near Hawaii, rainfall averages 25 to 30 in (630 to 760 mm) per year, yet the islands may receive up to 15 times this amount in some places, caused by orographic features (topography) (Wagner
Landslides, rockfalls, treefall, flooding, and erosion are threats to 20 plant species (
Drought has been reported to be a threat to nine plants (
Freshwater habitats on all the main Hawaiian Islands have been severely altered and degraded because of past and present land and water management practices, including agriculture; urban development; and development of ground water, perched aquifer, and surface water resources (Harris
Climate change may have impacts to the habitat of the 49 species. Discussion of these impacts is included in our complete discussion of climate change in the section “E. Other Natural or Manmade Factors Affecting Their Continued Existence,” below.
Destruction and modification of the habitat of each of the 49 species addressed in this proposed rule is occurring throughout the entire range of each of the species. These impacts include the effects of introduced ungulates, nonnative plants, fire, hurricanes, landslides, rockfalls, treefall, flooding, erosion, drought, water extraction, and the direct or cumulative effects of climate change.
The threat of habitat destruction and modification by agriculture and urban development is an ongoing threat to four plant species (
The threat of habitat destruction and modification by ungulates is ongoing as ungulates currently occur in all ecosystems on which these species depend except the anchialine pool system. Introduced ungulates pose a threat to the 37 of the 39 plants (all except for
Habitat destruction and modification by nonnative plants represents an ongoing threat to 36 of the 39 plant species (all except for
The threat of habitat destruction and modification by fire to 15 plant species (
Habitat destruction and modification by natural disasters such as hurricanes represent a threat to the plant
Landslides, rockfalls, treefall, flooding, and erosion adversely impact 20 plant species (
Conversion of wetland and other aquatic habitat (
We are not aware of any threats to 48 of the 49 species addressed in this proposed rule that would be attributed to overutilization for commercial, recreational, scientific, or educational purposes.
The Service has become aware of companies and private collectors using anchialine pool shrimp and related shrimp species for commercial sales of self-contained aquariums (Ecosphere Associates 2015, in litt.). One company located in Hawaii, Fuku Bonsai, has been using Hawaiian anchialine pool species for the aquarium hobby market for many years; however, they state they will soon be discontinuing sale of “micro-lobsters” (Fuku-Bonsai 2015, in
We are not aware of any threats to the 49 species addressed in this proposed rule that would be attributable to disease.
Hawaii's plants and animals evolved in nearly complete isolation from continental influence. Successful, natural colonization of these remote volcanic islands is infrequent, and many organisms never succeeded in establishing populations. As an example, Hawaii lacks any native ants or conifers, has very few families of birds, and has only had two species of native land mammal, both insectivorous bats (Loope 1998, p. 748, Ziegler 2002, pp. 244-245). In the absence of grazing or browsing mammals, plants that became established did not need mechanical or chemical defenses against mammalian herbivory such as thorns, prickles, and toxins. As the evolutionary pressure to either produce or maintain such defenses was lacking, Hawaiian plants either lost or never developed these adaptations (Carlquist 1980, p. 173). Likewise, native Hawaiian birds and insects experienced no evolutionary pressure to develop antipredator mechanisms against mammals or invertebrates that were not historically present on the islands. The native flora and fauna are thus particularly vulnerable to the impacts of introduced nonnative species, as discussed below.
In addition to the habitat impacts discussed above (see “Habitat Destruction and Modification by Introduced Ungulates,” under Factor A), grazing and browsing by introduced ungulates are a threat to the following 26 plant species in this proposal (see Table 3):
We have direct evidence of ungulate damage to some of the plant species proposed for listing in this rule, but for many, due to their remote locations or lack of study, ungulate damage is presumed based on the known presence of these introduced ungulates in the areas where these species occur and the results of studies involving similar species or ecosystems conducted in Hawaii and elsewhere (Diong 1982, p. 160; Mueller-Dombois and Spatz, 1975, pp. 1-29; Hess 2008, 4 pp.; Weller
Feral goats are able to forage in extremely rugged terrain and are instrumental in the decline of native
Axis deer are known to consume a wide range of forage items throughout their native range and in areas where they have been introduced (Anderson 1999, p. 3). Although they prefer to graze on grass, axis deer have been documented to eat over 75 species of plants, including all plant parts (Anderson 1999, p. 3). They exhibit a high degree of opportunism regarding their choice of forage, and consume progressively less palatable plants until no edible vegetation remains (Dinerstein 1987,
Black-tailed deer are extremely adaptable, and in their native range (U.S. Pacific coast) inhabit every principal ecosystem including open grasslands, agricultural land, shrubland, woodland, mountain forests, semi-deserts, and high mountain ecosystems (NRCS 2005, in litt.). Their home range size varies in the continental United States, but has been estimated to from 1 to 4 sq mi (2.5 to 10 km) and sometimes as large as 30 sq mi (78 sq km), with adults defending small areas when caring for fawns (NRCS 2005, in litt.). We do not know their home range size on Kauai; however, the island is only 562 sq mi (1,456 sq km) in size. Black-tailed deer are primarily browsers, but as they have a smaller rumen compared to other browsers in relation to their body size, they must select the most nutritious plants and parts of plants (Mule Deer Foundation 2011, in litt.). Their diet consist of a diversity of living, wilted, dry, or decaying vegetation, including leaves, needles, succulent stems, fruits, nuts, shrubs, herbaceous undergrowth, domestic crops, and grasses (NRCS 2005, in litt.). Black-tailed deer consume native vegetation on the island of Kauai (van Riper and van Riper 1982, pp. 42-43; Stone 1985, pp. 262-263; Tomich 1986, pp. 132-134, Cuddihy and Stone 1990, p. 67). In the 1990s, it was estimated there were about 350 animals in and near Waimea Canyon; however, in 2013 the population was estimated to be 1,000 to 1,200 animals in public
Mouflon, feral domestic sheep, and mouflon-sheep hybrids browse native vegetation on Lanai and Hawaii Island. Domestic sheep have been raised on Kauai, Lanai, Kahoolawe, and Hawaii, but today sheep farming only occurs on Hawaii Island on Mauna Kea and Hualalai (Pratt and Jacobi
Grazing by cattle is considered one of the most important factors in the destruction of Hawaiian forests (Baldwin and Fagerlund 1943, pp. 118-122). Feral cattle are currently found only on the islands of Molokai, Maui, and Hawaii (Tomich 1986, pp. 140-144; de Sa
The blackbuck antelope (
Three species of introduced rats occur in the Hawaiian Islands. Studies of Polynesian rat (
Rat Impacts on Plants: Rats impact native plants by eating fleshy fruits, seeds, flowers, stems, leaves, roots, and other plant parts (Atkinson and Atkinson 2000, p. 23), and by stripping bark and cutting small branches (twig cutting) in search of moisture and nutrients, seriously affecting vigor and regeneration (Abe and Umeno 2011, pp. 27-39; Nelson 2012, in litt.). Studies in New Zealand have demonstrated that differential regeneration as a consequence of rat predation alters species composition of forested areas (Cuddihy and Stone 1990, pp. 68-69). Rats have caused declines or even the total elimination of island plant species (Campbell and Atkinson 1999
Rat Impacts on the Band-Rumped Storm-Petrel: Introduced predators are the most serious threat facing the band-rumped storm-petrel. Rats occur on all the main Hawaiian Islands, and populations are also high on Lehua; however, attempts to control rats on Lehua are ongoing (Parkes and Fisher 2011, 48 pp.). Ground-, crevice-, and burrow-nesting seabirds, as well as their eggs and young, are highly susceptible to predation by rats; storm-petrels are the most susceptible of seabirds to rat predation and have experienced population level impacts and extirpation as a result (Simons 1984, p. 1073; Jones
Two species of owls, the native pueo (
Cats (
The small Indian mongoose (
Predation by nonnative fishes on the orangeblack Hawaiian damselfly is a significant threat. Similar to the aquatic insects, Hawaii has a depauperate freshwater fish fauna, with only five native species comprised of gobies (Gobiidae) and sleepers (Eleotridae) that occur on all the main islands (Devick 1991, p. 196). Information on these five species indicates that the Hawaiian damselflies probably experienced limited natural predation pressure from these native fishes (Kido 1997, p. 493; Englund 1999, p. 236). Conversely, fish predation has been an important factor in the evolution of behavior in damselfly naiads in continental systems (Johnson 1991, p. 13). Some species of damselflies, including the native Hawaiian species, are not adapted to coexist with some fish species, and are found only in bodies of water without fish (Henrikson 1988, pp. 179-180; McPeek 1990a, pp. 92-93). The naiads of these species tend to occupy more exposed positions and engage in conspicuous foraging behavior that makes them susceptible to predation by fishes (Macan 1977, p. 47; McPeek 1990b, p. 1722). The introduction of nonnative fishes has been implicated in the extirpation of a species related to the orangeblack Hawaiian damselfly, the Pacific Hawaiian damselfly (
In Hawaii, the introduction of nonnative fishes, including bait-fish, into anchialine pools may have been a major contributor to the decline of native shrimp. Predation by nonnative fishes is considered the greatest threat to native shrimp within anchialine pool systems (Bailey-Brock and Brock 1993, p. 354). These impacts are discussed further in “E. Other Natural or Manmade Factors Affecting Their Continued Existence,” below.
Herbivory by nonnative slugs is reported to adversely impact 8 of the 39 plant species (
Predation by nonnative backswimmers (Heteroptera: Notonectidae) poses a threat to the orangeblack Hawaiian damselfly. Backswimmers are aquatic true bugs (Heteroptera) in the family Notonectidae, so called because they swim upside down. Backswimmers are voracious predators and frequently feed on prey much larger than themselves, such as tadpoles, small fish, and other aquatic invertebrates including damselfly naiads (Borror
At least 47 species of ants are known to be introduced and established in the Hawaiian Islands (Hawaii Ants 2008, 11 pp.). No native ants species occur in Hawaii, and the native yellow-faced bee species in Hawaii evolved in the absence of predation pressure from ants. Ants are known to prey upon Hawaiian yellow-faced bee (
The four most aggressive ant species in Hawaii are: The big-headed ant (
Although we have no direct information that correlates the decrease in populations of the seven yellow-faced bees in this proposal directly to the establishment of nonnative ants, predation of and competition with other yellow-faced bee species by ants has been documented, resulting in clear reductions in or absence of populations (Magnacca and King 2013, p. 24). We expect similar predation impacts to the seven yellow-faced bees proposed for listing in this rule to continue as a result of the widespread presence of ants throughout the Hawaiian Islands, their highly efficient and non-specific predatory behavior, and their ability to quickly disperse and establish new colonies. Therefore, we conclude that predation by nonnative ants represents a threat to the continued existence of the seven yellow-faced bees, now and into the future.
Predation by the western yellow jacket wasp (
We are unaware of any information that indicates that disease is a threat to the 39 plant species. We are also unaware of any information that indicates that disease is a threat to the band-rumped storm-petrel, the orangeblack Hawaiian damselfly, or the anchialine pool shrimp,
We consider predation and herbivory by one or more of the nonnative animal species (pigs, goats, axis deer, black-tailed deer, sheep, mouflon, cattle, rats, barn owls, cats, mongooses, fish, slugs, backswimmers, ants, and wasps) to pose an ongoing threat to 33 of the 39 plant species and to all 10 animal species proposed for listing throughout their ranges (see Table 3) for the following reasons:
(1) Observations and reports have documented that pigs, goats, axis deer,
(2) Nonnative rats and slugs cause mechanical damage to plants and destruction of plant parts (branches, flowers, fruits, and seeds), and are considered a threat to 20 of the 39 plant species proposed for listing (see Table 3).
(3) Rats also prey upon adults, juveniles, and eggs of the band-rumped storm-petrel, and are linked with the dramatic decline of many closely related bird species. Because rats are found in all of the ecosystems in which the band-rumped storm-petrel occurs, we consider predation by rats to be an ongoing threat.
(4) Barn owls and cats have established populations in the wild on all the main Hawaiian islands, and mongooses have established populations on all the main islands except for Kauai. Predation by these animals is an ongoing threat to the band-rumped storm-petrel.
(5) The absence of Hawaiian damselflies (including the orangeblack Hawaiian damselfly) in streams and other aquatic habitat on the main Hawaiian Islands is strongly correlated with the presence of predatory nonnative fish; numerous observations and reports suggest nonnative predatory fishes eliminate native Hawaiian damselflies from these habitats. Accordingly, predation by nonnative fishes is an ongoing threat to the orangeblack Hawaiian damselfly.
(6) Once introduced to anchialine pools, nonnative fish, through predation and competition for food sources, directly impact anchialine pool shrimp, including
(7) Herbivory (leading to damage, destruction of reproductive parts, and mortality of seedlings) by slugs, is a known threat to 10 of the 39 plant species proposed for listing.
(8) The presence of backswimmers in aquatic habitat can cause damselfly naiads, including those of the orangeblack Hawaiian damselfly, to stop foraging, reducing their growth, development, and survivability. In addition, backswimmers can directly feed on damselfly naiads, posing a significant threat to the orangeblack Hawaiian damselfly.
(9) Predation by nonnative ants and wasps poses a threat to all seven yellow-faced bees.
These threats are serious and ongoing, act in concert with other threats to the species, and are expected to continue or increase in magnitude and intensity into the future without effective management actions to control or eradicate them. In addition, negative impacts to native Hawaiian plants on Molokai from grazing and browsing by blackbuck antelope are likely should this nonnative ungulate increase in numbers and range on the island. The effects of the combined threats suggest the need for immediate implementation of recovery and conservation methodologies.
Currently, there are no existing Federal, State, or local laws, treaties, or regulations that specifically conserve or protect 48 of the 49 species (except the band-rumped storm-petrel, as discussed below) proposed for listing, or adequately address the threats to all 49 species described in this proposed rule. There are a few small programs and organizations that conduct vegetation monitoring, and nonnative species and predator control, but these activities are not regulatory, and continuation of conservation efforts, or funding for them, is not guaranteed. Hawaii's Plant Extinction Prevention Program (PEPP) is a multi-agency (Federal, State, and private) program that identifies and supports the “rarest of the rare” Hawaiian plant species in need of immediate conservation efforts. The goal of PEPP is to prevent the extinction of plants species that have fewer than 50 individuals remaining in the wild in the Hawaiian Islands and Guam and the Commonwealth of the Northern Mariana Islands (GPEPP). Partnerships such as the Hawaii Invasive Species Council (HISC) and the Coordinating Group on Alien Pest Species (CGAPS) were formed in 2002 and 1995, respectively, but their conservation actions are also limited, as discussed below. The capacity of Federal and State agencies and their nongovernmental partners in Hawaii to mitigate the effects of nonnative species, such as ungulates and weeds, is limited due to the large number of taxa currently causing damage (CGAPS 2009). Many invasive nonnative plants established in the Hawaiian Islands have currently limited but expanding ranges and are of concern. Resources available to reduce the spread of these species and counter their negative effects are limited. Control efforts are largely focused on a few invasive species that cause significant economic or environmental damage to public and private lands. Comprehensive control of an array of nonnative species and management to reduce disturbance regimes that favor them remains limited in scope. If current levels of funding and regulatory support for control of nonnative species are maintained, the Service expects existing programs to continue to exclude or, on a very limited basis, control these species only in the highest-priority areas. Threats from established nonnative ungulates and predators, plants, and invertebrates are ongoing and expected to continue into the future.
The Hawaiian population of band-rumped storm-petrel is currently protected under Federal law by the Migratory Bird Treaty Act (MBTA) (16 U.S.C. 703
Nonnative ungulates pose a major ongoing threat to 37 of the 39 plant species, and 9 of the 10 animals species (all except the anchialine pool shrimp,
Existing regulations are inadequate to maintain stream flow, springs, ponds, and seeps year-round for the different life stages of the orangeblack Hawaiian damselfly, proposed for listing in this rule. In Hawaii, instream flow is regulated by establishing standards on a stream-by-stream basis. The standards currently in effect represent flow conditions in 1987 (status quo), the year the administrative rules were adopted (State Water Code, HRS 174C-71, and HAR Title 13, Ch 169-44-49). The State of Hawaii considers all natural flowing surface water (streams, springs, and seeps) as State property (HRS 174C), and the HDLNR has management responsibility for the aquatic organisms in these waters (HRS Annotated 1988, Title 12; 1992 Cumulative Supplement). Accordingly, damselfly populations (including the orangeblack Hawaiian damselfly) in all natural flowing surface waters are under jurisdiction of the State of Hawaii, regardless of property ownership.
The State of Hawaii manages the use of surface and ground water resources through the Commission on Water Resource Management (Water Commission), as mandated by the 1987 State Water Code (HRS 174 and HAR Title 13, Ch 168 and 169). Because of the complexity of establishing instream flow standards (IFS) for approximately 376 perennial streams, the Water Commission established interim IFS at status quo levels in 1987 (Commission of Water Resource Management (CWRM) 2009). In the Waiahole Ditch Combined Contested Hearing on Oahu (1997-2006), the Hawaii Supreme Court determined that status quo interim IFS were not adequate, and required the Water Commission to reassess the IFS for Waiahole Ditch and other streams statewide (Case No. CCH-OA95-1; Maui Now.com, in litt.). The Water Commission has been gathering information to fulfill this requirement since 2006, but no IFS recommendations have been made to date (CWRM 2008, p. 3-153; CWRM 2014, in litt.).
In the Hawaii Stream Assessment Report (DLNR 1990), prepared in coordination with the National Park Service (NPS), the Water Commission identified high-quality rivers or streams (and portions thereof) that may be placed within a Wild and Scenic River system. This report ranked 70 out of 176 streams analyzed as outstanding high-quality habitat, and recommended that streams meeting certain criteria be protected from further development (DLNR 1990, pp. xxi-xxiv). However, there is no mechanism within the State's Water Code to designate and set aside these streams, or to identify and protect stream habitat, for damselflies. The U.S. Army Corps of Engineers (COE) has regulatory jurisdiction under section 404 of the Clean Water Act (33 U.S.C. 1251
There are no existing regulatory mechanisms that specifically protect Hawaii's anchialine pools (habitat for the anchialine pool shrimp,
Because there are currently no Federal, State, or local laws, treaties, or regulations that specifically or effectively conserve or protect the anchialine pool shrimp and the orangeblack Hawaiian damselfly, or adequately address inadequate maintenance and protection of instream flow, springs, seeps, and anchialine pools for the anchialine pool shrimp and the orangeblack Hawaiian damselfly habitat, these threats are ongoing and are expected to continue into the future.
Under statutory authorities provided by Chapter 183D, HRS, the DLNR maintains HAR Ch 124 (2014), which defines “injurious wildlife” as “any species or subspecies of animal except game birds and game mammals which is known to be harmful to agriculture, aquaculture, indigenous wildlife or plants, or constitute a nuisance or health hazard and is listed in the exhibit entitled “Exhibit 5, Chapter 13-124, List of Species of Injurious Wildlife in Hawaii.” Under HAR 13-124-3-(d), “no person shall, or attempt to: (1) Release injurious wildlife into the wild; (2) Transport them to islands or locations within the State where they are not already established and living in a wild state; and (3) Export any such species or the dead body or parts thereof, from the State. Permits for these actions may be considered on a case-by-case basis.” As discussed in “Habitat Destruction and Modification by Introduced Ungulates,” and “Terrestrial Habitat and Feral Ungulates,” above, a bill was enacted to prohibit inter-island transportation and possession of wild or feral deer under Hawaii Revised Statute Title 12, 183D-
Currently, four agencies are responsible for inspection of goods arriving in Hawaii (CGAPS 2009). The Hawaii Department of Agriculture (HDOA) inspects domestic cargo and vessels and focuses on nonnative pest species of concern to Hawaii, especially insects or plant diseases not yet known to be present in the State. The U.S. Department of Homeland Security—Customs and Border Protection (CBP) is responsible for inspecting commercial, private, and military vessels and aircraft and related cargo and passengers arriving from foreign locations. CBP focuses on a wide range of quarantine issues involving non-propagative plant materials, wooden packing materials, timber, and products; internationally regulated commercial species under the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES); and federally listed noxious plants and seeds, soil, and pests of concern to the greater United States, such as pests to mainland U.S. forests and agriculture. The U.S. Department of Agriculture—Animal and Plant Health Inspection Service—Plant Protection and Quarantine (USDA-APHIS-PPQ) inspects propagative plant material, provides identification services for arriving plants and animals, conducts pest risk assessments, and handles other related matters, but focuses on pests of wide concern across the United States (HDOA 2009, in litt.). The Service inspects arriving wildlife products, enforces the injurious wildlife provisions of the Lacey Act (18 U.S.C. 42; 16 U.S.C. 3371
The State of Hawaii's unique biosecurity needs are not recognized by Federal import regulations, as these regulations are based on species considered threats to the mainland United States, and not those species that could become threats to native Hawaiian species (Hawaii Legislative Reference Bureau (HLRB) 2002; USDA-APHIS-PPQ 2010; CGAPS 2009). Interstate commerce provides the pathway for new species to enter Hawaii. Pest species may be intercepted, but are not always acted on by Federal agents because these species are not regulated under Federal mandates. Hence, Federal protection against pest species of concern to Hawaii historically has been inadequate. It is possible for the USDA to grant Hawaii protective exemptions under the “Special Local Needs Rule,” when clear and comprehensive arguments for both agricultural and conservation issues are provided; however, this exemption procedure operates on a case-by-case basis and is extremely time-consuming to satisfy. Therefore, there is only minimal protection against a large diversity of nonnative species that arrive and may negatively impact Hawaii.
Inadequate staffing, facilities, and equipment for Federal and State inspectors devoted to invasive species interdiction are critical biosecurity gaps (HLRB 2002; USDA-APHIS-PPQ 2010; CGAPS 2009). In recognition of the gaps, State laws have recently been passed that allow the HDOA to collect fees for quarantine inspection of freight entering Hawaii (
In 1995, a partnership, Coordinating Group on Alien Pest Species (CGAPS), comprised primarily of managers from every major Federal, State, county, and private agency and organization involved in invasive species work in Hawaii, was formed in an effort to influence policy and funding decisions, improve communication, increase collaboration, and promote public awareness (CGAPS 2009). This group facilitated the formation of the Hawaii Invasive Species Council (HISC), which was created by gubernatorial executive order in 2002, to coordinate local initiatives for the prevention of introduction and for control of invasive species by providing policy-level direction and planning for the State departments responsible for invasive species issues (CGAPS 2009). In 2003, the Governor signed into law State Act 85, which conveys statutory authority to the HISC to continue to coordinate approaches among the various State and Federal agencies, and international and local initiatives, for the prevention and control of invasive species (HDLNR 2003, p. 3-15; HISC 2009; HRS 194-2(a)). Some of the recent priorities for the HISC include interagency efforts to control nonnative species such as the plants
Existing State and Federal regulatory mechanisms do not adequately prevent the introduction of nonnative species to Hawaii via inter-State and international mechanisms, or intra-State movement of nonnative species between islands and watersheds in Hawaii. The importation of non-domestic animals, including aquatic species, is regulated by a permit system (HAR 4-71) managed through the HHDOA. The HDOA's Board of Agriculture maintains lists of non-domestic animals that are prohibited from entry, animals without entry restrictions, or those that require a permit for import and possession. The HDOA requires a permit to import animals, and conditionally approves entry for individual possession, businesses (
The Division of Aquatic Resources (DAR), within the State's DLNR, manages Hawaii's aquatic resources (HDAR 2015, in litt.), and is responsible for conserving, protecting, and enhancing the State's renewable resources of aquatic life and habitat (HDLNR 2003, p. 3-13). The release of live nonnative fish or other live
The State of Hawaii's laws prohibit the importation of all animals unless they are specifically placed on a list of allowable species (HLRB 2002; CGAPS 2010). The importation and interstate transport of invasive vertebrates is federally regulated by the Service under the Lacey Act as “injurious wildlife” (Fowler
As a recent example in Hawaii, an opossum (
It is likely that the introduction of most nonnative invertebrate pests to the State has been and continues to be accidental and incidental to other intentional and permitted activities. The prevention and control of introduction of nonnative invertebrates to Hawaii is the responsibility of Hawaii State government and Federal agencies, and is voluntarily addressed by a few private organizations as well. Even though these agencies have regulations and some controls in place, as discussed in “Introduction of Nonnative Species” and “Nonnative Aquatic Species,” above, the introduction and movement of nonnative invertebrate pest species between islands and from one watershed to the next continues. By the early 1990s, an average of 20 new alien invertebrate species was introduced to Hawaii per year, an increase of 25 percent over the previous totals between 1930 and 1970 (TNCH 1992, p. 8). As an example, the threat of introduction of nonnative invertebrate species is evidenced by the 2013 discovery of the presence of the nonnative coconut rhinoceros beetle (CRB,
The State of Hawaii allows the importation of most plant taxa, with limited exceptions, if shipped from domestic ports (HLRB 2002; USDA-APHIS-PPQ 2010; CGAPS 2009). Hawaii's plant import rules (HAR 4-70) regulate the importation of 13 plant taxa of economic interest; regulated crops include pineapple, sugarcane, palms, and pines. Certain horticultural crops (
On the basis of the above information, existing State and Federal regulatory mechanisms are not preventing the introduction of nonnative species into Hawaii via interstate and international pathways, or via intrastate movement of nonnative species between islands and watersheds. Therefore, State and Federal regulatory mechanisms do not adequately protect the 49 species, or their habitats, addressed in this rule from the threat of new introductions of nonnative species or the continued expansion of nonnative species populations on and between islands and watersheds. The impacts from these threats are ongoing and are expected to continue into the future.
Existing State and Federal regulatory mechanisms are not preventing the introduction into Hawaii of nonnative species or controlling the spread of nonnative species between islands and watersheds. Habitat-altering nonnative plant species (Factor A) and predation by nonnative animal species (Factor C) pose major ongoing threats to all 49 species addressed in this rule. Thirty-seven of the 39 plant species, the orangeblack Hawaiian damselfly, and the yellow-faced bees (
Other factors threatening some or all of the 49 species include artificial lighting and structures, ingestion of marine debris and plastics, dumping of trash and the introduction of nonnative fish into anchialine pools, recreational use of and sedimentation of anchialine pools, low numbers of individuals and populations, hybridization, lack of or declining regeneration, competition with nonnative invertebrates, and loss of host plants Each threat is discussed in detail below, along with identification of which species are affected by these threats. The impacts of climate change to these species and their ecosystems have the potential to exacerbate all of the threats described above.
Artificial lights are a well-documented threat to night-flying seabirds such as petrels, shearwaters, and storm-petrels (Croxall
A related threat to seabirds in Hawaii, including the band-rumped storm-petrel, is collision with structures such as communication towers and utility lines (Cooper and Day 1998, pp. 16-18; Podolsky
Other factors that may negatively affect the band-rumped storm-petrel include commercial fisheries interactions and alteration of prey base upon which the band-rumped storm-petrel depends. Commercial fisheries are known to adversely affect certain species of seabirds (Furness 2003, pp. 33-35; Croxall
On Hawaii Island, it is estimated that up to 90 percent of the anchialine pools have been destroyed or altered by human activities (Brock 2004, p. i). The more recent human modification of anchialine pools includes bulldozing and filling of pools (Bailey-Brock and Brock 1993, p. 354). Trampling damage from use of anchialine pools for swimming and bathing has been documented (Brock 2004, pp. 13-17). Historically, pools were sometimes modified with stone walls and steps by Hawaiians who used them for bathing. There are no documented negative impacts to pond biota as a result of this activity; however, introduction of soaps and shampoos is of concern (Brock 2004, p. 15).
The depressional features of anchialine pools make them susceptible to dumping. Refuse found in degraded pools and pools that have been filled with rubble have been dated to about 100 years old, and the practice of dumping trash into pools continues today (Brock 2004, p. 15). For example, Lua O Palahemo (Hawaii Island) is located approximately 560 ft (170 m) from a sandy beach frequented by visitors who fish and swim. There are multiple dirt roads that surround the pool making it highly accessible. Plastic bags, paper, fishing line, water bottles, soda cans, radios, barbed wire, and a bicycle have been documented within the pool (Kensley and Williams 1986, pp. 417-418; Bozanic 2004, p. 1; Wada 2010, in litt.). Introduction of trash involving chemical contamination into anchialine pools, as has been observed elsewhere on Hawaii Island (Brock 2004, pp. 15-16), could more drastically affect water quality and result in local extirpation of anchialine pool shrimp species.
Anchialine pool habitats can gradually disappear when wind-blown materials accumulate through a process known as senescence (Maciolek and Brock 1974, p. 3; Brock 2004, pp. 11, 35-36). Conditions promoting rapid senescence include an increased amount of sediment deposition, good exposure to light, shallowness, and a weak connection with the water table, resulting in sediment and detritus accumulating within the pool instead of being flushed away with tidal exchanges and ground water flow (Maciolek and Brock 1974, p. 3; Brock 2004, pp. 11, 35-36). Sedimentation may be degrading the health of Hawaiian anchialine pool systems in which the anchialine pool shrimp,
In general, the accidental or intentional introduction and spread of nonnative fishes (bait and aquarium fish) is considered the greatest threat to anchialine pools in Hawaii (Brock 2004, p. 16). Maciolek (1983, p. 612) found that the abundance of shrimp in a given population is indirectly related to predation by fish. Lua O Palahemo is vulnerable to the intentional dumping of nonnative bait and aquarium fishes because the area is accessible to vehicles and human traffic; however, due to its remote location, is not monitored regularly by State agency staff. The release of mosquito fish (
Species that undergo significant habitat loss and degradation and other threats resulting in population decline and range reduction and fragmentation are inherently highly vulnerable to extinction because of localized catastrophes such as hurricanes, floods, rockfalls, landslides, treefalls, and drought; climate change impacts; demographic stochasticity; and the increased risk of genetic bottlenecks and inbreeding depression (Gilpin and Soulé 1986, pp. 24-34). These conditions are easily reached by island species and especially by species endemic to single islands that face numerous threats such as those described in this proposal (Pimm
The effects resulting from having a reduced number of individuals and occurrences poses a threat to all 39 plant species addressed in this proposal. We consider the following 19 species even more vulnerable to extinction due to threats associated with small occurrence size or small number of occurrences because:
• The only known occurrences of
•
• The only known wild individuals of
• The following single-island endemic species are known from fewer than 250 individuals:
Like most native island biota, the Hawaiian population of band-rumped storm-petrel, the orangeblack Hawaiian damselfly, the anchialine pool shrimp (
The band-rumped storm-petrel is represented in Hawaii by very small numbers of populations, and perhaps not more than a few hundred individuals (Harrison
We consider the orangeblack Hawaiian damselfly vulnerable to extinction due to impacts associated with low numbers of individuals and low numbers of populations because this species is known from only 5 of 8 Hawaiian Islands (Hawaii Island, Maui, Lanai, Molokai, and Oahu), where it occurred historically, and because of the current reduction in numbers on each of those five islands. Jordan
We consider the anchialine pool shrimp,
We consider the seven Hawaiian yellow-faced bees vulnerable to extinction due to impacts associated with low numbers of individuals and populations. The 7 yellow-faced bee species currently occur in only 22 locations (with some overlap) on 6 main Hawaiian Islands, and are likely more vulnerable to habitat change and stochastic events due to low numbers and occurrences (Daly and Magnacca 2003, p. 3; Magnacca 2007a, p. 173).
Natural hybridization is a frequent phenomenon in plants and can lead to the creation of new species (Orians 2000, p. 1949), or sometimes to the decline of species through genetic assimilation or “introgression” (Ellstrand 1992, pp. 77, 81; Levin
Lack of, or low levels of, regeneration (reproduction and recruitment) in the wild has been observed, and is a threat to seven plants:
There are 15 known species of nonnative bees in Hawaii (Snelling 2003, p. 342), including two nonnative
The seven yellow-faced bees are dependent upon native flowering plants for their food resources, pollen and nectar, and for nesting sites. Introduced invertebrates are a threat to yellow-faced bees, by outcompeting native
Our analyses under the Act include consideration of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). “Climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2013, p. 1450). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (
Climate change will be a particular challenge for the conservation of biodiversity because the introduction and interaction of additional stressors may push species beyond their ability to survive (Lovejoy
The average ambient air temperature (at sea level) is projected to increase globally by about 4.1 degrees Fahrenheit (°F) (2.3 °Celsius (C)) with a range of 2.7 °F to 6.7 °F (1.5 °C to 3.7 °C) by 2100 worldwide (IPCC 2007, in litt.). These changes would increase the monthly average temperature of the Hawaiian Islands from the current value of 74 °F (23.3 °C) to between 77 °F to 86 °F (25 °C to 30 °C). Temperature has been rising over the last 100 years, with the greatest increase occurring after 1975 (Alexander
The forecast of changes in precipitation is highly uncertain because it depends, in part, on how the El Niño-La Niña weather cycle (a disruption of the ocean atmospheric system in the tropical Pacific having important global consequences for weather and climate) might change (State of Hawaii 1998, pp. 2-10). However, over the past 100 years, the Hawaiian Islands have experienced an annual decline in precipitation of just over 9 percent (US-NSTC 2008, p. 61) and a steady decline of about 15 percent over the last 15 to 20 years (Chu and Chen 2005, pp. 4802-4803; Diaz
Tropical cyclone frequency and intensity are projected to change as a result of climate change over the next 100 to 200 years (Vecchi and Soden 2007, pp. 1068-1069, Figures 2 and 3; Emanuel
As described above (see “Climate change vulnerability assessment for Hawaiian plants,” above; Table 3), 28 of the 39 plant species in this proposal were included in the recent analysis of the vulnerability of Hawaiian plants to climate change conducted by Fortini
In summary, based on the best available information, we conclude that changes in environmental conditions that result from projected climate change are likely to negatively affect all 49 species we are proposing to list as endangered in this rule. Climate change effects, including increased inter-annual variability of ambient temperature, precipitation, and hurricanes, are likely to impose additional stresses on all 11 ecosystems and all 49 species, thus exacerbating current threats to these species. The probability of a species going extinct as a result of these effects increases when its range is restricted, its habitat decreases, and its abundance declines (IPCC 2014, pp. 14-15). These 49 species all persist with small population sizes and highly restricted or fragmented ranges. They thus face increased risk from stochastic events such as hurricanes, which can extinguish an important proportion of the remaining individuals, and from environmental changes because these species may lack ecological or genetic adaptive capacity (Fortini
In addition to indirect impacts resulting from changes in habitat and disturbance regimes, these species may experience direct impacts of climate change, for example, physiological stress in the orangeblack Hawaiian damselfly caused by increased stream temperatures to which the species is not adapted (Pounds
We consider the threat from artificial lighting and structures to be an ongoing threat to the band-rumped storm-petrel in Hawaii, proposed for listing in this rule, because these threats can cause injury and mortality, resulting in a loss of breeding individuals and juveniles, and this threat is expected to continue into the future. The potential threats of injury or mortality, or loss of food sources, caused by the activities of commercial fisheries, and injury or mortality from ingestion of plastics and marine debris, can contribute to further decline in the Hawaiian population of the band-rumped storm-petrel.
We consider the threats from recreational use of, and dumping of trash and introduction of nonnative fish into, the pools that support the anchialine pool shrimp
We consider the impacts from limited numbers of individuals and populations to be an ongoing threat to all 39 plant species proposed for listing in this rule, and especially for the following 19 plants:
We also consider the impacts from limited numbers of individuals and populations to be an ongoing threat to all 10 animal species proposed for listing in this rule.
The threat to the band-rumped storm-petrel from limited numbers and populations is ongoing and is expected to continue into the future.
We also consider the impacts from limited numbers of individuals and populations to be an ongoing threat to the orangeblack Hawaiian damselfly, the anchialine pool shrimp
The threat from hybridization is an unpredictable but ongoing threat to
We consider the threat to
We consider the threat of competition with invertebrates an ongoing threat to the yellow-faced bees,
The projected effects of increasing temperature and other aspects of climate change on the 49 species may be direct, such as physiological stress caused by increased temperature or lack of moisture, or indirect, such as the modification or destruction of habitat, increased competition by nonnative species, and changes in disturbance regimes that lead to changes in habitat (
Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we may list a species based on: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) oOverutilization for commercial, recreational, scientific, or educational purposes; (C) dDisease or predation; (D) tThe inadequacy of existing regulatory mechanisms; or (E) oOther natural or manmade factors affecting its continued existence. Listing actions may be warranted based on any of the above threat factors, singly or in combination.
We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to each of the 49 species proposed for listing. We find that all of these species face threats that are ongoing and are expected to continue into the future throughout their ranges. Habitat destruction and modification by agriculture and urban development is a threat to four plants (
The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species “that is likely to become endangered throughout all or a significant portion of its range within the foreseeable future.” We find that each of the endemic Hawaiian species and the Hawaiian DPS of band-rumped storm petrel is presently in danger of extinction throughout its entire range, based on the immediacy, severity, and scope of the threats described above. Therefore, on the basis of the best available scientific and commercial information, we propose to list the following 49 species as endangered in accordance with sections 3(6) and 4(a)(1) of the Act: the plants
Under the Act and our implementing regulations, a species may warrant listing if it is in danger of extinction or likely to become so throughout all or a significant portion of its range (SPR). Under our SPR policy (79 FR 37578, July 1, 2014), if a species is endangered or threatened throughout a significant portion of its range and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies. We have determined that the Hawaii population of the band-rumped storm-petrel is a valid DPS, and we proposed to list that DPS. Each of the other 48 species endemic to the Hawaiian Islands proposed for listing in this rule is highly restricted in its range, and the threats occur throughout its range. Therefore, we assessed the status of each species
Conservation measures provided to species listed as endangered or threatened under the Act include recognition, recovery actions, requirements for Federal protection, and prohibitions against certain activities. Recognition through listing results in public awareness and conservation by Federal, State, and local agencies; private organizations; and individuals. The Act encourages cooperation with the States and other countries and calls for recovery actions to be carried out for listed species. The protection required by Federal agencies and the prohibitions against certain activities involving listed animals and plants are discussed, in part, below.
The primary purpose of the Act is the conservation of endangered and threatened species and the ecosystems upon which they depend. The ultimate goal of such conservation efforts is the recovery of these listed species, so that they no longer need the protective measures of the Act. Subsection 4(f) of the Act calls for the Service to develop and implement recovery plans for the conservation of endangered and threatened species. The recovery planning process involves the identification of actions that are necessary to halt or reverse the species' decline by addressing the threats to its survival and recovery. The goal of this process is to restore listed species to a point where they are secure, self-sustaining, and functioning components of their ecosystems.
Recovery planning includes the development of a recovery outline shortly after a species is listed and preparation of a draft and final recovery plan. The recovery outline guides the immediate implementation of urgent recovery actions and describes the process to be used to develop a recovery plan. Revisions of the plan may be done to address continuing or new threats to the species, as new substantive information becomes available. The recovery plan also identifies recovery criteria for review of when a species may be ready for downlisting or delisting, and methods for monitoring recovery progress. Recovery plans also establish a framework for agencies to coordinate their recovery efforts and provide estimates of the cost of implementing recovery tasks. Recovery teams (comprised of species experts, Federal and State agencies, nongovernmental organizations, and stakeholders) are often established to develop recovery plans. When completed, the recovery outlines, draft recovery plans, and the final recovery plans will be available on our Web site (
Implementation of recovery actions generally requires the participation of a broad range of partners, including other Federal agencies, States, nongovernmental organizations, businesses, and private landowners. Examples of recovery actions include habitat restoration (
If these species are listed, funding for recovery actions will be available from a variety of sources, including Federal budgets, State programs, and cost share grants for non-Federal landowners, the academic community, and nongovernmental organizations. In addition, pursuant to section 6 of the Act, the State of Hawaii would be eligible for Federal funds to implement management actions that promote the protection or recovery of the 49 species. Information on our grant programs that are available to aid species recovery can be found at:
Although these species are only proposed for listing under the Act at this time, please let us know if you are interested in participating in recovery efforts for these species. Additionally, we invite you to submit any new information on these species whenever it becomes available and any information you may have for recovery planning purposes (see
Section 7(a) of the Act, as amended, requires Federal agencies to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened with respect to its critical habitat, if any is designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with the Service on any action that is likely to jeopardize the continued existence of a species proposed for listing or result in destruction or adverse modification of proposed critical habitat. If a species is listed subsequently, section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of the species or destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency must enter into consultation with the Service.
For the 49 plants and animals proposed for listing as endangered species in this rule, Federal agency actions that may require consultation as described in the preceding paragraph include, but are not limited to, actions within the jurisdiction of the Natural Resources Conservation Service (NRCS), the U.S. Army Corps of Engineers, the U.S. Fish and Wildlife Service, and branches of the Department of Defense (DOD). Examples of these types of actions include activities funded or authorized under the Farm Bill Program, Environmental Qualitiy Incentives Program, Ground and Surface Water Conservation Program, Clean Water Act (33 U.S.C. 1251
The Act and its implementing regulations set forth a series of general prohibitions and exceptions that apply to endangered wildlife. The prohibitions of section 9(a)(1) of the Act, codified at 50 CFR 17.21, make it illegal for any person subject to the jurisdiction of the United States to take (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or the high seas. In addition, it is unlawful to import; export; deliver, receive, carry, transport, or ship in interstate or foreign
We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. Regulations governing permits are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit must be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.
With respect to endangered plants, prohibitions outlined at 50 CFR 17.61 make it illegal for any person subject to the jurisdiction of the United States to import or export, transport in interstate or foreign commerce in the course of a commercial activity, sell or offer for sale in interstate or foreign commerce, or to remove and reduce to possession any such plant species from areas under Federal jurisdiction. In addition, for endangered plants, the Act prohibits malicious damage or destruction of any such species on any area under Federal jurisdiction, and the removal, cutting, digging up, or damaging or destroying of any such species on any other area in knowing violation of any State law or regulation, or in the course of any violation of a State criminal trespass law. Exceptions to these prohibitions are outlined in 50 CFR 17.62. The Hawaii ESA prohibits take of plants; however, the Hawaii ESA affords no protection of habitat (HRS 195D-4(a)).
We may issue permits to carry out otherwise prohibited activities involving endangered plants under certain circumstances. Regulations governing permits are codified at 50 CFR 17.62. With regard to endangered plants, the Service may issue a permit authorizing any activity otherwise prohibited by 50 CFR 17.61 for scientific purposes or for enhancing the propagation or survival of endangered plants.
It is our policy, as published in the
(1) Unauthorized collecting, handling, possessing, selling, delivering, carrying, or transporting of the species, including import or export across State lines and international boundaries, except for properly documented antique specimens of these taxa at least 100 years old, as defined by section 10(h)(1) of the Act.
(2) Activities that take or harm the band-rumped storm-petrel, the orangeblack Hawaiian damselfly, the anchialine pool shrimp (
(3) Damaging or destroying any of the 39 plant species in violation of the Hawaii State law prohibiting the take of listed species.
(4) Introduction of nonnative species that compete with or prey upon the 29 49 species proposed for listing, such as the introduction of competing, nonnative plants or animals to the State of Hawaii.
(5) The unauthorized release of biological control agents that attack any life stage of these 49 species.
Questions regarding whether specific activities would constitute a violation of section 9 of the Act should be directed to the Pacific Islands Fish and Wildlife Office (see
Section 3(5)(A) of the Act defines critical habitat as (i) the specific areas within the geographical area occupied by the species, at the time it is listed . . . on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by the species at the time it is listed upon a determination by the Secretary that such areas are essential for the conservation of the species. Section 3(3) of the Act defines conservation as to use and the use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to the Act are no longer necessary.
Section 4(a)(3) of the Act, as amended, and implementing regulations (50 CFR 424.12), require that, to the maximum extent prudent and determinable, the Secretary will designate critical habitat at the time the species is determined to be an endangered or threatened species. Our regulations (50 CFR 424.12(a)(1)) state that the designation of critical habitat is not prudent when one or both of the following situations exist:
(1) The species is threatened by taking or other human activity, and identification of critical habitat can be expected to increase the degree of threat to the species, or
(2) Such designation of critical habitat would not be beneficial to the species.
Besides the unpermitted collection of the anchialine pool shrimp
Because we have determined that the designation of critical habitat will not likely increase the degree of threat to the species and may provide some measure of benefit, we determine that designation of critical habitat is prudent for all 49 species proposed for listing in this rule.
Our regulations (50 CFR 424.12(a)(2)) further state that critical habitat is not
Delineation of critical habitat requires identification of the physical and biological features, within the geographical area occupied by the species and areas outside the geographical area occupied by the species, that are essential for their conservation. Information regarding these 49 species' life functions is complex, and complete data are lacking for many of them. We require additional time to analyze the best available scientific data in order to identify specific areas appropriate for critical habitat designation and to prepare and develop a proposed rule. Accordingly, we find designation of critical habitat to be “not determinable” at this time.
We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:
(1) Be logically organized;
(2) Use the active voice to address readers directly;
(3) Use clear language rather than jargon;
(4) Be divided into short sections and sentences; and
(5) Use lists and tables wherever possible.
If you feel that we have not met these requirements, send us comments by one of the methods listed in the
We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321
A complete list of references cited in this rulemaking is available on the Internet at
The primary authors of this proposed rule are the staff members of the Pacific Islands Fish and Wildlife Office.
Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.
Accordingly, we propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:
16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.
b. By adding entries for “Bee, yellow-faced” (
c. By adding an entry for “Shrimp, anchialine pool” (
The additions read as follows:
(h) * * *
The additions read as follows:
(h) * * *
Federal Transit Administration (FTA), Department of Transportation (DOT).
Notice of proposed rulemaking (NPRM); request for comments.
The proposed rule would establish a National Transit Asset Management System to monitor and manage public transportation capital assets to achieve and maintain a state of good repair, improve safety, and increase reliability and performance. In addition, this notice includes proposed amendments to the National Transit Database regulations to conform to the proposed reporting requirements for transit asset management.
Comments must be received by November 30, 2015. Any comments filed after this deadline will be considered to the extent practicable.
Please identify your submission by Docket Number (FTA-2014-0020) or RIN number (2132-AB07) through one of the following methods:
•
•
•
•
For program matters, Mshadoni Smith, Office of Budget and Policy, (202) 366-4050 or
Office hours are from 8:30 a.m. to 5:00 p.m., Monday through Friday, except Federal holidays.
Critical to the safety and performance of a public transportation system is the condition of its capital assets—most notably, its equipment, rolling stock, infrastructure, and facilities. When transit assets are not in a state of good repair, the consequences include increased safety risks, decreased system reliability, higher maintenance costs, and overall lower system performance. While comprehensive quantitative information about the consequences of capital assets not being in a state of good repair is unavailable, insufficient funding combined with inadequate asset management practices have contributed to an estimated $85.9 billion transit state of good repair (SGR) backlog—a value derived from FTA's Transit Economic Requirements Model (TERM) Scale.
Calendar year 2013 marked the highest ridership level for transit since 1957, with the number of trips exceeding 10 billion for the 7th year in a row. There is reason to believe that this is just the beginning of a sustained
MAP-21 fundamentally shifted the focus of Federal investment in transit to emphasize the need to maintain, rehabilitate, and replace existing transit investments. The ability of FTA grant recipients, along with States and Metropolitan Planning Organizations (MPOs), to both set meaningful transit SGR performance targets and to achieve those targets is critically dependent upon the ability of all parties to work together to prioritize the funding of SGR projects from existing funding sources. Although the new SGR Grant Program for fixed-guideway systems and for fixed-route bus systems operating on high-occupancy vehicle (HOV) lanes will be an essential component of this process, the SGR grants alone will not be enough to address the backlog. In these financially constrained times, transit agencies will need to be more strategic in the use of all available funds. The various components of the National TAM System would work together to ensure that state of good repair becomes, and remains, a top priority for transit providers, as well as States and MPOs.
This NPRM proposes to establish a National Transit Asset Management System in accordance with section 20019 of the Moving Ahead for Progress in the 21st Century Act (MAP-21; Pub. L. 112-141 (2012) codified at 49 U.S.C. 5326). A transit asset management (TAM) system is “a strategic and systematic process of operating, maintaining, and improving public transportation capital assets effectively through the life cycle of such assets.” 49 U.S.C. 5326(a)(3). The proposed National TAM System is a scalable framework that establishes terms and concepts and allows for consistency and standardization of formats, without being prescriptive on methods or application. The proposed rule would set minimum Federal requirements for transit asset management to improve the condition of the Nation's transit capital assets by establishing a strategic and performance-based process for operating, maintaining, and replacing transit capital assets.
Section 20019 of MAP-21, amended Federal transit law by adding a new section 5326 to Chapter 53 of title 49 of the United States Code (section 5326). The provisions of section 5326 require the Secretary of Transportation to establish and implement a National TAM System, which defines the term “state of good repair”; requires that all recipients and subrecipients under Chapter 53 develop a TAM plan, to include an asset inventory, an assessment of the condition of those assets, decision support tools, and investment prioritization; establishes annual reporting requirements; and mandates that FTA provide technical assistance to Chapter 53 recipients and subrecipients, including an analytical process or decision support tool that allows for the estimation of capital asset needs and assists with investment prioritization. 49 U.S.C. 5326(b).
In addition, section 5326 requires the Secretary to establish SGR performance measures, and recipients are required to set performance targets based on the measures. 49 U.S.C. 5326(c)(1) and (2). Furthermore each designated recipient must submit two annual reports the Secretary—one on the condition of their recipients' public transportation systems, including a description of any change in condition since the last report, and one describing its recipients' progress towards meeting performance targets established during that fiscal year and a description of the recipients' performance targets for the subsequent fiscal year. 49 U.S.C. 5326 (b)(3) and 49 U.S.C. 5326(c)(3).
The proposed rule would add a new part 625, “Transit Asset Management,” to title 49 of the Code of Federal Regulations (Part 625). The rule proposes to implement the several statutory requirements of sections 5326(b) and (c), referenced in the previous section, by coalescing them into a comprehensive National TAM System. The National TAM System would be comprised of the following five pillars: (1) The definition of “state of good repair,” 49 U.S.C. 5326(b)(1); (2) a requirement that recipients and subrecipients develop TAM plans, 49 U.S.C. 5326(b)(2); (3) SGR performance measures, and a requirement that recipients and subrecipients set performance targets based on the measures, 49 U.S.C. 5326(c)(1) and (2); (4) annual reporting requirements for recipients and subrecipients, 49 U.S.C. 5326(c)(3); and (5) technical assistance from FTA. 49 U.S.C. 5326(b)(4) and (5). The proposed elements of the National TAM System are listed in section 625.15.
Section 625.17 proposes basic principles of transit asset management and would require a transit provider to balance competing needs when considering the life-cycle investment needs of its assets. The disrepair of any particular asset within a public transportation system does not necessarily mean that other assets are in disrepair; whether an asset has achieved a state of good repair is an independent determination that would be made by each transit provider.
Sections 625.25 through 625.33 propose specific requirements for TAM plans. Each transit provider that receives Chapter 53 funds as a recipient or subrecipient and either owns, operates, or manages capital assets used in the provision of public transportation, would be required to develop and carry out a TAM plan. A TAM plan would aide a transit provider in: (1) Assessing the current condition of its capital assets; (2) determining what the condition and performance of its assets should be (if they are not already in a state of good repair); (3) identifying the unacceptable risks, including safety risks, in continuing to use an asset that is not in a state of good repair; and (4) deciding how to best balance and prioritize reasonably anticipated funds (revenues from all sources) towards improving asset condition and achieving a sufficient level of performance within those means.
Section 625.27 would require States to develop a group TAM plan for all subrecipients under the Rural Area Formula Program, authorized under 49 U.S.C. 5311, and States and direct recipients to develop group TAM plans for their tier II provider subrecipients. Tier II providers are those transit operators with one hundred (100) or fewer vehicles in revenue service and that do not operate rail fixed-guideway public transportation systems. Conversely, tier I providers—those operators with one hundred and one (101) or more vehicles in revenue service or operators of rail fixed-guideway public transportation systems—must develop their own, individual TAM plan.
The proposed group TAM plan approach is intended to reduce the burden on smaller transit providers of developing their own TAM plans and reporting to FTA's National Transit Database (NTD). A group TAM plan would be subject to the same requirements for individual TAM plans. Under a Group TAM plan, a tier II provider and any subrecipient of the Rural Area Formula Program would remain responsible for carrying out transit asset management practices for its own public transportation system.
Section 625.33 proposes requirements for investment prioritization. This section would require a transit provider to rate projects in order of priority to improve the state of good repair of all capital assets within its public transportation system. The investment prioritization requirements would aid a transit provider in making more informed investment decisions to improve the state of good repair of its capital assets.
Sections 625.41 through 625.45 propose specific performance management requirements. Section 625.41 lists the proposed objective standards for measuring the condition of capital assets. Proposed section 625.43 would establish SGR performance measures based on the proposed SGR standards. Proposed section 625.45 would require recipients and subrecipients to set SGR performance targets based on the SGR measures and also would require transit providers to coordinate with States and with Metropolitan Planning Organizations (MPOs), to the maximum extent practicable, in the selection of State and MPO SGR performance targets.
Together, these requirements would allow transit providers to better assess their SGR needs, and in turn make more informed investment decisions. The coordination amongst transit providers, States and MPOs should influence MPO and State transportation funding investment decisions and is intended to increase the likelihood that transit SGR needs are programmed, committed to, and funded as part of the planning process.
Proposed section 625.55 would require transit providers to report their targets and the condition of their capital assets annually to FTA's NTD. This data would both help FTA better estimate the Nation's SGR backlog and support the need for additional funding at all levels of government to maintain, improve, and replace the Nation's aging transit capital assets.
This notice proposes to amend the regulations for FTA's NTD at 49 CFR part 630, to conform with the proposed reporting requirements for the National TAM System. The proposed reporting requirements for transit asset management would apply to all recipients and subrecipients of Chapter 53 funds that own, operate, or manage capital assets used in the provision of public transportation. Currently, the NTD reporting requirements are limited, in some instances, to recipients and subrecipients of section 5307 urban formula funds and section 5311 rural formula funds.
The costs and benefits analysis includes both qualitative and quantitative components and is designed to provide information about the likely impacts of the proposed rule at the societal level. Costs and benefits were estimated by using FTA and Bureau of Labor Statistics studies and dialogue with transit providers. Due to limited quantitative resources, many of the estimated impacts are based on explicit assumptions that are outlined in section V of this notice, Regulatory Analyses and Notices. FTA is seeking comment on its assumptions.
According to Government Accountability Office (GAO) reports and other studies, existing practices in transit asset management vary widely from transit provider to transit provider, though most already perform at least some of the functions required under the proposed rule. Costs of the proposed rule were estimated based on the incremental transit provider staff time that would be required to fulfill each of the National TAM System requirements, deducting the costs of their current practices. Where relevant, the estimates were associated with the size of the transit provider's asset portfolio in the NTD. The time requirements were then monetized using average wage rates from relevant job categories, as reported by the Bureau of Labor Statistics in 2013, and adjusted for employee fringe benefits.
Table 1 includes a summary of the estimated costs of the proposed National TAM System. The estimated costs are for transit providers to assess their assets, develop TAM plans, and report certain information to FTA. They do not include any costs from changes to asset replacement or maintenance. The analysis covers a period of twenty years following the adoption of the final TAM rule. The total undiscounted costs for the twenty years are $370 million. Using a discount rate of 7% (with 3% sensitivity case) for future values, the proposed rule has annualized costs of $18.9 million.
The initial costs for collecting data and developing new methodologies will be nearly $46 million spread over the first two years, followed by reduced amounts in subsequent years. Benefits of the proposed rule are expected to stem from improved maintenance practices and decision-making. By identifying and prioritizing state of good repair needs, a transit provider, could, for example, reduce costs for mechanical breakdowns of transit
These benefits could not be quantified precisely due to the lack of published data on the impacts of asset management programs on transit systems. Instead, a breakeven analysis was conducted based on the incidence of transit vehicle mechanical breakdowns reported to NTD and their associated costs. For instance, in 2013, it cost transit providers $2.2 billion to attend to 524,629 mechanical failures of vehicles in service. For the proposed rule to be cost-effective, 0.90% of the mechanical failure breakdowns in 2013 would need to be avoided per year through better transit asset management practices.
Current management practices may delay maintenance of vehicles due to various reasons. For instance, some providers may keep vehicles in operation to meet the current demand, delaying regular maintenance of vehicles, resulting in mechanical failure of vehicles in service. Others may shortchange maintenance budgets to expand the systems. In each case, providers struggle to meet system demands with limited resources. Implementing a TAM system would require a provider to collect and use asset condition data, set targets and develop strategies to prioritize investments to meet the provider's goals. One strategy may be to ensure that assets are maintained on a regular schedule to avoid failure of vehicles in service which are expensive to attend to and cause delays on the system. Based on limited findings on transit asset management-related cost savings from transit provider initiatives and from the literature in other transportation fields, notably highways, this level of improvement appears readily achievable. Additionally, there would be important non-quantifiable benefits in areas such as improved transparency and accountability. FTA seeks comment on the assumptions herein, and other sources of data that may be available.
MAP-21 ushered in a new era of performance management for surface transportation. Performance management requires the establishment of meaningful performance measures to link policies, goals and objectives, planning and programming, and project delivery to stated outcomes. The performance management requirements are intended to facilitate more effective investment of Federal transportation funds by refocusing attention on national, regional, and local transportation goals, increasing the accountability and transparency of the Federal transit and Federal-aid highway programs, and improving project decision-making through performance-based planning and programming. FHWA and FTA are undertaking a number of separate, but related rulemakings, to implement the performance management framework and establish national performance measures.
The SGR performance measures are an essential component of the National TAM System. Each transit provider would be accountable for setting annual performance targets based on the measures established by FTA. The process of setting performance targets would require each transit provider to think quantitatively about the size of its own SGR backlog, and to analyze what resources it could leverage to address its SGR needs. How a transit provider sets its performance targets would be an entirely local process and decision. However, FTA would strongly encourage transit providers, States, and MPOs to set meaningful progressive SGR targets, based on creative and strategic leveraging of all available financial resources. Although the law does not provide FTA with the authority to reward transit providers for meeting a SGR performance target, or impose penalties for missing an SGR performance target, the process of setting targets and measuring progress reflects the increased expectations for maintaining and improving the condition of transit capital assets.
Pursuant to MAP-21, the SGR performance targets set by transit providers, along with other performance targets set pursuant to other statutes, are an essential component of the planning process. The planning provisions at 49 U.S.C. 5303 and 5304 require States and MPOs to establish performance targets for transit that are based on the national measures for state of good repair and safety established by FTA and to coordinate the selection of those performance targets, to the maximum extent practicable, with performance targets set by transit providers to ensure consistency. 5303(h)(2)(B)(ii), 5304(d)(2)(B)(ii).
Furthermore, the Long Range Statewide Transportation Plan should and the Metropolitan Transportation Plan shall include: (1) A description of the TAM performance measures and targets; and (2) a report evaluating the condition of the transit system(s) with respect to the State and MPO performance measures and targets, including the progress achieved in meeting performance targets compared with system performance recorded in previous years. 49 U.S.C. 5303(i)(2)(B) and (C), 5304(f)(7). In addition, transportation improvement programs (TIPs) and statewide transportation improvement programs (STIPs) must include, to the maximum extent practicable, a discussion of the anticipated effects of the TIP/STIP toward achieving the TAM performance targets in the Statewide and Metropolitan Transportation Plans by linking TAM investment priorities to those performance targets. 49 U.S.C. 5303(j)(2)(D), 5304(g)(4).
The integrated planning process mandated by MAP-21 should result in States and MPOs being able to identify investment and management strategies to improve or preserve the condition of transit capital assets in order to achieve and maintain a state of good repair. FTA and FHWA jointly issued an NPRM (79 FR 31784 (June 2, 2014)), that proposed new requirements for Metropolitan, Statewide and Non-metropolitan Planning. Soon, a final rule will be published to guide the new performance-based approach to planning.
MAP-21 amended Federal transit law by creating a Public Transportation Safety Program at 49 U.S.C. 5329, which authorizes FTA to oversee the safety of public transportation throughout the United States, including most notably,
FTA has adopted the principles and methods of Safety Management Systems (SMS) to guide its development and implementation of the Public Transportation Safety Program. SMS is a formal, top-down, organization-wide data-driven approach to managing safety risk and assuring the effectiveness of safety risk mitigations. SMS includes policies, procedures, and practices for the management of safety risk. SMS encourages communication and collaboration between management and labor to control risk better, detect and correct safety problems earlier, share and analyze safety data more effectively, and measure safety performance more clearly. A fundamental aspect of transit asset management is the monitoring of asset condition as an indicator of system performance. The data derived from condition assessments would inform a transit provider's practice of SMS, to the extent that an asset's condition impacted the safety performance of a public transportation system.
A key challenge in connecting transit asset management to safety planning is that even when assets are not in a state of good repair, they can be operated safely, and, likewise, assets in a state of good repair can be operated unsafely. That is not to say that achieving a state of good repair is sufficient for safe transit operations, nor to say that safety is the only reason for implementing TAM plans. The proposed transit asset management and safety requirements are intended to support a transit provider in attaining a comprehensive understanding of the impact that the condition its capital assets may have on the safety of its public transportation system. As a result, a transit provider would rely on a combination of risk assessments and performance-based data to make informed decisions about how to mitigate safety risks related to asset condition and how to prioritize capital investment decisions.
Under the SMS approach, an identified accountable executive at each transit provider would be responsible both for the safety of the public transportation system and for ensuring that the necessary resources are available to carry out the TAM plan and the public transportation agency safety plan. An accountable executive would be responsible for making decisions regarding the allocation of resources to address asset condition and improve the state of good repair based on the data derived from the transit provider's transit asset management and SMS practices.
Of the many changes to FTA's capital programs under MAP-21, two of the most important are the repeal of the formula Fixed-guideway Modernization (FGM) Program and the creation of the SGR Formula Program at 49 U.S.C. 5337.
Readers should be aware that, in addition to the SGR formula funds, funds from other FTA grant programs may be used to cover costs related to TAM plans. In general, the software costs for an asset inventory system, for estimating capital investment needs over time, or for a decision support tool for investment prioritization are eligible capital costs. Similarly, costs related to assembling and maintaining an asset inventory, or related to condition inspections, are generally eligible preventive maintenance costs that can be funded by capital assistance. Finally, costs related to creating a TAM plan itself are an eligible expense under the section 5307 Urbanized Area Formula Program and the section 5311 Rural Area Formula Program.
Prior to MAP-21, FTA began researching transit asset management and developing TAM policies and best practices for the transit industry. Specifically, FTA sponsored several SGR roundtables, conducted an online dialogue, and issued a Transit Asset Management Guide. Both the SGR Roundtables and the Online Dialogue made clear to FTA that many transit providers have been applying asset management practices to their organizations in some form for years. However, many of the existing practices lacked a strategic approach to decision-making and investment prioritization. Each of the aforementioned efforts contributed to the development of the proposed rule.
FTA held four SGR roundtables from 2008 through 2012 that covered topics related to TAM implementation and challenges. The roundtable participants represented a cross-section of transit providers and State DOTs from across the nation of varying sizes, modes, and asset management maturity. The second roundtable, held in Chicago, IL in 2010, specifically examined the issue of formulating a standard definition of state of good repair for a federal program. Several of the participants shared their working definitions of state of good repair, and although there was no consensus, most of the transit systems typically defined state of good repair as a condition where “assets are functioning normally (reliably) and within their useful life.” In the proposed objective standards for measuring state of good repair, the rule adopts the concepts of “functioning normally” and “within its useful life.”
FTA hosted an Online Dialogue from Dec. 12, 2012-Jan. 18, 2013 to learn from the transit industry about a number of topics of interest to development of a National TAM System. The dialogue had 739 users who posted 86 ideas for a total of 146 comments. Comments on defining state of good repair supported FTA's proposal in the rule to keep the definition simple, broad, and quantifiable, so that an
The 2012 TAM Guide, is FTA's primary guidance on transit asset management.
On October 3, 2013, FTA introduced the transit industry to fundamental changes to the Federal transit program authorized by MAP-21 with a consolidated advance notice of proposed rulemaking (ANPRM). 78 FR 61251 (Oct. 3, 2013). FTA issued a consolidated ANPRM to provide the public with a better understating of FTA's proposed approach to implementing the requirements for transit asset management and safety. Throughout the ANPRM, FTA expressed its intention to adopt a comprehensive approach to transit asset management and safety that would be scalable and flexible enough for different types of transit modes and operating environments. In addition, the ANPRM highlighted the inherent linkages between asset condition and safety performance through the discussion of FTA's proposal to adopt SMS as the foundation for the development, implementation, oversight and enforcement of the new Public Transportation Safety Program.
The ANPRM posed 123 questions. FTA received and analyzed comments on the ANPRM from 167 responders. The universe of responders was comprised of 15% individuals, 46% transit providers (43% urban and 3% rural), 17% State DOTs, 7% MPOs, and 15% industry organizations. This section summarizes the comments related to transit asset management. FTA took these comments into consideration when developing the proposed rule. Below, the ANPRM comments and responses are subdivided by subject and corresponding question numbers.
Section II of the ANPRM discussed FTA's understanding of the relationship between transit asset management, state of good repair, and safety. Several questions requested public comment on FTA's proposed approach to implementing this relationship. These questions related to the integration of the definition of “state of good repair” and SGR performance measures into the new National Public Transportation Safety Plan and the requirements for public transportation agency safety plans. Additionally, FTA inquired whether safety SGR performance targets required for transit agency safety plans should be the same as SGR performance targets identified by transit providers under the National TAM System.
Some commenters suggested that FTA should not require safety to be incorporated into the investment prioritizations required in the TAM plan, other than to indicate that safety considerations are explicitly required as a part of the decision-making process. Other commenters indicated that the TAM plan should identify which assets are critical to safety. Commenters noted that safety risk should be a heavy portion of a weighted score used to prioritize projects. Several commenters recommended that the level of detail in TAM plans need only be sufficient enough to identify and prioritize major capital reinvestment needs and focus on asset groups versus individual assets. Other commenters noted that FTA should only require a TAM plan to include a discussion of how the recipient incorporates safety into its condition assessment and investment prioritization.
Several commenters believed that although safety is linked to state of good repair, prioritization of funds is a local decision. They suggested that FTA provide best practices or guidance on the subject, instead of rules. Other commenters recommended that FTA not prescribe a specific approach for integrating these principles because each transit provider will integrate safety objectives and SGR targets into their investment and operational decisions.
Commenters also noted that such integration occurs during the STIP development process. Some commenters noted that FTA should build upon the existing NTD Safety Event Reporting data collection effort and leverage historical data collection to identify safety trends, rather than establishing a new data collection and reporting system. Other commenters suggested that FTA allow the industry discretion and time to develop best practices on how to prioritize SGR investments to support safety.
Some commenters suggested that FTA not include inactive assets when computing a transit provider's SGR needs. Other commenters suggested that the SGR program not be used to punish or reward agencies via funding decisions. Commenters stated that concentrating resources on underperforming properties could have the unintended impact of financially
Several commenters suggested that “state of good repair” be defined simply as, “an asset fit for its intended purpose.” Commenters recommended that FTA not attempt to establish a nexus between safety, state of good repair, and transit asset management. Commenters recommended also that FTA differentiate between safety and state of good repair. Several commenters disagreed with FTA's proposal that state of good repair and safety were linked. Some commenters indicated that before FTA issues any new safety regulations, consideration should be given to those States that have already codified meaningful safety laws and regulations.
Accordingly, this proposed rule reflects FTA's recognition of the nexus between transit asset management and safety. While asset condition may not always be a contributing factor in safety events, FTA believes that there is a relationship between condition assessments and the identification of safety risks and hazards. As a result, FTA does not believe that it should define a “safety critical asset.” Each transit provider is in the best position to determine which assets may be critical to the safe operations of its transit system. Moreover, this determination is likely to change depending on the circumstances.
The proposed rule would make the consideration of asset condition, as it relates to safety, a standard for assessing state of good repair. The rule would also require that due consideration is given to identified safety risks when setting investment priorities under a TAM plan. FTA will issue additional rules to implement the requirements of the National Public Transportation Safety Program.
Section VII.A of the ANPRM posed questions on issues related to the scope and applicability of the TAM plan requirements for small operators, subrecipients, and Native American tribes.
In terms of how to define the size of a small operator, many commenters suggested that the definition should be the same for both the asset management and safety rules, and should be the same as those used for some of FTA's other programs. For example, many commenters pointed out that FTA's Urbanized Area Formula Program already applies different rules and formula allocations to those recipients who operate in areas of more than 200,000 in population, as opposed to those who operate in areas of less than 200,000 in population. Some commenters pointed out that the NTD provides reduced reporting requirements for those systems operating 30 or fewer vehicles and without fixed-guideway service, while others pointed out that the section 5307 Urbanized Area Formula Program provides operating-assistance eligibility to those systems operating bus service with fewer than 100 vehicles. Other commenters suggested a threshold of 200 vehicles.
Some commenters asked FTA to clarify whether the asset management requirements would apply to recipients that do not build, manage, or operate transit assets. Several commenters suggested that assets owned by a third party (such as a contractor) should not be included in a TAM plan. Other commenters suggested that each transit provider should be allowed to determine which assets to include in its TAM plan. Most commenters, however, said that any asset used in the provision of transit service should be included in a TAM plan.
Some commenters disagreed with the idea of allowing statewide TAM plans, stating that a successful TAM plan must be inherently unique to the individual transit provider. Other commenters generally agreed that States should be given the option of preparing a statewide TAM plan, at least for their smaller subrecipients.
To reduce the burden on small operators, the proposed rule offers a two-tiered approach for the TAM plan requirement. Small transit providers operating 100 or fewer vehicles in revenue service and no rail fixed-guideway service and all subrecipients under the Rural Area Formula Program would be allowed to participate in a group TAM plan that would be developed by a State or other direct recipient. The 100-vehicle threshold is similar to the operating assistance threshold in the Urbanized Area Formula Program. Larger transit
Section VII.B of the ANPRM posed questions related to the definition of “state of good repair.” These questions sought comment on the impact of defining state of good repair using the following four approaches: (1) Age, (2) condition, (3) performance, or (4) a comprehensive approach based on age, condition, and performance. This section also asked a question about other proposed approaches to defining and measuring state of good repair and how the transit industry currently defines and measures state of good repair.
FTA is proposing to define state of good repair as “the condition in which an asset is able to operate at a full level of performance.” “Full level of performance” is an aspirational condition state that would be measured by the objective standards in the proposed rule in section 625.41. FTA chose to incorporate performance into the proposed definition because it is the ultimate indicator of the impact of transit asset management and improvements in state of good repair on many aspects of a transit provider's operations, including safety, reliability, efficiency, and quality of service. FTA believes that this proposed definition and the proposed objective performance standards would satisfy both the minimum statutory requirements and could be easily applied in any operational environment.
FTA also chose the aspirational approach of “full level of performance” based on findings from the TCRP Research Report 157, which suggested a straight forward approach to defining state of good repair as “the point at which all of a transit agency's assets are in a good condition.” This is an ideal condition, which can be measured by objective standards. The transit industry has been able to deliver more than 10 billion annual trips despite the SGR backlog. Therefore, the definition of state of good repair should reflect an aspirational condition beyond the current status quo.
The objective standards used to determine state of good repair ask whether (1) an asset is able to perform its manufactured design function; (2) whether the asset is able to operate without posing a known unacceptable safety risk; and (3) whether the asset's life-cycle maintenance needs have been met or recovered. These high-level standards are broad enough to be applied to existing transit asset management practices at transit providers of varying sizes, modes, and operating environments.
Section VII.C of the ANPRM posed questions related to TAM plans, including: (1) The applicability of the requirement to develop a TAM plan; (2) specific requirements for asset inventories, condition assessments, investment prioritization, and technical assistance from FTA; and (3) the extent to which safety and other risk-based processes should be incorporated into or reflected in a TAM plan. Section VIII of the ANPRM related to certification of TAM plans. Related to the questions under section VII.C, question 113 sought comment on how often TAM plans should be updated. Question 82, related to technical assistance, is addressed below in section E.
With respect to contractors and other third-party operators of public transportation services, some commenters stated that the TAM plan requirements should not extend to lessees or contractors. Conversely, other commenters suggested that Federally-funded assets should be included in a TAM plan whether or not they are leased to a third party.
The proposed rule would require transit providers to develop asset inventories for each asset class within the equipment, rolling stock, infrastructure, and facilities asset categories. For example, asset classes within the rolling stock asset category include buses, vans, trolleys, and rail cars. FTA believes that this proposed approach accommodates transit providers of all sizes and capabilities, as the fewer assets a provider has, the fewer assets the provider will have to include in the inventory.
FTA believes that the practice of conducting condition assessments will significantly improve the effectiveness of investment decision-making. Accordingly, the proposed rule would only require that a transit provider choose a method for conducting a condition assessment that “generates information in a level of detail sufficient to monitor and predict the performance of each capital asset identified in the asset inventory.” See section 625.25(b)(2)of the proposed rule.
Investment prioritization is an essential step in instituting TAM principles for transit providers. TAM policies and strategies can assist transit providers in identifying priorities that address their goals or desired outcomes. FTA agrees that balancing needs for operations, maintenance, and expansion projects is a local determination and recognizes that the methodologies and analysis used to make these decisions will vary. However, FTA believes that describing decision criteria for investments and the resultant ranked list of projects are important steps in investment prioritization. This is consistent with the statutory requirement for a TAM plan to include decision support tools.
FTA does believe that sufficient investment must be directed to those projects that pose safety risks. Therefore, although the proposed rule does not prescribe a method for making investment decisions, it would require that due consideration is given to those projects for state of good repair that pose an unacceptable safety risk identified through the transit provider's Safety Management System, or the relevant safety program as it applies to railroad operators that are recipients of FTA formula funds and subject to Federal Railroad Administration (FRA) Jurisdiction.
The proposed rule would require the time period for the investment prioritization be four years, in order to be consistent with existing requirements under the TIP and STIP processes.
Section VII.D of the ANPRM and questions 63, 67, and 72 from section VII.B relate to SGR performance measures and targets. These questions sought comment on the four proposed approaches to defining and measuring state of good repair based on the following: (1) Age; (2) condition; (3) performance; and (4) a combination of all three approaches. The questions also sought comment on other approaches to measuring state of good repair and whether different approaches should apply to agencies based on provider-size. The questions sought comment also on how SGR performance targets should be set and where they should be reported.
FTA published a State of Good Repair White Paper with the ANPRM which discussed four proposed approaches to measuring state of good repair based on an asset's (1) age, (2) condition, (3) performance, (4) or a comprehensive approach of age, condition and performance.
•
•
•
FTA is aware that more advanced performance measures exist, and supports transit providers that elect to use them.
Some commenters stated that using FTA's NTD might be cumbersome for small urban and rural operators. Commenters recommended setting targets by operator type and also adopting approaches that effectively reduce the burden on small urban and rural transit operators by setting a long target horizon period. Several commenters recommended setting a target horizon of five or more years, whichever would be consistent with the regional Long (or Short) Range Plan, State Transportation Improvement Program, or equivalent.
FTA believes that annual performance targets are an important mechanism to gauge the performance of a TAM system. FTA agrees that setting annual and long-term targets would provide a larger set of indicators to assess improvements in performance. FTA also agrees a shorter target will allow transit providers to correct and address obstacles to achieving SGR goals. The proposed rule would require only that targets be set annually for the following fiscal year.
Pursuant to 49 U.S.C. 5326(c)(2), targets must be set within 3 months after the effective date of a final rule is issued to establish performance measures. FTA believes that three months is sufficient time to complete initial target-setting. Group TAM plan sponsors would be responsible for setting initial and subsequent targets for small and rural operators that are eligible to participate in a group TAM plan.
Section VII.E of the ANPRM posed questions related to technical assistance and tools from FTA. This section asked questions about tools used by the transit industry for its transit asset management practices. These questions sought comments also on what tools and resources the transit industry would like from FTA to ease the implementation of the TAM requirements. There were other questions related to gaps in existing technical assistance and tools.
Some commenters suggested that FTA should create flexible and simple TAM
Section VIII of the ANPRM posed questions related to certification of TAM plans. These questions sought comment on how certification should occur, including certification for subrecipients, and the role of a transit provider's officials in the certification process.
Some commenters indicated that they do not support FTA review of certification of public transportation agency safety plans and TAM plans on the basis of a weighted random sample. Many commenters expressed concern that random sampling in addition to triennial and State management review is redundant. Other commenters expressed concerns that random sampling would not be suitable for all agencies because of differing populations, geographical locations, and types of service among agencies. Some commenters also indicated that, although a weighted random sample could be appropriate, it is important that the system is not overly burdensome.
Some commenters suggested that FTA establish self-assessment procedures, but only one commenter indicated that FTA should establish procedures for providers to follow before certifying transit agency safety plans TAM plan. Other commenters stated that it would be helpful for FTA to create a checklist or other guidance to facilitate self-assessment procedures. Of these commenters, a few suggested that a self-assessment tool should differentiate between mandatory and voluntary aspects of the tool so that transit agencies with substantial differences could utilize the self-assessment tool flexibly. A few commenters indicated that an FTA self-assessment tool would not be helpful because agencies differ substantially in their plans and practices.
Some commenters stated that they did not want the certification of the TAM plan to be signed by the chief executive officer of transit operations and/or the chief executive officer of the legal entity receiving grants from FTA. On the other hand, some commenters stated that they would like the certification of the TAM plan to be signed by the chief executive officer of transit operations and several indicated that the chief executive officer of the legal entity receiving the grant from FTA should sign the certification. Other commenters did not indicate a preference, but responded positively to the idea of the chief executive officer signing the certification of the TAM plan.
Some commenters suggested that approval by a transit provider's board of directors should be optional. Another commenter stated that if the TAM plan is a technical document, then it should be approved by only the chief executive officer, but if it is a high level non-techncial document, then it should be approved by the board of directors.
Section IX of the ANPRM posed questions about the coordination and integration of TAM plans and performance targets with the metropolitan, statewide and non-metropolitan planning requirements.
A few commenters stated that targets must be established at the transit provider level because consolidating targets at the regional/MPO level would create unnecessary limitations to funding allocations and unreliable measurement criteria. Many commenters suggested that MPOs should not be required to set a region-wide target for transit state of good repair and that MPOs should not be required to incorporate both the safety and transit SGR targets from each transit system within their jurisdictions into the performance-based planning process. Conversely, other commenters suggested that MPOs should be required to set a region-wide target for transit state of good repair or that MPOs should be required to incorporate both the safety and transit SGR targets from each transit system within their jurisdictions into the performance-based planning process. Some commenters suggested that MPOs should coordinate with transit agencies and should incorporate performance measures/targets into existing processes with operators. Other commenters suggested that MPOs and partner transit agencies should have the flexibility to choose an approach that meets their particular needs.
Some commenters suggested that FTA directly monitor and oversee performance factors and planning requirements for direct recipients of FTA funds. Some suggested that MPOs collaborate with States and transit agencies to establish safety plan and TAM performance requirements.
Some commenters stated that the existing framework is sufficient and no additional steps are needed for integration into the planning process. Some commenters suggested that the process should reflect the variety in the structures of the States. Specifically, in some cases, the State would be the incorrect entity to incorporate the safety and TAM plan elements because in a region that includes an MPO, the MPO may serve as the regional transportation planning organization (RTPO).
Pursuant to the requirements at 49 U.S.C. 5303 and 5304, States and MPOs must coordinate with transit providers to the maximum extent practicable in selecting State and MPO TAM performance targets.
FTA believes that together with the requirements of a final rule to implement 49 U.S.C. 5326, the new performance-based planning framework will ensure that investment decisions for state of good repair are adequately considered alongside other regional investment needs, such as “increased consideration of resilience to impacts of climate change and extreme weather-related hazards.” For more information on these planning requirements under the new performance-based approach, please refer to the joint planning NPRM issued by FTA and FHWA. 79 FR 31784 (June 2, 2014).
Section X of the ANPRM sought information from the public regarding the costs and benefits related to alternative regulatory approaches for implementing the National TAM System.
FTA is proposing to amend chapter 49 of the Code of Federal Regulations by adding a new part 625. The following is a section-by-section analysis of each proposal in this rulemaking:
This section explains that the purpose of these regulations would be to carry out the mandate of 49 U.S.C. 5326 for transit asset management.
This section explains that the regulations would apply to all transit providers that: (1) Are recipients or subrecipients of Federal financial assistance under 49 U.S.C. Chapter 53; and (2) own, operate, or manage transit capital assets. The statute broadly applies to all recipients and subrecipients of FTA financial assistance, including rail fixed-guideway operators otherwise regulated
This section includes proposed definitions for terms that would be applicable to this part. Some of these terms are familiar to the transit industry, but may be defined slightly differently for purposes of this rule. For example, readers should refer to “capital asset,” “direct recipient,” “equipment,” “facility,” “infrastructure,” “public transportation system,” “recipient,” “rolling stock,” and “subrecipient.” The definitions for “performance measure” and “performance target” are products of the new performance management framework. Other new terms are specific to transit asset management, including “asset category,” “asset class,” “asset inventory,” “full level of performance,” “group TAM plan participant,” “group TAM plan sponsor,” “horizon period,” “transit asset management,” and “transit asset management system.” The following definitions warrant further explanation or clarification.
FTA proposes to include a definition for
FTA proposes to include a definition for
FTA proposes to include a definition for
FTA proposes to include a definition for
FTA proposes to include a definition for
FTA proposes to include a definition for
FTA proposes to include a definition for
FTA proposes to include a definition for
FTA proposes a definition of
FTA proposes to define
FTA proposes to include a definition for
FTA proposes to include a definition for
FTA proposes to include a definition for
FTA proposes to include a definition for
FTA proposes to include a definition for
A transit provider should establish a ULB by taking into consideration the operating environment of its assets, historical evidence, manufacturer guidelines, and any other relevant factors. Transit providers may elect to use the default ULB for assets, which is derived from FTA's TERM.
A useful life benchmark is distinct from the term “useful life” or “minimum useful life” that applies to FTA's grant programs. Under FTA's grant programs, “useful life” refers to the federal financial interest in a capital asset which is based on the length of time in service or accumulated miles. Generally, assets are not eligible for replacement with FTA funds until they have met or exceeded their minimum useful lives. A ULB, however, takes into consideration operational factors, discussed above, that may impact the condition of a capital asset.
This section identifies the elements of the National TAM System as set forth at 49 U.S.C. 5326(b). FTA proposes that the National TAM System include a requirement that FTA establish performance measures and that transit providers set targets and that transit providers report their targets to FTA's NTD. The performance management and reporting components of the National TAM System are important for assessing both the benefits of transit asset management on a National level and the transit industry's current SGR needs.
FTA proposes SGR principles intended both to highlight the relationship of state of good repair to other transit priorities and to guide a transit provider's practice of transit asset management. State of good repair is related to, but not synonymous with, transit asset management. State of good repair is a condition that can be achieved through good transit asset management practices. Transit asset management practices inform the capital investment planning and programming processes by producing data that informs investment prioritization. Transit asset management allows a transit provider to realistically predict the impact of its policies and investment decisions on the condition of its assets throughout an asset's life cycle. Transit asset management enhances a transit provider's ability to maintain a state of good repair and proactively invest in its assets before the asset condition deteriorates to an unacceptable level.
A key connection of state of good repair to transit asset management is performance management. Asset management is a business model that uses the condition of assets to determine the finances needed in order to achieve predetermined outcomes. In the case of transit asset management, and this rulemaking, the goal is to achieve and maintain a state of good repair. A key focus of asset management is cost-risk balancing to achieve performance goals through a transparent, organization-wide process of decision-making.
Transit asset management provides a framework for how to maintain a state of good repair by considering the condition of assets in the transit provider's inventory and the transit provider's local operating environment, along with the policies that a transit provider establishes for prevention, preservation, rehabilitation and replacement. Transit asset management allows a transit provider to realistically predict the impact of their transit asset management and maintenance policies on the condition of their assets and how much it would cost to improve asset condition at various stages of an asset's life cycle, while balancing prioritization of capital, operating and expansion needs.
Pursuant to 49 U.S.C. 5326(b)(2), all recipients and subrecipients of Chapter 53 funds must develop a TAM plan. FTA has interpreted this requirement to apply only to those recipients and subrecipients that actually operate public transportation systems and own, operate, or manage capital assets for that system. Therefore, the TAM plan requirements would not apply to an MPO that merely receives funds from FTA and passes the funds along to transit operators. Accordingly, section 625.25(a) would require each transit provider that owns, operates, or manages public transportation capital assets to develop and carry out a TAM plan.
In order to address the SGR backlog in a meaningful way, FTA believes that a recipient or subrecipient of FTA funds must account not only for assets that it operates directly, but also assets that it leases or assets that are operated under a service contract with the recipient. A transit provider would be responsible for the development and implementation of a TAM plan (along with all related recordkeeping requirements). However, a provider would be responsible also for ensuring that, any entity providing service on behalf of the provider, is complying with the provider's TAM plan. Accounting for all assets would allow a transit provider to make more informed investment decisions.
In meeting these requirements, tier II providers would have the option to participate in a group TAM plan. The group TAM plan concept is intended to reduce the burden on smaller operators of having to develop individual TAM plans. Under a group TAM plan, a group TAM plan sponsor, State, or direct recipient would develop a single group TAM plan on behalf of one or more tier II providers. Each tier I provider, including group TAM plan sponsors, must develop its own individual TAM plan. Under all circumstances, it is the responsibility of the relevant State or MPO to integrate the TAM plans (group or individual) into the statewide and metropolitan transportation planning process.
It would be the responsibility of the transit provider's accountable executive to ensure that the TAM plan is carried out at his or her organization. For those transit providers that develop an individual TAM plan, the accountable executive would be responsible for making informed investment decisions
Subsection 625.25(b) lists proposed elements of a TAM plan, including:
1. An asset inventory, which is a list of the transit provider's capital assets;
2. A condition assessment, which is a rating (
3. An identification of which decision support tool or tools were used to create the TAM plan. A decision support tool is a methodology to help transit providers make decisions, such as prioritizing projects based on condition data and objective criteria. A decision support tool can be software, but is not exclusively software; this NPRM does not speak to the decision support tool a transit provider should use;
4. An investment prioritization. The investment prioritization is a list of the proposed projects and programs that a transit provider estimates would achieve its SGR goals, and a ranking of the projects and programs based on priority;
5. An identification of the transit provider's policies and strategies for developing an effective TAM plan, including a transit provider's executive-level directions to set or support the goals for its TAM plan;
6. A strategy for implementation of the TAM plan, which is the process a transit provider identifies to follow in order to achieve its TAM plan. This strategy differs from the strategies identified in element (5) in that this is an operation-level decision;
7. A list of the key activities or actions that are critically important to achieving the transit provider's asset management goals for the year—
8. An identification of the financial resources that a transit provider estimates are necessary for implementing its TAM plan and achieving its asset management goals. This might include internal staff time, technology requirements, etc.; and
9. A continuous improvement plan that sets timelines and milestones that can be revisited to track the transit provider's progress towards meeting its asset management goals.
The first four elements relate to identifying performance goals, while elements 5 through 9 relate to the implementation of TAM concepts. To reduce the burden, FTA is proposing that a TAM plan for a tier II provider or other eligible group TAM plan participant would be required to include only elements 1 through 4. The majority of the SGR backlog exists in capital assets at larger transit systems, particularly those with rail fixed-guideway public transportation systems. As a result, FTA believes that these larger, complex operations require a more holistic and strategic process, addressed through elements 5 through 9, for consideration of asset conditions throughout the asset's life cycle, as well as institutionalization of TAM principles. FTA highly recommends that tier II providers incorporate elements 5 through 9 as best practices. FTA requests comment on these additional, non-statutory criteria, including whether these are appropriate for tier I providers, whether other criteria should be included, and whether these (or other criteria) should be extended to tier II providers.
Subsection 625.25(b)(1) would require that each TAM plan include an inventory of the transit provider's capital assets. The asset inventory is expected to cover the capital assets that a transit provider owns, operates or manages, including leased assets and those assets operated under contract by an external entity. This asset inventory may be a combination of other inventories a transit provider may have on hand. For example, the grant management guidance circular 5010.1D requires grantees to collect, maintain, and report records for rolling stock and equipment. This existing inventory could be used to initiate or refresh the capital asset inventory to satisfy the requirements of the proposed rule.
Subsection 625.25(b)(2) would require that each TAM plan include a condition assessment of capital assets that generates information in a level of detail sufficient to monitor and predict the performance of each capital asset identified in the asset inventory. This subsection would not prescribe how a condition assessment must be conducted, but merely what the result of the assessment would need to be. It would be up to the transit provider or group TAM plan sponsor to decide whether to conduct condition assessments at the individual or asset-class level.
Condition assessments link the practice of asset management to the transit provider's practice of SMS. Therefore, when a transit provider identifies a safety hazard related to the use of a capital asset or an asset class, it would need to evaluate the safety risk to its passengers, employees, and general public in accordance with its transit agency safety plan and the forthcoming regulation. If a capital asset or asset class is identified as a candidate for accelerated repair, replacement, reconstruction, or rehabilitation as the result of the safety evaluation, this should be duly reflected in the investment prioritization. The accountable executive would need to ensure that the financial decision-makers of the transit provider are informed of any need for risk mitigation identified in the provider's SMS.
The statute provides that all recipients and subrecipients of Chapter 53 financial assistance must develop a TAM plan. Under the proposed rule, this requirement is met either through an individual TAM Plan or through a group TAM plan. The statute includes other requirements for the National TAM System, which are proposed in the rule, specifically those identified in section 625.15, as well as NTD data reporting requirements from 49 U.S.C. 5335(c). The rule proposes to tie these requirements to the sponsorship of the TAM plan.
This section proposes that States and direct recipients of sections 5307 and 5311 funds, or the designated recipients of section 5310 funds would be required to sponsor a group TAM plan for their tier II provider subrecipients, including all subrecipients under the Rural Area Formula Program. Sponsors would not be permitted to reject requests from a tier II provider to participate in a group TAM plan and must develop a group TAM plan for all eligible tier II providers. However, a group TAM plan participant may choose to “opt-out” of a group TAM plan and create its own TAM plan. In addition, an eligible participant may select which group TAM plan it would like to participate in if it is a subrecipient to more than one sponsor. For example, a Rural Area formula Program subrecipient that operates in a multi-state location may be eligible to participate in more than one group TAM plan. The subrecipient would need to select which group TAM plan it wanted to participate in, and formally opt out of the plan that it chose not to participate in. In the absence of explicit notification from a tier II
Each transit provider's accountable executive would be required to coordinate, to the extent practicable, with a group TAM plan sponsor in the development of the group TAM plan. Accordingly, a group TAM plan sponsor would be required to coordinate the development of the plan with each of the plan participants' accountable executive.
The group TAM plan concept was derived from the statewide TAM plan concept discussed in the ANPRM. Previously, FTA interpreted the language in the law to exclude a statewide plan option. This interpretation was based on the fact that there was explicit authority provided under 49 U.S.C. 5329(d)(3) for a state plan concept, but similar language was nonexistent under 49 U.S.C. 5326. However, as the implementing agency, FTA has some flexibility in how it chooses to apply these requirements. Accordingly, because of the potential burden on smaller transit providers, FTA proposes a group TAM plan option to alleviate some of the burden on small transit providers when developing a TAM plan.
The feasibility of the group TAM plan assumes that the funding relationship between recipients and subrecipients naturally lends itself to this type of arrangement because the process of prioritizing investments is already occurring at the State and direct recipient level. As a result, it seems logical to require States and direct recipients (or designated recipients of 5310 funds) to take a leadership role in developing group TAM plans for their subrecipients. However, if this relationship is not conducive for the tier II provider, the tier II provider can opt out of the Group TAM plan and develop its own TAM plan.
FTA requests comment on the proposed group TAM plan requirements.
This section proposes timeframes for developing and updating a TAM plan. A TAM plan would be required to forecast projects, targets, and activities for at least four fiscal years. Ideally, the TAM plan cycle should coincide, to the extent practicable, with the State and metropolitan planning cycle for STIP and TIP development. This time horizon would require that the TAM plan be forward-looking. This forecasting is necessary because the ability to measure improvements in performance, based on investments to improve asset condition, is dependent on sufficient collection and analysis of data over time.
This section proposes that a TAM plan should be updated in its entirety at least every four years. Essentially, a transit provider would need to revisit every element of its TAM plan every four years and make any necessary changes for a subsequent version. Some transit providers may desire a longer analysis period; however, the provider would still be required to identify the investment prioritization and performance targets in their 4-year TAM plan horizon period, even if they are a subset of the longer analysis period. During the course of the horizon period, a transit provider may choose to amend its TAM plan to reflect changes to investment priorities, targets, or other unforeseen occurrences (like a natural disaster) that impact the relevance of the TAM plan.
Transit providers should consider current and future climate and weather-related hazards as part of their prioritization of investments. The frequency of and severity of potential hazards such as heavy rainfalls, coastal and riverine flooding, heat waves, extreme cold, and wind events may directly impact assets located in vulnerable areas, and may affect how a provider identifies and prioritizes necessary hazard mitigations, asset-replacement schedules, or the expected useful service duration of capital assets.
This section proposes that all TAM plan development should be completed no more than two years after the final rule is published. If the rule becomes effective at any time after the first day of the transit provider's or sponsor's fiscal year, the initial TAM plan should cover the remaining portion of that year plus a four-year time horizon. FTA requests comment on these proposed deadlines. FTA is proposing to allow transit providers to extend the TAM plan implementation deadline by submitting a written request. A written request would need to include documentation which shows that the transit provider has made a good faith effort to meet the deadline, an explanation of why the transit provider could not meet the deadline, and a proposed new deadline subject to FTA approval. FTA would reserve the right to deny a request to extend the deadline.
This section proposes requirements for investment prioritization. The investment prioritization requirements provide strategic guidance for improving the condition of assets through both consideration of life-cycle costs and itemization of the actions necessary to achieve desired asset conditions. Each transit provider would determine its own approach to investment prioritization and project selection. However, the transit provider would be required to base its approach on the policies, goals, objectives, and strategies identified in their TAM plan and ensure that safety is given due consideration. A transit provider's approach to investment prioritization would need to reflect the balancing of competing priorities in order to maximize a return on investment and achieve a desired state of good repair.
The investment prioritization would need to reflect adequate consideration of safety concerns previously identified within a public transportation system. Moreover, when a transit provider plans for the replacement of an asset, it should ensure that it is complying with all relevant regulatory requirements, including the Americans with Disabilities Act (ADA), which requires that accessibility features be maintained in operating order and are promptly repaired if they are out of service. Certain SGR projects may also be regarded as “alterations” under DOT ADA regulations, and may require additional resources.
Safety and minimizing life-cycle costs are the most common objectives in prioritizing projects. However, a transit provider may identify additional criteria and factors and weigh them according to local needs. Another criterion that a transit provider may consider is the resiliency of its assets and systems to natural disasters, as described in the NIST National Disaster Resilience Framework.
Investment prioritization uses the transit provider's selected prioritization approach and predetermined importance factors to determine project rankings. The ability of a project to meet the objectives established by the transit
Pursuant to 49 U.S.C. 5326(b)(1), the definition of state of good repair must contain objective standards for measuring the condition of capital assets. FTA proposes to define state of good repair for public transportation capital assets as “the condition in which an asset is able to operate at a full level of performance.” This section proposes objective standards for equipment, rolling stock, facilities and infrastructure that are intended to further define “full level of performance,” and clearly indicate when an asset is in a state of good repair.
The objective standards allow transit providers to operationalize and quantify state of good repair to audit their SGR performance. To accomplish this, FTA is proposing three objective standards, detailed in section 625.41. The proposed objective standards are: (1) The asset is able to perform its manufactured design function; (2) the use of the asset in its current condition does not pose a known unacceptable safety risk; and (3) the asset's life-cycle investment needs have been met or recovered, including all scheduled maintenance, rehabilitation and replacements. The objective standards allow for an auditable SGR definition that is high-level and broad enough to incorporate existing transit asset management practices at transit providers of different modes, different sizes, and different operating environments.
An asset is in a state of good repair when each objective standard is met. The first objective standard proposed in subsection 625.41(b)(1) would require that an asset is able to perform its manufactured design function. This objective standard takes into consideration that an asset may be in poor condition, but still able to operate. For example, a transit provider may institute a slow zone to allow a rail car to operate on deteriorated track that can no longer support rail cars traveling over it at the most optimized speed, but can support rail cars traveling at slower speeds. In this case, the infrastructure track segment would not meet this SGR standard because it was designed to carry railcars at a speed which its condition will not currently support.
The next objective standard proposed in subsection 625.41(b)(2) would require that an asset not pose an unacceptable identified safety risk. Going back to the previous example, track deterioration can lead to derailments and other safety hazards and, depending on the condition, may not meet this standard. If the asset is operating in its designed function but is introducing a safety risk to the system, it is not in a state of good repair. A safety risk may be identified through a number of ways, including through a transit provider's practice of SMS as proposed under FTA's forthcoming rulemaking for public transportation agency safety plans.
Lastly, the third objective standard proposed in 625.41(b)(3) would require that the life-cycle investment needs of the asset be met. This means that inspection, maintenance, rehabilitation, and replacement schedules have been met or recovered for the asset. For example, if a slow zone was established on an infrastructure track segment to conduct scheduled maintenance and did not result from deteriorated condition or unsafe performance at design speeds, the infrastructure track segment might be in a state of good repair. It is not reasonable to claim that the track is not meeting its manufactured design function because it is being operated for scheduled maintenance. This example highlights the difficulty of assessing state of good repair when conducting routine maintenance.
An asset that meets all three objective standards would be in a state of good repair.
Pursuant to 49 U.S.C. 5326(c)(1), this section proposes four SGR performance measures based on the SGR objective standards proposed in section 625.41. FTA is proposing one measure for each asset class. Each SGR performance measure is based on using calculable quantities of asset conditions to assess state of good repair. In other words, each measure serves as a proxy for measuring state of good repair. This scalable approach allows each transit provider to measure state of good repair and assess progress towards improving state of good repair without requiring the measurement of exact values. Although FTA is only proposing four performance measures in this rule, one per asset category, a transit provider would still be required to apply its asset management systems to its entire inventory of capital assets. FTA believes that the performance measures proposed in this rule have the most potential for use by transit providers in estimating the performance of their system with the least burden for extensive data collection and calculation of measures.
Subsection 625.43(a) proposes an age-based measure for equipment based on the percentage of vehicles that have met or exceeded their useful life benchmark (ULB). Due to the volume of equipment that a transit provider may have, FTA is proposing only one performance measure for equipment for non-revenue support service and maintenance vehicles. FTA believes that maintenance vehicles are the most common class of equipment across types of transit providers and services.
Subsection 625.43(b) proposes a measure for rolling stock that is based on the percentage of rolling stock that have met or exceeded their ULB. This performance measure would be applicable to all asset categories that include revenue vehicles. For example, a transit provider operating buses, trolleys, and rail vehicles would have a performance measure for each asset class. Each performance measure would quantify the percentage of rolling stock in each class that is over the transit provider's ULB for that asset class.
Both the equipment and rolling stock measure assume that most vehicles provide reliable service for a predictable period of time (adjusted by level of usage for some types of assets) after which they should be replaced. Although assets may continue to function safely and effectively at ages beyond this point, FTA has assumed that failure to replace assets at the end of this period leads to decreased performance, increased risk of in-service failure, and higher maintenance costs.
Readers should not confuse a ULB with the minimum useful life requirement under FTA's grant
Subsection 625.43(c) proposes a measure for infrastructure based on the percentage of guideway directional route miles with performance restrictions. This performance measure would be applicable to all rail fixed-guideway infrastructure, including signal and wayside systems. Each transit provider would determine the most appropriate track segment length to apply to the measurement. Transit providers already collect data on slow zones—this performance measure would standardize their reporting.
The performance-based approach is based on a regular, comprehensive assessment of a system's performance and relies upon the assumption that as assets age, they become less durable and reliable, resulting in decreased operational performance. The ability of an asset to safely and reliably perform its assigned function at a full-performance level is at the heart of state of good repair. The performance-based approach requires integration of operations and capital maintenance activities and is particularly beneficial because it focuses on the actual outcomes of capital assets being in a state of good repair.
Subsection 625.43(d) proposes a condition-based performance measure for facilities based on the percentage of facilities with a condition rating of less than 3.0 on the TERM). The TERM Scale rates asset condition on a 1(poor) to 5(excellent) scale. This condition-based approach would require a transit provider to conduct periodic condition assessments of its assets using a set of standardized procedures and criteria. This approach directly identifies the condition of each asset based upon its actual usage and maintenance history.
Pursuant to 49 U.S.C. 5326(c)(2), this section would require transit providers to establish quantifiable targets for each performance measure identified in section 625.43. FTA recognizes that in its determination of targets, a transit provider would need to consider a wide range of factors that may either constrain its ability to impact outcomes or may adversely impact outcomes (such as the population growth of an area). Transit providers should consider these factors along with the expected revenue sources from all sources in establishing targets and should explain in the annual report to FTA how the factors were addressed in reporting their targets.
Under this section, group TAM plan sponsors would be required to set one unified performance target for each asset class in the group TAM plan asset inventory. FTA recognizes that the condition of assets may vary significantly among group TAM plan participants. Therefore, each unified target should reflect the anticipated progress in asset performance for a fiscal year for the entire group. For example, group TAM plan participants are responsible for meeting a target, each transit provider's asset inventory and condition assessment results would be combined or unified to determine the targets.
The group TAM plan sponsor would be responsible for coordinating development of the targets with participating transit providers' accountable executives, to the extent practicable. In addition, transit providers would be required to coordinate with States and MPOs, to the maximum extent practicable, in the selection of State and MPO TAM performance targets to ensure consistency.
This section proposes that a transit provider keep records of the documents it develops to meet the requirements of this part for at least four years. Excel spreadsheets, agreements, or policies that were used to develop a TAM plan may prove useful in the next iteration, as well as assist in certification and review. This section proposes also that a transit provider or group TAM sponsor share its records with its State and MPO to aid in the planning process.
This section proposes a description of the annual report a transit provider or group TAM plan sponsor would have to submit to NTD. The annual report would include a data report and a narrative report. The data report would need to include performance targets for the next fiscal year and the condition of the system, at minimum. In the case of a group TAM plan, the report would need to include the uniform performance targets and the condition of the amalgamated system. The narrative report would include a description of the change in condition of the transit system, and the progress toward achieving the performance targets set for the previous fiscal year. A report for group TAM plan participants should include the amalgamated system and progress toward the uniform performance targets.
Both reports would allow FTA to customize triennial reviews to the transit provider. In addition, the data would be used by FTA to estimate and predict the national SGR backlog and the default ULB for rolling stock assets.
FTA proposes to revise sections 630.3, 630.4, and 630.5 of subpart A of 49 CFR part 630 to conform with the reporting requirements set forth in proposed part 625. The proposed reporting requirements for National TAM System apply to all chapter 53 recipients or subrecipients who own, operate, or manage public transportation capital assets. FTA's NTD currently requires reports from recipients or beneficiaries of the Urbanized Area Formula Program (section 5307) and the Rural Area Formula Program (section 5311). FTA proposes to replace references to section 5307 and 5311 recipients with references to recipients and subrecipients of chapter 53 funds. This proposed change would require recipients and subrecipients of other FTA grant programs, such as the section 5310 formula program for the enhanced mobility of seniors and individuals with disabilities who are not also receiving section 5307 and 5311 funds, to start reporting to the NTD. FTA is not proposing to apply existing NTD reporting requirements to all recipients of chapter 53 funds. FTA intends to apply the reporting requirements proposed under the National TAM System to those transit providers that do not currently report.
Executive Orders 12866 and 13563 direct Federal agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits—including potential economic, environmental, public health and safety effects, distributive impacts, and equity. Also, Executive Order 13563 emphasizes the importance of
FTA has examined the potential economic impacts of this rulemaking and has determined that this rulemaking is likely to be economically significant, in that it may lead to transit agencies making investment and prioritization decisions that would result in economic impacts that could exceed $100 million in a year. However, as discussed in greater detail below, FTA was unable to quantify the potential impacts of this rule beyond the costs for transit agencies to assess their assets, develop TAM plans, and report certain information to FTA. FTA requests comment on any information that could assist in quantifying the costs, benefits, and transfers associated with this rulemaking.
In 2013, the number of trips exceeded 10 billion for the 7th year in a row, the highest ridership level for transit since 1957. There is reason to believe that this is just the beginning of a sustained period of growing demand for public transportation. Moreover, factors such as the migration of people to urban areas, an aging population that will rely heavily on public transportation, and a retiring transit maintenance workforce will further increase demands on existing public transportation systems. While this will increase revenues for the transit agencies, there will be an increase in need for funds for maintenance and expansion of the system to meet the growth in demand. Given existing fiscal constraints, it is unlikely that the Nation's SGR backlog can be addressed through increased spending alone. Rather, a systematic approach is needed to ensure that existing funding resources are strategically managed to target the SGR backlog and meet the increased demand for transit.
MAP-21 fundamentally shifted the focus of Federal investment in transit to emphasize the need to maintain, rehabilitate, and replace existing transit investments. The ability of FTA grant recipients, along with States and MPOs, to both set meaningful transit SGR performance targets and to achieve those targets is critically dependent upon the ability of all parties to work together to prioritize the funding of SGR projects from existing funding sources. Although the new SGR Grant Program for fixed-guideway systems and for fixed-route bus systems operating on high-occupancy vehicle (HOV) lanes will also be an essential component of this process, the SGR grants alone will not be enough to address the backlog. In these financially constrained times, transit agencies will need to be more strategic in the use of all available funds. The various components of this new National TAM System would work together to ensure that state of good repair becomes and remains a top priority for transit providers, as well as States and MPOs. Together, these elements will assist FTA and the transit industry in justifying SGR investments, both for securing new funding resources and for prioritizing SGR investments with existing funding sources.
Section 20019 of MAP-21, amended Federal transit law by adding a new section 5326 to Chapter 53 of title 49 of the United States Code (section 5326). The provisions of section 5326 require the Secretary of Transportation to establish and implement a National TAM System which defines the term “state of good repair;” requires that all recipients and subrecipients under Chapter 53 develop a TAM plan, which would include an asset inventory, an assessment of the condition of those assets, decision support tools, and investment prioritization; establishes annual reporting requirements; and mandates that FTA provide technical assistance to Chapter 53 recipients and sub-recipients, including an analytical process or decision support tool that allows for the estimation of capital asset needs and assists with investment prioritization. 49 U.S.C. 5326(b). In addition, section 5326 requires the Secretary to establish SGR performance measures, and recipients are required to set performance targets based on the measures. 49 U.S.C. 5326(c)(1) and (2). Furthermore, each designated recipient must submit an annual report to the Secretary on the condition of their recipients' public transportation systems and include a description of any change in condition since the last report. (49 U.S.C. 5326 (b)(3). Each designated recipient must submit also an annual report to the Secretary which describes its recipients' progress towards meeting performance targets established during that fiscal year and a description of the recipients' performance targets for the subsequent fiscal year. (49 U.S.C. 5326(c)(3)).
For the purposes of the analysis below, the costs and benefits of the proposed rule are compared against the base case of existing practice. During the development of the rule, FTA considered various alternative approaches to ensure that the proposed rule remained scalable and flexible enough for different types of transit modes and operating environments. As detailed in Section III of this document, FTA issued an advance notice of proposed rulemaking (ANPRM) to get feedback from the transit industry and other stakeholders on specific questions relevant to developing the NPRM.
For instance, transit providers are classified into two tiers, based on the number of vehicles operated in revenue service and the mode. A tier I provider owns more than one hundred vehicles or operates a rail fixed-guideway and tier II providers have less than one hundred vehicles and no rail fixed-guideway. A tier II provider's TAM plan would be required to include only elements 1 through 4 outlined in subsection 625.25(b), instead of all nine elements required for tier I providers. Moreover, a tier II provider is eligible to participate in a group TAM plan which would reduce the burden on the provider of developing an individual TAM plan.
FTA considered several definitions for state of good repair before selecting the definition in the proposed rule. The final selection was based on industry input. FTA believes that the proposed performance measures have the most potential for use by transit providers in estimating the performance of their system, while imposing the least burden for extensive data collection and calculation of measures. Transit providers have the option of using additional measures, in particular, for assets that FTA does not collect data for.
FTA's estimate of the costs and benefits of the proposed rule are based on current industry practice industry. There is no data on the cost of the current practice in the industry. The section below outlines the current practice based on studies available. FTA used information from the studies to estimate the incremental costs that transit providers likely would incur to implement the proposed rule.
There is no single comprehensive source of information on existing transit asset management practices. Most of the roughly two dozen transit providers that have been profiled in existing reports already conduct some or all of the transit asset management activities that would be required under the proposed rule, and this analysis attempts to consider that baseline as the starting point for identifying the incremental costs and benefits of the proposed rule. The transit providers that were profiled in the reports are not a representative sample of the whole transit industry. In general, they represent the large and medium sized urban transit agencies that would fall into tier I. While, several existing reports provide some information on this baseline, particularly for larger transit providers:
• The Government Accountability Office (GAO), Transit Asset Management (GAO-13-571)
• FTA's 2009 Report to Congress, Rail Modernization Study
• A 2010 report from FTA, “Transit Asset Management Practices: A National and International Review,”
• Transit Cooperative Research Project 92, Transit Asset Condition Report: A Synthesis of Transit Practice,
• FTA's Report to Congress on the State of Good Repair Initiative (2011)
Overall, the available literature on current practices suggests that there is room for improvement in transit providers' asset management practices. A handful of leaders in the field, including roughly a dozen agencies that have been profiled by FTA or GAO reports, have implemented sophisticated decision-support systems and integrated transit asset management principles into their planning and operations, with associated “agency culture” changes to encourage collaboration across departments. However, at most other agencies, both large and small, some elements of transit asset management are in place, such as asset inventories, periodic condition assessments, and/or performance measures, but they have not been integrated into a comprehensive system to support data-driven decision-making and project prioritization, much less to trace impacts on ridership, service quality, life-cycle costs, safety and other outcomes. This rulemaking attempts to address that gap by establishing a framework for a National TAM System.
For estimating the incremental costs, the underlying assumption is that most agencies have already incorporated some elements of asset management into their practice, in particular, asset inventory. In other cases, as agencies adopt new practices, they will move away from their old practices and adopt new ones, so the incremental cost is likely to be minimal.
The costs and benefits are estimated for an average transit provider or asset-type. This is a challenge since it is hard to define an average for an industry that is very diverse, ranging from agencies with thousands of vehicles, multiple modes and many facilities to an operator with a few buses. Some of this has been addressed by estimating costs by Tiers defined above. In addition, agencies may be at different stages of asset management practice. The estimates presented below would therefore be very difficult to apply to any particular provider.
Costs and benefits are estimated using both FTA and Bureau of Labor wage data as detailed more specifically in the sections below. To supplement the information available from existing studies, follow-up telephone interviews were conducted with four agencies that received funding through FTA-sponsored pilot programs for TAM initiatives.
Transit asset management is a relatively new practice and requirement for transit agencies, so FTA has limited data on current practices and the costs associated with asset management activities, such as condition assessment. FTA made assumptions in order to estimate costs and benefits based on the information available to FTA. There is also little in the academic literature on quantified benefits or costs for asset management programs for transit agencies. Accordingly, FTA seeks comment on the accuracy of the assumptions used and suggestions for other potential sources of relevant data.
The analysis takes a societal perspective, including benefits and costs regardless of to whom they accrue. It estimates the initial costs (
An incremental approach is used to estimate the costs of the proposed rule. The costs of the proposed rule are defined as the costs of the required asset management activities
Based on the evidence available to FTA now, most transit agencies already perform at least some transit asset management activities, and estimates are based on the assumption that work is performed in-house. Moreover, the proposed rule does not require transit providers to use any particular technology or software system. FTA has emphasized that transit agencies could use something as simple as an Excel spreadsheet to comply with the requirement for a multi-factor prioritization process. Some transit agencies may choose to engage consultants, purchase commercial software, or pursue other approaches that they find more cost-effective than the in-house approach, in which case the estimates here could be considered conservative. In addition, some commercial software packages provide more sophisticated systems that integrate transit asset information with other modules, such as scheduling and crew assignment, or provide other functionalities. These packages go beyond what is required by the proposed rule, so their costs are not necessarily indicative of the actual costs of the proposed rule.
The overall approach in the subsections below is to estimate the labor-hours required for each TAM task and to multiply by an appropriate wage rate to generate the total cost. The labor-hour figures are initial estimates based on findings from the limited literature on transit asset management, expert judgment from FTA staff on the approximate level-of-effort required, and the information from the four transit provider interviews. In some cases, it was possible to cross-check the totals that would result from these assumed cost levels against agencies' actual expenditures on asset management programs, such as those funded through the SGR grant amounts or recent contract awards. These comparisons are discussed in more detail below.
Wage rates for transit provider labor hours are based on May 2013 Bureau of Labor Statistics (BLS) data for urban transit systems and interurban and rural bus transportation.
Using NTD submissions and other information, FTA estimated that there are approximately 284 tier I providers and 3,714 tier II providers. These totals include subrecipients, and entities receiving Section 5310 formula grant funding that do not report to the NTD currently, but would be subject to the proposed TAM rule.
For calculation purposes, it is assumed, based on FTA's knowledge of the industry that tier I providers and tier II direct recipient providers would develop their own TAM plans, while tier II subrecipient providers, which tend to be much smaller organizations, would participate in a group TAM plan, minimizing the burden and costs to small providers of transit services; for example, either through standardization of the process or by developing templates for gathering the information and submitting reports to FTA.
We estimated the number of group TAM plans that would be developed for these subrecipients based on existing funding and reporting relationships. Specifically, it was assumed that the 120 subrecipients of section 5307 funding would be covered by 10 group TAM plans; that the estimated 1,700 subrecipients of section 5310 funding would be covered by 200 group TAM plans; and that the 1,300 rural subrecipients of section 5311 funding and 104 Native American tribes would be covered by 54 Group TAM plans by State DOTs or an equivalent entity. This yields an estimated total of 264 group TAM plans.
The table below shows the number of agencies impacted by the proposed rule and also provides other relevant figures by tier based on our estimates and the 2013 NTD data.
Under
Based on knowledge of the transit industry and information from the transit provider interviews, the existence of a basic inventory of assets that is used for accounting and audit purposes is believed to be so widespread as to be universal. This supports the intuitive conclusion that transit agencies know what assets they have. These inventories would likely be updated as new assets are purchased and others are depreciated or retired, even in the absence of the proposed rule. Therefore, no incremental costs are anticipated for asset inventory.
Under the proposed rule, transit providers would be required to complete an assessment of their capital assets. The assessment must include sufficient information to monitor and predict the performance of each capital asset identified in the asset inventory. Additionally, the process must identify unacceptable safety risks related to the condition of the capital assets. The assessment should also be used when prioritizing investments for transit asset management. While many transit providers already perform these assessments, at least for certain asset types, it is likely that additional effort would be required to meet the standards of the proposed rule.
Estimates of the time required for assessment will vary by asset category. The estimated time requirements are listed below. These estimates are based on FTA's experience with the asset assessment in the transit industry, including unpublished results from a pilot study.
• For revenue and service vehicles, the proposed rule calls for an age-based assessment. Transit providers generally already have records of their vehicles' ages and many are already required to report this information to the NTD. To be conservative, however, it is assumed that this information may be in a different format or database and/or require additional effort to be brought into the asset management system. For estimation purposes, it is assumed that approximately 30 minutes per vehicle would be required. One data limitation is that no information was available through NTD on non-revenue vehicles, but we do not expect this to affect how long it would take to procure this information.
• For facilities, the proposed rule calls for a condition-based assessment. Costs per station are estimated based on two staff members, each working a half day, for a total of eight hours per station per day. For maintenance facilities, costs are estimated based on two staff members working a full day, for a total of 16 hours per facility per day. It is assumed that equipment at stations and maintenance facilities would be part of the assessment. FTA does not have separate data on equipment. These are rough averages that reflect the wide range of assets in this category. For example, a downtown subway station may contain multiple platforms, exits, and passageways, whereas an outlying commuter railroad station may consist of little more than a platform and a shelter.
• For infrastructure way mileage (
• For equipment, the proposed rule calls for an age-based assessment. FTA lacks specific information about transit providers' ownership of equipment. Equipment is defined in the NPRM as tangible objects having a useful life of more than one year. As a result, the total size of this asset class is not known, and the cost estimates do not include potential TAM costs associated with
• It is assumed that the asset condition assessment would need to be performed as part of the initial plan development, and would also need to be repeated periodically in order to fully implement the other provisions, notably investment prioritization, performance measures, and reporting requirements. We assume that assessments for vehicles and infrastructure are assumed to be repeated on an annual basis, while stations and maintenance facilities are assessed every three years.
Following, is a detailed accounting of incremental costs by provider type.
Based on 2013 NTD data, tier I providers operate a total of 116,472 vehicles, 4,195 stations, 1,068 maintenance facilities, 12,746 miles of standard track, and 2,563 miles of track within subway tunnels or on elevated structures (including transitions). These assets would be tracked or inspected by various different employees at the transit provider. It is likely that the age-based assessment of the vehicles would be conducted by a buying or purchasing agent at a loaded wage rate of $43.40, the condition-based station and maintenance facility assessment would be conducted by a transportation inspector at a loaded wage rate of $62.81, and the performance-based way mileage, elevated structure, and tunnel assessment would be conducted by an operations specialties manager at a loaded wage rate of $67.02. Multiplying the number of assets, by the corresponding time requirement described above, by the corresponding wage rate leads to a total initial cost of $6.31 million.
It is assumed that the vehicles and way mileage, elevated structures, and tunnels would be assessed annually at a total annual cost of approximately $3.13 million and the stations and maintenance facilities would be assessed triennially at a tri-annual cost of approximately $3.18 million.
Based on 2013 NTD data and our approximations for non-reporting providers, the tier II providers operate a total of 81,858 vehicles,
It is assumed that vehicles' age-based assessments would be updated annually at a total annual cost of approximately $0.94 million and the stations and maintenance facilitates would be assessed triennially at a tri-annual cost of approximately $0.97 million.
Under the proposed rule, transit providers would be required to present a list of analytical processes or decision-support tools that allow for capital investment needs to be estimated over time and to assist with capital asset investment prioritization. No specific format or software is mandated, but certain capabilities are required. The investment prioritization plan must identify each asset within the asset inventory that is included within an investment project over the timeframe of the TAM plan. Projects must be ranked in order of priority and the year in which they are expected to be carried out. The prioritization must account for SGR policies and strategies, as well as funding levels and the value of needed investments.
GAO's review of existing practices indicated that, at least among larger transit providers, staff already conduct some form of this analysis when making investment decisions, but to varying degrees and not necessarily in a way that conforms to the proposed requirements. Smaller transit providers may have less in the way of formal analytical tools for prioritizing projects and for incorporating asset condition information into this process. Estimates for this component generally assume that larger agencies would be expanding and strengthening their existing activities, while smaller agencies may be essentially starting from scratch or from more informal processes.
Transit providers have a number of options for developing a system that would satisfy the proposed requirements of the TAM plan. Some may choose to purchase commercial software specifically designed for enterprise asset management; these can include packages that combine asset management with software tools for other functions, such as maintenance and scheduling. Others may develop their own tools in-house, for example
There are also free and low-cost software packages available for agencies to adapt to their needs, including the TERM-Lite tool from FTA, available free of charge. The Transit Cooperative Research Program (TCRP) also has a free tool composed of four spreadsheet models entitled the Transit Asset Prioritization Tool (TAPT). This tool “is designed to assist transit agencies in predicting the future conditions of their assets, and in prioritizing asset rehabilitation and replacement.”
Following, is a detailed accounting of incremental costs by provider type.
The resources required to implement the analytical processes would vary significantly across transit providers, based on the size and complexity of their asset portfolios and the strength of their current practices. As an overall average based on interviews and past pilot projects, FTA estimates that a transit provider would spend the equivalent of 520 person-hours for strengthening its analytical and decision-support tools and processes (or alternatively, purchasing or learning a ready-made software tool for an equivalent sum). It is assumed that this task would be completed by the aforementioned buyer or purchasing agent at a loaded wage rate of $43.40. Multiplying the hours required, by the number of transit providers, by the wage rate leads to a total initial cost of $6.40 million.
Once the initial investment is made in the analytical and decision-support tools and processes, maintaining and updating those processes is estimated to take the equivalent of 208 hours per year on average. The same buyer or purchasing agent is assumed to conduct these recurring updates at the $43.30 wage rate. Multiplying the recurring hours required, by the number of agencies, by the wage rate leads to a total recurring cost of $2.56 million.
Tier II providers have smaller vehicle fleets and no rail fixed-guideway service, removing some of the complexities in project prioritization that tier I providers face, but they also tend to have fewer existing formal processes in this area. In order to implement the analytical processes, FTA estimates that providers would spend the equivalent of 520 person-hours on average developing their analytical and decision-support tools or processes (or alternatively, purchasing or learning a ready-made software tool for an equivalent sum) for each individual TAM plan or group TAM plan. It is assumed this task would be completed by the aforementioned administrative support worker at a loaded wage rate of $23.04. Multiplying the hours required, by the estimated number of individual and group plans created, by the wage rate leads to a total initial cost of $9.03 million.
Once the initial system investment is made, maintaining and updating the analytical processes is estimated to take the equivalent of 104 hours per year. This is half of the assumed time needed for tier I providers because of the comparative simplicity of the systems overseen by tier II providers. The same administrative support worker is assumed to conduct these recurring updates at the $23.04 wage rate. Multiplying the recurring hours required, by the estimated number of individual and group plans created, by the wage rate leads to a total recurring cost of $1.81 million.
Under the proposed rule, transit providers would be required to develop a list of projects from the investment prioritization process described above. The list must include projects for which funding would be sought under the section 5337 SGR Formula Program. While it is known that agencies generally have a method of determining which projects they would need to invest in next—and many large, multi-modal agencies often have sophisticated, multi-year planning tools—the level of detail and process involved in updating the list is unknown. Following, is a detailed accounting of incremental costs by provider type.
The large tier I providers in this category tend to have existing processes for generating prioritized project lists based on scenario analysis.
Once the initial project list is created, maintaining and updating the list is estimated to take 36 hours per year. The same buyer or purchasing agent is assumed to conduct these recurring updates at the $43.40 wage rate. Multiplying the recurring hours required, by the number of agencies, by the wage rate leads to a total recurring cost of $0.44 million.
As with larger transit providers, smaller transit providers generally have some form of an existing process for developing a prioritized project plan, but are assumed to require time above their current baseline to make this process consistent with the proposed TAM requirements. FTA estimates that each tier II provider developing a TAM plan, along with each group TAM plan sponsor, would spend an average of 96 hours creating their prioritized project list. It is assumed this task would be completed by the administrative support worker (in coordination with other staff) at a loaded wage rate of $23.04. Multiplying the hours required, by the estimated number of individual and group plans, by the wage rate leads to a total initial cost of $1.67 million.
Once the initial project list is created, maintaining and updating the list is estimated to take 24 hours per year. The same administrative support worker is assumed to conduct these recurring updates at the $23.04 wage rate. Multiplying the recurring hours required, by the estimated number of individual and group TAM plans, by the wage rate leads to a total recurring cost of $0.42 million.
Under the proposed rule, tier I transit providers would be required to develop TAM and SGR policies and strategies. This would include a description of key TAM activities spanning the time horizon of the plan, a specification of the resources needed to develop and implement the plan, and an outline of how the plan and related business practices would be updated over time.
These components would be optional for tier II providers. Following, is a detailed accounting of incremental costs by provider type.
It is estimated that these providers would spend an average of 96 hours developing the elements of the plan strategy above what they are currently doing in this area. Because this component deals with high level strategy, it is assumed this planning task will be completed by a general operations manager at a loaded wage rate of $78.36. Multiplying the hours required, by the number of providers, by the wage rate leads to a total initial cost of $2.13 million.
Every four years, providers would need to update their strategy document based on recent and planned activities and other developments. It is estimated that this document update would require an average of 80 hours of incremental staff time. The same operations manager is assumed to conduct these recurring updates at the $78.36 wage rate. Multiplying the recurring hours required, by the number of providers, by the wage rate leads to a total four-year recurring cost of $1.78 million.
There are no initial or recurring costs for this aspect of the TAM plan because tier II providers may opt out of completing these requirements, whether they develop their own TAM plan or participate in a group TAM plan.
In addition to the TAM plan, under the proposed rule transit providers would be required to use performance measures to set targets for capital assets. Transit providers would need to use their asset condition assessments to determine the percentage of their assets that meet specified performance standards. Based on these performance measures and available funding, transit providers would be required to develop annual SGR performance targets that align with their TAM plan priorities. With the exception of a few transit providers profiled in more depth by GAO reports, it is unknown to what extent agencies are currently monitoring performance or whether their existing metrics and targets would meet the requirements of this section.
Transit providers have a number of resources to draw on in developing their measures and targets, including FTA publications
FTA's 2010 review of practices found that many large transit providers have existing performance measures for asset management. However, practices vary, and some transit providers would need additional work to comply with the proposed provisions. Compared to the largest tier I providers, smaller tier I providers have less complex asset portfolios, but also may have less in the way of existing activities for performance measures. Overall, based on information from interviews, it is estimated that transit providers would spend an average of 208 hours developing their performance measures and targets. It is assumed this task would be completed by the aforementioned operations manager at a loaded wage rate of $78.36. Multiplying the hours required, by the number of transit providers, by the wage rate leads to a total initial cost of $4.62 million.
Once the initial measures and targets are developed, it is estimated that reviewing and updating them annually would take the equivalent of 36 hours per year on average. The same operations manager is assumed to conduct these recurring updates at the $78. 36 wage rate. Multiplying the recurring hours required, by the number of transit providers, by the wage rate leads to a total recurring cost of $0.80 million.
Tier II providers do not have the complexities associated with developing performance measures for rail fixed-guideway transit. It is estimated that tier II providers developing their own TAM plan and group TAM plan sponsors would each spend an average of 80 hours developing the performance measures and targets. It is assumed this task would be completed by the operations manager at a loaded wage rate of $65.55. Multiplying the hours required, by the estimated number of individual and group plans, by the wage rate leads to a total initial cost of $3.95 million.
Once the initial measures and targets are developed, it is estimated that reviewing and updating them annually would take the equivalent of 24 hours per year on average. The same operations manager is assumed to conduct these recurring updates at the $65.55 wage rate. Multiplying the recurring hours required, by the estimated number of individual and group plans, by the wage rate leads to a total recurring cost of $1.19 million.
Under the proposed rule, transit providers would be required to submit an annual data report to the NTD, which reflects the SGR performance targets for the following year and assessment of the condition of the transit provider's transit system. Additionally, transit providers would be required to submit an annual narrative report to the NTD that provides a description of any change in the condition of its transit system from the previous year and describes the progress made during the year to meet the targets previously set for that year. FTA estimated costs for the proposed new reporting to the NTD based on a pilot program with seven rail transit providers. Based on internal FTA reports, it is expected that the reporting would require a transit provider staff time that was equivalent to 0.16 hours per revenue vehicle initial and 0.08 hours per vehicle in subsequent years. (For simplicity these figures are expressed in terms of hours per vehicle, but include time required for reporting on other assets such as stations and facilities. FTA's pilot program also used an alternative methodology based on the time required per data field submitted, which yielded nearly identical results.) These estimated labor-hour requirements have been applied in the calculations below. The calculations also include the estimated time required for the narrative report, which was not included in FTA's pilot program or earlier estimates.
With a total of 116,472 revenue vehicles and FTA's estimate of 0.16 reporting hours per vehicle, it is estimated that these providers collectively would require a total of 18,636 hours for their initial reporting to the NTD under the proposed rule. Multiplied by the loaded wage rate of $48.72 for a Business Operations Specialist, the total cost is approximately $0.91 million for tier I providers. The narrative report is separately estimated to require 24 labor hours per provider to develop and submit, including 22 hours for a Business Operations Specialist (loaded wage rate $48.72) and 2 hours for managerial review of the document by a general operations manager (loaded wage rate $78.36). Across the 284 agencies in this group, the total cost is approximately $0.35 million. Once the initial report and template are created, it is estimated that updating the data reports annually would take the equivalent of 9,318 hours per year, based on FTA's estimate of 0.08 hours per revenue vehicle and 116,472 vehicles. At a loaded wage rate of $48.72 for a Business Operations Specialist, the total cost is approximately $0.45 million. Updating the narrative report is estimated to require an additional 20 hours per year (18 hours for preparation by a Business Operations Specialist and 2 hours for review by the general operations manager). Multiplying the respective hours required, by the number of transit providers, by the wage rates leads to a total recurring cost of $0.29 million.
With an estimated total of 81,858 revenue vehicles and FTA's estimate of 0.16 reporting hours per vehicle, it is estimated that collectively these providers would require a total of 13,097 hours for their initial reporting to the NTD under the proposed rule. Multiplied by the loaded wage rate of $40.25 for a Business Operations Specialist, the total cost is approximately $0.53 million. The narrative report is separately estimated to require 16 labor hours per TAM plan (individual or group TAM plan) to develop and submit, including 14 hours for a Business Operations Specialist (loaded wage rate $40.25) and 2 hours for managerial review of the document by a general operations manager (loaded wage rate $65.55). Across the 754 individual and group TAM plans, the total cost is approximately $0.52 million. Once the initial report and template are created, it is estimated that updating the data report annually would take the equivalent of 6,549 hours per year, based on FTA's estimate of 0.08 hours per revenue vehicle and 81,858 vehicles. At a loaded wage rate of $40.25 for a Business Operations Specialist, the total cost is approximately $0.26 million. Updating the narrative report is estimated to require an additional 8 hours per year (6 hours for preparation by a Business Operations Specialist and 2 hours for general operations manager review). Multiplying the respective hours required, by the number of transit providers, by the wage rates leads to a total recurring cost of $0.28 million.
Under the performance management framework established by MAP-21, States, MPOs, and transit providers must establish targets in key national performance areas to document expectations for future performance. Pursuant to 49 U.S.C. 5303(h)(2)(B)(ii) and 5304(d)(2)(B)(ii), States and MPOs must coordinate the selection of their performance targets, to the maximum extent practicable, with performance targets set by transit providers under 49 U.S.C. 5326 (transit asset management) and 49 U.S.C. 5329(safety), to ensure consistency.
In the Joint Planning NPRM, both agencies indicated that their performance-related rules would implement the basic elements of a performance management framework, including the establishment of measures and associated target setting. Because the performance-related rules implement these elements and the difficulty in estimating costs of target setting associated with unknown measures, the Joint Planning NPRM did not assess these costs. Rather, FTA and FHWA proposed that the costs associated with target setting at every level would be captured in each provider's respective “performance management” rules. For example, FHWA's second performance management rule NPRM, published after the joint planning NPRM, assumes that the incremental costs to States and MPOs for establishing performance targets, reflect the incremental wage costs for an operations manager and a statistician to analyze performance-related data.
The RIA that accompanied the Joint Planning final rule captured the costs of the effort by States, MPOs, and transit providers to coordinate in the setting of State and MPO transit performance targets for state of good repair and safety. FTA believes that the cost to MPOs and States to set transit performance targets is included within the costs of coordination. FTA requests comment on this point. Will there be any additional costs for states and MPOs in target setting beyond the coordination costs included in the planning rule? If
In addition to the costs estimated in the subsections above, the proposed rule would also entail costs for FTA to provide technical assistance to support the transit industry in implementing the new requirements, and for internal costs associated with training for FTA employees who would work with the new TAM system. It is estimated that FTA could incur an annual cost of $2 million to develop and provide guidance and training, as well staff for program management. This is based on current FTA cost for research, stakeholder outreach and staffing costs since the MAP-21 Reauthorization Act. It is likely that the FTA costs may decline over time as the program matures and asset management becomes an integral part of transit agencies' project prioritization practice. It is assumed that after the first five years, the costs would fall to $1.5 million and then $1 million after 10 years and to $0.5 million after fifteen years.
Another potential cost area is for coordination necessary to develop group TAM plans. For example, group TAM plan sponsors and their participating agencies may need to hold meetings or conference calls to collect data, test a software tool, or more generally to coordinate efforts to develop plans for the smaller agencies. For estimation purposes, this coordination is assumed to require a mix of transit provider staff and managerial oversight. For each of the estimated 264 group TAM plans, FTA assumes that coordination would require 120 hours of staff time (business operations specialist, loaded wage rate $40.25) and 40 hours of management time (general operations manager, loaded wage rate $65.55) per transit provider. This yields a total annual coordination cost of approximately $2.0 million.
Agencies are required to keep records of plan development for at least one cycle of plan development which covers four years. FTA assumes that the tier I providers may spend approximately 80 hours every four years to coordinate the collection and formatting of the data for record keeping purposes. Using the business operations specialists loaded wage rate, the cost of recordkeeping for tier I providers would be $1.1 million every four years. For the tier II providers, it is assumed that the group plan developers would retain the records on behalf of the small transit agencies. The level of effort for record keeping would be lower at 40 hours per plan cycle, since the coordination cost of gathering the relevant cost is already accounted for. Using the business operations specialist loaded wage rate $40.25, the total cost for recordkeeping for tier II providers would be $1.2 million for every plan cycle. Therefore, the total cost for recordkeeping would be $2.3 million.
The costs estimated in the subsections above have been based on best estimates of the required labor hours and other costs of implementing the required components of the National TAM System available to the FTA. They are inherently imprecise given the lack of consistent data on existing industry practices, and the variability in costs across agencies due to different labor rates, system sizes and complexities, and other factors. Indeed, even among agencies that have already implemented TAM plans, little information exists on the total costs of implementation due to limited recordkeeping on internal labor costs. As such, FTA invites comment on the assumptions used to estimate costs and other information that could be used to estimate costs more precisely.
One means of providing an external check on the reasonableness of the cost estimates is to compare estimates from the model used here against known TAM projects. For example, a small transit provider with an asset profile of 6 revenue vehicles and one maintenance facility, the model would predict TAM implementation costs of roughly $20,800 initial (over two years) and $5,500 per year thereafter (see Table 10 below). By comparison, in fiscal year 2010, FTA made SGR grants to small transit providers in California and Washington to implement asset management systems; these grants were in the range of $16,000 to $17,000. The correspondence between model results and actual grant levels for asset management systems suggests that the cost model is producing results that are consistent with the limited real-world experience, at least for smaller agencies. For larger transit providers, actual versus predicted costs may vary more significantly due to differences in existing practices, and information from past grants may not provide a clear picture and they might face little to no incremental costs from the proposed rule because their existing practices generally meet or exceed the proposed TAM requirements. FTA requests comment on the costs associated with additional TAM projects that have been completed or which are currently underway.
Table 11 below shows the total estimated costs for TAM activities under the proposed rule, aggregated by provider size and separated by initial and recurring costs.
Table 12 below shows the total costs and the present value of the proposed rule over the 20-year analysis period, including tier II group TAM plan coordination costs. For the purposes of this analysis, 2015 serves as the discounting base year and dollar figures appear as 2015 dollars. The annualized cost of the proposed rule is $18.9 million (at the 7% rate) and $18.6 million (at the 3% rate).
As noted above, FTA research, the academic literature, and external reviews from organizations such as GAO have documented a strong case for the value of asset management programs for capital-intensive public agencies in general, including transit agencies. Asset management programs have been described as leading to the following outcomes and benefits:
• Improved transparency and accountability from the use of systematic practices in tracking asset conditions and performance measures. In turn, this can lead to improved relationships with regulators, funding agencies, taxpayers and other external stakeholders, as well as improved internal communications and decision-making. While difficult to quantify or monetize, these impacts are sometimes described as some of the most important benefits from asset management because they relate to stewardship of public resources and the effective delivery of services.
• Optimized capital investment and maintenance decisions, leading to overall life-cycle cost savings (or alternatively, greater value for dollars spent).
• More data-driven maintenance decisions, leading to greater effectiveness of maintenance spending and a reduction in unplanned mechanical breakdowns and guideway deficiencies. These impacts can be considered as two distinct benefit areas: Travel time savings for passengers in terms of fewer canceled trips and fewer speed restrictions on tracks, and savings for the transit provider in unplanned maintenance and repair.
• Potential safety benefits, in that greater effectiveness of dollars spent on maintenance can lead to improved vehicle and track condition and fewer safety hazards, and thus reduced injuries and fatalities related to incidents for which maintenance issues or poor conditions were a contributing factor.
These benefits have so far been presented by GAO and others almost exclusively in qualitative terms, presenting a challenge for estimating the quantitative benefits of this proposed rule. Accordingly, a review of the academic literature in this area revealed
Case studies of this type provide compelling evidence of the benefits of transit asset management, though by their nature they make it difficult to control for exogenous factors and other initiatives implemented by the transit provider at the same time. Beyond these case studies, there is little to no hard data on the impacts of asset management on ultimate outcomes such as service quality, reliability, and ridership, which would also influence benefit estimates. Indeed, one recent academic review of the literature in this field noted that “efforts to quantify benefits of transit state of good repair have generally stopped short of linking asset condition with user impacts or ridership.”
The literature on asset management for highway investments and pavement management is more mature and includes a few examples of quantified benefits. For example, one before-and-after study of the Iowa Department of Transportation's adoption of a pavement management tool found that the system improved project selection, ultimately leading to benefits in the form of better pavement conditions on the roadway network for the same expenditure level. The value of the improved pavement condition was equivalent to roughly 3% of total construction spending during the 5-year “after” period studied.
Since we do not have a study on which to estimate the potential benefits of adopting asset management by transit providers, we have identified areas where asset management is likely to have an impact by improving decision-making and targeting investments to achieve the highest return on the dollars invested. By implementing the requirements of the TAM rule, providers would develop policies and plans that direct funds toward investments to meet the goal of maximizing the lifespan of assets with timely rehabilitation and maintenance activities. These activities have the potential to reduce the rate of mechanical failures experienced by the transit industry. In 2013, transit agencies in urbanized areas reported to the NTD a total of 524,629 mechanical failures in revenue service, which collectively required an estimated 64.3 million hours of labor for inspection and maintenance.
Reducing the mechanical failures by less than 4,200 incidents (0.9 percent) would cover the annual cost ($18.9 million) of the proposed rule, making this Rule economically efficient. In addition to the savings in maintenance expenditures, reduced mechanical failures also would reduce the delays in service, increasing reliability of transit services.
The proposed rule's requirements would significantly reduce potential safety risks, as assets would be better maintained and likely to reduce safety hazards due the asset condition, as noted in the nexus between asset condition and safety in this rule. In addition, transit asset management practices as outlined in the proposed rule would identify list of projects that better serve the performance goals of FTA and the industry to improve safety, asset condition and system performance by allowing for improved cross-functional decision-making.
The requirements of this rule would generate data for transit agencies to analyze over time showing trends in condition and performance, enabling them to better understand the relationship between their actions (expenditures) and outcomes (asset condition, safety, operations). Transit providers would select investments to meet their stated goals and targets. If the transit provider cannot meet the stated goals, it would explore the potential reasons for the gap between the actual performance and targeted performance. This may lead the transit provider to collect additional data, such as the cost of projects, with the intention of better understanding the underlying causes of why it is unable to attain the stated goal. Based on this analysis the transit provider may adjust the target, reprioritize its investments or make other changes in its processes to gain efficiencies. Through this asset management process of planning, executing, re-evaluating and revising, a transit provider would identify economies and best practices that would result in better use of resources and improve performance. The performance targets may be achieved through increased efficiencies or shift in funding priorities. The transit asset management process would also help transit providers develop better estimates of its' systems needs to meet established targets.
In addition, the TAM plan will make a transit provider's policies, goals and performance targets, more transparent to the public and the legislative decision-makers. The performance reports required under this rule would show how well the agencies are performing against their established targets. Through increased transparency and
FTA invites information from the public on information sources and methodologies for estimating the benefits described above.
In 2012, $16.8 billion of capital expenditures were incurred by the transit agencies. As noted above, there is an estimated $85.9 billion transit SGR backlog. Given the size of capital expenditures, the size of the SGR backlog, and the potential benefits of adopting transit asset management systems and creating the TAM plans, it is likely that economic impacts in excess of $100 million in a year could result from this rule. However, FTA has no information on which to estimate the size of these impacts. FTA requests information from the public on how to analyze the benefits and costs of addressing the SGR backlog, such as replacing assets sooner or performing additional maintenance. As noted above, FTA believes that investing funds to improve the state of good repair of capital assets would have important benefits. Experience of adopting asset management systems in capital intensive industries has demonstrated that significant gains over time are possible.
In compliance with the Regulatory Flexibility Act (Pub. L. 96-354; 5 U.S.C. 601-612), FTA has evaluated the likely effects of the proposals set forth in this NPRM on small entities, and has determined that they would not have a significant economic impact on a substantial number of small entities.
The proposed rule would affect roughly 3,100 small entities, most of whom are small government entities and small non-profit organizations that operate public transit services in non-urbanized areas. Compliance costs would vary according to provider size and complexity and the extent of current asset management practices. Costs are illustrated by an example calculation for a transit provider with 10 vehicles, for which compliance costs were estimated at $21,069 (over two years) for initial implementation and $5,832 per year for updates and reporting. Over a period of years, this would represent a small share (less than 1%) of the operating budget that would be typical for a transit provider of that size. Moreover, under the proposed rule, small entities who met the criteria for tier II designation and subrecipients under the Rural Area Formula Program, could participate in a group TAM plan sponsored by their State DOT or direct recipient. This would allow for some of the costs of implementation (such as developing analytical tools, prioritization project list, target setting and performance measures) to be borne by the group TAM plan sponsor or spread across a larger number of entities, reducing the cost for each.
Overall, while the proposed rule would affect a substantial number of small entities, these impacts would not be significant due to the low magnitude of the costs and the potential for offsetting benefits. Moreover, FTA has designed the proposed rule to allow flexibility for small entities, including exemption from certain requirements and the option to participate in a group TAM plan. In addition, transit agencies would also see benefits from improved data-driven decision-making, including qualitative benefits to transparency and accountability and the potential for direct cost savings in maintenance and life-cycle costs of asset ownership. For this reason, FTA certified that this action would not have a significant economic effect on a substantial number of small entities.
This proposed rulemaking would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 109 Stat. 48). Under FTA's grant programs, the development of a TAM Plan is eligible for funding as a planning or administrative expense, or capital expense under the SGR Grant Program authorized at 49 U.S.C. 5337.
This proposed rulemaking has been analyzed in accordance with the principles and criteria established by Executive Order 13132 (Aug. 4, 1999). FTA has determined that the proposed action would not have sufficient Federalism implications to warrant the preparation of a Federalism assessment. FTA has also determined that this proposed action would not preempt any State law or State regulation or affect the States' abilities to discharge traditional State governmental functions. Moreover, consistent with Executive Order 13132, FTA has examined the direct compliance costs of the NPRM on State and local governments and has determined that the collection and analysis of the data are eligible for Federal funding under FTA's grant programs.
The regulations effectuating Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this proposed rulemaking.
Preparing the United States for the Impacts of Climate Change, declares a policy that the Federal government must build on recent progress and pursue new strategies to improve the Nation's preparedness and resilience. The executive order directs Federal agencies to support climate-resilient investment, in part by identifying “opportunities to support and encourage smarter, more climate-resilient investments by states, local communities and tribes, including by providing incentives through agency guidance, grants, technical assistance performance measures, safety consideration and other programs.” This proposed rulemaking does not incorporate risk analysis as part of transit asset management. However, FTA does address the requirements of 1315(b) of MAP-21, in the Emergency Relief Program rule at 49 CFR part 602, by requiring transit agencies to evaluate reasonable alternatives, including change of location and addition of resilience/mitigation elements, for any damaged transit facility that has been previously repaired or reconstructed as a result of an emergency or major disaster.
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Please note, the information provided below pertains to the proposed requirements for the National TAM System. This collection approval does not cover the proposed amendments to regulations for FTA's NTD at 49 CFR part 630, to conform with the proposed reporting requirements for the National TAM System. The proposed amendments to the NTD will be covered
Tables 13 and 14 below show the initial hours of burden and the dollar cost to the tier I and tier II transit providers to be incurred in the first two years of implementing the proposed rule and the recurring annual average costs thereafter. The tables below show the assumptions made for the level of effort and the loaded wage rates (wage rate adjusted to account for employer cost of fringe benefits)
The National Environmental Policy Act of 1969 (42 U.S.C. 4321
This rulemaking will not affect a taking of private property or otherwise have taking implications under Executive Order 12630 (March 15, 1998), Governmental Actions and Interference with Constitutionally Protected Property Rights.
Executive Order (E.O.) 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and DOT Order 5610.2(a) (77 FR 27534) require DOT agencies to achieve environmental justice (EJ) as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies and activities on minority and/or low-income populations. The DOT Order requires DOT agencies to address compliance with the Executive Order and the DOT Order in all rulemaking activities. In addition, on July 17, 2014, FTA issued a Circular to update to its EJ Policy Guidance for Federal Transit Recipients (
FTA has evaluated this rule under the EO, the DOT Order, and the FTA Circular and has determined that this rulemaking will not cause disproportionately high and adverse human health and environmental effects on minority or low income populations.
This action meets the applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988 (February 5, 1996), Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
FTA has analyzed this proposed rulemaking under Executive Order 13045 (April 21, 1997), Protection of Children from Environmental Health Risks and Safety Risks. FTA certifies that this proposed rule will not cause an environmental risk to health or safety that may disproportionately affect children.
FTA has analyzed this action under Executive Order 13175 (November 6, 2000), and believes that it will not have substantial direct effects on one or more Indian tribes; will not impose substantial direct compliance costs on Indian tribal governments; and will not preempt tribal laws. Therefore, a tribal summary impact statement is not required.
FTA has analyzed this proposed rulemaking under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (May 18, 2001). FTA has determined that this action is not a significant energy action under the Executive Order, given that the action is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not requirement.
Anyone is able to search the electronic form of all comments received into any of FTA's dockets by the name of the individual submitting the comment or signing the comment if submitted on behalf of an association, business, labor union, or any other entity. You may review USDOT's complete Privacy Act Statement published in the
This rulemaking is issued under the authority of section 20019 of the Moving Ahead for Progress in the 21st Century Act (MAP-21), which requires the Secretary of Transportation to prescribe regulations to establish a system to monitor and manage public transportation assets to improve safety and increase reliability and performance and to establish SGR performance measures. The authority is codified at 49 U.S.C. 5326.
A Regulation Identifier Number (RIN) is assigned 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. The RIN set forth in the heading of this document can be used to cross-reference this action with the Unified Agenda.
Public Transportation.
National Transit Database.
For the reasons set forth in the preamble, and under the authority of 49 U.S.C. 5326, 5335, and the delegations of authority at 49 CFR 1.91, FTA hereby amends Chapter VI of Title 49, Code of Federal Regulations as follows:
Sec. 20019 of Pub. L. 112-141, 126 Stat. 707, 49 U.S.C. 5326; Sec. 20025(a) of Pub. L. 112-141, 126 Stat. 718, 49 CFR 1.91.
This part carries out the mandate of 49 U.S.C. 5326 for transit asset management. This part establishes a National Transit Asset Management System to monitor and manage public transportation capital assets to improve safety and increase reliability and performance.
This part applies to all recipients or subrecipients of Federal financial assistance under 49 U.S.C. Chapter 53 that own, operate, or manage capital assets used in the provision of public transportation.
All terms defined in 49 U.S.C. Chapter 53 are incorporated into this part by reference. The following definitions also apply to this part:
(1) To help prioritize projects to improve and maintain the state of good repair of capital assets within the public transportation system based on available condition data and objective criteria; or
(2) To assess financial needs of asset investments over time.
(1) A ranking of capital projects; or
(2) The methodology that leads to ranking of capital projects based on the condition of those assets and reasonably anticipated financial resources from all sources over the time horizon period of the transit asset management plan.
The National Transit Asset Management System includes the following elements:
(a) The definition of state of good repair, which includes objective standards for measuring the condition of capital assets in accordance with subpart D of this part;
(b) SGR performance measures for capital assets and requirements for transit providers and group TAM plan sponsors to establish SGR performance targets for improving the condition of their capital assets in accordance with subpart D of this part;
(c) Requirements for recipients of FTA financial assistance who own, operate, or manage capital assets, to develop and carry out a transit asset management plan in accordance with subpart C of this part, which must include:
(1) Inventories of their capital assets;
(2) Condition assessments of those assets;
(3) A prioritization of investments to improve the state of good repair of capital assets; and
(4) Decision support tools;
(c) Reporting requirements for transit asset management and SGR performance in accordance with subpart E of this part; and
(d) Analytical processes and decision support tools developed or recommended by FTA and available to the public transportation industry in the form of best practices, guidance, training, templates and other documents and resources.
(a) A capital asset is in a state of good repair if it is in a condition sufficient to enable the asset to operate at a full level of performance. In determining whether a capital asset is in a state of good repair, a transit provider must consider the life cycle of that asset, and whether scheduled maintenance, repair, and rehabilitation have been completed.
(b) A capital asset may operate at a full level of performance regardless of whether other capital assets within the public transportation system are in a state of good repair.
(c) A transit provider's accountable executive must balance transit asset management, safety, operation, and expansion needs in approving and carrying out transit asset management practices and a transit agency safety plan.
(a)
(2) A tier II provider may either participate in a group TAM plan developed by a State or a Direct Recipient or develop its own TAM plan; in either instance, a tier II provider must carry out the TAM plan.
(3) The transit provider's accountable executive is ultimately responsible for ensuring that a TAM plan is developed and carried out in accordance with this part.
(4) A TAM plan developed under this part should be coordinated, to the extent practicable, with States and Metropolitan Planning Organizations.
(b)
(1) An inventory of capital assets sufficient to generate accurate, comprehensive data on the number and types of capital assets that would be identified in a transit provider's program of capital projects;
(2) A condition assessment of the capital assets that must generate information in a level of detail sufficient to monitor and predict the performance of each capital asset identified in the asset inventory;
(3) A list of the transit provider's analytical processes or decision-support tools that:
(i) Estimate capital investment needs over time; and
(ii) Assist capital asset investment prioritization;
(4) A project-based prioritization of investments in accordance with subsection 625.33 of this part, including those projects for which funding will be sought under the State of Good Repair Grants Program;
(5) A transit asset management and SGR policy;
(6) A strategy for the implementation of the TAM plan;
(7) A description of annual key transit asset management activities spanning the time horizon of the TAM plan;
(8) A specification of the resources, including personnel, needed to develop and implement the TAM Plan; and
(9) An outline of how the TAM plan and related business practices will be monitored, evaluated and updated, as needed, to ensure the continuous improvement of transit asset management practices.
(c)
(a)
(2) A Native American tribe may choose to participate in a State-sponsored group TAM plan, or develop its own TAM plan.
(3) A direct recipient must develop a group TAM plan for all its tier II provider subrecipients that own, operate, or manage capital assets used in the provision of public transportation
(4) Notwithstanding subparagraphs (1) and (3) of this subsection, a State or direct recipient is not required to develop a group TAM plan if each of its eligible group TAM plan participants notifies the State or direct recipient that it is opting-out of the group TAM plan for one of the following reasons:
(i) The eligible participant will develop its own transit asset management plan; or
(ii) The eligible participant will participate in another State's or direct recipient's group TAM plan.
(b)
(2) A group TAM plan sponsor must coordinate with the accountable executive of each group TAM plan participant in the development of a group TAM plan.
(3) A group TAM plan must identify each participant.
(4) Upon completion of a group TAM plan, the group TAM plan sponsor must make the group TAM plan available to all participants in a format that is easily accessible.
(c)
(2) The accountable executive of each transit provider is ultimately responsible for carrying out the transit asset management practices necessary to implement a group TAM plan for that provider.
(3) Within a reasonable time limit to be set by the group TAM plan sponsor, a participant's accountable executive must provide each relevant group TAM plan sponsor with written notification of a decision to opt-out of a group TAM plan.
(4) Group TAM plan participants must provide group TAM plan sponsors with all information necessary and relevant to the development of the group TAM plan, including, but not limited to, their asset inventories, condition assessments, funding sources, and investment priorities.
(a)
(b)
(c)
(a) An initial TAM plan must be completed no later than two years after the effective date of this part.
(b) Prior to the due date for completion of an initial TAM plan, a transit provider or group TAM plan sponsor may submit a written request to FTA to extend its implementation deadline. At its discretion, FTA may grant an extension of the implementation deadline, provided that the transit provider or group TAM plan sponsor demonstrates a good faith effort to complete its initial TAM plan by the two-year deadline and proposes a new deadline subject to FTA approval.
(a) A TAM plan must include an investment prioritization that identifies projects to improve or maintain the state of good repair of capital assets over the horizon period of the TAM plan.
(b) Projects to improve or maintain the state of good repair of capital assets must be ranked in order of priority and the year in which they are anticipated to be carried out.
(c) Ranking of projects in the investment prioritization must be established on the basis of the transit asset management policy and strategies identified in the TAM plan.
(d) The investment prioritization must give due consideration to those projects for state of good repair that pose an identified unacceptable safety risk.
(e) The investment prioritization must take into consideration an estimate of funding levels and funding sources that are reasonably expected to be available in each fiscal year during the TAM plan horizon period.
(f) The investment prioritization must take into consideration requirements under 49 CFR 37.161 and 37.163 concerning maintenance of accessible features, as well as requirements under 49 CFR 37.43 concerning alteration of transportation facilities.
(a)
(b)
(1) The capital asset is able to perform its designed function;
(2) The use of the asset in its current condition does not pose a known unacceptable safety risk; and
(3) The life-cycle investment needs of the asset have been met or recovered, including all scheduled maintenance, rehabilitation, and replacements.
(a)
(b)
(c)
(d)
(a)
(2) At least once every fiscal year, each transit provider or group TAM plan sponsor must set SGR performance targets for the following fiscal year.
(3) A transit provider or group TAM plan sponsor must set an SGR performance target for each asset class in its asset inventory.
(4) An SGR performance target must be set based on realistic expectations.
(5) An SGR performance target must be based on both the most recent data available and the financial resources from all sources reasonably expected to be available during the TAM plan horizon period.
(b)
(c)
(2) To the extent practicable, a group TAM plan sponsor must coordinate its unified SGR performance targets with the accountable executive of each group TAM plan participant.
(d)
To the maximum extent practicable, a transit provider or group TAM plan sponsor must coordinate with States and Metropolitan Planning Organizations in the selection of State and Metropolitan Planning Organization performance targets.
(a) At all times, each transit provider and group TAM plan sponsor must maintain records and documents that support, and set forth in full, its TAM plan.
(b) A transit provider or group TAM plan sponsor must make its TAM plan, any supporting records or documents performance targets, investment strategies, and the annual condition assessment report available to States and Metropolitan Planning Organizations to aid in the planning process.
(a) Each transit provider must submit the following reports:
(1) An annual data report to FTA's National Transit Database which reflects the SGR performance targets for the following year and a current assessment of the condition of the transit provider's public transportation system.
(2) An annual narrative report to the National Transit Database which provides a description of any change in the condition of the transit provider's transit system from the previous year and describes the progress made during the year to meet the SGR targets set in the previous reporting year.
(b) A group TAM plan sponsor must submit one consolidated annual data report and one consolidated annual narrative report, as described in subsection (a)(1) and (a)(2) of this section, respectively, to the National Transit Database on behalf of its group TAM plan participants.
49 U.S.C. 5335.
(c) * * *
(a)
Failure to report data in accordance with this part may result in the noncompliant reporting entity being ineligible to receive any funding under 49 U.S.C. chapter 53, directly or indirectly, until such time as a report is filed in accordance with this part.
Bureau of Land Management, Interior.
Proposed rule.
This proposed rule would replace Onshore Oil and Gas Order Number 4, Measurement of Oil (Order 4) with new regulations that would be codified in the Code of Federal Regulations (CFR). Order 4 establishes minimum standards for the measurement of oil produced from Federal and Indian (except Osage Tribe) leases to ensure that production is accurately measured and properly accounted for. Order 4 was issued in 1989.
The changes contemplated as part of this proposed rule would strengthen the Bureau of Land Management's (BLM) policies governing production accountability by updating its minimum standards for oil measurement to reflect the considerable changes in technology and industry practices that have occurred in the 25 years since Order 4 was issued. This proposed rule addresses the use of new oil meter technology, proper measurement documentation, and recordkeeping; establishes performance standards for oil measurement systems; and includes a mechanism for the BLM to review, and approve for use, new oil measurement technology and systems. The proposed rule expands the acts of noncompliance that would result in an immediate assessment under the existing regulations. Finally, it sets forth a process for the BLM to consider variances from these requirements.
Send your comments on this proposed rule to the BLM on or before November 30, 2015. The BLM is not obligated to consider any comments received after this date in making its decision on the final rule.
As explained later, the proposed rule would establish new information collection requirements that must be approved by the Office of Management and Budget (OMB). If you wish to comment on the information collection requirements in this proposed rule, please note that the OMB is required to make a decision concerning the collection of information contained in this proposed rule between 30 and 60 days after publication of this document in the
Comments on the information collection burdens:
Mike McLaren, 1625 West Pine St., P.O. Box 768, Pinedale, WY 82941, or by telephone at 307-367-5389. For questions relating to regulatory process issues, please contact Faith Bremner at 202-912-7441. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to contact these individuals during normal business hours. FIRS is available 24 hours a day, 7 days a week to leave a message or question with these individuals. You will receive a reply during normal business hours.
The Secretary of the Interior (Secretary) has the authority under various Federal and Indian mineral leasing laws to manage oil and gas operations on Federal and Indian (except Osage Tribe) lands, including, but not limited to, the Mineral Leasing Act, 30 U.S.C. 181
The BLM's onshore oil and gas program is one of the most important mineral-leasing programs in the Federal Government. In fiscal year (FY) 2014, onshore Federal oil and gas leases produced about 148 million barrels of oil, 2.48 trillion cubic feet of natural gas, and 2.9 billion gallons of natural gas liquids, with a market value of more than $27 billion and generating royalties of almost $3.1 billion. Nearly half of these revenues are distributed to the States in which the leases are located. Leases on tribal and Indian lands produced 56 million barrels of oil, 240 billion cubic feet of natural gas, 182 million gallons of natural gas liquids, with a market value of almost $6 billion and generating royalties of over $1 billion that were all distributed to the applicable tribes and individual allottee owners. Despite the magnitude of this production, the BLM's rules governing how that oil is measured and accounted for are more than 25 years old and need to be updated and strengthened. Federal laws, technology, and industry standards have all changed significantly in that time.
The BLM implements its authority over Federal and Indian (except Osage Tribe) oil and gas leases through the regulations at 43 CFR part 3160. Those regulations authorize the BLM to issue Onshore Oil and Gas Orders (Orders) when necessary to implement and supplement the regulations. Over the years, the BLM issued seven Orders that deal with different aspects of oil and gas production.
These updated requirements are the result of the BLM's evaluation of its existing requirements, based on its experience in the field, and the conclusion of multiple separate reports—one by the Secretary's Subcommittee on Royalty Management, issued in 2007; one by the Department's Office of Inspector General (OIG), issued
As explained in detail below, the proposed rule makes a number of changes that modernize and strengthen the existing requirements of Order 4. For example, by recognizing advancements in measurement technologies and changes in industry practices, the proposed rule would allow operators to use a Coriolis measurement system (CMS) and eliminate the need for industry to submit and the BLM to process variance requests as it currently does when operators want to use a CMS.
In recognition that measurement techniques and technologies will continue to evolve, the BLM is also proposing to adopt a process and criteria that would allow it, through a new Production Measurement Team (PMT), to review and approve for use new measurement technologies that are demonstrated to be reliable and accurate. The new technologies would have to meet or exceed the same performance standards as those prescribed in this proposed rule.
Similarly, the proposed rule strengthens existing requirements by prohibiting the use of automatic temperature/gravity compensators on LACT systems, which are currently required by Order 4. These compensators are designed to automatically adjust LACT totalizer readings to account for temperature changes and, in some cases, oil gravity changes. However, the use of automatic compensators means an uncorrected totalizer reading is not available for such systems, which means the BLM and the operator lack access to the raw data necessary to verify that the compensators are functioning correctly or that the totalizer reading is correct. To ensure such data exists, this proposed rule would, instead, require operators to use temperature averaging devices, which record and average the temperatures of the fluids flowing through the LACT. Under this system, the operator would use the data from the averaging devices to manually correct the volumes from the totalizer for the effects of temperature and oil gravity and the BLM would have the raw data necessary to verify the results and confirm system functionality. In the BLM's experience, the majority of LACT systems already use averaging devices, which can be used only under BLM-approved variances, while only about 20 percent use automatic temperature/gravity compensators.
The proposed rule would also strengthen existing regulations by increasing meter-proving requirements for operators who produce large volumes of oil. Current regulations require quarterly proving for all meters, except those meters that exceed a 100,000 bbl per month volume that are required to be proven monthly. Under this proposal, meters would be proven anytime the non-resettable totalizer increases by 50,000 bbl, or quarterly, whichever occurs first. Increased proving frequencies ensure that meter-factor changes that effect measurement are corrected before large volumes of production are measured incorrectly, which could adversely impact royalty determinations. This proposed change would affect approximately 5 percent of existing LACT systems nationwide.
Finally, the proposed rule would clarify existing regulations to require that oil storage tanks be vapor-tight and that all venting occur through a pressure-vacuum relief valve. This would minimize hydrocarbon gas lost to the atmosphere by ensuring that venting is done under controlled conditions primarily in response to changes in the ambient temperature.
Where appropriate, this proposed rule incorporates by reference new American Petroleum Institute (API) standards that address the activities covered by this rule as explained later.
If you wish to comment on the proposed rule, you may submit your comments by any one of several methods specified (see
Please make your comments as specific as possible by confining them to issues for which comments are sought in this notice, and explain the basis for your comments. The comments and recommendations that will be most useful and likely to influence agency decisions are:
1. Those that are supported by quantitative information or studies; and
2. Those that include citations to, and analyses of, the applicable laws and regulations.
The BLM is not obligated to consider or include in the Administrative Record for the rule comments received after the close of the comment period (see
Comments, including names and street addresses of respondents, will be
As noted earlier, the regulations at 43 CFR 3164.1 provide for the issuance of Onshore Orders to “implement and supplement” the regulations in part 3160. The table in 43 CFR 3164.1(b) lists the existing Orders. This proposed rule would revise and replace Order 4 and would govern measurement of oil production on Federal and Indian (except Osage Tribe) oil and gas leases. Order 4 has been in effect since August 23, 1989.
Under the applicable law, royalty is owed to the United States on all production removed or sold from Federal and Indian oil and gas leases. The royalty payments are based on the measured production from those leases. Thus, it is critically important that the BLM ensure accurate measurement, proper reporting, and accountability. The BLM is pursuing proposed updates to Order 4's requirements because they are necessary to reflect changes in oil measurement practices and technology.
Order 4 has been in place since 1989. As a result, its equipment mandates and other requirements do not reflect improvements in oil measurement technologies and practices. In the BLM's experience, this has meant that industry has had to request, and the BLM has had to process, an increasing number of variances to authorize operators to install and use new technology, such as CMSs, even though the reliability of these systems has been long established. The variances are required because Order 4 does not contemplate CMSs. Additionally, since they are not included, Order 4 also does not provide uniform performance standards for these systems, which has led BLM state and field offices to specify their own standards. The BLM's experience in the field with Order 4's limitations is consistent with the findings of multiple separate independent reports.
In 2007, the Secretary appointed an independent panel—the Subcommittee on Royalty Management (Subcommittee)—to review the Department's procedures and processes related to the management of mineral revenues and to provide advice to the Department based on that review.
• BLM policy and guidance have not been consolidated into a single document or publication, resulting in the BLM's 31 oil and gas field offices using varying policy and guidance (see page 31);
• Some BLM policy and guidance is outdated and some policy memoranda have expired (ibid.); and
• Some BLM State offices have issued their own “Notices to Lessees and Operators” (NTLs) for oil and gas operations. While such NTLs may have a positive effect on local oil and gas field operations, they nevertheless lack a national perspective and may introduce inconsistencies among the States (ibid.).
The Subcommittee specifically recommended that the BLM evaluate Order 4 to ensure that it includes sufficient guidance for ensuring that accurate royalties are paid on Federal oil production. In response, the Interior Department formed a Fluid Minerals Team, comprised of Departmental oil and gas experts. The team determined that Order 4 should be updated in light of changes in technology and BLM and industry practices. In addition to the Subcommittee report, findings and recommendation addressing similar issues have been issued by the GAO (Report to Congressional Requesters,
In its 2010 report, the GAO found that the Department's measurement regulations and policies do not provide reasonable assurances that oil and gas are accurately measured because, among other things, its policies for tracking where and how oil and gas are measured are not consistent and effective (GAO 2010 Report, p. 20). The report also found that the BLM's regulations do not reflect current industry-adopted measurement technologies and standards designed to improve oil and gas measurement (ibid.). The GAO recommended that Interior provide Department-wide guidance on measurement technologies not addressed in current regulations and approve variances for measurement technologies in instances when the technologies are not addressed in current regulations or Department-wide guidance (see ibid., p. 80). The OIG report made a similar recommendation that the BLM, “Ensure that oil and gas regulations are current by updating and issuing onshore orders. . . .” (see page 11). In its 2015 report, the GAO reiterated that “Interior's measurement regulations do not reflect current measurement technologies and standards,” and that this “hampers the agency's ability to have reasonable assurance that oil and gas production is being measured accurately and verified. . . .” (GAO 2015 Report, p. 16.) Among its recommendations were that the Secretary direct the BLM to “meet its established time frame for issuing final regulations for oil measurement.” (Ibid., p. 32.)
The GAO's recommendations related to the adequacy of the BLM's oil measurement rules are also significant because they formed one of the bases for the GAO's inclusion of the BLM's oil and gas program on the GAO's High Risk List in 2011 (Report to Congressional Committees,
The provisions of this proposed rule respond to the recommendations by the Subcommittee, the GAO, and the OIG. They were also developed by the BLM to enhance and clarify some of the requirements in Order 4 in response to changes in technology, BLM field experience, and changes to applicable statutory requirements.
The following table provides an overview of the changes contemplated as part of this proposed rule and identifies the substantive changes relative to Order 4.
This proposed rule would be codified primarily in a new 43 CFR subpart 3174 within a new part 3170. The BLM is concurrently preparing a separate proposed rule to update and replace Onshore Oil and Gas Order No. 5 (Order 5) (gas measurement) that the BLM intends to codify at a new 43 CFR subpart 3175. The BLM has previously published a separate proposed rule to replace Onshore Oil and Gas Order No. 3 (Order 3) (site security), which the BLM would codify at a new 43 CFR subpart 3173. Given this structure, it is the BLM's intent that a new 43 CFR subpart 3170 would contain definitions of certain terms common to more than one of the proposed rules, as well as other provisions common to all rules,
Certain provisions of this proposed rule would result in amendments to related provisions in the onshore oil and gas operations rules in 43 CFR part 3160. The proposed amendments to those provisions are discussed below.
Section 3174.1 would define the terms and acronyms that are used in proposed subpart 3174. With the proposal to integrate new technology into the rule, such as the use of CMSs, related definitions would need to be added to the proposed regulations. Defining these terms and acronyms is necessary to ensure consistent interpretation and implementation of this proposed rule. As such, the proposed rule would add a definition of “Coriolis measurement system,” and define the primary components of a CMS. Related definitions would be added to establish the minimum required components of an event log, a configuration log, and a quantity transactions record. Definitions for technical terms, such as “opaque oil,” “RTD,” and “turbulent flow,” would be added because they may not be readily understood. Definitions of many of the terms already defined in Order 4 are also included in this proposed rule.
Paragraphs (a) through (d) of proposed § 3174.2 refer the reader to other sections in this proposed rule that contain the proposed requirements for oil storage tanks, on-lease oil measurement, commingling, and FMP numbers, respectively.
Proposed § 3174.2(e) would specify that all equipment used to measure the volume of oil for royalty purposes installed after the effective date of this subpart must comply with the requirements of this subpart. Operators would have 180 days after the effective date of the final rule to bring existing equipment used to measure oil for royalty purposes installed before the effective date of the final rule into compliance with the proposed requirements of this subpart. With respect to the proposed compliance phase-in period of 180-days for existing equipment, the BLM would be interested in receiving comments and information about the lead-time required to order, install, and configure any new equipment that might be required at existing facilities as result of the proposed rule's requirements.
Proposed § 3174.2(f) would exempt meters used for allocation measurement as part of a commingling approval granted under a new 43 CFR 3173.14 from complying with the requirements of this subpart. The new 43 CFR 3173.14 has been proposed under a separate rulemaking that would update and replace Order 3 (site security). In the restricted circumstances under which commingling would be approved under that proposed provision, it would no longer be necessary for allocation meters to meet the standards of either the current or proposed oil measurement and gas measurement rules.
Proposed § 3174.3(a)(1) would set overall performance standards for measuring oil produced from Federal and Indian leases, regardless of the type of meters or measurement method used. Order 4 has no explicit statement of performance standards. The BLM would apply the performance standards to individual LACT meters or CMSs as part of the compliance process. This would
Proposed § 3174.3(a)(1) would establish the maximum allowable volume measurement uncertainty. Uncertainty indicates the risk of measurement error. The BLM believes that the measurement uncertainties discussed below are reasonable, based on equipment capabilities, industry standard practices and procedures, and BLM field experience. Please specifically comment on whether other volume measurement uncertainties would be more appropriate for the range of meters and related equipment currently in use on Federal lands.
For FMPs measuring more than 10,000 bbl per month, the maximum proposed overall volume measurement uncertainty would be ±0.35 percent. The BLM derived the proposed ±0.35 percent uncertainty by calculating the implied uncertainty for a PD meter meeting the minimum requirements of Order 4. The implied uncertainty calculation includes the effects of the maximum allowable meter-factor drift between meter provings; the minimum standard for repeatability during a proving; the accuracy of the pressure and temperature transducers used to determine the correction for pressure on liquids (CPL) and the correction for temperature on liquids (CTL) factors; and the uncertainty of the CPL and CTL calculation. Based on this analysis, the overall uncertainty of a PD meter complying with Order 4 is ±0.32 percent. Therefore, the BLM believes a ±0.35 percent uncertainty requirement is reasonable for both PD meters and CMS measurement at a 10,000-bbl-per-month threshold to ensure accurate royalty measurement for a high monthly volume.
For FMPs measuring more than 100 bbl per month and less than or equal to 10,000 bbl per month, the maximum proposed overall measurement uncertainty would be ±1.0 percent. The proposed ±1.0 percent is based on the uncertainty calculations of manual tank gauging meeting the minimum requirements of Order 4, which show that uncertainty is dependent on the volume removed. The proposed ±1.0 percent is the average calculated uncertainty for a typical 100-200 bbl truck load-out.
Based on comments from public meetings held on April 24 and 25, 2013 (discussed below), the BLM is proposing a third tier for FMPs measuring less than 100 bbl per month. The proposed overall allowed uncertainty for the third tier would be ±2.5 percent, which would still provide minimal risk of royalty loss, while allowing the maximum ultimate recovery from low-volume leases. The proposed ±2.5 percent is the highest calculated uncertainty for manual tank gauging meeting the minimum requirements of Order 4.
Under proposed § 3174.3(a)(2), only a BLM State Director could grant an exception to the prescribed uncertainty levels. Granting an exception would require a showing that meeting the required uncertainly level would involve extraordinary cost or unacceptable adverse environmental effects, and the written concurrence of the BLM Director.
Proposed § 3174.3(b) would establish the degree of allowable bias in a measurement. Bias, unlike uncertainty, results in measurement error, whereas uncertainty only indicates the risk of measurement error. For all FMPs, no statistically significant bias would be allowed. (The BLM acknowledges that it is virtually impossible to completely remove all bias in measurement.) When a measurement device is tested against a laboratory device or prover, there is often slight disagreement, or apparent bias, between the two. However, both the measurement device being tested and the laboratory device or prover have some inherent level of uncertainty. If the disagreement between the measurement device being tested and the laboratory device or prover is less than the uncertainty of the two devices combined, then it is not possible to distinguish apparent bias in the measurement device being tested from inherent uncertainty in the devices (sometimes referred to as “noise” in the data). Therefore, the BLM does not consider apparent bias that is less than the uncertainty of the two devices combined to be statistically significant.
Proposed § 3174.3(c) would require that all measurement equipment allow for independent verification by the BLM. As with the bias requirements, Order 4 only allows measurement methods that can be independently verified by the BLM and, therefore, this requirement would not change existing requirements. The verifiability requirement in this section would prohibit the use of measurement equipment that does not allow for independent verification. For example, if a new meter were to be developed that did not record the raw data used to derive a volume, that meter could not be used at an FMP, because without the raw data the BLM would be unable to independently verify the volume. Similarly, if a meter were to be developed that used proprietary methods that precluded the ability to recalculate volumes, its use would also be prohibited.
The proposed rule would incorporate a number of industry standards, either in whole or in part, without republishing the standards in their entirety in the CFR, a practice known as incorporation by reference. These standards were developed through a consensus process, facilitated by the API and the ASTM, with input from the oil and gas industry. The BLM has reviewed these standards and determined that they would achieve the intent of 43 CFR 3174.5 through 3174.13 of this proposed rule. The legal effect of incorporation by reference is that the incorporated standards become regulatory requirements. This proposed rule would incorporate the current versions of the standards listed.
Some of the standards referenced in this section would be incorporated in their entirety. For other standards, the BLM would incorporate only those sections that are enforceable, meet the intent of § 3174.3 of this proposed rule, or do not need further clarification.
The proposed incorporation of industry standards follows the requirements found in 1 CFR part 51. Industry standards proposed for incorporation are eligible under 1 CFR 51.7 because, among other things, they will substantially reduce the volume of material published in the
All of the API and ASTM materials for which the BLM is seeking incorporation by reference are available for inspection at the BLM, Division of Fluid Minerals; 20 M Street SE., Washington, DC 20003; 202-912-7162; and at all BLM offices with jurisdiction over oil and gas activities. The API materials are available for inspection at the API, 1220 L Street NW., Washington, DC 20005; telephone 202-682-8000; API also offers free, read-only access to some of the material at
The following describes the API and ASTM standards that the BLM proposes to incorporate by reference into this rule:
API Manual of Petroleum Measurement Standards (MPMS) Chapter 2, Section 2A, Measurement and Calibration of Upright Cylindrical Tanks by the Manual Tank Strapping Method, 1st Ed., February 1995, Reaffirmed February 2012 (“API 2.2A”). This standard describes the procedures for calibrating upright cylindrical tanks used for storing oil.
API MPMS Chapter 3, Section 1A, Standard Practice for the Manual Gauging of Petroleum and Petroleum Products, 3rd Ed., August 2013 (“API 3.1A”). This standard describes the following: (a) The procedures for manually gauging the liquid level of petroleum and petroleum products in non-pressure fixed roof tanks; (b) Procedures for manually gauging the level of free water that may be found with the petroleum or petroleum products; (c) Methods used to verify the length of gauge tapes under field conditions and the influence of bob weights and temperature on the gauge tape length; and (d) Influences that may affect the position of gauging reference point (either the datum plate or the reference gauge point).
API MPMS Chapter 4, Section 1, Introduction, 3rd Ed., February 2005, Reaffirmed June 2014 (“API 4.1”). Section 1 is a general introduction to the subject of proving meters. API MPMS Chapter 4, Section 2, Displacement Provers, 3rd Ed., September 2003, Reaffirmed March 2011 (“API 4.2,” and “API 4.2, Eq. 12”). This standard outlines the essential elements of meter provers that do, and also do not, accumulate a minimum of 10,000 whole meter pulses between detector switches, and provides design and installation details for the types of displacement provers that are currently in use. The provers discussed in this chapter are designed for proving measurement devices under dynamic operating conditions with single-phase liquid hydrocarbons.
API MPMS Chapter 4, Section 5, Master-Meter Provers, 3rd Ed., November 2011 (“API 4.5”). This standard covers the use of displacement and Coriolis meters as master meters. The requirements in this standard are for single-phase liquid hydrocarbons.
API MPMS Chapter 4, Section 6, Pulse Interpolation, 2nd Ed., May 1999, Reaffirmed October 2013 (“API 4.6”). This standard describes how the double-chronometry method of pulse interpolation, including system operating requirements and equipment testing, is applied to meter proving.
API MPMS Chapter 4, Section 9, Part 2, Methods of Calibration for Displacement and Volumetric Tank Provers, Determination of the Volume of Displacement and Tank Provers by the Waterdraw Method of Calibration, 1st Ed., December, 2005, Reaffirmed September 2010 (“API 4.9.2”). This standard covers all of the procedures required to determine the field data necessary to calculate a Base Prover Volume of Displacement Provers by the Waterdraw Method of Calibration.
API MPMS Chapter 5, Section 6, Measurement of oil by Coriolis Meters, 1st Ed., October 2002, Reaffirmed November 2013 (“API 5.6,” “API 5.6.3.2(e),” API 5.6.8.3,” “API 5.6.9.1.2.1,” and “API 5.6, Eq. 2”). This standard is applicable to custody-transfer applications for liquid hydrocarbons. Topics covered are API standards used in the operation of Coriolis meters, proving and verification using volume-based methods, installation, operation, and maintenance.
API MPMS Chapter 6, Section 1, Lease Automatic Custody Transfer (LACT) Systems, 2nd Ed., May 1991, Reaffirmed May 2012 (“API 6.1”). This standard describes the design, installation, calibration, and operation of a LACT system.
API MPMS Chapter 7, Temperature Determination, 1st Ed., June 2001, Reaffirmed February 2012 (“API 7” and “API 7.1”). This standard describes the methods, equipment, and procedures for determining the temperature of petroleum and petroleum products under both static and dynamic conditions.
API MPMS Chapter 8, Section 1, Standard Practice for Manual Sampling of Petroleum and Petroleum Products, 4th Ed., October 2013, (“API 8.1”). This standard covers procedures and equipment for manually obtaining samples of liquid petroleum and petroleum products from the sample point into the primary containers.
API MPMS Chapter 9, Section 3, Standard Test Method for Density, Relative Density, and API Gravity of Crude Petroleum and Liquid Petroleum Products by Thermohydrometer Method, 3rd Ed., December 2012 (“API 9.3”). This standard covers the determination, using a glass thermohydrometer in conjunction with a series of calculations, of the density, relative density, or API gravity of crude petroleum, petroleum products, or mixtures of petroleum and nonpetroleum products normally handled as liquids and having a Reid vapor pressures of 101.325 kPa (14.696 psi) or less.
API MPMS Chapter 10 Section 4, Determination of Water and/or Sediment in Crude Oil by the Centrifuge Method (Field Procedure), 4th Ed., October 2013 (“API 10.4,” “10.4.9,” and “10.4.9.2”). This standard describes the field centrifuge method for determining both water and sediment, or sediment only, in crude oil.
API MPMS Chapter 11, Section 1, Temperature and Pressure Volume Correction Factors for Generalized Crude Oils, Refined Products and Lubricating Oils, 2nd Ed., May 2004, including Addendum 1, September 2007, Reaffirmed August 2013 (“API 11.1”). This standard provides the algorithm and implementation procedure for the correction of temperature and pressure effects on density and volume of liquid hydrocarbons, which fall within the categories of crude oil.
API MPMS Chapter 12, Section 2, Part 1, Calculation of Petroleum Quantities Using Dynamic Measurement Methods and Volumetric Correction Factors, 2nd Ed., May 1995, Reaffirmed March 2014 (“API 12.2.1”). This standard provides standardized calculation methods for the quantification of liquids and the determination of base prover volumes under defined conditions. The standard specifies the equations for computing correction factors, rules for rounding, calculational sequence, and discrimination levels to be employed in the calculations.
API MPMS Chapter 12, Section 2, Part 3, Calculation of Petroleum Quantities Using Dynamic Measurement Methods and Volumetric Correction Factors, Proving Report, 1st Ed., October 1998, Reaffirmed March 2009 (“API 12.2.3”). This standard provides standardized calculation methods for the determination of meter factors under defined conditions. The criteria contained here will allow different entities using various computer languages on different computer hardware (or by manual calculations) to arrive at identical results using the same standardized input data. This document also specifies the equations for computing correction factors, including the calculation sequence, discrimination levels, and rules for rounding to be employed in the calculations.
API MPMS Chapter 12, Section 2, Part 4, Calculation of Petroleum Quantities Using Dynamic Measurement Methods and Volumetric Correction Factors, Calculation of Base Prover Volumes by the Waterdraw Method, 1st Ed., December, 1997, Reaffirmed March 2009 (“API 12.2.4”). This standard provides standardized calculation methods for the quantification of liquids and the determination of base prover volumes under defined conditions. The criteria contained in this document allows different individuals, using various computer languages on different computer hardware (or manual calculations), to arrive at identical results using the same standardized input data. This standard specifies the equations for computing correction factors, rules for rounding, the sequence of the calculations, and the discrimination levels of all numbers to be used in these calculations.
API MPMS Chapter 18, Section 1, Measurement Procedures for Crude Oil Gathered From Small Tanks by Truck, 2nd Ed., April 1997, Reaffirmed February 2012 (“API 18.1”). This standard describes the procedures, organized into a recommended sequence of steps, for manually determining the quantity and quality of crude oil being transferred under field conditions.
API MPMS Chapter 21, Section 2, Electronic Liquid Volume Measurement Using Positive Displacement and Turbine Meters, 1st Ed., June 1998, Reaffirmed August 2011 (“API 21.2,” “API 21.2.10,” “21.2.10.2,” “21.2.10.6,” and “API 21.2.9.2.13.2a”). This standard provides for the effective utilization of electronic liquid measurement systems for custody-transfer measurement of liquid hydrocarbons.
API Recommended Practice (RP) 12 R1, Setting, Maintenance, Inspection, Operation and Repair of Tanks in Production Service, 5th Ed., August 1997, Reaffirmed April 2008 (“API RP 12 R1”). This recommended practice is a guide on new tank installations and maintenance of existing tanks. Specific provisions of this recommended practice are identified as requirements in this proposed rule.
API RP 2556, Correction Gauge Tables For Incrustation, 2nd Ed., August 1993, Reaffirmed August 2013 (“API RP 2556”). This recommended practice provides for correcting gauge tables for incrustation applied to tank capacity tables. The tables given in this recommended practice show the percent of error of measurement caused by varying thicknesses of uniform incrustation in tanks of various sizes.
ASTM D-1250, Table 5A, Generalized Crude Oils Correction of Observed Gravity to API Gravity at 60o F, September 1980 (“ASTM Table 5A”). Table 5A gives the values of API gravity at 60o F corresponding to an API hydrometer reading at observed temperatures other than 60o F.
Proposed § 3174.5(a) would provide that measurement by manual tank gauging must accurately compute the total net standard volume of oil withdrawn from a properly calibrated sales tank by following a proper sequence of activities outlined in § 3174.6.
Proposed § 3174.5(b) would include requirements that all oil storage tanks, hatches, connections, and other access points be vapor tight and that all venting occur through a pressure-vacuum relief valve placed in the vent line or in the connection with another tank. This requirement would minimize hydrocarbon gas lost to the atmosphere by ensuring that venting is done under controlled conditions through the pressure-vacuum relief valve primarily in response to changes in ambient temperature. This requirement would be added to eliminate confusion over the intent of the language in Order 4 in this area. This change would expressly state the required condition—vapor-tight with a pressure-vacuum integrity device. This section would further clarify that each storage tank be clearly identified by a unique number. Other existing requirements in Order 4 are included in this proposed section, namely, that each oil storage tank must be set and maintained level and must be equipped with a distinct gauging reference point.
Proposed § 3174.5(c) would retain the current Order 4 requirement that oil storage tanks associated with an FMP that are measured by tank gauging be accurately calibrated, and would include additional specifics regarding calibration requirements. Proposed § 3174.5(c)(1) would specify that the tank capacity tables must be calculated by actual tank measurements, which would eliminate using general formulas, such as the formula created for calculating the volume of a typical 400 bbl tank using 1.67 bbl/inch. This proposed paragraph would specify that the volume be measured in barrels and change the incremental height measurement from the current
Proposed § 3174.5 paragraph (c)(2) and (3) would retain the current Order 4 requirement that storage tanks associated with an FMP and measured by tank gauging be recalibrated if they are relocated, repaired, or the capacity is changed as a result of denting, damage, installation, removal of interior components, or other alterations. However, instead of the existing requirement that operators submit sales tank calibration charts upon request from the AO, they would be required to submit the charts to the AO within 30 days after calibration. This proposed change would ensure that BLM personnel use the latest charts when conducting inspections or audits.
Proposed § 3174.6(a) would list the proper sequence of activities for measuring oil by manual tank gauging along with the corresponding section reference. The BLM is proposing the sequence listed in the API Manual of Petroleum Measurement Standards (MPMS) Chapter 18.1 for all size tanks that would be used as FMPs. API MPMS 18.1 specifically covers tank sizes of 1,000 bbl or less, but the most recent edition of the API standards referenced in MPMS 18.1 has removed many of the procedural differences between the tank sizes, making this sequence acceptable for tanks of all sizes.
Proposed § 3174.6(b)(1) would retain the current Order 4 requirement that tanks must be isolated for 30 minutes to allow for tank contents to settle before proceeding with tank gauging operations.
Proposed § 3174.6(b)(2) would change the requirements for determining the temperature of oil in a sales tank that is used as an FMP. The minimum thermometer immersion times listed in API MPMS Chapter 18.1 and in API
Proposed § 3174.6 paragraphs (b)(3) through (9) would follow API MPMS chapter 18.1, the industry standard, in prescribing the procedure for conducting the step-by-step process of manual tank gauging and the proper equipment usage. This is a change from Order 4, which lists the equipment required, but not the proper sequence of processes. The gauging measurement accuracy would be changed from the current Order 4 requirement of
Proposed § 3174.6(b)(10) would list the proper documentation of a measurement ticket, to provide for consistent documentation and ensure that the operator uses the correct reference material.
Proposed § 3174.7 paragraphs (a) through (c) would refer to other sections of this proposed rule for construction and operation requirements for LACT systems, proving requirements, and measurement tickets, and would provide a table of the LACT system requirements and corresponding section references.
Proposed § 3174.7 paragraphs (d) through (f) would retain current requirements that all components of a LACT system be accessible for inspection by the AO and that the AO must be notified of all LACT system failures that may have resulted in measurement error. The proposed rule would modify this notification requirement to put a 24-hour time limit on the notification. This would be added to ensure that the BLM is able to verify that all oil volumes are properly derived and accounted for, and verify any alternative measurement method, meter repairs, or meter provings. This proposed rule would retain the current Order 4 requirement that all oil samples taken from the LACT system samplers for determination of temperature, oil gravity, and sediment and water (S&W) content must meet the same minimum standards set in the manual tank gauging sections.
Proposed § 3174.7(g) would prohibit the use of Automatic Temperature Compensators (ATCs) and Automatic Temperature and Gravity Compensators (ATGs) on LACT systems. Order 4 requires these devices. Instead, the proposed rule would require the use of an electronic temperature averaging device. ATCs and ATGs are designed to automatically adjust the LACT totalizer reading to compensate for changes in temperature and, in some cases, for changes in oil gravity as well. Unfortunately, the accuracy or operation of these devices cannot be verified in the field and there is no record of the original, uncorrected, totalizer readings. Therefore, the BLM believes that the use of these devices inhibits its ability to verify the reported volumes because there is no source record generated and they degrade the accuracy of measurement. Because there are relatively few LACT systems that still employ ATCs or ATGs, the BLM does not believe this requirement would result in significant costs to the industry.
Proposed § 3174.8, with the exception of proposed § 3174.8(b)(11), would contain the same LACT system components and operating requirements as Order 4.
Proposed § 3174.8(b)(11) would establish requirements for electronic temperature averaging devices, using API standards where available. Order 4 does not address electronic temperature averaging devices.
Proposed §§ 3174.9 and 3174.10 would create new sections for CMSs, which are not addressed in Order 4. Order 4 allows only for the use of PD meters with LACT systems. The proposal to allow the use of Coriolis meters in this rule is based on technological advancements that provide for measurement accuracy that meets or exceeds the overall performance standards in proposed § 3174.3. Field and laboratory testing of the Coriolis meter has proven it to be a reliable, accurate meter when installed, configured, and operated correctly.
Proposed § 3174.9 paragraphs (a) through (c) would specify that CMSs must consist of components that have been reviewed by the PMT, approved by the BLM, and identified and described on the nationwide approval list at
Proposed § 3174.9(d) would provide a table of the requirements, section reference, and applicable API standards under which oil measurement under a CMS must follow.
Proposed § 3174.9(e) would list the components in order from upstream to downstream of a CMS used at an FMP. The requirements for a CMS would generally parallel the requirements for LACT systems.
Proposed § 3174.9(e)(1) through (4) would parallel the LACT system equipment requirements and are needed to ensure accurate and proper functioning of a CMS. A charge pump may be necessary to maintain required pressure and flow rate to achieve uncertainty levels proposed under § 3174.3(a). A block valve upstream of the meter would be required for zero value verification. An air/vapor eliminator would be required upstream of the meter.
Proposed § 3174.9(e)(5) through (6) would set accuracy thresholds for temperature and pressure measurement devices that are part of a CMS installed downstream of the meter, but upstream of the proving connections. These devices are needed to calculate the CPL and CTL factors. The uncertainties of these devices would be used to ensure the CMS meets or exceeds the uncertainty levels that would be required by proposed § 3174.3(a). Under proposed § 3174.9(e)(7), a density measurement verification point would follow the temperature and pressure measurement devices.
Proposed § 3174.9(e)(8) would not require a composite sampling system if the S&W content is not used to determine net oil volume. Measurement using a PD meter requires a composite sampling system and determines net oil volume by deducting S&W content. In contrast, Coriolis meters do not necessarily use S&W content in determining net oil volume. In practice, Coriolis meters may be used at the outlet of a separator. It may not be feasible to use a composite sampling system at the outlet of a separator due to high separator pressure, thus effectively precluding the use of a PD meter at that location. This is because the lack of a composite sampling system would eliminate the ability to determine S&W content through the traditional centrifuge procedures proposed in § 3174.6(b)(6). Without the ability to accurately determine S&W content, proposed § 3174.9(e)(9) would require operators to report the S&W content as zero, should they choose to use a CMS
Proposed § 3174.9 paragraphs (e)(9), (10), and (11) would parallel the meter proving connections, back-pressure valve, and check valve requirements for LACT systems.
Proposed § 3174.10(a) would establish a minimum pulse resolution (
Proposed § 3174.10 paragraphs (b), (c), (d), and (e) would establish minimum standards for the specifications for a specific make, model, and size of a Coriolis meter. The specifications would allow the BLM to determine the overall measurement uncertainty of the CMS to ensure that it meets the requirements of proposed § 3174.3(a). The specifications would also help ensure that the meters are properly installed, require that the BLM be notified of any changes to any of the internal calibration factors, and require a non-resettable totalizer for registered volume.
Proposed § 3174.10(f) would require verification of the meter zero reading before proving the meter or any time the AO requests it. This would be accomplished by shutting off the flow and observing the flow rate indicated by the CMS. If the indicated flow rate is within the manufacturer's specifications for zero stability, then the zero error would be accounted for in the uncertainty calculation and no adjustments would be required. However, if the indicated flow rate was outside the manufacturer's specification for zero stability, the meter's zero reading would be required to be adjusted.
Proposed § 3174.10(g) would establish the method by which a CMS determines net oil volume on which royalty is due. Most CMSs include advanced software features that can automatically calculate net oil volume. However, in order to allow the BLM to independently re-calculate net oil volume, the proposed provision would establish a calculation method similar to that used for PD meters. This would allow for manual re-calculation and verification by the BLM, without relying on algorithms internal to the CMS.
Proposed § 3174.10(h) would allow the API oil gravity to be determined by using one of two methods: (a) Directly from the average density measured by the Coriolis meter; or (b) A sample taken from a composite sample container. This would accommodate situations in which it is not feasible to install a composite sampling system due to economic or operating constraints. The BLM recognizes that high amounts of water in the oil would affect the average density determined by the Coriolis meter, which could in turn affect the value of the oil used to determine royalty due. However, because the BLM would not allow an S&W adjustment in situations where a composite sampling system was not used, we believe the increase in the measured and reported volume on which royalty is due would offset any value reductions due to the water content. The operator would determine whether to install a composite sampling system. The BLM specifically seeks comments on this proposed approach.
Proposed § 3174.10 paragraphs (i), (j), and (k) would establish minimum requirements for the information that the operator would need to maintain on-site, information that must be retained for an audit trail, and requirements for protecting the retained data in the CMS unit's memory. This information is necessary for the BLM to ensure compliance with these regulations and conduct production audits.
Proposed § 3174.11 paragraphs (a) and (b) would establish that a meter would not be eligible to be used for royalty determination unless it is proven by the standards detailed in this proposed rule. A summary table is provided of the minimum standards for proving FMP meters and their applicable section reference.
Proposed § 3174.11(c) would establish the acceptable types of provers that could be used to prove a LACT or CMS.
Proposed § 3174.11 paragraphs (c)(1), (2), and (3) would describe and detail the requirements for acceptable meter provers, which include the master meters and displacement provers that are currently allowed under Order 4. (A meter prover is a device that verifies a meter's accuracy.) Coriolis master meters have been added, which were not addressed in Order 4. The BLM believes that Coriolis technology has advanced to the point where Coriolis meters can meet the accuracy requirements required for master meters. The proposed rule would not allow tank-provers to be used as an acceptable device for proving a meter. According to API standards, tank-provers are not recommended for viscous liquids, which include most crude oil. Because there are few tank-provers currently in use on Federal and Indian leases, this requirement is not expected to result in a significant cost to industry.
Proposed § 3174.11(c)(4) would establish displacement prover sizing standards. These standards would ensure that fluid velocity within the prover is within the limits recommended by API MPMS Chapter 4.2.4.3.4. Displacement velocities that are too low (prover is oversized) can result in unacceptable pressure and flow-rate changes and higher uncertainty due to possible displacement device “chatter.” Displacement velocities that are too high (prover is undersized) can cause damage to the components of the prover.
Proposed § 3174.11(d)(1) would expand on the current Order 4 requirement to prove the meter under “normal” operating conditions. This section would define limits of flow rate, pressure, and API oil gravity that must exist during the proving to be considered the “normal” operating condition. The BLM proposes to add this requirement because the BLM realizes that the meter factor can change with changes in these parameters. For example, a meter factor determined at an abnormally low flow rate may not represent the meter factor at a higher flow rate where the meter normally operates. This proposed section would also require a multi-point meter proving if the LACT or CMS were subject to highly variable conditions. The multi-point meter proving would establish three meter factors; one at the low end of the normal operating range, one at the midpoint, and one at the high end. An appropriate meter factor would then be applied according to proposed § 3174.11(d)(6).
Proposed § 3174.11 paragraphs (d)(2) through (5) would provide the details for minimum proving requirements, such as requiring a minimum proving pulse resolution of 10,000 pulses per proving run or requiring the use of pulse interpolation, if this cannot be met, and setting a requirement to continue
Proposed § 3174.11(d)(6) would allow two methods of incorporating multiple meter factors that would be required under proposed § 3174.11(d)(1)(iv). The first method would be to combine the meter factors into a single arithmetic average. The second method would be to curve-fit the meter factors and incorporate a real-time dynamic meter factor into the flow computer (this would apply primarily to CMS). Neither multi-point provings nor multi-point meter factors are discussed in Order 4. Please specifically comment on proposed § 3174.11 paragraphs (d)(1)(iv) and (d)(6) regarding how to handle meter factor determinations when the LACT or CMS experiences highly variable flow rates, pressures, or API oil gravities.
Proposed § 3174.11 paragraphs (d)(7) and (8) would set the minimum and maximum values that would be allowed for a meter factor, both between meter provings and for initial meter factors for newly installed or repaired meters. These meter factor ranges are not changed from Order 4.
Proposed § 3174.11(d)(9) would allow back-pressure valve adjustment after proving only within the normal operating fluid flow rate and fluid pressure as prescribed in proposed § 3174.11(d)(1). If the back-pressure valve is adjusted after proving, the “as left” fluid flow rate and fluid pressure would have to be documented on the proving report. The BLM is proposing this requirement because the BLM has observed this practice frequently in certain areas of the country and has observed that a change in back-pressure outside the proving conditions does, in some cases, affect the meter factor and results in operators reporting incorrect volumes. Allowing back-pressure valve adjustment after proving would not be intended as a means to circumvent the displacement prover minimum and maximum velocity requirements of proposed § 3174.11(c)(4). Order 4 has no specific requirements relating to the adjustment of the back-pressure valve after proving.
Proposed § 3174.11(d)(10) would set standards for the pressure used to calculate a CPL for a composite meter factor for LACTs. It would also prohibit the use of a composite meter factor for Coriolis meters because they have the capability to use a true average pressure over the measurement ticket period in the calculation of an average CPL. The use of a composite meter factor is intended to make measurement tickets easier to complete because the CPL is already included in the meter factor. This is typically not an issue with a Coriolis meter because of the advanced capability of the flow computer to which it is connected.
Proposed § 3174.11(e) contains a new provision for meter-proving requirements that were previously located in the LACT section of Order 4. This change would consolidate in one place all meter-proving requirements for both LACTs and CMSs. The proposal would change FMP meter-proving requirements for operators who run large volumes of oil through their meters. Currently, an FMP meter must be proven at least quarterly, unless total throughput exceeds 100,000 bbl per month, in which case the meter must be proven monthly. This proposal would require operators to prove an FMP meter each time the volume flowing through the meter, as measured on the non-resettable totalizer, increases by 50,000 bbl, or quarterly, whichever occurs first. This change to meter provings would affect approximately 5 percent of existing LACT systems nationwide, yet would ensure that meter-factor changes are corrected before large volumes of production are measured incorrectly, which could have an adverse impact on Federal or Indian royalty determinations.
The proposed 50,000 bbl threshold was determined by performing a statistical analysis to determine the volume at which the cost of proving the meter could be equal to the amount of potential royalty underpayment or overpayment that could occur, due to the difference in meter factors. This section also proposes to expand the current Order 4 requirement from proving after repair to proving any time after the mechanical or electrical components of the meter have been opened, changed, repaired, removed, exchanged, or reprogrammed.
Proposed § 3174.11(f) would not change Order 4 requirements for excess meter factor deviation and the required actions if proving reflects a deviation in meter factor that exceeds ±0.0025.
Proposed § 3174.11 paragraphs (g) and (h) would require that the temperature and pressure devices used as part of a LACT or CMS be verified as part of every proving. These sections would establish standards for the verification procedure and the test equipment used in the verification.
Proposed § 3174.11(i) would require verification of the density measurement function of the Coriolis meter under API MPMS Chapter 5.6.9.1.2.1 if measured density is used to determine API oil gravity (instead of a thermohydrometer, which is generally required under proposed § 3174.6(b)(4)). This would provide an independent verification that the Coriolis meter's density determination function is within the accuracy specifications for that meter.
Proposed § 3174.11(j) would prescribe meter-proving reporting requirements. This section would provide additional requirements for data that would need to be included on the meter-proving report beyond what is required under Order 4. One change would require operators to list the BLM-assigned FMP numbers on each proving report. Proposed § 3174.11 includes requirements for verification of the temperature average or RTD, verification of the pressure transducer, and density verification, as applicable, as well as any “as left” conditions after adjustment of the back-pressure valve that operators also would have to document on the proving report.
Proposed § 3174.12 would specify the measurement ticket (run ticket) requirements that are currently in Order 3. The BLM believes that measurement ticket requirements are better suited to this proposed rule than to the rule that the BLM has proposed separately to replace Order 3, because this proposed rule specifies the requirements for the data that is recorded on oil measurement tickets. This section details the specific data requirements for measurement tickets based on which method of oil measurement is used,
This rule proposes five changes to Order 3's current measurement-ticket requirements. One of those changes would require operators to list the BLM-assigned FMP numbers on each measurement ticket. This is to incorporate the new approval requirement for assigned FMPs included in the separately published proposed rule to replace Order 3. The second change would require operators to notify the BLM whenever they disagree with data documented on a measurement ticket. This is to allow the BLM to investigate the alleged discrepancy and potential impacts on Federal or Indian royalty determinations. The third change would require the operator, purchaser, or
Proposed § 3174.13(a) would provide that using any method of oil measurement other than manual tank gauging, LACT system, or CMS at an FMP would require BLM approval. Under proposed § 3174.13(b), the BLM would use the PMT as a central advisory body within the BLM to review and recommend approval of industry measurement technology not addressed in the proposed regulations. The PMT is made up of a panel of BLM employees who are oil and gas measurement experts.
The process outlined in proposed § 3174.13(b) for reviewing new equipment would allow the BLM to keep up with technology as it advances and approve its use without having to update its regulations. Under the proposed rule, if the PMT recommends, and the BLM approves, new equipment, the BLM would post the make, model, and range or software version on the BLM Web site
The PMT would consider new measurement technologies on a case-by-case basis. Proposed § 3174.13(b) would identify the requirements for requesting approval of oil measurement by equipment other than equipment listed in this proposed rule. The BLM believes this process would be used as other technologies appear and their reliability is established. For example, the BLM considered other meters for inclusion in this proposed rule, such as turbine meters and ultrasonic meters; however, it ultimately decided not to include them in this rule because there is insufficient testing to validate their accuracy and reliability under all operating conditions at this time.
Proposed § 3174.13(c) would expressly provide that the procedures for requesting and granting a variance under § 3170.6 could not be used as an avenue for approving new technology or equipment. An operator could obtain approval of alternative oil measurement equipment or methods only through review, recommendation, and approval by the PMT under proposed § 3174.13.
Proposed § 3174.14 would not be a change from Order 4 requirements for determining volumes of oil that cannot be measured as a result of spillage or leakage. This section includes, but is not limited to, oil that is classified as slop or waste oil.
Proposed § 3174.15 would identify certain acts of noncompliance that would be subject to immediate assessments. These actions subject to immediate assessment would be in addition to those identified in the current regulations at 43 CFR 3163.1(b). These assessments are not civil penalties and are separate from the civil penalties authorized in Section 109 of FOGRMA, 30 U.S.C. 1719.
Order 4 does not provide for immediate assessments in addition to those specified in 43 CFR 3163.1(b). However, the BLM continues to incur costs associated with correcting violations of lease terms and regulations. Accordingly, this proposed rule would add six new violations that would be subject to immediate assessments.
The authority for the BLM to impose these assessments was explained in the preamble to the final rule in which 43 CFR 3163.1 was originally promulgated in 1987:
The provisions providing assessments have been promulgated under the Secretary of the Interior's general authority, which is set out in Section 32 of the Mineral Leasing Act of 1920, as amended and supplemented (30 U.S.C. 189), and under the various other mineral leasing laws. Specific authority for the assessments is found in Section 31(a) of the Mineral Leasing Act (30 U.S.C. 188(a), which states, in part “. . . the lease may provide for resort to [sic] appropriate methods for the settlement of disputes or for remedies for breach of specified conditions thereof.” All Federal onshore and Indian oil and gas lessees must, by the specific terms of their leases which incorporate the regulations by reference, comply with all applicable laws and regulations.
Failure of the lessee to comply with the law and applicable regulations is a breach of the lease, and such failure may also be a breach of other specific lease terms and conditions. Under Section 31(a) of the Act and the terms of its leases, the BLM may go to court to seek cancellation of the lease in these circumstances. However, since at least 1942, the BLM (and formerly the Conservation Division, U.S. Geological Survey), has recognized that lease cancellation is too drastic a remedy, except in extreme cases. Therefore, a system of liquidated damages was established to set lesser remedies in lieu of lease cancellation. . . .
The BLM recognizes that liquidated damages cannot be punitive, but are a reasonable effort to compensate as fully as possible the offended party, in this case the lessor, for the damage resulting from a breach where a precise financial loss would be difficult to establish. This situation occurs when a lessee fails to comply with the operating and reporting requirements. The rules, therefore, establish uniform estimates for the damages sustained, depending on the nature of the breach.
All of the immediate assessments under this proposed rule would be set at $1,000 per violation. The BLM chose the $1,000 figure because it generally approximates what it would cost the agency to identify and document each of the violations in question and verify remedial action and compliance.
This proposal would remove the enforcement, corrective action, and abatement period provisions of Order 4. In their place the BLM will develop an internal handbook for inspection and enforcement. The handbook would provide direction to BLM inspectors on how to classify a violation—as major or minor—what corrective action should be applied, and what timeframes for correction should be applied. The handbook will be in place by the effective date of the final rule. The proposed rule would take the approach that a violation's severity and corrective action timeframes should be decided on a case-by-case basis, using the definitions in the regulations. In deciding how severe a violation is, BLM inspectors would take into account whether a violation could result in “immediate, substantial, and adverse impacts on production accountability, or royalty income.” (Definition of “major violation” 43 CFR 3160.0-5.) The AO would use the inspection and enforcement handbook in conjunction with 43 CFR subpart 3163, which provides for assessments and civil penalties when lessees and operators fail to remedy their violations in a
None of the changes proposed in this rule would in any way diminish existing enforcement authority.
Because this proposed rule would replace Order 4, the BLM is proposing two related changes to provisions in 43 CFR part 3160.
1. Section 3162.7-2, Measurement of oil, would be rewritten to reflect this proposed rule.
2. Section 3164.1, Onshore Oil and Gas Orders, the table would be revised to remove the reference to Order 4.
On April 24 and 25, 2013, the BLM held a series of public meetings to discuss draft proposed revisions to Orders 3, 4, and 5. The meetings were webcast so tribal members, industry, and the public across the country could participate and ask questions either in person or over the Internet. Following the forum, the BLM opened a 36-day informal comment period, during which 13 comment letters were submitted. The following summarizes comments relating to Order 4:
Executive Order 12866 provides that the Office of Information and Regulatory Affairs (OIRA) will review all significant rules. The OIRA has determined that this rule is significant because it would raise novel legal or policy issues.
Executive Order 13563 reaffirms the principles of E.O. 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. E.O. 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The BLM has developed this rule in a manner consistent with these requirements.
The BLM certifies that this proposed rule would not have a significant economic effect on a substantial number of small entities as defined under the Regulatory Flexibility Act (5 U.S.C. 601
Of the 6,628 domestic firms involved in onshore oil and gas extraction, 99 percent (or 6,530) had fewer than 500 employees. There are another 10,160 firms involved in drilling and other support functions. Of the firms providing support functions, 99 percent of those firms had fewer than 500 employees. Based on this national data, the preponderance of firms involved in developing oil and gas resources are small entities as defined by the SBA. As such, it appears a number of small entities potentially could be affected by this proposed rule. Using the best available data, the BLM estimates there are approximately 3,700 lessees/operators conducting oil operations on Federal and Indian lands that could be affected by this rule.
In addition to determining whether a number of small entities are likely to be affected by this rule, the BLM must also determine whether the rule is anticipated to have a significant economic impact on those small entities. On an ongoing basis, we estimate the proposed changes to the LACT meter proving frequency requirements based on volume throughput would increase the regulated community's annual costs by less than $258,000, and would affect approximately 74 of the highest-volume LACT systems. In addition, there would be a one-time cost to retrofit 20 percent of existing LACT systems of about $1.4 million, or a one-time average cost of about $4,000 to approximately 346 existing LACT systems. New paperwork requirements would also increase operators' one-time costs by about $700,000 for submitting revised tank calibration tables to the BLM. New annual paperwork costs would amount to about $300,000. All of the proposed provisions would apply to entities regardless of size. However, entities with the greatest activity would likely experience the greatest increase in compliance costs.
Based on the available information, we conclude that the proposed rule would not have a significant impact on a substantial number of small entities. Therefore, a final Regulatory Flexibility Analysis is not required, and a Small Entity Compliance Guide is not required.
This proposed rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule would not have an annual effect on the economy of $100 million or more. As explained under the preamble discussion concerning Executive Order 12866, Regulatory Planning and Review, proposed changes to Order 4, Measurement of Oil, would increase, by about $558,000 annually, the cost associated with the development and production of crude oil resources under Federal and Indian oil and gas leases. There would also be a one-time cost estimated to be $2.1 million.
This rule proposes to replace Order 4 to ensure that crude oil produced from Federal and Indian oil and gas leases is accurately measured and accounted for. Based on the cost figures above, the estimated annual increased cost to each entity that produces oil from all Federal and Indian leases for implementing these changes would be about $150 per year, and a one-time average cost of about $570 per entity for the estimated 3,700 lessees/operators conducting operations on Federal or Indian leases.
This proposed rule:
• Would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, tribal, or local government agencies, or geographic regions; and
• Would not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
• This proposed rule would not “significantly or uniquely” affect small governments. A Small Government Agency Plan is unnecessary.
• This proposed rule would not produce a Federal mandate of $100 million or greater in any single year.
The proposed rule is not a “significant regulatory action” as it would not require anything of any non-Federal governmental entity.
Under Executive Order 12630, the proposed rule would not have significant takings implications. A takings implication assessment is not required. This proposed rule would establish the minimum standards for accurate measurement and proper reporting of oil produced from Federal and Indian leases, unit PAs, and CAs, by providing a system for production accountability by operators and lessees. All such actions are subject to lease terms which expressly require that subsequent lease activities be conducted in compliance with applicable Federal laws and regulations. The proposed rule conforms to the terms of those Federal leases and applicable statutes, and as such the proposed rule is not a governmental action capable of interfering with constitutionally protected property rights. Therefore, the proposed rule would not cause a taking of private property or require further discussion of takings implications under this Executive Order.
In accordance with Executive Order 13132, the BLM finds that the proposed rule would not have significant Federalism effects. A Federalism assessment is not required. This proposed rule would not change the role of or responsibilities among Federal, State, and local governmental entities. It does not relate to the structure and role of the States and would not have direct, substantive, or significant effects on States.
Under Executive order 13175, the President's memorandum of April 29, 1994, “Government-to-Government Relations with Native American Tribal Governments” (59 FR 22951), and 512 Departmental Manual 2, the BLM evaluated possible effects of the proposed rule on federally recognized Indian tribes. The BLM approves proposed operations on all Indian onshore oil and gas leases (except Osage Tribe). Therefore, the proposed rule has the potential to affect Indian tribes. In conformance with the Secretary's policy on tribal consultation, the BLM held three tribal consultation meetings to which more than 175 tribal entities were invited. The consultations were held in:
• Tulsa, Oklahoma on July 11, 2011;
• Farmington, New Mexico on July 13, 2011; and
• Billings, Montana on August 24, 2011.
In addition, the BLM hosted a tribal workshop and webcast in Washington, DC on April 24, 2013.
The purpose of these meetings was to solicit initial feedback and preliminary comments from the tribes. Comments from the tribes will continue to be accepted and consultation will continue as this rulemaking proceeds. To date, the tribes have expressed concerns about the subordination of tribal laws, rules, and regulations to the proposed rule; representation on the DOI GOMT; and the BLM's Inspection and Enforcement program's ability to enforce the terms of this proposed rule. While the BLM will continue to address these concerns, none of the concerns expressed relate to or affect the substance of this proposed rule.
Under Executive Order 12988, the Office of the Solicitor has determined that the proposed rule would not unduly burden the judicial system and meets the requirements of Sections 3(a) and 3(b)(2) of the Executive Order. The Office of the Solicitor has reviewed the proposed rule to eliminate drafting errors and ambiguity. It has been written to minimize litigation, provide clear legal standards for affected conduct rather than general standards, and promote simplification and burden reduction.
Under Executive Order 13352, the BLM has determined that this proposed rule would not impede facilitating cooperative conservation and would take appropriate account of and consider the interests of persons with ownership or other legally recognized interests in land or other natural resources. This rulemaking process will involve Federal, tribal, State, and local governments, private for-profit and nonprofit institutions, other nongovernmental entities and individuals in the decision-making via the public comment process. That process would provide that the programs, projects, and activities are consistent with protecting public health and safety.
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3521) provides that an agency may not conduct or sponsor, and a person is not required to respond to, a “collection of information,” unless it displays a currently valid OMB control number. Collections of information include any request or requirement that persons obtain, maintain, retain, or report information to an agency, or disclose information to a third party or to the public (44 U.S.C. 3502(3) and 5 CFR 1320.3(c)). This proposed rule contains information collection requirements that are subject to review by OMB under the PRA. In accordance with the PRA, the BLM is inviting public comments on proposed new information collection requirements for which the BLM is requesting a new OMB control number.
After promulgating a final rule and receiving approval from the OMB (in the form of a new control number), the BLM intends to ask OMB to combine the activities authorized by the new control number with existing control number 1004-0137, Onshore Oil and Gas Operations (expiration date January 31, 2018).
The information collection activities in this proposed rule are described below along with estimates of the annual burdens. These activities, along with annual burden estimates, do not include activities that are considered usual and customary industry practices. Included in the burden estimates are the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each component of the proposed information collection requirements.
The information collection request for this proposed rule has been submitted to OMB for review under 44 U.S.C. 3507(d). A copy of the request can be obtained from the BLM by electronic mail request to Jennifer Spencer at
The BLM requests comments on the following subjects:
1. Whether the collection of information is necessary for the proper functioning of the BLM, including whether the information will have practical utility;
2. The accuracy of the BLM's estimate of the burden of collecting the information, including the validity of the methodology and assumptions used;
3. The quality, utility, and clarity of the information to be collected; and
4. How to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other forms of information technology.
If you want to comment on the information collection requirements of this proposed rule, please send your comments directly to OMB, with a copy to the BLM, as directed in the
Proposed § 3174.5(c) would require submission of tank calibration tables to the BLM within 30 days after calibration. This provision would ensure that BLM personnel would have the latest tables when conducting inspections or audits.
Proposed § 3174.7(e)(1) would require the operator to notify the BLM within 24 hours of any LACT system failures or equipment malfunctions which may have resulted in measurement error.
Proposed § 3174.10(d) would require the operator to notify the BLM within 24 hours of any changes to any Coriolis meter internal calibration factors.
Proposed § 3174.10(i), (j), and (k) would establish minimum requirements for the information about Coriolis Measurement Systems (CMSs) that the operator would need to maintain on-site, information that must be retained for an audit trail, and requirements for protecting the retained data in the CMS unit's memory. This information is necessary for the BLM to ensure compliance with these regulations and conduct production audits.
Proposed § 3174.11(c) would require the operator to have available on-site, for review by the BLM, a valid certificate of calibration for the meter prover that is used to determine the meter factor.
Proposed 3174.11(j) would require the operator to provide a meter proving report no later than 14 days after a meter proving. The following information would be required:
• All meter-proving and volume adjustments after any LACT system or CMS malfunction;
• FMP number;
• Lease number, CA number, or unit PA number;
• The temperature from the test thermometer and the temperature from the temperature averager or tertiary device;
• For CMS, the pressure applied by the pressure test device and the pressure reading from the tertiary device at the three points required under paragraph (h)(3) of this section; and
• The “as left” fluid flow rate and fluid pressure, if the back-pressure valve is adjusted after proving.
Proposed 3174.13 would require prior BLM approval for any method of oil measurement other than manual tank gauging, LACT system, or CMS at a Facility Measurement Point. Any operator requesting approval to use alternative oil measurement equipment would be required to submit to the BLM:
• Performance data;
• Actual field test results;
• Laboratory test data; or
• Any other supporting data or evidence that demonstrates that the proposed alternative oil measurement equipment would meet or exceed the objectives of the applicable minimum requirements at proposed subpart 3174 and would not affect royalty income or production accountability.
The following table details the information elements and respective annual hour burdens of the request for a new control number:
The BLM has prepared a draft environmental assessment (EA) that concludes that this proposed rule would not have a significant impact on the quality of the environment under NEPA, 42 U.S.C. 4332(2)(C), therefore a detailed statement under NEPA is not required. A copy of the draft EA can be viewed at
The proposed rule would not impact the environment significantly. For the
Although this proposed rule would amend the BLM's oil production regulations, it would not have a substantial direct effect on the nation's energy supply, distribution, or use, including a shortfall in supply or price increases. Changes in this proposed rule would strengthen the BLM's accountability requirements for operators holding Federal and Indian oil leases. As discussed previously, these changes would increase recordkeeping requirements and establish national requirements for operators who wish to use CMSs. All of the changes would increase the regulated community's annual costs by about $558,000, or about $150 per entity per year.
We expect that the proposed rule would not result in a net change in the quantity of oil that is produced from Federal and Indian leases.
In developing this proposed rule, we did not conduct or use a study, experiment, or survey requiring peer review under the Information Quality Act (Pub. L. 106-554, Appendix C Title IV, 515, 114 Stat. 2763A-153).
Executive Order 12866 requires each agency to write regulations that are simple and easy to understand. We invite your comments on how to make these proposed regulations easier to understand, including answers to questions such as the following:
1. Are the requirements in the proposed regulations clearly stated?
2. Do the proposed regulations contain technical language or jargon that interferes with their clarity?
3. Does the format of the proposed regulations (grouping and order of sections, use of headings, paragraphing, etc.) aid or reduce their clarity?
4. Would the regulations be easier to understand if they were divided into more (but shorter) sections?
5. Is the description of the proposed regulations in the
Please send any comments you have on the clarity of the regulations to the address specified in the
The principal authors of this proposed rule are Mike McLaren of the BLM Pinedale, Wyoming Field Office; Steve Klimetz of the U.S. Forest Service Region 8 Office, Atlanta, Georgia (formerly of the BLM); Tom Zelenka of the BLM New Mexico State Office; Chris DeVault from the BLM Montana State Office; Val Jamison of the BLM Farmington, New Mexico Field Office; assisted by Faith Bremner, BLM, Division of Regulatory Affairs, Washington Office; Mike Wade, BLM, Washington Office; Rich Estabrook, BLM, Washington Office; and Geoffrey Heath, Office of the Solicitor, Department of the Interior.
Administrative practice and procedure, Government contracts, Indians-lands, Mineral royalties, Oil and gas exploration, Penalties, Public lands—mineral resources, Reporting and recordkeeping requirements.
Administrative practice and procedure, Immediate assessments, Incorporation by reference, Indians-lands, Mineral royalties, Oil and gas measurement, Public lands—mineral resources.
For the reasons set out in the preamble, the Bureau of Land Management proposes to amend 43 CFR part 3160 and, as proposed to be added on July 13, 2015 (80 FR 40768), 43 CFR part 3170, as follows:
25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 1751; and 43 U.S.C. 1732(b), 1733, and 1740.
All oil removed or sold from a lease, communitized area, or unit participating area must be measured under subpart 3174 of this title. All measurement must be on the lease, communitized area, or unit from which the oil originated and must not be commingled with oil originating from other sources unless approved by the authorized officer under the provisions of subpart 3173 of this title.
25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 1751; and 43 U.S.C. 1732(b), 1733, and 1740.
(a) As used in this subpart, the term:
(b) As used in this subpart part the following additional acronyms carry the meaning prescribed:
(a) Oil may be stored only in tanks that meet the requirements of § 3174.5(b) of this subpart.
(b) Oil must be measured on the lease, unit, or CA, unless approval for off-lease measurement is obtained under §§ 3173.21 and 3173.22 of this part.
(c) Oil produced from a lease, unit PA, or CA may not be commingled with production from other leases, unit PAs, or CAs or non-Federal properties before the point of royalty measurement, unless prior approval is obtained under §§ 3173.14 and 3173.15 of this part.
(d) An operator must obtain a BLM-approved FMP number under §§ 3173.12 and 3173.13 of this part for each oil measurement facility where the measurement affects the calculation of the volume or quality of production on which royalty is owed (
(e) Except as provided in paragraph (f) of this section, all equipment used to measure the volume of oil for royalty purposes installed after [THE EFFECTIVE DATE OF THE FINAL RULE] must comply with the requirements of this subpart. Equipment
(f) Meters used for allocation under a commingling and allocation approval under 43 CFR 3173.14 are not required to meet the requirements of this subpart.
(a)
(2) Only a BLM State Director may grant an exception to the uncertainty levels prescribed in paragraph (a)(1) of this section, and only upon:
(i) A showing that meeting the required uncertainly level would involve extraordinary cost or unacceptable adverse environmental effects; and
(ii) Written concurrence of the BLM Director.
(b)
(c)
(d)
(a) Certain material specified in paragraphs (b) and (c) of this section is incorporated by reference into this part with the approval of the Director of the
(b) American Petroleum Institute (API), 1220 L Street NW., Washington, DC 20005; telephone 202-682-8000; API also offers free, read-only access to some of the material at
(1) API Manual of Petroleum Measurement Standards (MPMS) Chapter 2, Section 2A, Measurement and Calibration of Upright Cylindrical Tanks by the Manual Tank Strapping Method, 1st Ed., February 1995, Reaffirmed February 2012 (“API 2.2A”), IBR approved for § 3174.5(c).
(2) API MPMS Chapter 3, Section 1A, Standard Practice for the Manual Gauging of Petroleum and Petroleum Products, 3rd Ed., August 2013 (“API 3.1A”), IBR approved for §§ 3174.5(b)(7) and 3174.6(b)(5).
(3) API MPMS Chapter 4, Section 1, Introduction, 3rd Ed., February 2005, Reaffirmed June 2014 (“API 4.1”), IBR approved for § 3174.11(d).
(4) API MPMS Chapter 4, Section 2, Displacement Provers, 3rd Ed., September 2003, Reaffirmed March 2011 (“API 4.2,” and “API 4.2, Eq. 12”), IBR approved for §§ 3174.11(c)(2) and 3174.11(c)(4).
(5) API MPMS Chapter 4, Section 5, Master-Meter Provers, 3rd Ed., November 2011 (“API 4.5”), IBR approved for § 3174.11(c)(1).
(6) API MPMS Chapter 4, Section 6, Pulse Interpolation, 2nd Ed., May 1999, Reaffirmed October 2013 (“API 4.6”), IBR approved for § 3174.11(d)(2).
(7) API MPMS Chapter 4, Section 9, Part 2, Methods of Calibration for Displacement and Volumetric Tank Provers, Determination of the Volume of Displacement and Tank Provers by the Waterdraw Method of Calibration, 1st Ed., December, 2005, Reaffirmed September 2010 (“API 4.9.2”), IBR approved for § 3174.11(c)(2).
(8) API MPMS Chapter 5, Section 6, Measurement of oil by Coriolis Meters, 1st Ed., October 2002, Reaffirmed November 2013 (“API 5.6,” “API 5.6.3.2(e),” API 5.6.8.3,” “API 5.6.9.1.2.1,” and “API 5.6, Eq. 2”), IBR approved for §§ 3174.9(b), 3174.9(d), 3174.9(e)(1), 3174.10(c), 3174.10(f), 3174.11(i), and 3174.11(j).
(9) API MPMS Chapter 6, Section 1, Lease Automatic Custody Transfer (LACT) Systems, 2nd Ed., May 1991, Reaffirmed May 2012 (“API 6.1”), IBR approved for § 3174.7(a).
(10) API MPMS Chapter 7, Temperature Determination, 1st Ed., June 2001, Reaffirmed February 2012 (“API 7” and “API 7.1”), IBR approved for §§ 3174.6(b)(2), 3174.6(c)(1), and 3174.8(b)(11)(i).
(11) API MPMS Chapter 8, Section 1, Standard Practice for Manual Sampling of Petroleum and Petroleum Products, 4th Ed., October 2013, (“API 8.1”), IBR approved for § 3174.6(b)(3).
(12) API MPMS Chapter 9, Section 3, Standard Test Method for Density, Relative Density, and API Gravity of Crude Petroleum and Liquid Petroleum Products by Thermohydrometer Method, 3rd Ed., December 2012 (“API 9.3”), IBR approved for § 3174.6(b)(4).
(13) API MPMS Chapter 10 Section 4, Determination of Water and/or Sediment in Crude Oil by the Centrifuge Method (Field Procedure), 4th Ed., October 2013 (“API 10.4,” “10.4.9,” and “10.4.9.2”), IBR approved for §§ 3174.6(b)(6), 3174.6(b)(6)(i), 3174.6(b)(iii)(A), and 3174.6(b)(iii)(B).
(14) API MPMS Chapter 11, Section 1, Temperature and Pressure Volume Correction Factors for Generalized Crude Oils, Refined Products and Lubricating Oils, 2nd Ed., May 2004, including Addendum 1, September 2007, Reaffirmed August 2013 (“API 11.1”), IBR approved for §§ 3174.6(b)(10)(i), 3174.6(b)(10)(iii), 3174.6(b)(10)(v), and 3174.10(h)(2).
(15) API MPMS Chapter 12, Section 2, Part 1, Calculation of Petroleum Quantities Using Dynamic Measurement Methods and Volumetric Correction Factors, 2nd Ed., May 1995, Reaffirmed March 2014 (“API 12.2.1”), IBR approved for § 3174.10(h)(2).
(16) API MPMS Chapter 12, Section 2, Part 3, Calculation of Petroleum Quantities Using Dynamic Measurement Methods and Volumetric Correction Factors, Proving Report, 1st Ed., October 1998, Reaffirmed March 2009 (“API 12.2.3”), IBR approved for §§ 3174.11(d)(5) and 3174.11(j)(1).
(17) API MPMS Chapter 12, Section 2, Part 4, Calculation of Petroleum Quantities Using Dynamic Measurement Methods and Volumetric Correction
(18) API MPMS Chapter 18, Section 1, Measurement Procedures for Crude Oil Gathered From Small Tanks by Truck, 2nd Ed., April 1997, Reaffirmed February 2012 (“API 18.1”), IBR approved for § 3174.6(a).
(19) API MPMS Chapter 21, Section 2, Electronic Liquid Volume Measurement Using Positive Displacement and Turbine Meters, 1st Ed., June 1998, Reaffirmed August 2011 (“API 21.2,” “API 21.2.10,” “21.2.10.2,” “21.2.10.6,” and “API 21.2.9.2.13.2a”), IBR approved for §§ 3174.8(b)(11)(iii), 3174.10(g)(2), 3174.10(h)(2), 3174.10(j), 3174.10(j)(2), and 3174.10(j)(3).
(20) API Recommended Practice (RP) 12 R1, Setting, Maintenance, Inspection, Operation and Repair of Tanks in Production Service, 5th Ed., August 1997, Reaffirmed April 2008 (“API RP 12 R1”), IBR approved for § 3174.5(b)(1).
(21) API RP 2556, Correction Gauge Tables For Incrustation, 2nd Ed., August 1993, Reaffirmed August 2013 (“API RP 2556”), IBR approved for § 3174.5(c).
(c) American Society for Testing and Materials (ASTM), 100 Bar Harbor Drive, P.O. Box C700, West Conshohocken, PA 19428; telephone 1-877-909-2786;
(1) ASTM D-1250, Table 5A, Generalized Crude Oils Correction of Observed Gravity to API Gravity at 60° F, September 1980 (“ASTM Table 5A”), IBR approved for § 3174.6(b)(10)(i).
(2) ASTM D-1250, Table 6A, Generalized Crude Oils Correction of Volume to 60° F Against API Gravity at 60° F, September 1980 (“ASTM Table 6A”), IBR approved for §§ 3174.6(b)(10)(iii), 3174.6(b)(10)(v), and 3174.10(h)(2).
You may also be able to purchase these standards from the following resellers: Techstreet, 3916 Ranchero Drive, Ann Arbor, MI 48108; telephone 734-780-8000;
(a)
(b)
(2) Each oil storage tank must be connected, maintained, and operated in compliance with §§ 3173.2, 3173.6, and 3173.7 of this part.
(3) All oil storage tanks, hatches, connections, and other access points must be vapor tight.
(4) Each oil storage tank, unless connected to a vapor recovery system, must have a pressure-vacuum relief valve installed at the highest point in the vent line or connection with another tank. Pressure-vacuum relief valves must provide for normal inflow and outflow venting at an outlet pressure that is less than the thief hatch exhaust pressure and at an inlet pressure that is greater than the thief hatch vacuum setting.
(5) All oil storage tanks must be clearly identified and have a unique number stenciled on the tank and maintained in a legible condition.
(6) Each oil storage tank associated with an approved FMP must be set and maintained level.
(7) Each oil storage tank associated with an approved FMP by tank gauging must be equipped with a distinct gauging reference point, with the height of the reference point stamped on a fixed bench-mark plate or stenciled on the tank near the gauging hatch and must be maintained in a legible condition, consistent with API 3.1A (incorporated by reference, see § 3174.4).
(c)
(1) Determine sales tank capacities by tank calibration using actual tank measurements;
(i) The unit volume must be in barrels (bbl); and
(ii) The incremental height measurement must be in
(2) Recalibrate a sales tank if it is relocated, repaired, or the capacity is changed as a result of denting, damage, installation, removal of interior components, or other alterations; and
(3) Submit sales tank calibration charts (tank tables) to the AO within 30 days after calibration. Tank tables may be in paper or electronic format.
(a) The procedures for oil measurement by manual tank gauging from tanks with capacities of 1,000 bbl or less must comply with API 18.1 (incorporated by reference, see § 3174.4) as outlined in the following table and further described in paragraph (b) of this section. Tanks with capacities greater than 1,000 bbl must also comply as outlined in the following table and further described in paragraph (b) of this section.
(b) The operator must take the steps in the order prescribed in the following paragraphs to manually determine the quality and quantity of oil measured under field conditions at an FMP.
(1)
(2)
(i) Glass thermometers must be clean, be free of mercury separation, and have a minimum graduation of 1.0° F.
(ii) Portable electronic thermometers must have a minimum graduation of 0.1° F and have an accuracy of ±0.5° F.
(iii) Suspend the cup-case thermometer assembly or portable electronic thermometer in the tank by immersing it at the approximate vertical center of the fluid column, not less than 12 inches from the shell of the tank, for the minimum immersion time prescribed in the following table (API 7, Table 6 (incorporated by reference, see § 3174.4)):
(iv) Record the temperature to the nearest 1.0° F for glass thermometers or 0.1° F for portable electronic thermometers.
(3)
(i) First, using a clean sampling thief, take an upper sample from the vertical center of the upper one-third of the fluid column. Transfer to a clean centrifuge tube a 100-part sample for 200-part (percent) centrifuge tubes or a 50-milliliter sample for 100-milliliter centrifuge tubes and cork the tube. Use the contents of the tube to determine sediment and water content under paragraph (b)(6) of this section.
(ii) Second, take a middle sample from the vertical center of the middle one-third of the fluid column to determine the observed API oil gravity and temperature. Immediately use this sample to determine oil gravity under paragraph (b)(4) of this section.
(iii) After determining observed API oil gravity, take an outlet sample with the inlet opening of the sample thief at the level of the bottom of the tank outlet. Transfer to a second clean centrifuge tube a 100-part sample for 200-part (percent) centrifuge tubes or a 50-milliliter sample for 100-milliliter centrifuge tubes and cork the tube. Use the contents of the tube to determine sediment and water content under paragraph (b)(6) of this section.
(4)
(i) The thermohydrometer must be calibrated for an oil gravity range that includes the observed gravity of the oil sample being tested and must be clean, with a clearly legible oil gravity scale and with no loose shot weights.
(ii) Slowly insert the thermohydrometer into the filled sample thief about 2 API gravity divisions below the expected settled position. Release with a slight spin.
(iii) Remove any air bubbles and allow the temperature to stabilize for at least 5 minutes.
(iv) Read and record the observed API oil gravity to the nearest 0.1 degree. For transparent liquids, read to the nearest scale division at the point on the scale at which the surface of the liquid cuts the scale. For opaque oil, read the scale at the top of the meniscus and deduct 0.1 degree gravity from the reading. Read and record the thermohydrometer temperature reading to the nearest 1.0° F.
(5)
(i) Gauging must use the proper bob for the particular measurement method,
(ii) Gauging must use gauging tapes made of steel or corrosion-resistant material with graduation clearly legible. The gauging tape must not be kinked or spliced.
(iii) Acceptable gauging requires either obtaining two consecutive identical gauging measurements or three consecutive measurements within
(iv) A suitable product-indicating paste may be used on the tape to facilitate the reading. The use of chalk or talcum powder is prohibited.
(v) The same tape and bob must be used for both opening and closing gauges.
(6)
(i) A thoroughly mixed oil sample-solvent combination, prepared in accordance with the procedure described in API 10.4.9.2 (incorporated by reference, see § 3174.4), must be heated to 140° F before centrifuging.
(ii) The heated sample must be whirled in the centrifuge for not less than 5 minutes. At the conclusion of centrifuging, the temperature must be a minimum of 115° F without water-saturated diluents or 125° F with water-saturated diluents.
(iii)(A) For 100-milliliter tubes, refer to API 10.4.9 Figure 1 (incorporated by reference, see § 3174.4). Read and record the volume of both water and sediment in each tube and add the readings
(B) For 200-part (percent) tubes, refer to API 10.4.9 Figure 2 (incorporated by reference, see § 3174.4). The percent of S&W is the average of the values directly read from the tubes. Record the S&W to three decimal places.
(7)
(8)
(9)
(10)
(i) The observed oil gravity must be corrected to 60° F using ASTM Table 5A or API 11.1 (both incorporated by reference, see § 3174.4).
(ii) Use the opening gauge with the tank-specific calibration charts (tank tables) (see paragraph (e) of this section) to compute the total observed volume of oil prior to sales.
(iii) Correct the total observed volume of oil prior to sales to 60 °F using the calculated API oil gravity at 60° F (see paragraph (b)(1) of this section) and the opening oil temperature using ASTM Table 6A or API 11.1 (both incorporated by reference, see § 3174.4) to determine the gross standard volume prior to sales.
(iv) Use the closing gauge with the tank-specific calibration charts (tank tables) to compute the total observed volume of oil after sales.
(v) Correct the total observed volume of oil after sales to 60° F using the API oil gravity corrected to 60° F (see paragraph (b)(1) of this section) and the closing oil temperature using ASTM Table 6A or API 11.1 (both incorporated by reference, see § 3174.4) to determine the gross standard volume after sales.
(vi) The gross standard volume sold is the difference between the gross standard volume prior to sales and the gross standard volume after sales.
(vii) The gross standard volume sold must be corrected for quantities of non-merchantable substances such as S&W to determine net standard volume (may be corrected at a later time prior to Oil and Gas Operations Report submission).
(a) A LACT system must meet the construction and operation requirements and minimum standards of this section and § 3174.8 and API 6.1 (incorporated by reference, see § 3174.4).
(b) A LACT system must be proven as prescribed in § 3174.11 of this subpart. Measurement tickets must be completed under § 3174.12(b) of this subpart before conducting proving operations.
(c) The following table lists the requirements under which the operator must measure oil using a LACT system:
(d) All components of a LACT system must be accessible for inspection by the AO.
(e)(1) The operator must notify the AO within 24 hours of any LACT system failures or equipment malfunctions which may have resulted in measurement error.
(2) Such system failures or equipment malfunctions include, but are not limited to, electrical, meter, and other failures that affect oil measurement.
(f) Any tests conducted on oil samples extracted from LACT system samplers for determination of temperature, oil gravity, and S&W content must meet the requirements and minimum standards in §§ 3174.6(b)(2), (4), and (6) of this subpart.
(g) Automatic temperature compensators and automatic temperature and gravity compensators are prohibited.
(a)
(1) Charging pump and motor;
(2) Sampler, composite sample container, and mixing system;
(3) Strainer;
(4) Air eliminator;
(5) S&W monitor;
(6) Diverter valve or shut-off valve;
(7) Positive displacement meter;
(8) Electronic temperature averaging device;
(9) Meter proving connections; and
(10) Meter back-pressure valve and check valve.
(b) Operation of all LACT system components must meet the following minimum standards:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(i) The temperature sensor must be placed as required under API 7.1 (incorporated by reference, see § 3174.4);
(ii) The electronic temperature averaging device must be flow proportional and take a temperature reading at least once per barrel;
(iii) The average temperature for the measurement ticket must be calculated by the volumetric averaging method using API 21.2.9.2.13.2a (incorporated by reference, see § 3174.4);
(iv) The temperature averaging device must have a reference accuracy of±0.5 °F, or better; and
(v) The temperature averaging device must include a display of instantaneous temperature and the average temperature calculated since the measurement ticket was opened. The temperatures must be displayed to the nearest 0.1 °F.
(12)
(13)
(a) The specific makes, models, and sizes of Coriolis meter and associated software that are identified and described at
(b) A CMS must meet the operational requirements and minimum standards of this section, § 3174.10 and API 5.6 (incorporated by reference, see § 3174.4).
(c) A CMS system must be proven at the frequency and under the requirements of § 3174.11 of this subpart. Measurement tickets must be completed under § 3174.12(b) of this subpart before conducting proving operations.
(d) The following table lists the requirements and applicable API standards under which an operator must measure oil using a CMS:
(e) A CMS at an FMP must be installed with the following minimum components listed in order from upstream to downstream:
(1) Charge pump, if necessary to maintain the minimum required pressure under API 5.6.3.2 (incorporated by reference, see § 3174.4) and flow rate to achieve the uncertainty levels required under § 3174.3(a) of this subpart;
(2) Block valve upstream of the meter (for zero value verification);
(3) Air/vapor eliminator upstream of the meter;
(4) Coriolis meter (see § 3174.10(a) through (f) of this subpart);
(5) RTD downstream of the meter, but upstream of the meter-proving connection, with a reference accuracy of ±0.5 °F, or better, and on the list of type-tested equipment maintained at
(6) Pressure transducer downstream of the meter, but upstream of the meter-proving connection, with a reference accuracy of ±0.25 psi, or ±0.25 percent of reading, or better, whichever is less restrictive, and on the list of type-tested equipment maintained at
(7) Density measurement verification point;
(8) Sampling system as required in § 3174.8 paragraphs (b)(2) through (4) of this subpart, if S&W is to be used in determining net oil volume. If no sampling system is included, the S&W must be reported as zero (see § 3174.10(g)(3) of this subpart);
(9) Meter-proving connection (block and bleed valves) downstream of the meter;
(10) Back-pressure valve downstream of the meter; and
(11) Check valve downstream of the meter.
(a)
(b)
(i) The reference accuracy for both mass flow rate and density, stated in either percent of reading, percent of full scale, or units of measure;
(ii) The effect of changes in temperature and pressure on both mass flow and fluid density readings, and the effect of flow rate on density readings. These specifications must be stated in percent of reading, percent of full scale, or units of measure over a stated amount of change in temperature, pressure, or flow rate (
(iii) The stability of the zero reading for both mass and volumetric flow rate. The specifications must be stated in percent of reading, percent of full scale, or units of measure;
(iv) Minimum lengths of straight piping upstream and downstream of the meter necessary to achieve the stated reference accuracy;
(v) Design limits for flow rate and pressure; and
(vi) Pressure drop through the meter as a function of flow rate and fluid viscosity.
(2)
(c)
(d)
(e)
(f)
(g)
(1) Calculate the corrected registered volume at the close of each measurement ticket by multiplying the registered volume over the measurement ticket period by the meter factor determined from the most recent proving.
(2) Calculate the gross standard volume at the close of each measurement ticket by multiplying the corrected registered volume by the CPL and CTL determined from the average pressure and average temperature, respectively, taken over the measurement ticket period. The average pressure and temperature must be determined using API 21.2.9.2.13.2a (incorporated by reference, see § 3174.4).
(3) Calculate the net standard volume at the close of each measurement ticket by multiplying the gross standard volume by the quantity of one minus the S&W content (expressed as a fraction) from the composite sample taken over the measurement ticket period. If the CMS does not include a composite sampling system, the S&W content is zero and the net standard volume will equal the gross standard volume.
(h)
(1) From a composite sample taken under the requirements of § 3174.6(b)(4) of this subpart; or
(2) Calculated from the average density, average temperature, and average pressure as measured by the CMS over the measurement ticket period under API 21.2.9.2.13.2a (incorporated by reference, see § 3174.4). The average density must be corrected to base temperature and pressure using ASTM Table 6A or API 11.1, (both incorporated by reference, see § 3174.4).
(i)
(2) For each CMS, the following values and corresponding units of measurement must be displayed:
(i) The instantaneous mass flow rate through the meter (pounds/day);
(ii) The instantaneous density of liquid (pounds/bbl);
(iii) The instantaneous registered volumetric flow rate through the meter (bbl/day);
(iv) The meter factor;
(v) The instantaneous pressure (psi);
(vi) The instantaneous temperature (°F);
(vii) The cumulative gross standard volume through the meter (non-resettable totalizer) (bbl);
(viii) The previous day's gross standard volume through the meter (bbl); and
(ix) The meter alarm conditions.
(3) The following information must be correct, be maintained in a legible condition, and be accessible to the AO at the FMP without the use of data collection equipment, laptop computers, or any special equipment:
(i) The make, model, and size of each sensor; and
(ii) The make, range, calibrated span, and model of the pressure and temperature transducer used to determine gross standard volume.
(4) A log must be maintained of all meter factors, zero verifications, and zero adjustments. For zero adjustments, the log must include the zero value before adjustment and the zero value after adjustment. This log must be located on-site and accessible to the AO.
(j)
(1)
(2)
(3)
(4)
(i) Density deviations from acceptable parameters; and
(ii) Instances in which the flow rate exceeded the manufacturer's maximum recommended flow rate or were below the manufacturer's minimum recommended flow rate.
(k)
(a)
(b)
(c)
(1) Master meters must have a meter factor within 0.9900 to 1.0100 determined by a minimum of five consecutive prover runs within 0.0002 (0.02 percent repeatability). The master meter must not be mechanically compensated for oil gravity or temperature; its readout must indicate units of volume without corrections. The certified meter factor must be documented on the calibration certificate and must be calibrated no less frequently than every 90 days under API 4.5 (incorporated by reference, see § 3174.4).
(2) Displacement provers must meet the requirements under API 4.2 (incorporated by reference, see § 3174.4) and be calibrated using the water-draw method under API 4.9.2 (incorporated by reference, see § 3174.4), at the following frequencies:
(i) Portable provers must be calibrated at least once every 36 months; and
(ii) Permanently installed provers must be calibrated at least once every 60 months.
(3) The base prover volume of a displacement prover must be calculated under API 12.2.4 (incorporated by reference, see § 3174.4).
(4) Displacement provers must be sized to obtain a displacer velocity through the prover that is within the appropriate range during proving as follows:
Fluid velocity is calculated by the following equation (API 4.2., Eq. 12 (incorporated by reference, see § 3174.4)):
(d)
(1) Meter proving must be performed under normal operating fluid pressure, fluid temperature, and fluid type and composition, as follows:
(i) The oil flow rate through the LACT or CMS during proving must be within 10 percent of the normal flow rate;
(ii) The absolute pressure as measured by the LACT or CMS during proving must be within 10 percent of the normal operating absolute pressure; and
(iii) The gravity of the oil during proving must be within 5 degrees API of the normal oil gravity.
(iv) If the normal flow rate, pressure, temperature, or oil gravity vary by more than the limits defined in paragraphs (d)(i) through (iii) of this section, meter provings must be conducted under three conditions, namely, at the lower limit of normal operating conditions, at the upper limit of normal operation conditions, and at the midpoint of normal operating conditions.
(2) If each proving run is not of sufficient volume to generate at least 10,000 pulses from the positive displacement meter in a LACT system or the Coriolis meter in a CMS, pulse interpolation must be used in accordance with API 4.6 (incorporated by reference, see § 3174.4).
(3) Proving runs must be made until the calculated meter factor from five consecutive runs match within a tolerance of 0.0005 (0.05 percent) between the highest and the lowest value.
(4) The new meter factor is the arithmetic average of the meter factors calculated from the five consecutive runs.
(5) Meter factor computations must follow the sequence described in API 12.2.3 (incorporated by reference, see § 3174.4).
(6) If multiple meters factors are determined over a range of normal operating conditions, then:
(i) A single meter factor may be calculated as the arithmetic average of the three meter factors determined over the range of normal operating conditions; or
(ii) The metering system may apply a dynamic meter factor derived from the three meter factors determined over the range of normal operating conditions.
(7) The meter factor must be at least 0.9900 and no more than 1.0100.
(8) The initial meter factor for a new or repaired meter must be at least 0.9950 and no more than 1.0050.
(9) The back-pressure valve may be adjusted after proving only within the normal operating fluid flow rate and fluid pressure as described in paragraph (d)(1) of this section. If the back-pressure valve is adjusted after proving, the operator must document the “as left” fluid flow rate and fluid pressure on the proving report.
(10) If a composite meter factor is calculated, the CPL value must be calculated from the pressure setting of the back-pressure valve or the normal operating pressure at the meter. Composite meter factors must not be used in a CMS.
(e)
(1) Initial meter installation;
(2) Each time the registered volume flowing through the meter, as measured on the non-resettable totalizer from the last proving, increases by 50,000 bbl or quarterly, whichever occurs first;
(3) Meter zeroing (CMS);
(4) Modification of mounting conditions;
(5) A change in fluid temperature outside of the RTD's calibrated span;
(6) A change in pressure, density, or flow rate that is outside of the operating proving limits;
(7) The mechanical or electrical components of the meter have been opened, changed, repaired, removed, exchanged, or reprogrammed; or
(8) At the request of the AO.
(f)
(2) The arithmetic average of the two successive meter factors must be applied to the production measured through the meter between the date of the previous meter proving and the date of the most recent meter proving.
(3) The proving report submitted under paragraph (j) of this section must clearly show the most recent meter factor and describe all subsequent repairs and adjustments.
(g)
(1) The temperature averager or RTD must be compared with a test thermometer traceable to NIST and with a stated accuracy of ±0.25 °F or better.
(2) The temperature reading displayed on the temperature averager or tertiary device must be compared with the reading of the test thermometer using one of the following methods:
(i) The test thermometer must be placed in a test thermometer well located not more than 12″ from the probe of the temperature averager or RTD; or
(ii) Both the test thermometer and probe of the temperature averager or RTD must be placed in an insulated water bath. The water bath temperature must be within 10 °F of the normal flowing temperature of the oil.
(3) The displayed reading of instantaneous temperature from the temperature averager or the tertiary device must be compared with the reading from the test thermometer. If they differ by more than 0.5 °F, then:
(i) The temperature averager or tertiary device must be adjusted to match the reading of the test thermometer; or
(ii) The difference in temperatures must be noted on the meter proving report and all temperatures used until the next proving must be adjusted by the difference.
(h)
(2) The pressure reading displayed on the tertiary device must be compared with the reading of the test pressure device.
(3) The pressure transducer must be tested at the following three points:
(i) Zero (atmospheric pressure);
(ii) 100 percent of the calibrated span of the pressure transducer; and
(iii) At a point that represents the normal flowing pressure through the Coriolis meter.
(4) If the pressure applied by the test pressure device and the pressure displayed on the tertiary device vary by more than the required accuracy of the pressure transducer, the pressure transducer must be adjusted to read
(i)
(j)
(2) In addition to the information required under paragraph (j)(1) of this section, each meter-proving report must also show the:
(i) FMP number;
(ii) Lease number, CA number, or unit PA number;
(iii) The temperature from the test thermometer and the temperature from the temperature averager or tertiary device;
(iv) For CMS, the pressure applied by the pressure test device and the pressure reading from the tertiary device at the three points required under paragraph (h)(3) of this section; and
(v) The “as left” fluid flow rate and fluid pressure, if the back-pressure valve is adjusted after proving as described in § 3174.11(d)(9).
(3) The operator must submit the meter-proving report to the AO no later than 14 days after the meter proving.
(a)
(1) Lease, unit, or communitization agreement number;
(2) FMP number;
(3) Unique tank number and nominal tank capacity;
(4) Opening and closing dates and times;
(5) Opening and closing gauges and observed temperatures in °F;
(6) Total observed volume prior to sales and after sales;
(7) Total gross standard volume removed from the tank;
(8) Observed API oil gravity and temperature;
(9) API oil gravity at 60 °F;
(10) S&W percent;
(11) Unique number of each seal removed and installed;
(12) Name of the individual performing the manual tank gauging;
(13) Name of the operator; and
(14) Name of the operator's representative certifying that the measurement is correct.
(15) If the operator does not agree with the tank gauger's measurement, the operator must notify the AO within 7 days of the reasons for the operator's disagreement with the tank gauger's measurement.
(b)
(i) Lease, unit, or communitization agreement number;
(ii) FMP number;
(iii) Opening and closing dates;
(iv) Opening and closing totalizer readings of the registered volume;
(v) Meter factor from the most recent proving;
(vi) Total gross standard volume removed through the LACT system or CMS;
(vii) API oil gravity. For API oil gravity determined from a composite sample, the API oil gravity at 60° F and the observed API oil gravity and temperature in °F. For API oil gravity determined from average density (CMS only), the average uncorrected density determined by the CMS;
(viii) The average temperature in °F;
(ix) The average flowing pressure in psig;
(x) S&W percent;
(xi) Unique number of each seal removed and installed;
(xii) Name of the purchaser's representative;
(xiii) Name of the operator; and
(xiv) Name of the operator's representative certifying that the measurement is correct.
(2) If the purchaser or transporter takes the LACT system or CMS measurement, and if the operator does not agree with the measurement, the operator must notify the AO within 7 days of the reasons for the operator's disagreement with the LACT system or CMS measurement.
(3) The accumulators used in the determination of average pressure, average temperature, and average density must be reset to zero whenever a new measurement ticket is opened.
(a) Any method of oil measurement other than manual tank gauging, LACT system, or CMS at an FMP requires BLM approval.
(b)(1) Any operator requesting approval to use alternate oil measurement equipment must submit to the BLM performance data, actual field test results, laboratory test data, or any other supporting data or evidence that demonstrates that the proposed alternate oil equipment would meet or exceed the objectives of the applicable minimum requirements of this subpart and would not affect royalty income or production accountability.
(2) The PMT will review the submitted data to ensure that the alternate oil measurement equipment meets the requirements of this subpart and will make a recommendation to the BLM to approve use of the equipment, disapprove use of the equipment or approve use of the equipment with conditions for its use. If the PMT recommends, and the BLM approves new equipment, the BLM will post the make, model, and range or software version on the BLM Web site
(c) The procedures for requesting and granting a variance under § 3170.6 of this part may not be used as an avenue for approving new technology, methods, or equipment. Approval of alternative oil measurement equipment or methods may be obtained only under this section.
(a) Under 43 CFR 3162.7-2, when production cannot be measured due to spillage or leakage, the amount of production must be determined by using any method the AO approves or prescribes. This category of production includes, but is not limited to, oil that is classified as slop oil or waste oil.
(b) No oil may be classified or disposed of as waste oil unless the operator can demonstrate to the satisfaction of the AO that it is not economically feasible to put the oil into marketable condition.
(c) The operator may not sell or otherwise dispose of slop oil without prior written approval from the AO. Following the sale or disposal of slop oil, the operator must notify the AO in writing of the volume sold or disposed of and the method used to compute the volume.
Certain instances of noncompliance warrant the imposition of immediate assessments upon the BLM's discovery of the violation, as prescribed in the following table. Imposition of any of these assessments does not preclude other appropriate enforcement actions.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS' Office of Protected Resources, upon request of NMFS' Southwest Fisheries Science Center (SWFSC), hereby issues regulations to govern the unintentional taking of marine mammals incidental to fisheries research conducted in multiple specified geographical regions, over the course of 5 years. These regulations, which allow for the issuance of Letters of Authorization for the incidental take of marine mammals during the described activities and specified timeframes, prescribe the permissible methods of taking and other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, as well as requirements pertaining to the monitoring and reporting of such taking.
Effective from October 30, 2015, through October 30, 2020.
A copy of SWFSC's application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the Internet at:
Ben Laws, Office of Protected Resources, NMFS, (301) 427-8401.
These regulations, under the Marine Mammal Protection Act (16 U.S.C. 1361
The SWFSC collects a wide array of information necessary to evaluate the status of exploited fishery resources and the marine environment. SWFSC scientists conduct fishery-independent research onboard NOAA-owned and operated vessels or on chartered vessels. A few surveys are conducted onboard commercial fishing vessels, but the SWFSC designs and executes the studies and funds vessel time.
We received an application from the SWFSC requesting five-year regulations and authorization to take multiple species of marine mammals. Take is anticipated to occur by Level B harassment incidental to the use of active acoustic devices in each of the three specified geographical regions, as well as by visual disturbance of pinnipeds in the Antarctic only, and by Level A harassment, serious injury, or mortality incidental to the use of fisheries research gear in the California Current and Eastern Tropical Pacific only. For each specified geographical region, the regulations are valid for five years from the date of issuance. Please see “Background” below for definitions of harassment.
Section 101(a)(5)(A) of the MMPA directs 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, after notice and public comment, the agency makes certain findings and issues regulations. These regulations would contain mitigation, monitoring, and reporting requirements.
Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I provide the legal basis for issuing the five-year regulations and any subsequent Letters of Authorization.
The following provides a summary of some of the major provisions within these regulations for the SWFSC fisheries research activities in the three specified geographical regions. We have determined that the SWFSC's adherence to the mitigation, monitoring, and reporting measures listed below would achieve the least practicable adverse impact on the affected marine mammals. They include:
• Required monitoring of the sampling areas to detect the presence of marine mammals before deployment of pelagic trawl nets or pelagic longline gear.
• Required use of marine mammal excluder devices on one type of pelagic trawl net and required use of acoustic deterrent devices on all pelagic trawl nets.
• Required implementation of the mitigation strategy known as the move-on rule, which incorporates best professional judgment, when necessary during pelagic trawl and pelagic longline operations.
Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361
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].
On April 25, 2013, we received an adequate and complete request from SWFSC for authorization to take marine mammals incidental to fisheries research activities. We received an initial draft of the request on February 11, 2012, followed by revised drafts on June 29 and December 21, 2012. On May 2, 2013 (78 FR 25703), we published a notice of receipt of SWFSC's application in the
SWFSC plans to conduct fisheries research using pelagic trawl gear used at various levels in the water column, pelagic longlines with multiple hooks, bottom-contact trawls, and other gear. If a marine mammal interacts with gear deployed by SWFSC, the outcome could potentially be Level A harassment, serious injury (
The SWFSC conducts fisheries research surveys in the California Current Ecosystem (CCE), the Eastern Tropical Pacific (ETP), and the Antarctic Marine Living Resources Ecosystem (AMLR). As required by the MMPA, SWFSC's request is considered separately for each specified geographical region. In the CCE, SWFSC requests authorization to take individuals of seventeen species by Level A harassment, serious injury, or mortality (hereafter referred to as M/SI + Level A) and of 34 species by Level B harassment. In the ETP, SWFSC requests authorization to take individuals of eleven species by M/SI + Level A and of 31 species by Level B harassment. In the AMLR, SWFSC requests authorization to take individuals of seventeen species by Level B harassment. No takes by M/SI + Level A are anticipated in the AMLR.
The SWFSC collects a wide array of information necessary to evaluate the status of exploited fishery resources and the marine environment. SWFSC scientists conduct fishery-independent research onboard NOAA-owned and operated vessels or on chartered vessels. A few surveys are conducted onboard commercial fishing vessels, but the SWFSC designs and executes the studies and funds vessel time. The SWFSC plans to administer and conduct approximately fourteen survey programs over the five-year period. The gear types used fall into several categories: pelagic trawl gear used at various levels in the water column, pelagic longlines, bottom-contact trawls, and other gear. Only use of pelagic trawl and pelagic longline gears are likely to result in interaction with marine mammals. The majority of these surveys also use active acoustic devices.
The federal government has a responsibility to conserve and protect living marine resources in U.S. waters and has also entered into a number of international agreements and treaties related to the management of living marine resources in international waters outside the United States. NOAA has the primary responsibility for managing marine fin and shellfish species and their habitats, with that responsibility delegated within NOAA to NMFS.
In order to direct and coordinate the collection of scientific information needed to make informed fishery management decisions, Congress created six Regional Fisheries Science Centers, each a distinct organizational entity and the scientific focal point within NMFS for region-based federal fisheries-related research. This research is aimed at monitoring fish stock recruitment, abundance, survival and biological rates, geographic distribution of species and stocks, ecosystem process changes, and marine ecological research. The SWFSC is the research arm of NMFS in the southwest region of the U.S. The SWFSC conducts research and provides scientific advice to manage fisheries and conserve protected species in the three geographic research areas described below and provides scientific information to support the Pacific Fishery Management Council and numerous other domestic and international fisheries management organizations.
The specified activity may occur at any time during the five-year period of validity of the regulations. Dates and duration of individual surveys are inherently uncertain, based on congressional funding levels for the SWFSC, weather conditions, or ship contingencies. In addition, the cooperative research program is designed to provide flexibility on a yearly basis in order to address issues as they arise. Some cooperative research projects last multiple years or may continue with modifications. Other projects only last one year and are not continued. Most cooperative research projects go through an annual competitive selection process to determine which projects should be funded based on proposals developed by many independent researchers and fishing industry participants. SWFSC survey activity does occur during most months of the year; however, trawl surveys occur during May through June and September and longline surveys are completed during June-July and September.
The SWFSC operates within three research areas: the California Current, Eastern Tropical Pacific, and Antarctic. These three areas were described in detail in our notice of proposed rulemaking (80 FR 8166; February 13, 2015); please see that document for further detail.
A detailed description of SWFSC's planned activities was provided in our notice of proposed rulemaking (80 FR 8166; February 13, 2015) and is not repeated here. No changes have been made to the specified activities described therein.
We published a notice of proposed rulemaking in the
The Commission suggests that, for certain sources considered here, the interval between pulses would not be discernible to the animal, rendering them effectively continuous. However, echosounder pulses are emitted in a similar fashion as odontocete echolocation click trains. Research indicates that marine mammals, in general, have extremely fine auditory temporal resolution and can detect each signal separately (
In conclusion, echosounder signals are intermittent rather than continuous signals, and the fine temporal resolution of the marine mammal auditory system allows them to perceive these sounds as such. Further, the physical characteristics of these signals indicate a greater similarity to the way that intermittent, impulsive sounds are received. Therefore, the 160-dB threshold (typically associated with impulsive sources) is more appropriate than the 120-dB threshold (typically associated with continuous sources) for estimating takes by behavioral harassment incidental to use of such sources. This response represents the consensus opinion of acoustics experts from NMFS' Office of Protected Resources and Office of Science and Technology.
Finally, we agree with the Commission's recommendation to revise existing acoustic criteria and thresholds as necessary to specify threshold levels that would be more appropriate for a wider range of sound sources and are currently in the process of producing such revisions. NOAA recognizes, as new science becomes available, that our current categorizations (
In order to issue an incidental take authorization under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, “and other means of effecting the least practicable adverse 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 subsistence uses.” We provided a full description of the planned mitigation measures, including background discussion related to certain elements of the mitigation plan, in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). Please see that document for more detail.
The mitigation requirements described here are applicable to all midwater trawl operations conducted by the SWFSC (currently conducted using the Nordic 264 and modified-Cobb nets). Marine mammal watches (visual observation) will be initiated no less than thirty minutes prior to arrival on station to determine if marine mammals are in the vicinity of the planned sample location. Marine mammal watches will be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular). During nighttime operations, visual observation will be conducted using the naked eye and available vessel lighting. The visual observation period typically occurs during transit leading up to arrival at the sampling station, rather than upon arrival on station. However, in some cases it may be necessary to conduct a bongo plankton tow or other small net cast prior to deploying trawl gear. In these cases, the visual watch will continue until trawl gear is ready to be deployed. Aside from this required thirty-minute minimum pre-trawl monitoring period, the OOD/CS and crew standing watch will visually scan for marine mammals during all daytime operations.
The primary purpose of conducting the pre-trawl visual monitoring period is to implement the move-on rule. If marine mammals are sighted within 1 nm of the planned set location in the thirty minutes before setting the trawl gear, the vessel will transit to a different section of the sampling area to maintain a minimum set distance of 1 nm from the observed marine mammals. If, after moving on, marine mammals remain within the 1 nm exclusion zone, the CS or watch leader may decide to move again or to skip the station. However, the effectiveness of visual monitoring may be limited depending on weather and lighting conditions, and it may not always be possible to conduct visual observations out to 1 nm radial distance. The OOD, CS or watch leader will determine the best strategy to avoid potential takes of marine mammals based on the species encountered and their numbers and behavior, position, and vector relative to the vessel, as well as any other factors. In any case, no trawl gear will be deployed if marine mammals have been sighted within 1 nm of the planned set location during the thirty-minute watch period.
In general, trawl operations will be conducted immediately upon arrival on station (and on conclusion of the thirty-minute pre-watch period) in order to minimize the time during which marine mammals (particularly pinnipeds) may become attracted to the vessel. However, in some cases it will be necessary to conduct small net tows (
Once the trawl net is in the water, the OOD, CS, and/or crew standing watch will continue to visually monitor the surrounding waters and will maintain a lookout for marine mammal presence as far away as environmental conditions allow. If marine mammals are sighted before the gear is fully retrieved, the most appropriate response to avoid marine mammal interaction will be determined by the professional judgment of the CS, watch leader, OOD and other experienced crew as necessary. This judgment will be based on past experience operating trawl gears around marine mammals (
If trawling operations have been suspended because of the presence of marine mammals, the vessel will resume trawl operations (when practicable) only when the animals are believed to have departed the 1 nm exclusion zone. This decision is at the discretion of the OOD/CS and is dependent on the situation.
Standard survey protocols that are expected to lessen the likelihood of marine mammal interactions include standardized tow durations and distances. Standard tow durations of not more than thirty minutes at the target depth will be implemented, excluding deployment and retrieval time (which may require an additional thirty minutes, depending on target depth), to reduce the likelihood of attracting and incidentally taking marine mammals. Short tow durations decrease the opportunity for marine mammals to find the vessel and investigate. Trawl tow distances will be less than 3 nm—typically 1-2 nm, depending on the specific survey and trawl speed—which is expected to reduce the likelihood of attracting and incidentally taking marine mammals. In addition, care will be taken when emptying the trawl to avoid damage to marine mammals that may be caught in the gear but are not visible upon retrieval. The gear will be emptied as quickly as possible after retrieval in order to determine whether or not marine mammals are present. The vessel's crew will clean trawl nets prior to deployment to remove prey items that might attract marine mammals. Catch volumes are typically small with every attempt made to collect all organisms caught in the trawl.
Two types of nets are used in SWFSC pelagic trawl surveys: The Nordic 264 and the modified-Cobb midwater trawls. All Nordic 264 trawl nets will be fitted with MMEDs specially designed to allow marine mammals caught during trawling operations an opportunity to escape. Modified-Cobb trawl nets are considerably smaller than Nordic 264 trawl nets (80 m
Visual monitoring requirements for all pelagic longline surveys are the same as those described above for trawl surveys. Please see that section for full details of the visual monitoring and move-on protocols. These protocols are not required for bottom longline or vertical longline operations, as there have been no documented marine mammal interactions for SWFSC use of these gears and because we believe there is very little risk of interaction even without these measures. In summary, requirements for pelagic longline surveys are to: (1) Conduct visual monitoring for a period not less than thirty minutes prior to arrival on station; (2) implement the move-on rule if marine mammals are observed within a 1-nm exclusion zone around the vessel; (3) deploy gear as soon as possible upon arrival on station (contingent on clearance of the exclusion zone); and (4) maintain visual monitoring effort throughout deployment and retrieval of the longline gear. As was described for trawl gear, the OOD, CS, or watch leader will use best professional judgment to minimize the risk to marine mammals from potential gear interactions during
There is one exception to these requirements for longline gear. If five or fewer California sea lions are sighted within the 1-nm exclusion zone during the thirty-minute pre-clearance period, longline gear may be deployed (observations of more than five California sea lions would trigger the move-on rule or suspension of gear deployment or retrieval, as appropriate and, for the latter, as indicated by best professional judgment).
As for trawl surveys, some standard survey protocols are expected to minimize the potential for marine mammal interactions. Typical soak times are two to four hours, measured from the time the last hook is in the water to when the first hook is brought out of the water (but may be as long as eight hours when targeting swordfish). SWFSC longline protocols specifically prohibit chumming (releasing additional bait to attract target species to the gear). However, spent bait may be discarded during gear retrieval while gear is still in the water. However, if marine mammal interactions with longline gear increase or if SWFSC staff observe that this practice may contribute to increased potential for interactions, we will consider the need to retain spent bait until all gear is retrieved.
We have carefully evaluated the SWFSC's planned mitigation measures and considered a range of other measures in the context of ensuring that we prescribe the means of effecting the least practicable adverse impact on the affected marine mammal species and stocks and their habitat. 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 the SWFSC's proposed measures, as well as other measures we considered, we have determined that these mitigation measures provide the means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
We previously reviewed SWFSC's species descriptions—which summarize available information regarding status and trends, distribution and habitat preferences, behavior and life history, and auditory capabilities of the potentially affected species—for accuracy and completeness and referred readers to Sections 3 and 4 of SWFSC's application, as well as to NMFS' Stock Assessment Reports (SARs;
We provided a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). Specifically, we considered potential effects to marine mammals from ship strike, physical interaction with various gear types, use of active acoustic sources, and visual disturbance of pinnipeds, as well as effects to prey species and to acoustic habitat. The information is not reprinted here.
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]. Serious injury means any injury that will likely result in mortality (50 CFR 216.3).
Take of marine mammals incidental to SWFSC research activities are anticipated to occur as a result of (1) injury or mortality due to gear interaction (CCE and ETP only; Level A harassment, serious injury, or mortality); (2) behavioral disturbance resulting from the use of active acoustic sources (Level B harassment only); or (3) behavioral disturbance of pinnipeds on ice resulting from close proximity of research vessels (AMLR only; Level B harassment only).
In order to estimate the number of potential incidents of take that could occur by M/SI + Level A through gear interaction, we first considered SWFSC's record of past such incidents, and then considered in addition other species that may have similar vulnerabilities to SWFSC midwater trawl and pelagic longline gear as those species for which we have historical interaction records. Historical interactions with SWFSC research gear, which have only occurred in the California Current Ecosystem, were described in Tables 10 and 11 of our notice of proposed rulemaking (80 FR 8166; February 13, 2015). Please see that document for more information. In order to produce the most precautionary take estimates possible, we use here the most recent five years of data that includes 2008 (
The SWFSC has no recorded interactions with any gear other than midwater trawl and pelagic longline. We do not anticipate any future interactions in any other gears, including the bottom trawl gear periodically employed by the SWFSC in the AMLR. Although some historical interactions resulted in the animal(s) being released alive, no serious injury determinations (NMFS, 2012a; 2012b) were made, and it is possible that some of these animals later died. In order to use these historical interaction records in a precautionary manner as the basis for the take estimation process, and because we have no specific information to indicate whether any given future interaction might result in M/SI versus Level A harassment, we conservatively assume that all interactions equate to mortality.
In order to evaluate the potential vulnerability of additional species to midwater trawl and pelagic longline gear, we consulted NMFS' List of Fisheries (LOF), which classifies U.S. commercial fisheries into one of three categories according to the level of incidental marine mammal M/SI that is known to occur on an annual basis over the most recent five-year period (generally) for which data has been analyzed. We provided this information, as presented in the 2014 LOF (79 FR 14418; April 14, 2014), in Table 13 of our notice of proposed rulemaking (80 FR 8166; February 13, 2015) and do not reproduce it here.
In order to estimate a number of individuals that could potentially be captured in SWFSC research gear for those species not historically captured, we first determine which species may have vulnerability to capture in a given gear. As noted above, we provided information about commercial fisheries interactions with gear similar to that used by SWFSC in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). Where there are documented incidents of M/SI incidental to relevant commercial fisheries, we noted whether we believe those incidents provide sufficient basis upon which to infer vulnerability to capture in SWFSC research gear.
Information related to incidental M/SI in relevant commercial fisheries is not, however, the sole determinant of whether it may be appropriate to authorize M/SI + Level A incidental to SWFSC survey operations. A number of factors (
Of the species determined to be vulnerable to capture in a given gear, we then determine which may have a similar propensity to capture in a given gear as a historically captured species (Table 1) and which likely do not. For the former, we assume that, given similar propensity, it is possible that a worst-case scenario of take in a single trawl tow or longline set could occur while at the same time contending that, absent significant range shifts or changes in habitat usage, capture of a species not historically captured would likely be a very rare event. The former assumption also accounts for the likelihood that, for species that often travel in groups, an incident involving capture of that species is likely to involve more than one individual.
For example, we believe that the Risso's dolphin is potentially vulnerable to capture in midwater trawl gear and may have similar propensity to capture in that gear as does the Pacific white-sided dolphin. Because the greatest number of Pacific white-sided dolphins captured in any one trawl tow was eleven individuals (see Table 2), we assume that eleven Risso's dolphins could also be captured in a single incident. However, in recognition of the fact that any incident involving the capture of Risso's dolphins would likely be a rare event, we authorize a total taking over the five-year period of the number that may result from a single, worst-case incident (eleven dolphins). While we do not necessarily believe that eleven Risso's dolphins would be captured in a single incident—and that more capture incidents involving fewer individuals could occur, as opposed to a single, worst-case incident—we believe that this is a reasonable approach to estimating potential incidents of M/SI + Level A while balancing what could happen in a worst-case scenario with the potential likelihood that no incidents of capture would actually occur. The historical capture of northern right whale dolphins in 2008 provides an instructive example of a situation where a worst-case scenario (six dolphins captured in a single trawl tow) did occur, but overall capture of this species was very rare (no other capture incidents before or since).
Separately, for those species that we believe may have a vulnerability to capture in given gear but that we do not believe may have a similar propensity to capture in that gear as a historically captured species, we assume that capture would be a rare event that could involve multiple individuals captured in a single incident or one or two individuals captured in one or two incidents. For example, from the LOF we infer vulnerability to capture in trawl gear for the Dall's porpoise but do not believe that this species has a similar propensity for interaction in trawl gear as any historically captured species. Therefore, we assume that capture would represent a rare event that could occur in any year of the five-year period of authorization and may involve one or more individuals. For these species we authorize a total taking by M/SI + Level A of five individuals over the five-year timespan. These examples are provided to illustrate the process.
It is also possible that a captured animal may not be able to be identified to species with certainty. Certain pinnipeds and small cetaceans are difficult to differentiate at sea, especially in low-light situations or when a quick release is necessary. For example, a captured delphinid that is struggling in the net may escape or be freed before positive identification is made. Therefore, the SWFSC requested the authorization of incidental M/SI + Level A for two unidentified pinnipeds (one each in trawl and longline) and one unidentified small cetacean (in trawl only) over the course of the five-year period of authorization.
Table 2 summarizes total estimated take due to gear interaction in the CCE; these estimates are unchanged from those provided in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). Please see that document for additional detail on the take estimation process and full rationale for determinations regarding species vulnerabilities.
For all other species listed in Table 3, we infer vulnerability to pelagic longline gear in the ETP from the 2014 LOF, and assume that capture would likely be a rare event occurring at most once over the five-year period proposed for these regulations. We also authorize incidental M/SI + Level A for one unidentified pinniped over the course of the five-year period of authorization. Table 3 summarizes total estimated take due to gear interaction in the ETP; these estimates are unchanged from those provided in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). Please see that document for additional detail on the take estimation process and full rationale for determinations regarding species vulnerabilities.
As described in our notice of proposed rulemaking (80 FR 8166; February 13, 2015; “Potential Effects of the Specified Activity on Marine Mammals”), we believe that SWFSC use of active acoustic sources has, at most, the potential to cause Level B harassment of marine mammals. In order to attempt to quantify the potential for Level B harassment to occur, NMFS (including the SWFSC and acoustics experts from other parts of NMFS) developed an analytical framework considering characteristics of the active acoustic systems described in our notice of proposed rulemaking (80 FR 8166; February 13, 2015) under
The assessment paradigm for active acoustic sources used in SWFSC fisheries research is relatively straightforward and has a number of key simplifying assumptions. In particular, we do not consider marine mammal functional hearing ranges, and it is possible that certain species may not hear certain signals produced through SWFSC use of active acoustic sources. Therefore, and due to other simplifying assumptions, these exposure estimates may be conservative. NMFS' current acoustic guidance requires in most cases that we assume Level B harassment occurs when a marine mammal receives an acoustic signal at or above a simple step-function threshold. For use of these active acoustic systems, the appropriate threshold is 160 dB re 1 μPa (rms). Estimating the number of exposures at the specified received level requires several steps:
(1) A detailed characterization of the acoustic characteristics of the effective sound source or sources in operation;
(2) The operational areas exposed to levels at or above those associated with Level B harassment when these sources are in operation;
(3) A method for quantifying the resulting sound fields around these sources; and
(4) An estimate of the average density for marine mammal species in each area of operation.
Quantifying the spatial and temporal dimension of the sound exposure footprint (or “swath width”) of the active acoustic devices in operation on moving vessels and their relationship to the average density of marine mammals enables a quantitative estimate of the number of individuals for which sound levels exceed the relevant threshold for each area. The number of potential incidents of Level B harassment is ultimately estimated as the product of the volume of water ensonified at 160 dB rms or higher and the volumetric density of animals determined from simple assumptions about their vertical stratification in the water column. Specifically, reasonable assumptions based on what is known about diving behavior across different marine mammal species were made to segregate those that predominately remain in the upper 200 m of the water column versus those that regularly dive deeper during
Estimated take due to physical disturbance could potentially happen in the AMLR only as a result of the unintentional approach of SWFSC vessels to pinnipeds hauled out on ice, and would result in no greater than Level B harassment. During Antarctic ecosystem surveys conducted in the austral winter (
The SWFSC has estimated potential incidents of Level B harassment due to physical disturbance (Table 8) using the vessel distance traveled (20,846 km) during a typical AMLR survey, an effective strip width of 200 m (animals are assumed to react if they are less than 100 m from the vessel; see below), and the estimated population density for each species (Table 6). Although there is likely to be variation between individuals and species in reactions to a passing research vessel—that is, some animals assumed to react in this calculation will not react, and others assumed not to react because they are outside the effective strip width may in fact react—we believe that this approach is a reasonable effort towards accounting for this potential source of disturbance and have no information to indicate that the approach is biased either negatively or positively. SWFSC used an effective strip width of 200 m (
Here we provide summary tables detailing the total incidental take authorization on an annual basis for each specified geographical region, as well as other information relevant to the negligible impact analyses.
Here we provide separate negligible impact analyses and small numbers analyses for each of the three specified geographical regions for which we issue regulations. We received no public comments or new information indicating any deficiencies in our preliminary determinations, as provided in our notice of proposed rulemaking (80 FR 8166; February 13, 2015). Those determinations and associated analyses are reproduced here.
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.” A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the majority of our analysis applies to all the species listed in Tables 3-5 of the notice of proposed rulemaking (80 FR 8166; February 13, 2015), given that the anticipated effects of SWFSC's research activities on marine mammals are expected to be relatively similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, they are described independently in the analysis below.
In 1988, Congress amended the MMPA, with provisions for the incidental take of marine mammals in commercial fishing operations. Congress directed NMFS to develop and recommend a new long-term regime to govern such incidental taking (see MMC, 1994). The need to set allowable take levels incidental to commercial fishing operations led NMFS to suggest a new and simpler conceptual means for assuring that incidental take does not cause any marine mammal species or stock to be reduced or to be maintained below the lower limit of its Optimum Sustainable Population (OSP) level. That concept (Potential Biological Removal; PBR) was incorporated in the 1994 amendments to the MMPA, wherein Congress enacted MMPA sections 117 and 118, establishing a new regime governing the incidental taking of marine mammals in commercial fishing operations and stock assessments.
PBR, which is defined by the MMPA (16 U.S.C. 1362(20)) as “the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population,” is one tool that can be used to help evaluate the effects of M/SI on a marine mammal stock. OSP is defined by the MMPA (16 U.S.C. 1362(9)) as “the number of animals which will result in the maximum productivity of the population or the species, keeping in mind the carrying capacity of the habitat and the health of the ecosystem of which they form a constituent element.” A primary goal of the MMPA is to ensure that each stock of marine mammal either does not have a level of human-caused M/SI that is likely to cause the stock to be reduced below its OSP level or, if the stock is depleted (
PBR appears within the MMPA only in section 117 (relating to periodic stock assessments) and in portions of section 118 describing requirements for take reduction plans for reducing marine mammal bycatch in commercial fisheries. PBR was not designed as an absolute threshold limiting human activities, but as a means to evaluate the relative impacts of those activities on marine mammal stocks. Specifically, assessing M/SI relative to a stock's PBR may signal to NMFS the need to establish take reduction teams in commercial fisheries and may assist NMFS and existing take reduction teams in the identification of measures to reduce and/or minimize the taking of marine mammals by commercial fisheries to a level below a stock's PBR. That is, where the total annual human-caused M/SI exceeds PBR, NMFS is not required to halt fishing activities contributing to total M/SI but rather may prioritize working with a take reduction team to further mitigate the effects of fishery activities via additional bycatch reduction measures.
Since the introduction of PBR, NMFS has used the concept almost entirely within the context of implementing sections 117 and 118 and other commercial fisheries management-related provisions of the MMPA, including those within section 101(a)(5)(E) related to the taking of ESA-listed marine mammals incidental to commercial fisheries (64 FR 28800; May 27, 1999). The MMPA requires that PBR be estimated in stock assessment reports and that it be used in applications related to the management of take incidental to commercial fisheries (
We have produced what we believe to be conservative estimates of potential incidents of Level B harassment. The procedure for producing these estimates, described in detail in our notice of proposed rulemaking (80 FR 8166; February 13, 2015) and summarized above in “Estimated Take Due to Acoustic Harassment”, represents NMFS' best effort towards balancing the need to quantify the potential for occurrence of Level B harassment due to production of underwater sound with a general lack of information related to the specific way that these acoustic signals, which are generally highly directional and transient, interact with the physical environment and to a meaningful understanding of marine mammal perception of these signals and occurrence in the areas where SWFSC operates. The sources considered here have moderate to high output frequencies (10 to 180 kHz), generally short ping durations, and are typically focused (highly directional) to serve their intended purpose of mapping specific objects, depths, or environmental features. In addition, some of these sources can be operated in different output modes (
In particular, low-frequency hearing specialists (
However, for purposes of this analysis, we assume that the take levels proposed for authorization will occur. As described previously, there is some minimal potential for temporary effects to hearing for certain marine mammals (
We now consider the level of taking by M/SI + Level A proposed for authorization. First, it is likely that required injury determinations will show some undetermined number of gear interactions to result in Level A harassment rather than serious injury and that, therefore, our authorized take numbers are overestimates with regard solely to M/SI. In addition, we note that these take levels are likely precautionary overall when considering that: (1) Estimates for historically taken species were developed assuming that the annual average number of takes from 2008-12, which is heavily influenced by
However, assuming that all of the takes proposed for authorization actually occur, we assess these quantitatively by comparing to the calculated PBR for each stock. Estimated M/SI for all stocks is significantly less than PBR (below ten percent, even when making the unlikely assumption that all takes for species with multiple stocks would accrue to the stock with the lowest PBR) with the exception of the two bottlenose dolphin stocks. The annual average take by M/SI + Level A for these stocks—which for each assumes that the single take of a bottlenose dolphin in longline gear that is proposed for authorization occurs for that stock, as well as that the single take of an unidentified cetacean proposed for authorization occurs—is, however, well below the PBR (takes representing 36 and 42 percent). We also note that, for the California coastal stock, the PBR is likely biased low because the population abundance estimate, which is based on photographic mark-recapture surveys, does not reflect that approximately 35 percent of dolphins encountered lack identifiable dorsal fin marks (Defran and Weller, 1999). If 35 percent of all animals lack distinguishing marks, then the true population size (and therefore PBR) would be approximately 450-500 animals (
For certain species of greater concern, we also evaluate the proposed take authorization for Level B harassment in conjunction with that proposed for M/SI + Level A. For the bottlenose dolphin, if all acoustic takes occurred to a single stock, it would comprise 9.9 percent of the California coastal stock and only 3.2 percent of the offshore stock. However, it is unlikely that all of these takes would accrue to a single stock and the significance of this magnitude of Level B harassment is even lower. We do not consider the proposed level of acoustic take for bottlenose dolphin to represent a significant additional population stressor when considered in context with the proposed level of take by M/SI + Level A. Harbor porpoise are known to demonstrate increased sensitivity to acoustic signals in the frequency range produced by some SWFSC active acoustic sources (see discussion above under “Acoustic Effects”). The total annual taking by Level B harassment proposed for authorization for harbor porpoise would likely be distributed across all five stocks of this species that occur in the CCE. Moreover, because the SWFSC does not regularly operate the surveys described above within the confines of Morro Bay, Monterey Bay, or San Francisco Bay, and because SWFSC survey effort is sparsely distributed in space and time, we would expect any incidents of take occurring to animals of those stocks to be transient events, largely occurring to individuals of those populations occurring outside those bays but within the general limit of harbor porpoise occurrence (
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 planned mitigation measures, we find that the total marine mammal take from SWFSC's fisheries research activities will have a negligible impact on the affected marine mammal species or stocks in the California Current Ecosystem. In summary, this finding of negligible impact is founded on the following factors: (1) The possibility of injury, serious injury, or mortality from the use of active acoustic devices may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment from the use of active acoustic devices consist of, at worst, temporary and relatively minor modifications in behavior; (3) the predicted number of incidents of combined Level A harassment, serious injury, and mortality are at insignificant levels relative to all affected stocks but two; (4) the predicted number of incidents of both Level B harassment and potential M/SI likely represent overestimates; and (5) the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact. In addition, no M/SI is proposed for authorization for any species or stock that is listed under the ESA or considered depleted under the MMPA. In combination, we believe that these factors demonstrate that the specified activity will have only short-term effects on individuals (resulting from Level B harassment) and that the total level of taking will not impact rates of recruitment or survival sufficiently to result in population-level impacts.
In the ETP, yellowfin tuna are known to associate with several species of dolphin, including spinner, spotted, and common dolphins. As the ETP tuna purse-seine fishery began in the late 1950s, incidental take of dolphins increased to very high levels and continued through the 1960s and into the 1970s (Perrin, 1969). Through a
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 planned mitigation measures, we find that the total marine mammal take from SWFSC's fisheries research activities will have a negligible impact on the affected marine mammal species or stocks in the Eastern Tropical Pacific. In summary, this finding of negligible impact is founded on the following factors: (1) The possibility of injury, serious injury, or mortality from the use of active acoustic devices may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment from the use of active acoustic devices consist of, at worst, temporary and relatively minor modifications in behavior; (3) the predicted number of incidents of combined Level A harassment, serious injury, and mortality are at insignificant levels relative to all affected stocks; (4) the predicted number of incidents of both Level B harassment and potential M/SI likely represent overestimates; and (5) the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact. In addition, no M/SI is proposed for authorization for any species or stock that is listed under the ESA. In combination, we believe that these factors demonstrate that the specified activity will have only short-term effects on individuals (resulting from Level B harassment) and that the total level of taking will not impact rates of recruitment or survival sufficiently to 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 planned mitigation measures, we find that the total marine mammal take from SWFSC's fisheries research activities will have a negligible impact on the affected marine mammal species or stocks in the Antarctic Marine Living Resources Ecosystem. In summary, this finding of negligible impact is founded on the following factors: (1) The possibility of injury, serious injury, or mortality from the use of active acoustic devices may reasonably be considered discountable; (2) the anticipated incidents of Level B harassment from the use of active acoustic devices consist of, at worst, temporary and relatively minor modifications in behavior; (3) no incidental take by Level A harassment, serious injury, or mortality is proposed; (4) the predicted number of incidents of Level B harassment likely represent overestimates; and (5) the presumed efficacy of the planned mitigation measures in reducing the effects of the specified activity to the level of least practicable adverse impact. In combination, we believe that these factors demonstrate that 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 mitigation measures, we find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks in the California Current Ecosystem.
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 mitigation measures, we find that small numbers of marine mammals
Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed mitigation measures, we find that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks in the Antarctic Marine Living Resources Ecosystem.
In order to issue an incidental take authorization for an activity, section 101(a)(5)(A) 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:
• Occurrence of marine mammal species in action area (
• Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (
• Individual responses to acute stressors, or impacts of chronic exposures (behavioral or physiological).
• How anticipated responses to stressors impact either: (1) long-term fitness and survival of an individual; or (2) population, species, or stock.
• Effects on marine mammal habitat and resultant impacts to marine mammals.
• Mitigation and monitoring effectiveness.
SWFSC plans to make more systematic its training, operations, data collection, animal handling and sampling protocols, etc. in order to improve its ability to understand how mitigation measures influence interaction rates and ensure its research operations are conducted in an informed manner and consistent with lessons learned from those with experience operating these gears in close proximity to marine mammals. It is in this spirit that the monitoring requirements described below were crafted.
Marine mammal watches are a standard part of conducting fisheries research activities, and are implemented as described previously in “Mitigation”. Dedicated marine mammal visual monitoring occurs as described (1) for a minimum of thirty minutes prior to deployment of midwater trawl and pelagic longline gear; (2) throughout deployment and active fishing of all research gears; (3) for a minimum of thirty minutes prior to retrieval of pelagic longline gear; and (4) throughout retrieval of all research gear. This visual monitoring is performed by trained SWFSC personnel with no other responsibilities during the monitoring period. Observers record the species and estimated number of animals present and their behaviors, which may be valuable information towards an understanding of whether certain species may be attracted to vessels or certain survey gears. Separately, marine mammal watches are conducted by watch-standers (those navigating the vessel and other crew; these will typically not be SWFSC personnel) at all times when the vessel is being operated. The primary focus for this type of watch is to avoid striking marine mammals and to generally avoid navigational hazards. These watch-standers typically have other duties associated with navigation and other vessel operations and are not required to record or report to the scientific party data on marine mammal sightings, except when gear is being deployed or retrieved.
In the Antarctic only, the SWFSC will monitor any potential disturbance of pinnipeds on ice, paying particular attention to the distance at which different species of pinniped are disturbed. Disturbance will be recorded according to the three-point scale, representing increasing seal response to disturbance, shown in Table 7.
The SWFSC plans to evaluate development of an MMED suitable for use in the modified-Cobb midwater trawl. Modified-Cobb trawl nets are considerably smaller than Nordic 264 trawl nets, are fished at slower speeds, and have a different shape and functionality than the Nordic 264. Due to the smaller size of the modified-Cobb net, this gear does not yet have a suitable marine mammal excluder device but research and design work are currently being performed to develop effective excluders that will not appreciably affect the catchability of the net and therefore maintain continuity of the fisheries research dataset.
A reduction in target catch rates is an issue that has arisen from preliminary analyses of MMED use in Nordic 264 gear. Although sample sizes are small, these results have cast some doubt as to whether the MMED would be suitable for surveys with a primary objective of estimating abundance, as opposed to collecting biological samples. If data collected during testing of the modified-Cobb MMED continues to indicate reduced catch rates, SWFSC would continue testing to explore whether it is possible to calculate reliable conversion factors to equate catches when using the MMED to catches when it was not. If this is not possible, then use of the MMED for certain surveys may compromise primary research objectives. Therefore, use of the MMED may be considered not practicable
In addition, SWFSC plans to explore patterns in past marine mammal bycatch in its fisheries research surveys to better understand what factors (
SWFSC anticipates that additional information on practices to avoid marine mammal interactions can be gleaned from training sessions and more systematic data collection standards. The SWFSC will conduct annual trainings for all chief scientists and other personnel who may be responsible for conducting dedicated marine mammal visual observations to explain mitigation measures and monitoring and reporting requirements, mitigation and monitoring protocols, marine mammal identification, recording of count and disturbance observations (relevant to AMLR surveys), completion of datasheets, and use of equipment. Some of these topics may be familiar to SWFSC staff, who may be professional biologists; the SWFSC shall determine the agenda for these trainings and ensure that all relevant staff have necessary familiarity with these topics. The first training, to be conducted in 2015, will include three primary elements.
First, the course will provide an overview of the purpose and need for the authorization, including research gears that have historically resulted in incidental capture of protected species, mandatory mitigation measures by gear and the purpose for each, and species that SWFSC is authorized to incidentally take.
Second, the training will provide detailed descriptions of reporting, data collection, and sampling protocols. This portion of the training will include instruction on how to complete new data collection forms such as the marine mammal watch log, the incidental take form (
SWFSC will also dedicate a portion of training to discussion of best professional judgment (which is recognized as an integral component of mitigation implementation; see “Mitigation”), including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful. We recognize that many factors come into play regarding decision-making at sea and that it is not practicable to simplify what are inherently variable and complex situational decisions into rules that may be defined on paper. However, it is our intent that use of best professional judgment be an iterative process from year to year, in which any at-sea decision-maker (
Improved standardization of handling procedures were discussed previously in “Mitigation”. In addition to the benefits implementing these protocols are believed to have on the animals through increased post-release survival, SWFSC believes adopting these protocols for data collection will also increase the information on which “serious injury” determinations (NMFS, 2012a, b) are based and improve scientific knowledge about marine mammals that interact with fisheries research gears and the factors that contribute to these interactions. SWFSC personnel will be provided standard guidance and training regarding handling of marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water and log activities pertaining to the interaction.
SWFSC will record interaction information on either existing data forms created by other NMFS programs (
Finally, for any marine mammals that are killed during fisheries research activities, scientists will collect data and samples pursuant to the SWFSC MMPA and ESA research and salvage permit and to the “Detailed Sampling Protocol for Marine Mammal and Sea Turtle Incidental Takes on SWFSC Research Cruises” (see Appendix B.4 of SWFSC's application).
As is normally the case, SWFSC will coordinate with the relevant stranding coordinators for any unusual marine mammal behavior and any stranding, beached live/dead, or floating marine mammals that are encountered during field research activities. The SWFSC will follow a phased approach with regard to the cessation of its activities and/or reporting of such events, as described in the proposed regulatory texts following this preamble. In addition, Chief Scientists (or cruise leader, CS) will provide reports to SWFSC leadership and to the Office of Protected Resources (OPR). As a result, when marine mammals interact with survey gear, whether killed or released alive, a report provided by the CS will fully describe any observations of the animals, the context (vessel and conditions), decisions made and rationale for decisions made in vessel and gear handling. The circumstances of these events are critical in enabling SWFSC and OPR to better evaluate the conditions under which takes are most likely occur. We believe in the long term this will allow the avoidance of these types of events in the future.
The SWFSC will submit annual summary reports to OPR including: (1) Annual line-kilometers surveyed during which the EK60, ME70, SX90 (or equivalent sources) were predominant (see “Estimated Take by Acoustic Harassment” for further discussion), specific to each region; (2) summary information regarding use of all longline (including bottom and vertical lines) and trawl (including bottom trawl) gear, including number of sets, hook hours, tows, etc., specific to each region and gear; (3) accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why; (4) summary information related to any on-ice disturbance of pinnipeds, including event-specific total counts of animals present, counts of reactions according to the three-point scale shown in Table 7, and distance of closest approach; (5) a written evaluation of the effectiveness of SWFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any; and (6) updates as appropriate regarding the development/implementation of MMEDs and analysis
NMFS has established a formal incidental take reporting system, the Protected Species Incidental Take (PSIT) database, requiring that incidental takes of protected species be reported within 48 hours of the occurrence. The PSIT generates automated messages to NMFS leadership and other relevant staff, alerting them to the event and to the fact that updated information describing the circumstances of the event has been inputted to the database. The PSIT and CS reports represent not only valuable real-time reporting and information dissemination tools, but also serve as an archive of information that may be mined in the future to study why takes occur by species, gear, region, etc.
SWFSC will also collect and report all necessary data, to the extent practicable given the primacy of human safety and the well-being of captured or entangled marine mammals, to facilitate serious injury (SI) determinations for marine mammals that are released alive. SWFSC will require that the CS complete data forms (already developed and used by commercial fisheries observer programs) and address supplemental questions, both of which have been developed to aid in SI determinations. SWFSC understands the critical need to provide as much relevant information as possible about marine mammal interactions to inform decisions regarding SI determinations. In addition, the SWFSC will perform all necessary reporting to ensure that any incidental M/SI is incorporated as appropriate into relevant SARs.
The final regulations governing the take of marine mammals incidental to SWFSC fisheries research survey operations in three specified geographical regions contain an adaptive management component. The inclusion of an adaptive management component is valuable and necessary within the context of five-year regulations for activities that have been associated with marine mammal mortality.
The reporting requirements associated with these rules are designed to provide OPR with monitoring data from the previous year to allow consideration of whether any changes are appropriate. OPR and the SWFSC will meet annually to discuss the monitoring reports and current science and whether mitigation or monitoring modifications are appropriate. The use of adaptive management allows OPR to consider new information from different sources to determine (with input from the SWFSC regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable.
The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs.
As a result of clarifying discussions with SWFSC, we made certain changes to the proposed regulations as described here. These changes are considered minor and do not affect any of our preliminary determinations.
We clarify that the California Current Ecosystem specified geographical region extends outside of the U.S. Exclusive Economic Zone (EEZ), from the Mexican EEZ (not including Mexican territorial waters) north into the Canadian EEZ (not including Canadian territorial waters). We further clarify that the Eastern Tropical Pacific specified geographical region extends into the EEZs of the various ETP nations (not including the territorial waters of ETP nations). The MMPA's authority does not extend into foreign territorial waters.
We have eliminated reference to specific operational protocols (
We have removed the requirement to log passive acoustic data prior to midwater trawling in the California Current (219.6(b) in the proposed regulations). Inclusion of this requirement stemmed from a misunderstanding of certain language in SWFSC's request for authorization and would require substantial effort for uncertain benefit. In addition, we made the following minor changes:
• Added a stipulation relating to coordination of training efforts with NMFS' Northwest Fisheries Science Center (219.6 (d)(3))
• Removed requirement for SWFSC to submit reports for each survey leg or cruise (previously 219.6(g)(2)). We believe that the incident-specific NMFS PSIT reporting in concert with required annual reporting is sufficient.
• Clarified that SWFSC must submit a revised annual report following resolution of any comments on the draft report; changed the reporting period to one-year period rather than calendar year; clarified that pro-rated estimates of actual take relating to use of active acoustic sources must be submitted; and added requirements to report on waiver of move-on rule due to presence of five or fewer California sea lions when there is a relevant interaction, the ongoing practice of spent bait discard, and annual trainings and coordination.
• Requirements relating to reporting of injured or dead marine mammals have been revised to clarify that SWFSC may make an immediate decision regarding continuation of research activity in the event that such activity results in a prohibited take. The decision will be subject to concurrence from OPR.
There are no relevant subsistence uses of marine mammals implicated by these actions, in any of the three specified geographical regions for which we are issuing regulations. Therefore, we have determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.
There are multiple marine mammal species listed under the ESA with confirmed or possible occurrence in the specified geographical regions. The authorization of incidental take pursuant to the SWFSC's specified activity would not affect any designated critical habitat. OPR requested initiation of consultation with NMFS' West Coast Regional Office (WCRO) under section 7 of the ESA on the promulgation of five-year regulations and the subsequent issuance of LOAs to SWFSC under section 101(a)(5)(A) of the MMPA.
On August 31, 2015, the WCRO issued a biological opinion to OPR and to the SWFSC (concerning the conduct of the specified activities) which concluded that the issuance of the authorizations is not likely to jeopardize the continued existence of any listed species and is not likely to adversely affect any listed marine mammal species. The opinion also concluded that the issuance of the authorizations would not affect any designated critical habitat.
In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321
It has been determined that this rule is not significant under Executive Order 12866.
Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration that this rule will not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published with the proposed rule and is not repeated here. No comments were received regarding the economic impact of this final rule. As a result, a final regulatory flexibility analysis is not required and one was not prepared.
Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) unless that collection-of-information displays a currently valid OMB control number. This rule contains collection-of-information requirements subject to the requirements of the PRA. These collection-of-information requirements have been approved by OMB under control number 0648-0151 and include applications for regulations, subsequent LOAs, and reports.
Exports, Fish, Imports, Indians, Labeling, Marine mammals, Penalties, Reporting and recordkeeping requirements, Seafood, Transportation.
For reasons set forth in the preamble, NMFS amends 50 CFR Chapter II, Subchapter C, by adding part 219 to read as follows:
16 U.S.C. 1361
(a) Regulations in this subpart apply only to the National Marine Fisheries Service's (NMFS) Southwest Fisheries Science Center (SWFSC) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to research survey program operations.
(b) The taking of marine mammals by SWFSC may be authorized in a Letter of Authorization (LOA) only if it occurs within the California Current Ecosystem.
Regulations in this subpart are effective October 30, 2015, through October 30, 2020.
(a) Under LOAs issued pursuant to § 216.106 and § 219.7 of this chapter, the Holder of the LOA (hereinafter “SWFSC”) may incidentally, but not intentionally, take marine mammals within the area described in § 219.1(b)
(b) The incidental take of marine mammals under the activities identified in § 219.1(a) of this chapter is limited to the indicated number of takes on an annual basis (by Level B harassment) or over the five-year period of validity of these regulations (by mortality) of the following species:
(1) Level B harassment:
(i) Cetaceans:
(A) Gray whale (
(B) Humpback whale (
(C) Minke whale (
(D) Sei whale (
(E) Fin whale (
(F) Blue whale (
(G) Sperm whale (
(H) Pygmy or dwarf sperm whale (
(I) Cuvier's beaked whale (
(J) Baird's beaked whale (
(K) Hubbs', Blainville's, ginkgo-toothed, Perrin's, lesser, or Stejneger's beaked whales (
(L) Bottlenose dolphin (
(M) Striped dolphin (
(N) Long-beaked common dolphin (
(O) Short-beaked common dolphin (
(P) Pacific white-sided dolphin (
(Q) Northern right whale dolphin (
(R) Risso's dolphin (
(S) Killer whale (
(T) Short-finned pilot whale (
(U) Harbor porpoise (
(V) Dall's porpoise (
(ii) Pinnipeds:
(A) Guadalupe fur seal (
(B) Northern fur seal (
(C) Northern fur seal, Pribilof Islands/Eastern Pacific stock—11,555;
(D) California sea lion (
(E) Steller sea lion (
(F) Harbor seal (
(G) Northern elephant seal (
(2) Mortality (midwater trawl gear only):
(i) Cetaceans:
(A) Bottlenose dolphin (California, Oregon, and Washington offshore stock)—8;
(B) Bottlenose dolphin (California coastal stock)—3;
(C) Striped dolphin—11;
(D) Long-beaked common dolphin—11;
(E) Short-beaked common dolphin—11;
(F) Pacific white-sided dolphin—35;
(G) Northern right whale dolphin—10;
(H) Risso's dolphin—11;
(I) Harbor porpoise—5;
(J) Dall's porpoise—5;
(K) Unidentified cetacean (Family Delphinidae or Family Phocoenidae)—1.
(ii) Pinnipeds:
(A) Northern fur seal—5;
(B) California sea lion—20;
(C) Steller sea lion—9;
(D) Harbor seal—9;
(E) Northern elephant seal—5; and
(F) Unidentified pinniped—1.
(3) Mortality (pelagic longline gear only):
(i) Cetaceans:
(A) Pygmy or dwarf sperm whale—1;
(B) Bottlenose dolphin—1;
(C) Striped dolphin—1;
(D) Long-beaked common dolphin—1;
(E) Short-beaked common dolphin—1;
(F) Risso's dolphin—1; and
(G) Short-finned pilot whale—1.
(ii) Pinnipeds:
(A) California sea lion—5;
(B) Steller sea lion—1; and
(C) Unidentified pinniped—1.
Notwithstanding takings contemplated in § 219.1 of this chapter and authorized by a LOA issued under §§ 216.106 and 219.7 of this chapter, no person in connection with the activities described in § 219.1 of this chapter may:
(a) Take any marine mammal not specified in § 219.3(b) of this chapter;
(b) Take any marine mammal specified in § 219.3(b) of this chapter in any manner other than as specified;
(c) Take a marine mammal specified in § 219.3(b) of this chapter if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal;
(d) Take a marine mammal specified in § 219.3(b) of this chapter if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses; or
(e) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 and 219.7 of this chapter.
When conducting the activities identified in § 219.1(a) of this chapter, the mitigation measures contained in any LOA issued under §§ 216.106 and 219.7 of this chapter must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions:
(1) SWFSC shall take all necessary measures to coordinate and communicate in advance of each specific survey with the National Oceanic and Atmospheric Administration's (NOAA) Office of Marine and Aviation Operations (OMAO) or other relevant parties on non-NOAA platforms to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant event-contingent decision-making processes, are clearly understood and agreed upon.
(2) SWFSC shall coordinate and conduct briefings at the outset of each survey and as necessary between ship's crew (Commanding Officer/master or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.
(3) SWFSC shall coordinate as necessary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA platforms to ensure that requirements, procedures, and decision-making processes are understood and properly implemented.
(4) When deploying any type of sampling gear at sea, SWFSC shall at all times monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment.
(5) SWFSC shall implement handling and/or disentanglement protocols as specified in guidance provided to SWFSC survey personnel.
(b) Midwater trawl survey protocols:
(1) SWFSC shall conduct trawl operations as soon as is practicable upon arrival at the sampling station.
(2) SWFSC shall initiate marine mammal watches (visual observation) no less than thirty minutes prior to sampling. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye
(3) SWFSC shall implement the move-on rule. If one or more marine mammals are observed within 1 nm of the planned location in the thirty minutes before setting the trawl gear, SWFSC shall transit to a different section of the sampling area to maintain a minimum set distance of 1 nm from the observed marine mammals. If, after moving on, marine mammals remain within 1 nm, SWFSC may decide to move again or to skip the station. SWFSC may use best professional judgment in making this decision but may not elect to conduct midwater trawl survey activity when animals remain within the 1-nm zone.
(4) SWFSC shall maintain visual monitoring effort during the entire period of time that midwater trawl gear is in the water (
(5) If trawling operations have been suspended because of the presence of marine mammals, SWFSC may resume trawl operations when practicable only when the animals are believed to have departed the 1 nm area. SWFSC may use best professional judgment in making this determination.
(6) SWFSC shall implement standard survey protocols to minimize potential for marine mammal interactions, including maximum tow durations at target depth and maximum tow distance, and shall carefully empty the trawl as quickly as possible upon retrieval. Trawl nets must be cleaned prior to deployment.
(7) SWFSC must install and use a marine mammal excluder device at all times when the Nordic 264 trawl net or other net for which the device is appropriate is used.
(8) SWFSC must install and use acoustic deterrent devices whenever any midwater trawl net is used, with two to four devices placed along the footrope and/or headrope of the net. SWFSC must ensure that the devices are operating properly before deploying the net.
(c) Pelagic longline survey protocols:
(1) SWFSC shall deploy longline gear as soon as is practicable upon arrival at the sampling station.
(2) SWFSC shall initiate marine mammal watches (visual observation) no less than thirty minutes prior to both deployment and retrieval of the longline gear. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.
(3) SWFSC shall implement the move-on rule. If one or more marine mammals are observed within 1 nm of the planned location in the thirty minutes before gear deployment, SWFSC shall transit to a different section of the sampling area to maintain a minimum set distance of 1 nm from the observed marine mammals. If, after moving on, marine mammals remain within 1 nm, SWFSC may decide to move again or to skip the station. SWFSC may use best professional judgment in making this decision but may not elect to conduct pelagic longline survey activity when animals remain within the 1-nm zone. Implementation of the move-on rule is not required upon observation of five or fewer California sea lions.
(4) SWFSC shall maintain visual monitoring effort during the entire period of gear deployment and retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, SWFSC shall take the most appropriate action to avoid marine mammal interaction. SWFSC may use best professional judgment in making this decision.
(5) If deployment or retrieval operations have been suspended because of the presence of marine mammals, SWFSC may resume such operations when practicable only when the animals are believed to have departed the 1 nm area. SWFSC may use best professional judgment in making this decision.
(6) SWFSC shall implement standard survey protocols, including maximum soak durations and a prohibition on chumming.
(a) Visual monitoring program:
(1) Dedicated marine mammal visual monitoring, conducted by trained SWFSC personnel with no other responsibilities during the monitoring period, shall occur:
(i) For a minimum of thirty minutes prior to deployment of midwater trawl and pelagic longline gear;
(ii) Throughout deployment of gear and active fishing of midwater trawl gear;
(iii) For a minimum of thirty minutes prior to retrieval of pelagic longline gear; and
(iv) Throughout retrieval of all research gear.
(2) Marine mammal watches shall be conducted by watch-standers (those navigating the vessel and/or other crew) at all times when the vessel is being operated.
(b) Marine mammal excluder device (MMED)—SWFSC shall conduct an evaluation of the feasibility of MMED development for the modified-Cobb midwater trawl net.
(c) Analysis of bycatch patterns—SWFSC shall conduct an analysis of past bycatch patterns in order to better understand what factors might increase the likelihood of incidental take in research survey gear. This shall include an analysis of research trawl data for any link between trawl variables and observed marine mammal bycatch, as well as a review of historical fisheries research data to determine whether sufficient data exist for similar analysis.
(d) Training:
(1) SWFSC must conduct annual training for all chief scientists and other personnel who may be responsible for conducting dedicated marine mammal visual observations to explain mitigation measures and monitoring and reporting requirements, mitigation and monitoring protocols, marine mammal identification, completion of datasheets, and use of equipment. SWFSC may determine the agenda for these trainings.
(2) SWFSC shall also dedicate a portion of training to discussion of best professional judgment, including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful.
(3) SWFSC shall coordinate with NMFS' Northwest Fisheries Science Center (NWFSC) regarding surveys conducted in the California Current Ecosystem, such that training and guidance related to handling procedures and data collection is consistent.
(e) Handling procedures and data collection:
(1) SWFSC must develop and implement standardized marine mammal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS' Office of Protected Resources (OPR).
(2) When practicable, for any marine mammal interaction involving the release of a live animal, SWFSC shall collect necessary data to facilitate a serious injury determination.
(3) SWFSC shall provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction.
(4) SWFSC shall record such data on standardized forms, which will be subject to approval by OPR. SWFSC shall also answer a standard series of supplemental questions regarding the details of any marine mammal interaction.
(f) Reporting:
(1) SWFSC shall report all incidents of marine mammal interaction to NMFS' Protected Species Incidental Take database within 48 hours of occurrence, and shall provide supplemental information to OPR upon request. Information related to marine mammal interaction (animal captured or entangled in research gear) must include details of survey effort, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made, and rationale for decisions made in vessel and gear handling.
(2) Annual reporting:
(i) SWFSC shall submit an annual summary report to OPR not later than ninety days following the end of a given year. SWFSC shall provide a final report within thirty days following resolution of comments on the draft report.
(ii) These reports shall contain, at minimum, the following:
(A) Annual line-kilometers surveyed during which the EK60, ME70, SX90 (or equivalent sources) were predominant and associated pro-rated estimates of actual take;
(B) Summary information regarding use of all longline (including bottom and vertical lines) and trawl (including bottom trawl) gear, including number of sets, hook hours, tows, etc., specific to each gear;
(C) Accounts of all incidents of marine mammal interactions, including circumstances of the event, descriptions of any mitigation procedures implemented or not implemented and why, and, for interactions due to use of pelagic longline, whether the move-on rule was waived due to the presence of five or fewer California sea lions;
(D) A written evaluation of the effectiveness of SWFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any, and an assessment of the practice of discarding spent bait relative to interactions with pelagic longline, if any;
(E) Final outcome of serious injury determinations for all incidents of marine mammal interactions where the animal(s) were released alive;
(F) Updates as appropriate regarding the development/implementation of MMEDs and analysis of bycatch patterns; and
(G) A summary of all relevant training provided by SWFSC and any coordination with NWFSC or NMFS' West Coast Regional Office.
(g) Reporting of injured or dead marine mammals:
(1) In the unanticipated event that the activity defined in § 219.1(a) of this chapter clearly causes the take of a marine mammal in a prohibited manner, SWFSC personnel engaged in the research activity shall immediately cease such activity until such time as an appropriate decision regarding activity continuation can be made by the SWFSC Director (or designee). The incident must be reported immediately to OPR and the West Coast Regional Stranding Coordinator, NMFS. OPR will review the circumstances of the prohibited take and work with SWFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The immediate decision made by SWFSC regarding continuation of the specified activity is subject to OPR concurrence. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident;
(iii) Environmental conditions (
(iv) Description of all marine mammal observations in the 24 hours preceding the incident;
(v) Species identification or description of the animal(s) involved;
(vi) Status of all sound source use in the 24 hours preceding the incident;
(vii) Water depth;
(viii) Fate of the animal(s); and
(ix) Photographs or video footage of the animal(s).
(2) In the event that SWFSC discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (
(3) In the event that SWFSC discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 219.1(a) of this chapter (
(a) To incidentally take marine mammals pursuant to these regulations, SWFSC must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, SWFSC may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, SWFSC must apply for and obtain a modification of the LOA as described in § 219.8 of this chapter.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in the
(a) An LOA issued under §§ 216.106 and 219.7 of this chapter for the activity identified in § 219.1(a) of this chapter shall be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the
(2) OPR determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in § 219.8(c)(1) of this chapter) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the
(c) An LOA issued under §§ 216.106 and 219.7 of this chapter for the activity identified in § 219.1(a) of this chapter may be modified by OPR under the following circumstances:
(1) Adaptive Management—OPR may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with SWFSC regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from SWFSC's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or studies.
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of proposed LOA in the
(2) Emergencies—If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 219.2(b) of this chapter, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the
(a) Regulations in this subpart apply only to the National Marine Fisheries Service's (NMFS) Southwest Fisheries Science Center (SWFSC) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to research survey program operations.
(b) The taking of marine mammals by SWFSC may be authorized in a Letter of Authorization (LOA) only if it occurs within the Eastern Tropical Pacific.
Regulations in this subpart are effective October 30, 2015, through October 30, 2020.
(a) Under LOAs issued pursuant to §§ 216.106 and 219.17 of this chapter, the Holder of the LOA (hereinafter “SWFSC”) may incidentally, but not intentionally, take marine mammals within the area described in § 219.11(b) of this chapter, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
(b) The incidental take of marine mammals under the activities identified in § 219.11(a) of this chapter is limited to the indicated number of takes on an annual basis (by Level B harassment) or over the five-year period of validity of these regulations (by mortality) of the following species:
(1) Level B harassment:
(i) Cetaceans:
(A) Humpback whale (
(B) Bryde's whale (
(C) Blue whale (
(D) Sperm whale (
(E) Dwarf sperm whale (
(F) Cuvier's beaked whale (
(G) Longman's beaked whale (
(H) Blainville's, ginkgo-toothed, or lesser beaked whales (
(I) Rough-toothed dolphin (
(J) Bottlenose dolphin (
(K) Striped dolphin (
(L) Pantropical spotted dolphin (
(M) Spinner dolphin (
(N) Long-beaked common dolphin (
(O) Short-beaked common dolphin (
(P) Fraser's dolphin (
(Q) Dusky dolphin (
(R) Risso's dolphin (
(S) Melon-headed whale (
(T) Pygmy killer whale (
(U) False killer whale (
(V) Killer whale (
(W) Short-finned pilot whale (
(ii) Pinnipeds:
(A) Guadalupe fur seal (
(B) California sea lion (
(C) South American sea lion (
(D) Northern elephant seal (
(2) Mortality (pelagic longline gear only):
(i) Cetaceans:
(A) Dwarf sperm whale—1;
(B) Rough-toothed dolphin—1;
(C) Bottlenose dolphin—1;
(D) Striped dolphin—1;
(E) Pantropical spotted dolphin—1;
(F) Long-beaked common dolphin—1;
(G) Short-beaked common dolphin—1;
(H) Risso's dolphin—1;
(I) False killer whale—1; and
(J) Short-finned pilot whale—1.
(ii) Pinnipeds:
(A) California sea lion—5;
(B) South American sea lion—5; and
(C) Unidentified pinniped—1.
Notwithstanding takings contemplated in § 219.11 of this chapter and authorized by a LOA issued under §§ 216.106 and 219.17 of this chapter, no person in connection with the activities described in § 219.11 of this chapter may:
(a) Take any marine mammal not specified in § 219.13(b) of this chapter;
(b) Take any marine mammal specified in § 219.13(b) of this chapter in any manner other than as specified;
(c) Take a marine mammal specified in § 219.13(b) of this chapter if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal;
(d) Take a marine mammal specified in § 219.13(b) of this chapter if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses; or
(e) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 and 219.17 of this chapter.
When conducting the activities identified in § 219.11(a) of this chapter, the mitigation measures contained in any LOA issued under §§ 216.106 and 219.17 of this chapter must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions:
(1) SWFSC shall take all necessary measures to coordinate and communicate in advance of each specific survey with the National Oceanic and Atmospheric Administration's (NOAA) Office of Marine and Aviation Operations (OMAO) or other relevant parties on non-NOAA platforms to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant event-contingent decision-making processes, are clearly understood and agreed upon.
(2) SWFSC shall coordinate and conduct briefings at the outset of each survey and as necessary between ship's crew (Commanding Officer/master or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.
(3) SWFSC shall coordinate as necessary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA platforms to ensure that requirements, procedures, and decision-making processes are understood and properly implemented.
(4) When deploying any type of sampling gear at sea, SWFSC shall at all times monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment.
(5) SWFSC shall implement handling and/or disentanglement protocols as specified in guidance provided to SWFSC survey personnel.
(b) Pelagic longline survey protocols:
(1) SWFSC shall deploy longline gear as soon as is practicable upon arrival at the sampling station.
(2) SWFSC shall initiate marine mammal watches (visual observation) no less than thirty minutes prior to both deployment and retrieval of the longline gear. Marine mammal watches shall be conducted by scanning the surrounding waters with the naked eye and rangefinding binoculars (or monocular). During nighttime operations, visual observation shall be conducted using the naked eye and available vessel lighting.
(3) SWFSC shall implement the move-on rule. If one or more marine mammals are observed within 1 nm of the planned location in the thirty minutes before gear deployment, SWFSC shall transit to a different section of the sampling area to maintain a minimum set distance of 1 nm from the observed marine mammals. If, after moving on, marine mammals remain within 1 nm, SWFSC may decide to move again or to skip the station. SWFSC may use best professional judgment in making this decision but may not elect to conduct pelagic longline survey activity when animals remain within the 1-nm zone.
(4) SWFSC shall maintain visual monitoring effort during the entire period of gear deployment and retrieval. If marine mammals are sighted before the gear is fully deployed or retrieved, SWFSC shall take the most appropriate action to avoid marine mammal interaction. SWFSC may use best professional judgment in making this decision.
(5) If deployment or retrieval operations have been suspended because of the presence of marine mammals, SWFSC may resume such operations when practicable only when the animals are believed to have departed the 1 nm area. SWFSC may use best professional judgment in making this determination.
(6) SWFSC shall implement standard survey protocols, including maximum soak durations and a prohibition on chumming.
(a) Visual monitoring program:
(1) Dedicated marine mammal visual monitoring, conducted by trained SWFSC personnel with no other responsibilities during the monitoring period, shall occur:
(i) For a minimum of thirty minutes prior to deployment of pelagic longline gear;
(ii) Throughout deployment of gear;
(iii) For a minimum of thirty minutes prior to retrieval of pelagic longline gear; and
(iv) Throughout retrieval of all research gear.
(2) Marine mammal watches shall be conducted by watch-standers (those navigating the vessel and/or other crew) at all times when the vessel is being operated.
(b) Training:
(1) SWFSC must conduct annual training for all chief scientists and other personnel who may be responsible for conducting dedicated marine mammal visual observations to explain mitigation measures and monitoring and reporting requirements, mitigation and monitoring protocols, marine mammal identification, completion of datasheets, and use of equipment. SWFSC may determine the agenda for these trainings.
(2) SWFSC shall also dedicate a portion of training to discussion of best professional judgment, including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful.
(c) Handling procedures and data collection:
(1) SWFSC must develop and implement standardized marine mammal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS' Office of Protected Resources (OPR).
(2) When practicable, for any marine mammal interaction involving the release of a live animal, SWFSC shall collect necessary data to facilitate a serious injury determination.
(3) SWFSC shall provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction.
(4) SWFSC shall record such data on standardized forms, which will be subject to approval by OPR. SWFSC shall also answer a standard series of supplemental questions regarding the details of any marine mammal interaction.
(d) Reporting:
(1) SWFSC shall report all incidents of marine mammal interaction to NMFS' Protected Species Incidental Take database within 48 hours of occurrence, and shall provide supplemental information to OPR upon request. Information related to marine mammal interaction (animal captured or entangled in research gear) must include details of survey effort, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made, and rationale for decisions made in vessel and gear handling.
(2) Annual reporting:
(i) SWFSC shall submit an annual summary report to OPR not later than ninety days following the end of a given year. SWFSC shall provide a final report within thirty days following resolution of comments on the draft report.
(ii) These reports shall contain, at minimum, the following:
(A) Annual line-kilometers surveyed during which the EK60, ME70, SX90 (or equivalent sources) were predominant and associated pro-rated estimates of actual take;
(B) Summary information regarding use of all longline gear, including number of sets, hook hours, etc.;
(C) Accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why;
(D) A written evaluation of the effectiveness of SWFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any; and an assessment of the practice of discarding spent bait relative to interactions with pelagic longline, if any;
(E) Final outcome of serious injury determinations for all incidents of marine mammal interactions where the animal(s) were released alive; and
(F) A summary of all relevant training provided by SWFSC.
(e) Reporting of injured or dead marine mammals:
(1) In the unanticipated event that the activity defined in § 219.1(a) of this chapter clearly causes the take of a marine mammal in a prohibited manner, SWFSC personnel engaged in the research activity shall immediately cease such activity until such time as an appropriate decision regarding activity continuation can be made by the SWFSC Director (or designee). The incident must be reported immediately to OPR. OPR will review the circumstances of the prohibited take and work with SWFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The immediate decision made by SWFSC regarding continuation of the specified activity is subject to OPR concurrence. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident;
(iii) Environmental conditions (
(iv) Description of all marine mammal observations in the 24 hours preceding the incident;
(v) Species identification or description of the animal(s) involved;
(vi) Status of all sound source use in the 24 hours preceding the incident;
(vii) Water depth;
(viii) Fate of the animal(s); and
(ix) Photographs or video footage of the animal(s).
(2) In the event that SWFSC discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (
(3) In the event that SWFSC discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 219.11(a) of this chapter (
(a) To incidentally take marine mammals pursuant to these regulations, SWFSC must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, SWFSC may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, SWFSC must apply for and obtain a modification of the LOA as described in § 219.18 of this chapter.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in the
(a) An LOA issued under §§ 216.106 and 219.17 of this chapter for the activity identified in § 219.11(a) of this chapter shall be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in § 219.18(c)(1) of this chapter), and
(2) OPR determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in § 219.18(c)(1) of this chapter) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the
(c) An LOA issued under §§ 216.106 and 219.17 of this chapter for the activity identified in § 219.11(a) of this chapter may be modified by OPR under the following circumstances:
(1) Adaptive Management—OPR may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with SWFSC regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from SWFSC's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or studies.
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of proposed LOA in the
(2) Emergencies—If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 219.12(b) of this chapter, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the
(a) Regulations in this subpart apply only to the National Marine Fisheries Service's (NMFS) Southwest Fisheries Science Center (SWFSC) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to research survey program operations.
(b) The taking of marine mammals by SWFSC may be authorized in a Letter of Authorization (LOA) only if it occurs within the Antarctic Marine Living Resources Ecosystem.
Regulations in this subpart are effective October 30, 2015, through October 30, 2020.
(a) Under LOAs issued pursuant to §§ 216.106 and 219.27 of this chapter, the Holder of the LOA (hereinafter “SWFSC”) may incidentally, but not intentionally, take marine mammals within the area described in § 219.21(b) of this chapter, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the appropriate LOA.
(b) The incidental take of marine mammals under the activities identified in § 219.21(a) of this chapter is limited to the indicated number of takes on an annual basis of the following species and is limited to Level B harassment:
(1) Cetaceans:
(i) Southern right whale (
(ii) Humpback whale (
(iii) Antarctic minke whale (
(iv) Fin whale (
(v) Sperm whale (
(vi) Arnoux' beaked whale (
(vii) Southern bottlenose whale (
(viii) Hourglass dolphin (
(ix) Killer whale (
(x) Long-finned pilot whale (
(xi) Spectacled porpoise (
(2) Pinnipeds:
(i) Antarctic fur seal (
(ii) Southern elephant seal (
(iii) Weddell seal (
(iv) Crabeater seal (
(v) Leopard seal (
Notwithstanding takings contemplated in § 219.21 of this chapter and authorized by a LOA issued under §§ 216.106 and 219.27 of this chapter, no person in connection with the activities described in § 219.21 of this chapter may:
(a) Take any marine mammal not specified in § 219.23(b) of this chapter;
(b) Take any marine mammal specified in § 219.23(b) of this chapter in any manner other than as specified;
(c) Take a marine mammal specified in § 219.23(b) of this chapter if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal;
(d) Take a marine mammal specified in § 219.23(b) of this chapter if NMFS determines such taking results in an unmitigable adverse impact on the species or stock of such marine mammal for taking for subsistence uses; or
(e) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under §§ 216.106 and 219.27 of this chapter.
When conducting the activities identified in § 219.21(a), the mitigation measures contained in any LOA issued under §§ 216.106 and 219.27 of this chapter must be implemented. These mitigation measures shall include but are not limited to:
(a) General conditions:
(1) SWFSC shall take all necessary measures to coordinate and communicate in advance of each specific survey with the National Oceanic and Atmospheric Administration's (NOAA) Office of Marine and Aviation Operations (OMAO) or other relevant parties on non-NOAA platforms to ensure that all mitigation measures and monitoring requirements described herein, as well as the specific manner of implementation and relevant event-contingent decision-making processes, are clearly understood and agreed upon.
(2) SWFSC shall coordinate and conduct briefings at the outset of each survey and as necessary between ship's crew (Commanding Officer/master or designee(s), as appropriate) and scientific party in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures.
(3) SWFSC shall coordinate as necessary on a daily basis during survey cruises with OMAO personnel or other relevant personnel on non-NOAA platforms to ensure that requirements, procedures, and decision-making processes are understood and properly implemented.
(4) When deploying any type of sampling gear at sea, SWFSC shall at all times monitor for any unusual circumstances that may arise at a sampling site and use best professional judgment to avoid any potential risks to marine mammals during use of all research equipment.
(5) SWFSC shall implement handling and/or disentanglement protocols as specified in guidance provided to SWFSC survey personnel.
(b) Trawl survey protocols—SWFSC shall conduct trawl operations as soon as is practicable upon arrival at the sampling station.
(a) Visual monitoring program:
(1) Marine mammal watches shall be conducted by watch-standers (those navigating the vessel and/or other crew) at all times when the vessel is being operated.
(2) SWFSC shall monitor any potential disturbance of pinnipeds on ice, paying particular attention to the distance at which different species of pinniped are disturbed. Disturbance shall be recorded according to a three-point scale representing increasing seal response to disturbance.
(b) Training:
(1) SWFSC must conduct annual training for all chief scientists and other personnel who may be responsible for conducting dedicated marine mammal visual observations to explain mitigation measures and monitoring and reporting requirements, mitigation and monitoring protocols, marine mammal identification, recording of count and disturbance observations, completion of datasheets, and use of equipment. SWFSC may determine the agenda for these trainings.
(2) SWFSC shall also dedicate a portion of training to discussion of best professional judgment, including use in any incidents of marine mammal interaction and instructive examples where use of best professional judgment was determined to be successful or unsuccessful.
(c) Handling procedures and data collection:
(1) SWFSC must develop and implement standardized marine mammal handling, disentanglement, and data collection procedures. These standard procedures will be subject to approval by NMFS' Office of Protected Resources (OPR).
(2) When practicable, for any marine mammal interaction involving the release of a live animal, SWFSC shall collect necessary data to facilitate a serious injury determination.
(3) SWFSC shall provide its relevant personnel with standard guidance and training regarding handling of marine mammals, including how to identify different species, bring an individual aboard a vessel, assess the level of consciousness, remove fishing gear, return an individual to water, and log activities pertaining to the interaction.
(4) SWFSC shall record such data on standardized forms, which will be subject to approval by OPR. SWFSC shall also answer a standard series of supplemental questions regarding the details of any marine mammal interaction.
(d) Reporting:
(1) SWFSC shall report all incidents of marine mammal interaction to NMFS' Protected Species Incidental Take database within 48 hours of occurrence, and shall provide supplemental information to OPR upon request. Information related to marine mammal interaction (animal captured or entangled in research gear) must include details of survey effort, full descriptions of any observations of the animals, the context (vessel and conditions), decisions made, and rationale for decisions made in vessel and gear handling.
(2) Annual reporting:
(i) SWFSC shall submit an annual summary report to OPR not later than ninety days following the end of a given year. SWFSC shall provide a final report within thirty days following resolution of comments on the draft report.
(ii) These reports shall contain, at minimum, the following:
(A) Annual line-kilometers surveyed during which the EK60, ME70, SX90 (or equivalent sources) were predominant and associated pro-rated estimates of actual take;
(B) Summary information regarding use of all trawl gear, including number of tows, etc.;
(C) Accounts of all incidents of marine mammal interactions, including circumstances of the event and descriptions of any mitigation procedures implemented or not implemented and why;
(D) Summary information related to any on-ice disturbance of pinnipeds, including event-specific total counts of animals present, counts of reactions according to a three-point scale of response severity (1 = alert; 2 = movement; 3 = flight), and distance of closest approach;
(E) A written evaluation of the effectiveness of SWFSC mitigation strategies in reducing the number of marine mammal interactions with survey gear, including best professional judgment and suggestions for changes to the mitigation strategies, if any;
(F) Final outcome of serious injury determinations for all incidents of marine mammal interactions where the animal(s) were released alive; and
(G) A summary of all relevant training provided by SWFSC.
(e) Reporting of injured or dead marine mammals:
(1) In the unanticipated event that the activity defined in § 219.1(a) of this chapter clearly causes the take of a marine mammal in a prohibited manner, SWFSC personnel engaged in the research activity shall immediately cease such activity until such time as an appropriate decision regarding activity continuation can be made by the SWFSC Director (or designee). The incident must be reported immediately to OPR. OPR will review the circumstances of the prohibited take and work with SWFSC to determine what measures are necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The immediate decision made by SWFSC regarding continuation of the specified activity is subject to OPR concurrence. The report must include the following information:
(i) Time, date, and location (latitude/longitude) of the incident;
(ii) Description of the incident;
(iii) Environmental conditions (
(iv) Description of all marine mammal observations in the 24 hours preceding the incident;
(v) Species identification or description of the animal(s) involved;
(vi) Status of all sound source use in the 24 hours preceding the incident;
(vii) Water depth;
(viii) Fate of the animal(s); and
(ix) Photographs or video footage of the animal(s).
(2) In the event that SWFSC discovers an injured or dead marine mammal and determines that the cause of the injury or death is unknown and the death is relatively recent (
(3) In the event that SWFSC discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities defined in § 219.21(a) of this chapter (
(a) To incidentally take marine mammals pursuant to these regulations, SWFSC must apply for and obtain an LOA.
(b) An LOA, unless suspended or revoked, may be effective for a period of time not to exceed the expiration date of these regulations.
(c) If an LOA expires prior to the expiration date of these regulations, SWFSC may apply for and obtain a renewal of the LOA.
(d) In the event of projected changes to the activity or to mitigation and monitoring measures required by an LOA, SWFSC must apply for and obtain a modification of the LOA as described in § 219.28 of this chapter.
(e) The LOA shall set forth:
(1) Permissible methods of incidental taking;
(2) Means of effecting the least practicable adverse impact (
(3) Requirements for monitoring and reporting.
(f) Issuance of the LOA shall be based on a determination that the level of taking will be consistent with the findings made for the total taking allowable under these regulations.
(g) Notice of issuance or denial of an LOA shall be published in the
(a) An LOA issued under §§ 216.106 and 219.27 of this chapter for the activity identified in § 219.21(a) of this chapter shall be renewed or modified upon request by the applicant, provided that:
(1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in § 219.28(c)(1) of this chapter), and
(2) OPR determines that the mitigation, monitoring, and reporting measures required by the previous LOA under these regulations were implemented.
(b) For an LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting (excluding changes made pursuant to the adaptive management provision in § 219.28(c)(1) of this chapter) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), OPR may publish a notice of proposed LOA in the
(c) An LOA issued under §§ 216.106 and 219.27 of this chapter for the activity identified in § 219.21(a) of this chapter may be modified by OPR under the following circumstances:
(1) Adaptive Management—OPR may modify (including augment) the existing mitigation, monitoring, or reporting measures (after consulting with SWFSC regarding the practicability of the modifications) if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.
(i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:
(A) Results from SWFSC's monitoring from the previous year(s).
(B) Results from other marine mammal and/or sound research or studies.
(C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.
(ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, OPR will publish a notice of proposed LOA in the
(2) Emergencies—If OPR determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in § 219.22(b) of this chapter, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration |