Page Range | 42215-42452 | |
FR Document |
Page and Subject | |
---|---|
81 FR 42370 - Notice of Proposal To Establish a Tribal Intergovernmental Advisory Committee; Request for Comments on Committee Structure | |
81 FR 42388 - Self-Regulatory Organizations; NYSE MKT LLC; Suspension of and Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Modify the NYSE Amex Options Fee Schedule With Respect to Fees, Rebates, and Credits for Transactions in the Customer Best Execution Auction | |
81 FR 42235 - Energy Conservation Program: Test Procedure for Battery Chargers | |
81 FR 42221 - Global Entrepreneurship | |
81 FR 42380 - National Science Board; Sunshine Act Meetings; Notice | |
81 FR 42215 - Establishment of the Stonewall National Monument | |
81 FR 42328 - Cancer Immunotherapy Pilot Program | |
81 FR 42376 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public Interest | |
81 FR 42368 - 30-Day Notice of Proposed Information Collection: Application for Community Compass TA and Capacity Building Program NOFA | |
81 FR 42372 - Final Environmental Impact Statement for the Proposed Seminole Tribe of Florida Fee-to-Trust Project, City of Coconut Creek, Broward County, Florida | |
81 FR 42370 - 30-Day Notice of Proposed Information Collection: Applications for Housing Assistance Payments; Special Claims Processing | |
81 FR 42370 - 30-Day Notice of Proposed Information Collection: HUD-Administered Small Cities Program Performance Assessment Report | |
81 FR 42369 - 60-Day Notice of Proposed Information Collection: Multifamily Default Status Report | |
81 FR 42252 - Safety Zone; Fourth of July Fireworks North Myrtle Beach, SC | |
81 FR 42356 - Notice of Agreements Filed | |
81 FR 42395 - Proposed Collection; Comment Request | |
81 FR 42254 - Safety Zone; Fourth of July Fireworks Murrells Inlet, SC | |
81 FR 42250 - Safety Zone; Cornucopia Fireworks Display, Lake Superior, Cornucopia, WI | |
81 FR 42285 - Magnuson-Stevens Fishery Conservation and Management Act Provisions; Implementation of the Shark Conservation Act of 2010 | |
81 FR 42351 - Proposed Consent Decree, Clean Air Act Citizen Suit | |
81 FR 42392 - Environmental Impact Statement for the California High Speed Rail System San Francisco to San Jose Section, CA | |
81 FR 42350 - Adequacy Status of the Baton Rouge, Louisiana Maintenance Plan 8-Hour Ozone Motor Vehicle Emission Budgets for Transportation Conformity Purposes | |
81 FR 42335 - Privacy Act of 1974; Notice of a Computer Matching Program | |
81 FR 42266 - Hazardous Materials: Revision of Maximum and Minimum Civil Penalties | |
81 FR 42333 - Charter Renewal of Department of Defense Federal Advisory Committees | |
81 FR 42390 - Culturally Significant Objects Imported for Exhibition Determinations: “Kai Althoff: and then leave me to the common swifts” Exhibition | |
81 FR 42390 - 30-Day Notice of Proposed Information Collection: Application for a U.S. Passport | |
81 FR 42333 - Government-Industry Advisory Panel; Notice of Federal Advisory Committee Meeting | |
81 FR 42367 - National Institutes of Health, Precision Medicine Initiative® (PMI) Cohort Program; Notice of Meeting | |
81 FR 42309 - Shoshone National Forest Travel Management; Shoshone National Forest, Wyoming | |
81 FR 42309 - Rural Development Voucher Program | |
81 FR 42334 - Proposed Collection; Comment Request | |
81 FR 42345 - Western Antelope Blue Sky Ranch B LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 42343 - BridgeTex Pipeline Company, LLC; Notice of Petition for Declaratory Order | |
81 FR 42340 - Western Antelope Dry Ranch LLC; Docket No. ER16-1956-000; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 42348 - Antelope DSR 2, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 42348 - Combined Notice of Filings #1 | |
81 FR 42346 - City of Libby, MT; Notice of Preliminary Determination of a Qualifying Conduit Hydropower Facility and Soliciting Comments and Motions To Intervene | |
81 FR 42365 - Gifts to the Food and Drug Administration: Evaluation and Acceptance: Draft Guidance for the Public and Food and Drug Administration Staff; Availability | |
81 FR 42363 - Procedures for Evaluating Appearance Issues and Granting Authorizations for Participation in Food and Drug Administration Advisory Committees; Draft Guidance for the Public, Food and Drug Administration Advisory Committee Members, and Food and Drug Administration Staff; Availability | |
81 FR 42373 - Notice of Intent To Amend the Kemmerer Resource Management Plan and Prepare an Environmental Assessment; and Notice of Realty Action: Classification and Proposed Direct Sale of Public Land in Lincoln County, Wyoming | |
81 FR 42373 - Public Land Order No. 7853; Extension of Public Land Order No. 7209, Cape Johnson; Washington | |
81 FR 42243 - Medical Devices; General and Plastic Surgery Devices; Classification of the Electrosurgical Device for Over-the-Counter Aesthetic Use | |
81 FR 42291 - Fisheries of the Northeastern United States; Atlantic Mackerel, Squid, and Butterfish Fishery; 2016 Longfin Squid Trimester II Quota Harvested | |
81 FR 42312 - President's Advisory Council on Doing Business in Africa | |
81 FR 42318 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Installation of the Block Island Wind Farm Export and Inter-Array Cables | |
81 FR 42318 - Mid-Atlantic Fishery Management Council (MAFMC); Meeting | |
81 FR 42393 - Reports, Forms, and Record Keeping Requirements Agency Information Collection Activity Under OMB Review | |
81 FR 42328 - Hydrographic Services Review Panel Meeting | |
81 FR 42327 - Interagency Working Group on the Harmful Algal Bloom and Hypoxia Research and Control Amendments Act Detailed Summary of the Great Lakes Plan on Harmful Algal Blooms (HABs) and Hypoxia; Correction | |
81 FR 42362 - Microbiology Devices Panel of the Medical Devices | |
81 FR 42364 - Anesthetic and Analgesic Drug Products Advisory Committee and the Drug Safety and Risk Management Advisory Committee; Notice of Meeting | |
81 FR 42388 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Allow Listed Companies Not Currently Subject to Nasdaq's All-Inclusive Annual Listing Fee To Opt In to That Fee Program for 2017 | |
81 FR 42338 - Notice of Public Meeting on the Environmental Assessment Addressing the Consolidation and Renovation at Marine Corps Forces Reserve Center Brooklyn, New York | |
81 FR 42250 - Eighth Coast Guard District Annual Safety Zones; Table 165; Sector Ohio Valley | |
81 FR 42249 - Drawbridge Operation Regulation; Lewis and Clark River, Astoria, OR | |
81 FR 42332 - Agency Information Collection Activities Under OMB Review | |
81 FR 42398 - Clark Canyon Dam Hydroelectric Project; Notice of Availability of Environmental Assessment | |
81 FR 42342 - Notice of Commission Staff Attendance | |
81 FR 42375 - Certain Network Devices, Related Software and Components Thereof (I); Commission's Final Determination Finding a Violation; Issuance of a Limited Exclusion Order and Cease and Desist Order; Termination of the Investigation | |
81 FR 42376 - Certain Tissue Paper Products From China; Cancellation of Hearing for Full Five-Year Review | |
81 FR 42377 - Certain Footwear Products; Commission Decision To Affirm-in-Part, Reverse-in-Part, and Vacate Certain Portions of a Final Initial Determination Finding a Violation of Section 337; Issuance of General Exclusion Order; Termination of the Investigation | |
81 FR 42396 - Proposed Information Collection (NCA Pre-Need Determination of Eligibility for Burial) | |
81 FR 42352 - Information Collection Being Submitted for Review and Approval to the Office of Management and Budget | |
81 FR 42264 - Authorization of Radiofrequency Equipment and Approval of Terminal Equipment by Telecommunications | |
81 FR 42308 - Information Collection: Annual Wildfire Summary Report | |
81 FR 42380 - New Postal Product | |
81 FR 42290 - Atlantic Highly Migratory Species; Atlantic Bluefin Tuna Fisheries | |
81 FR 42367 - Notice of Advisory Council on Historic Preservation Quarterly Business Meeting | |
81 FR 42359 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMB | |
81 FR 42357 - Agency Information Collection Activities: Announcement of Board Approval Under Delegated Authority and Submission to OMB | |
81 FR 42380 - Self-Regulatory Organizations; Chicago Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Rules To Implement the Regulation NMS Plan To Implement a Tick Size Pilot Program | |
81 FR 42386 - Self-Regulatory Organizations; CBOE Futures Exchange, LLC; Notice of Proposed Rule Change To Make Clarifying Updates to Prohibited Disruptive Trading Practices | |
81 FR 42366 - Center For Scientific Review; Notice of Closed Meetings | |
81 FR 42394 - Bridgestone Americas Tire Operations, LLC, Receipt of Petition for Decision of Inconsequential Noncompliance | |
81 FR 42339 - Agency Information Collection Activities; Comment Request; Educational Opportunity Centers Program (EOC) Annual Performance Report | |
81 FR 42337 - The Release of the Final Environmental Impact Statement (FEIS) for the Figure Eight Island Shoreline Management Project, on Figure Eight Island, New Hanover County, NC | |
81 FR 42360 - Agency Information Collection Activities; Proposed Collection; Public Comment Request; Senior Medicare Patrol (SMP) Program National Beneficiary Survey | |
81 FR 42371 - Agency Information Collection Activities: Request for Comments | |
81 FR 42314 - Hydrofluorocarbon Blends and Components Thereof From the People's Republic of China: Final Determination of Sales at Less Than Fair Value and Final Affirmative Determination of Critical Circumstances | |
81 FR 42249 - Drawbridge Operation Regulation; Isle of Wight (Sinepuxent) Bay, Ocean City, MD | |
81 FR 42248 - Drawbridge Operation Regulation; North Landing River, Chesapeake, VA | |
81 FR 42353 - Agency Information Collection Activities: Proposed Collection Renewals; Comment Request (3064-0030, -0104 & -0122) | |
81 FR 42245 - Participation by Religious Organizations in USAID Programs | |
81 FR 42391 - Commercial Driver's License Standards: Missouri Department of Revenue (DOR); Application for Exemption | |
81 FR 42346 - Combined Notice of Filings | |
81 FR 42341 - Combined Notice of Filings #1 | |
81 FR 42347 - Elevation Solar C LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 42341 - Tidal Energy Marketing Inc.; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 42344 - Boulder Solar Power, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 42343 - Hydro Renewable Energy Inc.; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 42347 - Marshall Solar, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization | |
81 FR 42349 - Combined Notice of Filings | |
81 FR 42344 - Combined Notice of Filings | |
81 FR 42344 - Combined Notice of Filings #1 | |
81 FR 42308 - Submission for OMB Review; Comment Request | |
81 FR 42293 - Proposed Amendment of Class E Airspace, Salem, OR | |
81 FR 42225 - Federal Employees' Group Life Insurance Program: Options B and C; Correction | |
81 FR 42265 - General Services Administration Acquisition Regulation (GSAR); Rewrite of GSAR Part 515, Contracting by Negotiation; Corrections | |
81 FR 42295 - Magnuson-Stevens Act Provisions; Fisheries Off West Coast States; Pacific Coast Groundfish Fishery; Widow Rockfish Reallocation in the Individual Fishing Quota Fishery | |
81 FR 42268 - Endangered and Threatened Wildlife and Plants: Final Listing Determination on the Proposal To List the Nassau Grouper as Threatened Under the Endangered Species Act | |
81 FR 42263 - Designation of Areas for Air Quality Planning Purposes; California; San Joaquin Valley; Reclassification as Serious Nonattainment for the 2006 PM2.5 | |
81 FR 42256 - Approval and Promulgation of Air Quality Implementation Plans; State of Kansas; Cross-State Air Pollution Rule | |
81 FR 42294 - Approval and Promulgation of Air Quality Implementation Plans; State of Kansas; Cross-State Air Pollution Rule | |
81 FR 42235 - Rules of Practice and Procedure | |
81 FR 42225 - Electronic Export Application and Certification Charge; Flexibility in the Requirements for Export Inspection Marks, Devices, and Certificates; Egg Products Export Certification |
Animal and Plant Health Inspection Service
Food Safety and Inspection Service
Forest Service
Rural Housing Service
International Trade Administration
National Oceanic and Atmospheric Administration
Patent and Trademark Office
Engineers Corps
Navy Department
Federal Energy Regulatory Commission
Community Living Administration
Food and Drug Administration
National Institutes of Health
Coast Guard
Geological Survey
Indian Affairs Bureau
Land Management Bureau
Federal Aviation Administration
Federal Motor Carrier Safety Administration
Federal Railroad Administration
National Highway Traffic Safety Administration
Pipeline and Hazardous Materials Safety Administration
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.
U.S. Office of Personnel Management.
Final rule; correction.
The U.S. Office of Personnel Management (OPM) published a document in the
Effective June 29, 2016.
Ronald Brown, Policy Analyst, (202) 606-0004, or by email to
We are correcting the final rule published May 5, 2016 (81 FR 26997). The final rule included a section entitled
In rule FR Doc. 2016-10539 published on May 5, 2016 (81 FR 26997) make the following correction. On page 26997, in the first column, remove the
Food Safety and Inspection Service, USDA.
Final rule.
The Food Safety and Inspection Service (FSIS) is amending the meat and poultry inspection regulations to provide for an electronic export application and certification system. The electronic export application and certification system will be a component of the Agency's Public Health Information System (PHIS). The PHIS Export Component will be available as an alternative to the paper-based export application and certification process. FSIS will charge an application fee to exporters that use the PHIS Export Component. FSIS is establishing a formula for calculating the fee. On an annual basis, the Agency will use the formula to update the fee and publish the new fee in the
Daniel Engeljohn, Assistant Administrator, Office of Policy and Program Development, U.S. Department of Agriculture, 1400 Independence Avenue SW., Room 2147, Washington, DC 20250-3700, (202) 205-0495.
On January 23, 2012, FSIS proposed to amend its regulations to provide for the PHIS Export Component, an electronic export application and certification system that would be available as an alternative to the paper-based application and certification process (77 FR 3159). The Agency also proposed amendments to provide exporters with flexibility in the official marking of exported products and to delete certain prescriptive practices from the regulations, such as the obsolete “upon request” poultry export certification provision (9 CFR 381.105(a)) and requirements for “triplicate” and “duplicate” forms (9 CFR 322.2 and 381.105) to allow for “copies” of the export certificates. In addition, FSIS proposed to organize and make parallel, to the extent possible, the regulatory language for the export application and certification of meat and poultry products and to amend the egg products export regulations to add export application and certification requirements.
Because the PHIS Export Component will provide exporters with new service options, such as the ability to electronically submit, track, and manage their export applications, the Agency proposed to charge exporters a fee for the service. FSIS proposed a formula for calculating the fee based on recovering the Agency's costs of maintaining and operating the PHIS Export Component.
After review and consideration of all the comments submitted, FSIS is finalizing the proposed amendments, with modifications:
• One component of the fee formula, direct inspection cost, has been deleted. Other cost components of the formula,
• The regulatory requirements for filing a copy of the export certificate with U.S. Customs and Border Protection (CBP) will be deleted from the regulatory text (9 CFR 322.2(e)). However, the Federal Meat Inspection Act's (FMIA) statutory requirement and FSIS's regulatory requirement that the product's owner (
• The regulatory text in 9 CFR 322.1(a) and 381.105(a) for marking the outside containers of exported products is modified to include stamping the pallet within the consignment, or closed means of conveyance transporting the consignment (
• Also, to make the regulations more clear, FSIS is amending the export certification regulations by changing the term “in lieu of certificates” to “replacement certificates” (9 CFR 322.2(b), 9 CFR 381.106(b), 590.407(b)).
Beginning on the applicability date of June 29, 2017, FSIS will charge exporters that choose to utilize the PHIS Export Component a revised fee of $4.03 per application submitted. Automating the export application and certification process will provide a seamless, integrated, and streamlined approach to processing applications and certificates. It will likely reduce the exporter and inspection personnel workload and paperwork burden by reducing the physical handling and processing of applications and certificates. Adding export application and certification requirements to the egg products regulations will parallel the meat and poultry regulations.
Total direct cost to the exporters is estimated at $2.3 million, assuming that the number of applications will remain at about 576,000 per year, based on recent application data. The indirect costs, which are indeterminate, will be the Internet service and the acquisition or upgrading of a current computer system to one that would be compatible with the PHIS. Under the final rule, exporters may continue to submit paper-based export applications to the Agency so as to not incur the additional fee required by this rule.
On January 23, 2012, FSIS published the proposed rule, “
The Federal Meat Inspection Act (FMIA) (21 U.S.C. 601-695) and the Poultry Products Inspection Act (PPIA) (21 U.S.C. 451-470) provide for the export and certification of meat and poultry products. The FSIS meat and poultry export regulations set forth the requirements for the certification and export of federally inspected and passed meat and poultry products to foreign countries (9 CFR 312.8, 322.1 through 322.5 and 381.104 through 381.111).
The Egg Products Inspection Act (EPIA) (21 U.S.C. 1031-1056) does not set forth specific provisions for the export of egg products. FSIS's egg products inspection regulations provide that, upon request, an inspector may issue an egg product export certificate of wholesomeness. Exporters can present the certificate to foreign countries as certification that egg products were inspected and passed and are wholesome and fit for human consumption (9 CFR 590.402).
The Agricultural Marketing Act (AMA) provides the Secretary of Agriculture with the authority to collect fees “as will be reasonable and as nearly as may be to cover the cost of the service rendered, to the end that agricultural products may be marketed to the best advantage, that trading may be facilitated, and that consumers may be able to obtain the quality product which they desire” (7 U.S.C 1622(h)). Under the authority of the AMA, the meat and poultry regulations provide that FSIS may make certifications regarding exported meat and poultry products meeting conditions or standards that are not imposed, or that are in addition to those imposed, by the meat and poultry regulations, the FMIA, or the PPIA (9 CFR 350.3(b) and 362.2(b)). FSIS collects fees and charges from establishments and facilities that request certification service in addition to the basic export certification of wholesomeness (9 CFR 350.7 and 362.5).
FSIS is developing and, on the applicability date of June 29, 2017, will implement the PHIS Export Component that will integrate and automate the Agency's paper-based export application and certification process into one comprehensive and automated data-driven inspection system. Through the PHIS Export Component, exporters will be able to access their online account to electronically submit, track, and manage applications for export certificates. The PHIS Export Component will allow establishment management to apply for approval of establishments for export when required by the foreign country; create, revise, and submit Product Lists; cancel pending applications and certificates; request replacement (formerly “in lieu of”) certificates; and return of exported products.
The PHIS Export Component will include electronic data elements for the following export-related forms: the Application for Export Certificate (which includes the option for an “original” or “replacement” application); the Product List, which will be used by PHIS to capture the description of a product and other product-specific information; and the Application for the Return of Exported Products to the United States (used to notify FSIS when product is exported and then returned to the U.S. and to arrange for the product's entry and reinspection by FSIS); and the Establishment Application for Export (used by FSIS to ensure specific establishment requirements defined by certain countries are met); once approved, the eligible establishment will be listed by country on the FSIS Web site (
After the applicability date of June 29, 2017, exporters can continue to submit the paper applications for export certification, but those who choose to do so will need to email, fax, or mail the completed application, and any additional information required by the foreign country, to FSIS for entry into PHIS at:
Before the rule's applicability date of June 29, 2017, FSIS will also announce, in the Constituent Update, a dedicated fax number for paper application submissions.
FSIS intends to enter data from complete paper export certificate applications into PHIS typically within
After FSIS enters the data from the paper export certificate application into PHIS, the application data will follow the same approval process in PHIS as application data submitted by an applicant through PHIS with Level 2 eAuthentication. After FSIS approves an Application for Export Certificate, an FSIS inspector will issue a signed export certificate to the exporter. FSIS will continue to process and charge for after-hours (overtime or holiday) applications as a reimbursable service (9 CFR 307.5 and 307.6; 381.38 and 381.39; 590.126 through 590.130), as well as requests for certification that are in addition to the basic export certification (9 CFR 350.3(b), 350.7, 362.2(b), and 362.5).
The PHIS Export Component will initially have the ability to produce paper certificates that can be signed by FSIS with either an ink signature, as is done currently, or with a secure signature image derived from an official FSIS Identification card. The type of signature will be determined by the foreign government's requirements. FSIS will print paper certificates, generated by PHIS and issue the signed paper certificates to the exporter.
Foreign governments will also have the capability to view all export certificates for product intended for their country issued by FSIS in PHIS, as a digital image (portable document format, (PDF)), through an FSIS-controlled log-in feature (Foreign Country Log-in). Foreign governments may access the Foreign Country Log-in using Level 2 eAuthentication. Prior to implementation of the PHIS Export Component, FSIS will notify foreign governments when it is time to register for Level 2 eAuthentication. To learn more about Level 2 eAuthentication and how to register for an account, please visit
In the future, FSIS also intends to support electronic export certification in PHIS. Electronic export certification is the government-to-government transmission of certification data and is the electronic equivalent of a paper certificate. When developed and implemented, electronic export certification will allow FSIS to transfer certification data directly to the foreign government's competent authority. Electronic certification will allow the foreign government's competent authority to view and authenticate the export certification data. FSIS will notify the public—including industry, importing countries, and other interested stakeholders—regarding the future development and implementation of electronic export certification, through a U.S.
The PHIS Export Component will maintain a record of each export certificate issued, whether the certificate is paper-based, digital image, or in the future, electronic. FSIS considers any data and the electronic records (applications and certifications) submitted and processed through the PHIS to be equivalent to paper records. Export applications and certifications transmitted electronically are official.
To access and use the PHIS Export Component, exporters will need to register for a USDA eAuthentication account with Level 2 access. An eAuthentication account enables individuals within and outside of the USDA to obtain user-identification accounts to access a wide range of USDA applications through the Internet. The Level 2 access will provide to users the ability to conduct official electronic business transactions. To register for a Level 2 eAuthentication account, the user will need to have access to the Internet and a valid email address.
The Agency plans to provide exporters with more specific, detailed information on how to access PHIS to submit and manage export certificate applications, including guidance to exporters for accessing and navigating the PHIS Export Component. Any information concerning the implementation of the PHIS Export Component will be posted on the Agency's Web site at
To provide for an orderly transition to the PHIS Export Component, FSIS considered several implementation options, including a phased-in implementation approach, which would benefit FSIS and industry by allowing time and flexibility to identify and address any PHIS export issues that may arise. The Agency also considered initially implementing the Export Component with countries that import the highest volume of FSIS-regulated product, or with neighboring countries such as Canada and Mexico. In addition, the Agency considered whether or not to accommodate the transfer of multiple export applications batch files sent from exporters to the PHIS Export Component.
On April 2, 2015, to solicit public comment and input on implementation issues, the Agency published “Issues on Implementation of Export Module,” on
Also on April 2, 2015, FSIS held a conference call with members of consumer advocacy groups and industry representatives to request feedback on the implementation of the PHIS Export Component. During the call, the Agency announced that it had published PHIS Export Component implementation issues and questions on regulations.gov for public comment. The Agency published the transcript of the conference call on its Web site at:
In addition, on April 3, 2015, FSIS announced, in a Constituent Update, a request for feedback on the implementation of the PHIS Export Component (
In response to the implementation issues and questions, commenters generally supported a phased-in approach, starting with one country, and expanding to additional countries only after potential initial implementation issues have been resolved. Commenters did not recommend specific countries, although some suggested beginning with low-volume countries that maintain relatively simple export certification requirements. Commenters also supported including batching capabilities which will allow applicants to bundle multiple applications into a single file, and noted specifically that, as the PHIS Export Component is implemented, companies will have to
Based on the comments received, FSIS is developing a comprehensive phased-in implementation plan of the PHIS Export Component. Initially, beginning on the applicability date of June 29, 2017, the Agency will implement the PHIS Export Component with one foreign country or limited number of foreign countries, and then gradually expand implementation to additional countries. In addition, the PHIS Export Component will include batch file capability, which will be aligned with the rollout of countries in the phased-in implementation. To maintain system functionality, FSIS reserves the right to place limits on batching as needed or required by PHIS, and will process applications in the order that they are received. In preparing for phased-in implementation, FSIS is evaluating criteria, such as the foreign country's product volume and product diversity, geographic proximity to the United States, and complexity of certification requirements. FSIS will communicate with foreign countries and industry regarding preparations for the phased-in implementation plan, and will seek additional public input as needed.
The rule's electronic application and fee provisions will not be applicable until June 29, 2017. FSIS will provide additional information through
As discussed in the proposed rule (77 FR 3160), the meat and poultry products inspection regulations provide a paper-based export application and certification process (9 CFR 312.8, 322.2, 381.105, and 381.106). The meat regulations provide that, upon application of the exporter, FSIS inspectors are authorized to issue export certificates (9 CFR 322.2(a)). The poultry products regulations provide that, upon the exporter's request or application, FSIS inspectors are authorized to issue export certificates (9 CFR 381.105(a)). The Agency proposed to amend the regulations to provide that applications for export certification may be either paper-based or electronic and to delete the “upon request” certificate provision in the poultry products regulations, because the “upon request” provision is obsolete and does not reflect current export certification practices.
FSIS also proposed to delete the export certificate form requirements in 9 CFR 312.8(b) and 381.106, because these regulations contain specific certificate requirements and instructions for Agency inspection personnel,
In addition, FSIS proposed to delete the references in 9 CFR 322.2 and 381.105 to the issuance of “triplicate” and “duplicate” certificates to allow for “copies” of the export certificate to be distributed to the required parties and to accompany the product. The Agency also proposed to delete the provisions in 9 CFR 322.2(e) for filing a copy of the export certificate with the U.S. Customs and Border Protection (CBP) within four (4) business days of the clearance of the vessel at the time of filing the complete manifest.
FSIS also proposed to amend the meat and poultry export regulations to organize and make parallel, to the extent possible, the regulatory language for meat and poultry products. This rule finalizes all of the proposed amendments.
As discussed in the proposed rule (77 FR 3161), after the export application is approved, inspection program personnel provide the export stamp and authorize the establishment to mark products destined for export. As required in 9 CFR 322.1(a) and 381.105(a), each shipping container is marked with the official export stamp bearing the serial number on the export certificate (of note, beginning on the applicability date of June 29, 2017, FSIS is changing the number of digits in the serial number that appears on both the export stamp and the corresponding export certificate from six to seven). Both 9 CFR 312.8(a) and 381.104 provide for an official device to apply the official export stamp.
FSIS proposed to amend 9 CFR 312.8(a) and 381.104 to provide an alternative method of identifying and marking containers of product destined for export. The proposed flexibility would permit exporters to mark product containers with a unique identifier that links the exported product to the export certificate. The Agency proposed the flexibility because of the technological advancements that have been made since the export marking and devices regulations were initially promulgated.
This rule finalizes the proposed amendments, but will not make the unique identifier provisions applicable until June 29, 2017. In response to a comment, the Agency is also providing greater flexibility by permitting stamping of the pallet within the consignment, or closed means of conveyance transporting the consignment (
As discussed, the EPIA does not set forth specific provisions for the export of egg products, and the FSIS egg products inspection regulations do not include requirements for exported egg products. The egg products inspection regulations provide that, upon request, an inspector may issue an egg product inspection and grading certificate. The exporter can present the certificate to foreign countries as certification that egg products were inspected and passed and are wholesome and fit for human consumption (9 CFR 590.402).
As discussed in the proposed rule (77 FR 3161), because almost all foreign countries require export certification for imported egg products, FSIS proposed to amend the egg products export regulations to add export application and certification requirements in 9 CFR 590.407. The proposed section paralleled, to the extent possible, the export requirements in the meat and poultry regulations that provide for the
As discussed above and in the proposed rule (77 FR 3161), under the authority of the AMA, the meat and poultry inspection regulations provide that when exporters request certification that is in addition to the basic export certification of wholesomeness required by regulation, FSIS charges and collects fees from establishments and facilities that request this service (9 CFR 350.3(b), 350.7, 362.2(b), and 362.5). Exporters may also request additional certifications to meet requirements imposed by the importing foreign countries.
The PHIS's Export Component will provide new service options to exporters enabling them to electronically submit, track, and manage their export applications. Therefore, to cover the costs of providing the electronic application and certification service, the Agency proposed to establish a fee to exporters that utilize the PHIS Export Component. The fee is for the application for the basic export certificate. Any additional certifications that are imposed by the importing foreign country will be charged as a certification service, as provided in 9 CFR 350.3(b), 362.2(b), and 592.20(d)). These additional export certifications will be charged at the appropriate basetime, overtime, or holiday rate, depending on when the certification service is provided. The basic export certification, if provided outside of an inspector's normal shift, is also charged at the appropriate rate (overtime or holiday).
The Agency proposed the following formula for assessing its annual cost: The labor costs (
The Agency also provided the following calculation and export application fee based on the 2012 basetime rate, the best estimates for on-going operations and maintenance, and an estimated number of export applications it would receive:
In response to comments that the export application formula and fee should not include direct inspection labor costs for inspection personnel, FSIS deleted this cost from the export application formula and fee. In addition, the Agency has updated the costs and the estimated number of export applications included in the formula, and in response to comments provided more explanation of the costs:
The 2015 PHIS Export Application Fee is based on the following costs, rates, and best available data:
• Technical Support Costs.
The cost of providing technical support, which includes service desk support, is $125,000.
• Export Library Maintenance.
The cost for funding two full-time employees to provide export library functions is $302,098.
• On-going Operations and Maintenance Costs.
The cost of providing on-going operations and maintenance, including improvements and necessary repairs to keep the system responsive to users' needs, is $1,894,156.
• eAuthentication Costs.
The cost of providing eAuthentication is currently zero. eAuthentication is a single sign-on application that allows users to securely access multiple USDA applications, including the PHIS Export Component. To access the PHIS Export Component users need to register for a USDA eAuthentication account. To learn more about eAuthentication and how to register for an account, visit
• The estimated number of yearly export applications, determined using data obtained from FSIS's Office of Field Operations, is 576,192.
The final export application fee formula and fee are below:
The fee will be calculated on an annual basis, and the updated fees will apply at the start of each calendar year. FSIS will publish a
FSIS is amending the export certification regulations by changing the term “in lieu of certificates” to “replacement certificates” (9 CFR 322.2(b), 9 CFR 381.106(b), 9 CFR 590.407(b)). This change is intended to make FSIS regulations more clear. This change will not cause problems for the industry or international community because the term “replacement certificates” is generally well understood.
FSIS received 8 comments from domestic trade associations and domestic exporting establishments.
In this final rule, in addition to deleting the direct inspection costs from the export application formula, the Agency also updated the costs and the estimated number of export applications included in the formula. The final formulas and fees are discussed above.
FSIS notified the World Trade Organization (WTO) of the proposed rule on January 23, 2012, consistent with our obligations under the WTO Technical Barriers to Trade Agreement. This notification gave all WTO Members the chance to review and comment on the proposal at a point when meaningful changes could still be made. In addition, FSIS is planning a formal outreach strategy to ensure that foreign
FSIS will provide a dedicated fax number as well, and will announce availability of this number in a Constituent Update before the rule's effective date.
Export applicants with an eAuthentication account can submit and process their application electronically (for a fee), and if the foreign country requires a paper certificate, FSIS will print an approved certificate and provide it to the applicant.
In terms of accounting for export certificates, the PHIS Export Component will allow FSIS to electronically inventory and track export certificate information, thus eliminating the cumbersome transfer of export certificate copies or certificate data across multiple steps in the supply chain to CBP. Furthermore, no direct transfer from FSIS to CBP is needed, because the controls in place between the United States and the importing countries are sufficient to eliminate the burden of transferring data (or copies of the certificate) between Federal agencies. Therefore, in this final rule, FSIS is deleting 9 CFR 322.2(e). While this change removes unnecessary export requirements internal to the United States, exporters are responsible for obtaining the appropriate export certification before departure.
To provide greater flexibility and accommodation of technological change, FSIS will not narrowly define the term “unique identifier” within its regulations, beyond the requirement that it must link the exported product to the export certificate issued by inspection personnel. In general, FSIS envisions the alternative mark as an alphanumeric sequence that uniquely identifies the shipment and links it to the export certificate. In the future, other methods and technologies could be used to produce unique identifiers, as verified by FSIS and determined acceptable by the importing country. Exporters' use of unique identifiers as an alternative mark will be dependent on acceptance by the importing country, as documented in the FSIS Export Library. As noted above, the unique identifier provisions will not be applicable until June 29, 2017. FSIS will work closely with importing countries to determine their needs related to identifying the product and will explain the alternative of using a unique identifier in place of the export stamp.
Executive Orders (E.O.) 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
FSIS has adopted the preliminary regulatory impact analysis with an update to the paperwork burden estimates for egg plants.
Based on the formula established in this rule, for exporters that choose to utilize this new tool, the direct cost would be $4.03 per export application. The application fee will be determined annually based on the formula. The total cost to an exporter would depend on the number of electronic applications processed. An exporter that processes only a few applications per year would not likely experience a significant economic impact.
Assuming that the number of applications will remain about 576,000, based on recent application data,
Egg plants will incur additional costs as a result of this final rule. The total annual paperwork burden to egg exporters to fill out the paper-based export application is estimated to be 3,333
The final rule will likely reduce the exporter and inspection personnel workload and paperwork burden by reducing the physical handling and processing of applications and certificates. The reduction in workload and paperwork burden is based on the greater efficiency of processing applications electronically and the number of applications filed electronically. In the future, the PHIS Export Component will facilitate the electronic government-to-government exchange of export applications and certifications, which will assist in the resolution of allegations of fraudulent transactions such as false alterations and reproductions.
An indirect benefit of automating the export application and certification system is that there will be an automatic, electronic recordkeeping of the number and types of exporters, the types of products exported to various countries, and the number of applications and certificates issued through PHIS.
Further, the electronic export system will provide a streamlined approach to processing applications and certificates. As a result, there will be additional unquantifiable benefits because PHIS automates the verification of eligibility and accuracy of certifications needed and will speed up the process for these establishments. Also, any potential documentation problems are likely to be resolved electronically before the product arrives at the port, and as a result, the products will likely move through ports faster than they do currently. Thus, storage costs to exporters will be reduced, and the product will reach its destination more quickly. Even exporters that submit a paper-based application will benefit from the PHIS Export Component. FSIS will enter the application into the PHIS, and the FSIS verifications activities regarding eligibility and accuracy of certifications will be automated.
If fully adopted by the industry and our trading partners when the PHIS Export Component is fully implemented, FSIS will recover the costs of providing electronic application and certification service.
The FSIS Administrator certifies that, for the purposes of the Regulatory Flexibility Act (5 U.S.C. 601-602), the final rule will not have a significant impact on a substantial number of small entities in the United States. There are 6,074 meat, poultry, and egg products establishments
For the meat, poultry, and egg products industries, small and very small exporters, like large exporters, would incur the $4.03 fee only if they file their export application electronically. If they choose to submit the paper application, they will bear no additional cost compared to now. If exporters submit their applications electronically, the average annual cost from this rule would be $382.00 per exporter (576,192 export applications per year / 6,074 meat, poultry, and egg products establishments * $4.03 per application).
For the approximately 200 egg product exporters, FSIS expects the number of applications submitted to be 20,000 (200 exporters * 100 submissions
If small establishments require fewer applications, then the cost per small establishment is even lower. Therefore, the Agency believes that the rule will not have a significant economic impact on a substantial number of small entities.
In accordance with section 3507(d) of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Copies of this information collection assessment can be obtained from Gina Kouba, Paperwork Reduction Act Coordinator, Food Safety and Inspection
This final rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under this rule: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) no administrative proceedings will be required before parties may file suit in court challenging this rule.
FSIS and USDA are committed to achieving the purposes of the E-Government Act (44 U.S.C. 3601,
This final rule has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this regulation will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.
No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.
To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at
Send your completed complaint form or letter to USDA by mail, fax, or email:
Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).
FSIS will announce this rule online through the FSIS Web page located at
FSIS will also make copies of this
Options range from recalls to export information to regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.
Food labeling, Meat inspection, Signs and symbols.
Exports, Meat inspection.
Meat inspection, Reporting and recordkeeping requirements.
Meat inspection, Poultry and poultry products, Reporting and recordkeeping requirements.
Meat inspection, Poultry and poultry products, Reporting and recordkeeping requirements.
Eggs and egg products, Exports, Food grades and standards, Food labeling, Imports, Reporting and recordkeeping requirements.
Eggs and egg products, Exports, Food grades and standards, Food labeling, Imports, Reporting and recordkeeping requirements.
For the reasons set forth in the preamble, FSIS amends 9 CFR chapter III as follows:
21 U.S.C. 601-695; 7 CFR 2.17, 2.55.
The export inspection mark required in § 322.1 of this chapter must be either a mark that contains a unique identifier that links the consignment to the export certificate or an official mark with the following form:
21 U.S.C. 601-695; 7 CFR 2.17, 2.55.
(a) When authorized by inspection personnel, establishment personnel must mark the outside container of any inspected and passed product for export, the securely enclosed pallet within the consignment, or closed means of conveyance transporting the consignment, with a mark that contains a unique identifier that links the consignment to the export certificate or an official mark as described in § 312.8 of this chapter. Ship stores, small quantities exclusively for the personal use of the consignee and not for sale or distribution, and shipments by and for the U.S. Armed Forces, are exempt from the requirements of this section.
(b) When authorized by inspection personnel, establishments must mark each tank car of inspected and passed lard or similar edible product, and each door of each railroad car or other closed means of conveyance, containing inspected and passed loose product shipped directly to a foreign country, with an export inspection mark as shown in § 312.8 of this subchapter.
(a) Exporters must apply for export certification of inspected and passed products shipped to any foreign country. Exporters may apply for an export certificate using a paper or electronic application. FSIS will assess exporters that submit an electronic application the charge in § 350.7(e) of this chapter.
(b) FSIS will issue only one certificate for each consignment, except in the case of error in the certificate or loss of the certificate originally issued. A request for a replacement certificate, except in the case of a lost certificate, must be accompanied by the original certificate. The new certificate will carry the following statement: “Issued in replacement of ___”, with the numbers of the certificates that have been superseded.
(c) FSIS will deliver a copy of the certificate to the exporter. The exporter may furnish the copy of the certificate to the consignee for purposes of affecting the entry of product into the foreign country of destination.
(d) FSIS will retain a copy of the certificate.
(e) Exporters may request inspection personnel to issue certificates for export consignments of product of official establishments not under their supervision, provided the consignments are first identified as having been “U.S. inspected and passed,” are found to be neither adulterated nor misbranded, and are marked as required by § 322.1.
7 U.S.C. 1622, 1624; 7 CFR 2.17, 2.55.
(e) Exporters that submit electronic export certificate applications will be charged a fee per application submitted.
(f) For each calendar year, FSIS will calculate the electronic export certificate application fee, using the following formula: Labor Costs (Technical Support Cost + Export Library Maintenance Cost) + Information Technology Costs (On-going operations Cost + Maintenance Cost + eAuthentication Cost), divided by the number of export applications.
(g) FSIS will publish notice of the electronic export certificate application fee annually in the
7 U.S.C 1622; 7 CFR 2.18(g) and (i) and 2.53.
(e) Exporters that submit electronic export certificate applications will be charged a fee per application submitted.
(f) For each calendar year, FSIS will calculate the electronic export certificate application fee, using the following formula: Labor Costs (Technical Support Cost + Export Library Maintenance Cost) + Information Technology Costs (On-going operations Cost + Maintenance Cost + eAuthentication Cost), divided by the number of export applications.
(g) FSIS will publish notice of the electronic export certificate application fee annually in the
7 U.S.C. 138F, 450; 21 U.S.C. 451-470; 7 CFR 2.7, 2.18, 2.53.
The export inspection mark required in § 381.105 must be either a mark that contains a unique identifier that links the consignment to the export certificate or an official mark with the following form:
When authorized by inspection personnel, establishments must mark the outside container of any inspected and passed product for export, the securely enclosed pallet within the consignment, or closed means of conveyance transporting the consignment, with a mark that contains a unique identifier that links the consignment to the export certificate or an official mark as described in § 381.104. Ship stores, small quantities exclusively for the personal use of the consignee and not for sale or distribution, and shipments by and for the U.S. Armed Forces, are exempt from the requirements of this section.
(a) Exporters must apply for export certification of inspected and passed products to any foreign country. Exporters may apply for an export certificate using a paper or electronic application. FSIS will assess exporters that submit an electronic application the charge in § 362.5(e) of this chapter.
(b) FSIS will issue only one certificate for each consignment, except in the case of error in the certificate or loss of the certificate originally issued. A request for a replacement certificate, except in the case of a lost certificate, must be accompanied by the original certificate. The new certificate will carry the following statement: “Issued in replacement of ___”, with the numbers of the certificates that have been superseded.
(c) FSIS will deliver a copy of the certificate to the person who requested such certificate or his agent. Such persons may duplicate the certificate as required in connection with the exportation of the product.
(d) FSIS will retain a copy of the certificate.
(e) Exporters may request inspection personnel to issue certificates for export consignments of product of official establishments not under their supervision, provided the consignments are first identified as having been “U.S. inspected and passed,” are found to be
21 U.S.C. 1031-1056.
(a) Exporters must apply for export certification of inspected and passed products shipped to any foreign country. Exporters may apply for an export certificate using a paper or electronic application. FSIS will assess exporters that submit an electronic application the charge in § 592.500(d) of this chapter.
(b) FSIS will issue only one certificate for each consignment, except in the case of error in the certificate or loss of the certificate originally issued. A request for a replacement certificate, except in the case of a lost certificate, must be accompanied by the original certificate. The new certificate will carry the following statement: “Issued in replacement of ___”, with the numbers of the certificates that have been superseded.
(c) FSIS will deliver a copy of the export certificate to the person who requested such certificate or his agent. Such persons may duplicate the certificate as required in connection with the exportation of the product.
(d) FSIS will retain a copy of the certificate.
(e)(1) When authorized by inspection personnel, establishments must mark the outside container of any inspected and passed egg products destined for export, the securely enclosed pallet within the consignment, or closed means of conveyance transporting the consignment, with a mark that contains a unique identifier that links the consignment to the export certificate or an official mark with the following form:
(2) Ship stores, small quantities exclusively for the personal use of the consignee and not for sale or distribution, and shipments by and for the U.S. Armed Forces, are exempt from the requirements of this section.
(f) Exporters may request inspection personnel to issue certificates for export consignments of product of official establishments not under their supervision, provided the consignments are first identified as having been “U.S. inspected and passed,” are found to be neither adulterated nor misbranded, and are marked as required by paragraph (e) of this section.
7 U.S.C. 1621-1627.
(d)
(a) Fees and charges for voluntary base time rate, overtime inspection service, holiday inspection service, and electronic export applications shall be paid by the interested party making the application for such service, in accordance with the applicable provisions of this section and § 592.510 through § 592.530, both inclusive. If so required by the inspection personnel, such fees and charges shall be paid in advance.
(d) Exporters that submit electronic export certificate applications will be charged a fee per application submitted.
(e) For each calendar year, FSIS will calculate the electronic export certificate application fee, using the following formula: Labor Costs (Technical Support Cost + Export Library Maintenance Cost) + Information Technology Costs (On-going operations Cost + Maintenance Cost + eAuthentication Cost), divided by the number of export applications.
(f) FSIS will publish notice of the electronic export certificate application fee annually in the
In rule document 2016-11486, beginning on page 31827 in the issue of Friday, May 20, 2016, make the following corrections:
1. On page 31844, in Appendix Y to Subpart B of Part 430, in Table 5.3, under the “Product Class” column head, in the “Rated Battery Energy (Ebatt) ** column, in the third row, the entry should read “<100 Wh”.
2. On the same page, in the same table, beneath the same column head, in the same column, in the fourth row, the entry should read “<100 Wh”.
3. On the same page, in the same table, beneath the same column head, in the same column, in the sixth row, the entry should read “100-3000 Wh”.
Federal Deposit Insurance Corporation.
Interim final rule and request for comment.
The Federal Deposit Insurance Corporation (FDIC) is amending its rules of practice and procedure under to adjust the maximum amount of each civil money penalty (CMP) within its jurisdiction to account for inflation. This action is required by the Federal Civil Penalties Inflation
This rule is effective on August 1, 2016. Comments must be received by September 1, 2016.
You may submit comments, identified by RIN 3064-AE43, by any of the following methods:
•
•
•
•
Seth P. Rosebrock, Supervisory Counsel, Legal Division (202) 898-6609, or Graham N. Rehrig, Senior Attorney, Legal Division (202) 898-3829.
This interim final rule adjusts the maximum limit for CMPs according to inflation as mandated by Congress in the 2015 Adjustment Act.
The FDIC assesses CMPs under section 8(i) of the Federal Deposit Insurance Act (FDIA), 12 U.S.C. 1818, and a variety of other statutes.
In 1990, Congress determined that the assessment of CMPs plays “an important role in deterring violations and furthering the policy goals embodied in such laws and regulations” and concluded that “the impact of many civil monetary penalties has been and is diminished due to the effect of inflation.”
In 2015, Congress revised the process by which federal agencies adjust applicable CMPs for inflation.
Although the 2015 Adjustment Act increases the maximum penalty that may be assessed under each applicable statute, the FDIC possesses discretion to impose CMP amounts below the maximum level in accordance with the severity of the misconduct at issue. When making a determination as to the appropriate level of any given penalty, the FDIC is guided by statutory factors set forth in section 8(i)(2)(G) of the FDIA, 12 U.S.C. 1818(i)(2)(G), and those factors identified in the
This interim final rule adjusts the maximum limit for CMPs according to inflation as mandated by Congress in the 2015 Adjustment Act. Additionally, other technical changes to 12 CFR part 308 are being made to correct typographical errors, to supplement 12 CFR 308.132 to include references to previously omitted CMPs, and to reorder the provisions of 12 CFR 308.132 to assist readers in quickly identifying applicable CMP amounts.
The 2015 Adjustment Act directs federal agencies to follow guidance issued by the Office of Management and Budget (OMB) on February 24, 2016 (OMB Guidance) when calculating new maximum penalty levels.
In keeping with the OMB Guidance, the FDIC multiplied each of its CMP amounts by the relevant inflation factor.
The following chart displays the adjusted CMP amounts for each CMP identified in 12 CFR part 308.
This interim final rule incorporates adjustments to two categories of CMPs previously inadvertently omitted from the FDIC's last inflation-adjustment rulemaking in 2012. The Dodd-Frank Act
Neither the Appraisal Independence CMP nor the Savings Association CMP was previously included in part 308. Nonetheless, the FDIC is required by the 2015 Adjustment Act to adjust all CMPs under the FDIC's jurisdiction in the agency's inflation-adjustment rulemaking. Consequently, the present amendment to part 308 specifically incorporates provisions in 12 CFR 308.132 related to the Appraisal Independence CMP and Savings Association CMP in 12 CFR 308.132, applying the adjustments required under the 2015 Adjustment Act and the OMB Guidance to these penalties.
The FDIC corrected a typographical error in 12 CFR 308.132(c) by indicating that the FDIC's Board of Directors or its designee may assess CMPs under 12 CFR 308.1(e) rather than the incorrect “308.01(e)(1).”
The FDIC reorganized 12 CFR 308.132, listing all statutes cited that give rise to CMPs in ascending alpha-numeric order by title and section to assist readers in quickly identifying the applicable CMP amounts.
Finally, the FDIC revised existing cross-references to 12 CFR 308.132 that are found in Chapter III of Title 12 of the Code of Federal Regulations to reflect the resultant reorganization of 12 CFR 308.132.
The interim final rule is expected to more precisely adjust CMP maximums relative to inflation. These adjustments are expected to minimize any year-to-year distortions in the real value of the CMP maximums. These adjustments will promote a more consistent deterrent effect in the structure of CMPs. As previously noted, the FDIC retains discretion to impose CMP amounts below the maximum level. The actual number and size of CMPs assessed in the future will depend on the propensity and severity of the violations committed by banks and institution-affiliated parties, as well as the particular statute that is at issue. Such future violations cannot be reliably forecast. It is expected that the FDIC will continue to exercise its discretion to impose CMPs that are appropriate to their severity.
The 2015 Adjustment Act will likely result in a minimal increase in administrative costs for the FDIC in order to establish new inflation-adjusted maximum CMPs each year. Because these calculations are relatively simple, the number of labor hours necessary to perform this task is likely to be insignificant relative to total enforcement labor hours for the Corporation.
The 2015 Act mandates the frequency of the inflation adjustment and the measure of inflation to be used in making these adjustments; accordingly, the FDIC is not statutorily authorized to consider or pursue alternative approaches. The other technical changes to 12 CFR part 308 were relatively minor and designed to improve the transparency and readability of the CFR, and therefore the FDIC did not actively consider alternative approaches to these changes.
The 2015 Adjustment Act requires the FDIC to amend its rules through an interim final rulemaking and provides the specific adjustments to be made. These changes are ministerial and technical. Under the OMB Guidance, the FDIC is not required to complete a notice-and-comment process prior to publication of this interim final rule in the
Section 302 of the Riegle Community Development and Regulatory Improvement Act
This interim final rule merely adjusts the maximum CMPs which the FDIC may assess. It does not impose any new or additional reporting, disclosures, or other requirements on insured depository institutions. Additionally, as previously noted, the 2015 Adjustment
An initial regulatory flexibility analysis under the Regulatory Flexibility Act
The OMB has determined that the interim final rule is not a “major rule” within the meaning of the relevant sections of the Small Business Regulatory Enforcement Act of 1996 (SBREFA).
The FDIC determined that this final rule will not affect family wellbeing within the meaning of section 654 of the Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999.
The interim rule will implement statutory changes to the FDIC's CMP regulations. It does not create any new, or revise any existing, collections of information under section 3504(h) of the Paperwork Reduction Act of 1980.
Section 722 of the Gramm-Leach-Bliley Act requires the FDIC to use plain language in all proposed and final rules published after January 1, 2000.
• Has the FDIC organized the material to suit your needs? If not, how could the FDIC present the rule more clearly?
• Are the requirements in the rule clearly stated? If not, how could the rule be more clearly stated?
• Do the regulations contain technical language or jargon that is not clear? If so, which language requires clarification?
• Would a different format (grouping and order of sections, use of headings, paragraphing) make the regulation easier to understand? If so, what changes would achieve that?
• Is this section format adequate? If not, which of the sections should be changed and how?
• What other changes can the FDIC incorporate to make the regulation easier to understand?
Administrative practice and procedure, Banks, banking, Claims, Crime, Equal access to justice, Ex parte communications, Hearing procedure, Lawyers, Penalties, State nonmember banks.
Bank deposit insurance, Banks, banking, Savings associations.
For the reasons set forth in the preamble, the FDIC amends 12 CFR parts 308 and 327 to read as follows:
5 U.S.C. 504, 554-557; 12 U.S.C. 93(b), 164, 505, 1464, 1467(d), 1467a, 1468, 1815(e), 1817, 1818, 1819, 1820, 1828, 1829, 1829(b), 1831i, 1831m(g)(4), 1831
(b) * * *
(4)
(i) Any person who has engaged in a violation as set forth in paragraph (b)(1) of this section shall forfeit and pay a civil money penalty of not more than $9,468 for each day the violation continued.
(ii) Any person who has engaged in a violation, unsafe or unsound practice or breach of fiduciary duty, as set forth in paragraph (b)(2) of this section, shall forfeit and pay a civil money penalty of not more than $47,340 for each day such violation, practice or breach continued.
(iii) Any person who has knowingly engaged in a violation, unsafe or unsound practice or breach of fiduciary duty, as set forth in paragraph (b)(3) of this section, shall forfeit and pay a civil money penalty not to exceed:
(A) In the case of a person other than a depository institution—$1,893,610 per day for each day the violation, practice or breach continued; or
(B) In the case of a depository institution—an amount not to exceed the lesser of $1,893,610 or one percent of the total assets of such institution for each day the violation, practice or breach continued.
(c)
(1)
(d)
(1)
(i)
(A)
(B)
(C)
(D)
(ii)
(iii)
(B)
(C)
(iv)
(2)
(3)
(i)
(A)
(B)
(C)
(D)
(ii)
(iii)
(B)
(C)
(iv)
(4)
(5)
(i) Pursuant to 7(j)(16) of the FDIA (12 U.S.C. 1817(j)(16)), a civil money penalty may be assessed for violations of change in control of insured depository institution provisions pursuant to section 8(i)(2) of the FDIA (12 U.S.C. 1818(i)(2)) in the amounts set forth in paragraph (d)(5) of this section.
(ii) Pursuant to the International Banking Act of 1978 (IBA) (12 U.S.C. 3108(b)), civil money penalties may be assessed for failure to comply with the requirements of the IBA pursuant to section 8(i)(2) of the FDIA (12 U.S.C. 1818(i)(2)), in the amounts set forth in paragraph (d)(5).
(iii) Pursuant to section 1120(b) of the Financial Institutions Recovery, Reform, and Enforcement Act of 1989 (FIRREA) (12 U.S.C. 3349(b)), where a financial institution seeks, obtains, or gives any other thing of value in exchange for the performance of an appraisal by a person that the institution knows is not a state certified or licensed appraiser in connection with a federally related transaction, a civil money penalty may be assessed pursuant to section 8(i)(2) of the FDIA (12 U.S.C. 1818(i)(2)) in the amounts set forth in paragraph (d)(5) of this section.
(iv) Pursuant to the Community Development Banking and Financial Institution Act (Community Development Banking Act) (12 U.S.C. 4717(b)) a civil money penalty may be assessed for violations of the Community Development Banking Act pursuant to section 8(i)(2) of the FDIA (12 U.S.C. 1818(i)(2)), in the amount set forth in paragraph (d)(5) of this section.
(v) Civil money penalties may be assessed pursuant to section 8(i)(2) of the FDIA in the amounts set forth in this paragraph (d)(5) for violations of various consumer laws, including, but not limited to, the Home Mortgage Disclosure Act (12 U.S.C. 2804
(6)
(7)
(8)
(9)
(i)
(ii)
(A) The failure to pay an assessment is due to a dispute between the insured depository institution and the Corporation over the amount of such assessment; and
(B) The insured depository institution deposits security satisfactory to the Corporation for payment upon final determination of the issue.
(iii)
(iv)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(a) * * *
(6) The amount of any penalty assessed under paragraph (a)(1) of this section will be adjusted for inflation in accordance with § 308.132(d)(17) of this part.
(b) * * *
(4) The amount of any penalty assessed under paragraph (a)(1) of this section will be adjusted for inflation in accordance with § 308.132(d)(17) of this part.
(d) Civil money penalties that are assessed under this subpart are subject to annual adjustments to account for inflation as required by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Pub. L. 114-74, sec. 701, 129 Stat. 584) (
12 U.S.C. 1441, 1813, 1815, 1817-19, 1821.
(c)
By order of the Board of Directors.
Food and Drug Administration, HHS.
Final order.
The Food and Drug Administration (FDA) is classifying the electrosurgical device for over-the-counter aesthetic use 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 electrosurgical device for over-the-counter aesthetic use'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 June 29, 2016. The classification was applicable on December 18, 2015.
Long Chen, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. G472, Silver Spring, MD 20993-0002, 301-796-6389,
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 device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807) of the regulations.
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 January 13, 2015, EndyMed Medical Ltd., submitted a request for classification of the Newa
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) of the FD&C Act. 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, 2015, 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 878.4420.
Following the effective date of this final classification order, any firm submitting a premarket notification (510(k)) for an electrosurgical device for over-the-counter aesthetic use will need to comply with the special controls named in this final order.
The device is assigned the generic name electrosurgical device for over-the-counter aesthetic use, and it is identified as a device using radiofrequency energy to produce localized heating within tissues for non-invasive aesthetic use.
FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.
FDA believes that the special controls, in addition to the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness.
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) of the FD&C Act, 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 electrosurgical device for over-the-counter aesthetic use they intend to market.
The Agency has determined under 21 CFR 25.34(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 nor an environmental impact statement is required.
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 part 807, subpart E, regarding premarket notification submissions have been approved under OMB control number 0910-0120, and the collections of information in 21 CFR part 801, regarding labeling, have been approved under OMB control number 0910-0485.
The following reference is on display in the Division of Dockets Management (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852, and is available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; it is also available electronically at
1. DEN150005: De Novo Request per 513(f)(2) from EndyMed Medical Ltd., dated January 13, 2015.
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 878 is amended as follows:
21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.
(a)
(b)
(1) Non-clinical performance data must demonstrate that the device meets all design specifications and performance requirements. The following performance characteristics must be tested: Over-heating, power accuracy radiofrequency, pulse cycle, waveform, pulse duration, and device characterization parameters.
(2) Label comprehension and self-selection performance evaluation must demonstrate that the intended over-the-counter users can understand the package labeling and correctly choose the device for the indicated aesthetic use.
(3) Usability performance evaluation must demonstrate that the over-the-counter user can correctly use the device, based solely on reading the
(4) Clinical performance evaluation must demonstrate that the device performs as intended under anticipated conditions of use to achieve the intended aesthetic results.
(5) The patient-contacting components of the device must be demonstrated to be biocompatible.
(6) Instructions for cleaning the device must be validated.
(7) Performance data must be provided to demonstrate the electromagnetic compatibility and electrical safety, including the mechanical integrity, of the device.
(8) Software verification, validation, and hazard analysis must be performed.
(9) Labeling must include:
(i) Warnings, precautions, and contraindications to ensure the safe use of the device for the over-the-counter users.
(ii) A statement that the safety and effectiveness of the device's use for uses other than the indicated aesthetic use are not known.
(iii) A summary of the clinical information used to establish effectiveness for each indicated aesthetic usage and observed adverse events.
U.S. Agency for International Development (USAID).
Final rule.
This rule amends AID regulations to address provisions which are more restrictive than relevant Federal case law and relevant legal opinions issued by the United States Department of Justice with respect to the applicability of the Establishment Clause to the use of Federal funds.
This rule will be effective July 29, 2016.
Mark Brinkmoeller, Director, Center for Faith-Based and Community Initiatives, USAID, Room 6.07-023, 1300 Pennsylvania Avenue NW., Washington, DC 20523;
On October 20, 2004, USAID published its final rule (the “Current Rule”) on participation by religious organizations in USAID programs (69 FR 61716, codified at 22 CFR parts 202, 205, 211, and 226). The Current Rule implemented Executive Branch policy that, within the framework of Constitutional guidelines, religious organizations should be able to compete on an equal footing with other organizations for USAID funding. The Current Rule revised USAID regulations pertaining to grants, cooperative agreements and contracts awarded for the purpose of administering grant programs to ensure their compliance with this policy and to clarify that religious organizations are eligible to participate in programs on the same basis as any other organization, with respect to programs for which such other organizations are eligible.
Among other things, the Current Rule provided that USAID funds could be used for the acquisition, construction, or rehabilitation of structures only to the extent that those structures were used for conducting eligible activities under the specific USAID program. Where a structure also is used for inherently religious activities, the Current Rule clarified that USAID funds could not exceed the cost of those portions of the acquisition, construction, or rehabilitation that were attributable to eligible activities. The Current Rule went on to state that USAID funds could not be used for acquisition, construction, or rehabilitation of sanctuaries, chapels, or any other room that a religious congregation that is a recipient or sub-recipient of USAID assistance uses as its principal place of worship. Since the implementation of the Current Rule, USAID has found that this provision has constricted its ability to pursue the national security and foreign policy interests of the United States overseas.
The Supreme Court has not addressed whether the Establishment Clause applies extraterritorially. In
In addition, the Current Rule is more restrictive than at least two legal opinions written by the U.S. Department of Justice's Office of Legal Counsel. In a September 25, 2002 Memorandum Opinion for the General Counsel of FEMA,
Because the Current Rule is more restrictive than the Office of Legal Counsel opinions in
On March 25, 2011, USAID published a proposed rule (the “Proposed Rule”) in the
Commenters pointed out that the standard, or criteria, set forth in the Proposed Rule appeared to be derived from Justice Thomas' plurality opinion in
Second, it is not USAID's intent to acquire or construct new houses of worship or other, similar religious structures (as opposed to rehabilitating or restoring existing religious structures). USAID has no plans to engage in such activity nor can USAID envision a factual scenario under which the agency would engage in such activity.
Third, USAID agrees that the standard, or criteria, set forth in the Proposed Rule did not fully reflect the analysis of Justice O'Connor's concurring opinion in
While USAID agrees that current Establishment Clause jurisprudence requires the Agency to more closely track Justice O'Connor's concurring opinion in
USAID is aware of the changes, or amendments, made to Executive Order 13279 (issued by President Bush on December 12, 2002) by Executive Order 13559 (issued by President Obama on November 17, 2010), and began procedures to effect those changes through further amendment to part 205. In that regard, USAID was an active member in an interagency working group, established pursuant to section 3 of Executive Order 13559, to review and evaluate existing agency regulations, guidance documents and policies that have implications for faith-based and other neighborhood organizations. The working group issued its report in April 2012. In August 2013, OMB issued guidance reconvening the Working Group to develop a plan for agency implementation of the Executive Order. USAID participated in that Working Group's development of a plan and issued a Notice of Proposed Rulemaking (NPRM) on August 6, 2015. Following the Working Group's review and analysis of comments received pursuant to that NPRM, USAID published a Joint Final Rule on that topic in conjunction with the other relevant agencies on April 4, 2016. This Final Rule does not affect the changes made by the April 4, 2016 Joint Final Rule.
USAID implements programs in countries where the principle of separation of church and state is not embraced, where there may be state-sponsored religion (
Under the Final Rule, USAID may identify circumstances where, when considering implementing a program involving the acquisition, construction, or rehabilitation of structures that are used for explicitly religious activities in a country with an environment such as that described above, it might believe it necessary to go beyond the parameters set forth in the OLC opinions in Seattle Hebrew Academy and the Old North Church cases. In such cases, USAID would only implement such a program after consultation with the Department of Justice. To promote transparency, USAID commits to publishing a description of any specific program involving the acquisition, construction, or rehabilitation of structures it implements following such consultation on its Web site. USAID expects this to occur only on rare occasions. This Final Rule makes this consultation and publication commitment clear with additional text in section (d).
This is a significant regulatory action and, therefore, is subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. USAID has concluded that the current rule goes beyond the requirements of the Establishment Clause and other Federal law, and unnecessarily and unduly constrict USAID's ability to pursue the national security and foreign policy interests of the United States overseas. The changes do not, however, pose any new paperwork or reporting requirements, nor would they represent an increase in costs to either applicants for USAID funding or to USAID itself.
Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601
Foreign aid, Grant programs, Nonprofit organizations.
For the reasons stated in the preamble, USAID amends chapter II of title 22 of the Code of Federal Regulations as follows:
22 U.S.C. 2381(a).
The revision and addition read as follows:
(d) USAID must implement its programs in accordance with the Establishment Clause. Nothing in this part shall be construed as authorizing the use of USAID funds for activities that are not permitted by Establishment Clause jurisprudence or otherwise by law. USAID will consult with the U.S. Department of Justice if, in implementing a specific program involving overseas acquisition, rehabilitation, or construction of structures used for explicitly religious activities, there is any question about whether such funding is consistent with the Establishment Clause. USAID will describe any program implemented after such consultation on its Web site.
(j) Nothing in this part shall be construed as authorizing the use of USAID funds for the acquisition, construction, or rehabilitation of religious structures inside the United States.
Coast Guard, DHS.
Notice of temporary deviation from drawbridge regulations; modification.
The Coast Guard has modified a temporary deviation from the operating schedule that governs the S165 (North Landing Road) Bridge across the North Landing River, mile 20.2, at Chesapeake, VA. This modified deviation is necessary to perform emergency bridge repairs and provide for safe navigation.
This deviation is effective from 6 p.m. on June 30, 2016, through 6:00 p.m. on September 30, 2016.
The docket for this deviation, [USCG-2016-0181] is available at
If you have questions on this temporary deviation, call or email Mr. Hal R. Pitts, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6222, email
On March 11, 2016, the Coast Guard published a temporary deviation entitled “Drawbridge Operation Regulation; North Landing River, Chesapeake, VA” in the
The current operating scheduled is set out in 33 CFR 117.1021. Under this modified temporary deviation, the north span of the bridge will open-to-navigation on the hour and half hour, upon request, from 6 a.m. to 7 p.m., and
The North Landing River is used by a variety of vessels including small U.S. government and public vessels, small commercial vessels, tug and barge, and recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.
During the closure times there will be limited opportunity for vessels which are able to safely pass through the bridge in the closed position to do so. Vessels able to safely pass through the bridge in the closed position may do so, after receiving confirmation from the bridge tender that it is safe to transit through the bridge. The north span of the bridge will be able to open for emergencies. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transit to minimize any impact caused by the modified 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 Oregon State (Lewis and Clark River) highway bridge across the Lewis and Clark River, mile 1.0, at Astoria, Oregon. The deviation is necessary to accommodate bridge maintenance activities during the effective time period. The deviation allows the bridge to remain in the closed-to-navigation position such that it need not open to maritime traffic.
This deviation is effective from 7 a.m. on July 15, 2016 to 5 p.m. on October 31, 2016.
The docket for this deviation, [USCG-2016-0605] is available at
If you have questions on this temporary deviation, call or email Mr. Steven Fischer, Bridge Administrator, Thirteenth Coast Guard District; telephone 206-220-7282, email
The Oregon Department of Transportation (ODOT) has requested that the Lewis and Clark River Bridge, mile 1.0, be allowed to remain in the closed-to-navigation position such that it need not open to vessel traffic from 7 a.m. on July 15, 2016 until 5 p.m. on October 31, 2016. The deviation is necessary to facilitate bridge maintenance activities to include repairing and preserving the bascule drawbridge structural steel. The Lewis and Clark River Bridge provides a vertical clearance of 17 feet above mean high water when in the closed-to-navigation position. However, during the bridge maintenance activities, the bascule span of the bridge will have a containment system installed which will reduce the vertical clearance by 5 feet to 12 feet above mean high water. The normal operating schedule of this bridge is detailed at 33 CFR 117.899(c).
This deviation allows the bascule span of the Lewis and Clark River Bridge to remain in the closed-to-navigation position such that it such that it need not open to maritime traffic from 7 a.m. on July 15, 2016 until 5 p.m. on October 31, 2016. However, the bascule span will be available to open on Wednesdays and Sundays with at least three-hour advanced notice. The bascule span will also open at any time for emergency situations with at least three-hour advanced notice. Vessels able to pass through the bridge in the closed position may do so at anytime.
Waterway usage on the Lewis and Clark River is primarily small recreational boaters and fishing vessels transiting to and from Fred Wahl Marine Construction Inc. ODOT has coordinated with Fred Wahl Marine Construction Inc. in this regard. No immediate alternate route is available for vessels to pass. The Coast Guard will also inform the users of the waterways 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 regulations.
The Coast Guard has issued a temporary deviation from the operating schedule that governs the US 50 (Harry W. Kelly Memorial) Bridge across the Isle of Wight (Sinepuxent) Bay, mile 0.5, at Ocean City, MD. The deviation is necessary to accommodate increased vehicular traffic of the 2016 Ocean City Fireworks presentation. This deviation allows the bridge to remain in the closed-to-navigation position.
The deviation is effective from 9:25 p.m. to 10:25 p.m. on Sunday, July 3, 2016.
The docket for this deviation, [USCG-2016-0539] is available at
If you have questions on this temporary deviation, call or email Mr. Michael Thorogood, Bridge Administration Branch Fifth District, Coast Guard, telephone 757-398-6557, email
The Town of Ocean City, on behalf of the Maryland State Highway Administration, who owns the U.S. 50 (Harry W. Kelly Memorial) Bridge across the Isle of Wight (Sinepuxent) Bay, mile 0.5, at Ocean City, MD, has requested a temporary deviation from the current operating regulations set out in 33 CFR 117.559, to accommodate the increased vehicular traffic of the 2016 Ocean City Fireworks presentation.
Under this temporary deviation, the bridge will be closed-to-navigation from 9:25 p.m. to 10:25 p.m. on July 3, 2016. The bridge is a double bascule bridge and has a vertical clearance in the closed-to-navigation position of 13 feet above mean high water.
The Isle of Wight (Sinepuxent) Bay is used by recreational vessels. The Coast Guard has carefully considered the nature and volume of vessel traffic on the waterway in publishing this temporary deviation.
Vessels able to pass through the bridge in the closed-to-navigation position may do so at any time. The bridge will be able to open in case of an emergency. The Coast Guard will also inform the users of the waterway through our Local Notice and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators 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 enforcement of regulations.
The Coast Guard will enforce recurring safety zones on navigable waterways within the Sector Ohio Valley's area of responsibility to protect vessels transiting the areas and event spectators from the hazards associated with fireworks displays requiring additional safety measures. During the enforcement period, no vessels are allowed to enter, transit through, or anchor in the safety zone, unless specifically authorized by the Captain of the Port Ohio Valley (COTP) or a COTP designated representative.
The regulations in 33 CFR 165.801 Table 1, Eighth Coast Guard District, will be enforced from July 2, 2016 through July 4, 2016 for the safety zones within Sector Ohio Valley identified in the
If you have questions about this notice of enforcement, call or email Petty Officer James Robinson, Sector Ohio Valley, U.S. Coast Guard; telephone 502-779-5347, email
The Coast Guard will enforce the safety zones in 33 CFR 165.801, Table 1, Nos. 14, 18, 19, 20, 26, and 51 as follows:
No. 14, Riverview Park Independence Festival, from 10 p.m. to 10:30 p.m. on July 2, 2016;
No. 18, Louisville Bats Firework Show, from 9:30 p.m. to 11 p.m. on July 3, 2016;
No. 19, Waterfront Independence Festival, from 9:15 p.m. to 10:15 p.m. on July 4, 2016;
No. 20, All American 4th of July, from 9 p.m. to 10 p.m. on July 2, 2016;
No. 26, Grand Harbor Marina/Grand Harbor Marina July 4th Celebration, from 9 p.m. to 9:30 p.m. on July 2, 2016.
No. 51, Evansville Freedom Celebration, from 9:45 p.m. to 10:15 p.m. on July 4, 2016;
The regulations for the Eighth Coast Guard District Annual Safety Zones, § 165.801, Table 1, specifies the locations of these safety zones. As specified in § 165.23, during the enforcement period, no vessel may transit these safety zones without approval from the COTP or a COTP designated representative. Sector Ohio Valley may be contacted on VHF-FM radio channel 16 or phone at 1-800-253-7465.
This notice of enforcement is issued under authority of 33 CFR 165.801 and 5 U.S.C. 552(a). In addition to this notice in the
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a safety zone in Lake Superior near Bayfield, WI. This safety zone is intended to restrict vessels from specified waters in Lake Superior during the Bayfield Fourth of July Fireworks Display. This safety zone is necessary to protect spectators from the hazards associated with the fireworks display.
This rule is effective from 9:30 p.m. through 11:30 p.m. July 2, 2016.
To view documents mentioned in this preamble as being
If you have questions on this rule, call or email Lieutenant Junior Grade John Mack, Waterways management, MSU Duluth, Coast Guard; telephone 218-725-3818, email
The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because doing so would be impracticable and contrary to the public interest. Because the event is scheduled for July 2, 2016, there is insufficient time to accommodate the comment period. Thus, delaying the effective date of this rule to wait for the comment period to run would be both impracticable and contrary to public interest because it would inhibit the Coast Guard's ability to protect spectators and vessels from the hazards associated with the event.
We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the
The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Duluth (COTP) has determined that potential hazards associated with fireworks displays starting at 10 p.m. on July 2, 2016 will be a safety concern for anyone within a 420-foot radius of the launch site. The likely combination of recreational vessels, darkness punctuated by bright flashes of light, and fireworks debris falling into the water presents risks of collisions which could result in serious injuries or fatalities. This rule is needed to protect personnel, vessels, and the marine environment in the navigable waters within the safety zone during the fireworks display.
This rule establishes a safety zone from 9:30 p.m. through 11:30 p.m. July 2, 2016. The safety zone will cover all navigable waters within an area bounded by a circle with a 420-foot radius of the fireworks display launching site located in Cornucopia, WI at coordinates 46°51′35″ N., 091°06′15″ W. The duration of the zone is intended to protect personnel, vessels, and the marine environment in these navigable waters during the fireworks display. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative.
We developed this rule after considering numerous statutes and Executive order related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
This regulatory action determination is based on the size, location, duration, and time-of-year of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of Lake Superior in Cornucopia, WI for 2 hours and during a time of year when commercial vessel traffic is normally low. Moreover, the Coast Guard will issue Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and the rule allows vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting no more than 2 hours that will prohibit entry within a 420-foot radius from where a fireworks display will be conducted. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. An environmental analysis checklist supporting this determination and a Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and 160.5; Department of Homeland Security Delegation No. 0170.1.
(a)
(b)
(c)
(2) This safety zone is closed to all vessel traffic, except as may be permitted by the Captain of the Port Duluth or his designated on-scene representative.
(3) The “on-scene representative” of the Captain of the Port is any Coast Guard commissioned, warrant, or petty officer who has been designated by the Captain of the Port to act on his behalf. The on-scene representative of the Captain of the Port will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Captain of the Port or his designated on-scene representative may be contacted via VHF Channel 16.
(4) Vessel operators desiring to enter or operate within the safety zone shall contact the Captain of the Port Duluth or his on-scene representative to obtain permission to do so. Vessel operators given permission to enter or operate in the safety zone must comply with all directions given to them by the Captain of the Port Duluth or his on-scene representative.
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the navigable waters of Myrtle Beach, SC. This safety zone is necessary to protect the public from hazards associated with launching fireworks over navigable waters of the United States. This rule will prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port Charleston or a designated representative.
This rule is effective on July 4, 2016.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rule, call or email Lieutenant John Downing, Sector Charleston Office of Waterways Management, Coast Guard; telephone (843) 740-3184, email
On April 14, 2016, The North Myrtle Beach Chamber of Commerce notified the Coast Guard that it will be conducting a fireworks display from 9:30 p.m. to 9:55 p.m. on July 4, 2016. In response, on June 7, 2016, the Coast Guard published a notice of proposed rulemaking titled North Myrtle Beach 4th of July Fireworks Display. There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this rule. During the comment period that ended June 22, 2016, we received no comments.
Under good cause provisions in 5 U.S.C. 553(d)(3), we are making this rule effective less than 30 days after its publication in the
The legal basis for the rule is the Coast Guard's authority to establish a safety zone: 33 U.S.C. 1231. The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 500-yard radius of the Cherry Grove Fishing Pier before, during, and after the scheduled event.
As noted above, we received no comments on our NPRM published June 7, 2016. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.
On July 4, 2016, the North Myrtle Beach Chamber of Commerce will host a fireworks display from 9:30 p.m. to 9:55 p.m. The safety zone will cover all navigable waters within 500 yards of the Cherry Grove Fishing Pier located in Myrtle Beach, SC. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9:30 p.m. to 9:55 p.m. fireworks display. No vessel or person is permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The Coast Guard will provide notice of the regulated areas by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone which would impact a small designated area of the Atlantic Ocean for less than 1 hour during the evening when vessel traffic is normally low. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a State, local, or tribal government, in the aggregate, or by the private sector of $100,000,000 (adjusted for inflation) or more in any one year. Though this rule will not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less than 1 hour that would prohibit entry within 500 yards of the Veterans Pier. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and Department of Homeland Security Delegation No. 0170.1.
(a) This rule establishes a safety zone on all Atlantic Ocean waters within a 500 yard radius of Cherry Grove Pier, from which fireworks will be launched.
(b)
(c)
(2) Persons and vessels desiring to enter, transit through, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at 843-740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative.
(3) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Coast Guard, DHS.
Temporary final rule.
The Coast Guard is establishing a temporary safety zone on the navigable waters of Murrells Inlet, SC. This safety zone is necessary to protect the public from hazards associated with launching fireworks over navigable waters of the United States. This rule will prohibit persons and vessels from being in the safety zone unless authorized by the Captain of the Port Charleston or a designated representative.
This rule is effective on July 4, 2016.
To view documents mentioned in this preamble as being available in the docket, go to
If you have questions about this rule, call or email Lieutenant John Downing, Sector Charleston Office of Waterways Management, Coast Guard; telephone (843) 740-3184, email
On April 22, 2016, The Marsh Walk Group notified the Coast Guard that it will be conducting a fireworks display from 9:30 p.m. to 9:50 p.m. on July 4, 2016. In response, on June 7, 2016, the
Under good cause provisions in 5 U.S.C. 553(d)(3), we are making this rule effective less than 30 days after its publication in the
The legal basis for the rule is the Coast Guard's authority to establish a safety zone: 33 U.S.C. 1231. The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 500-yard radius of the fireworks barge before, during, and after the scheduled event.
As noted above, we received no comments on our NPRM published June 7, 2016. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.
On July 4, 2016 The Marsh Walk Group will host a fireworks display from 9:30 p.m. to 9:50 p.m. The safety zone will cover all navigable waters within 500 yards of the Veterans pier located on the Atlantic Ocean. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 9:30 p.m. to 9:50 p.m. fireworks display. No vessel or person is permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The Coast Guard will provide notice of the regulated areas by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
We developed this rule after considering numerous statutes and Executive Orders related to rulemaking. Below we summarize our analyses based on a number of these statutes and Executive Orders, and we discuss First Amendment rights of protestors.
Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.
This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic will be able to safely transit around this safety zone which will impact a small designated area of the Atlantic Ocean for less than 1 hour during the evening when vessel traffic is normally low. Moreover, the Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule will allow vessels to seek permission to enter the zone.
The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.
While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section V.A above this rule will not have a significant economic impact on any vessel owner or operator.
Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the
Small businesses may send comments on the actions of Federal employees who enforce, or otherwise determine compliance with, Federal regulations to the Small Business and Agriculture Regulatory Enforcement Ombudsman and the Regional Small Business Regulatory Fairness Boards. The Ombudsman evaluates these actions annually and rates each agency's responsiveness to small business. If you wish to comment on actions by employees of the Coast Guard, call 1-888-REG-FAIR (1-888-734-3247). The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.
This rule will not call for a new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.
Also, this rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it does not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes. If you believe this rule has implications for federalism or Indian tribes, please contact the person listed in the
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) requires Federal agencies to assess the effects of their discretionary regulatory actions. In particular, the Act addresses actions that may result in the expenditure by a
We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting less than 1 hour that will prohibit entry within 500 yards of the Veterans Pier. Normally such actions are categorically excluded from further review under paragraph 34(g) of Figure 2-1 of Commandant Instruction M16475.lD. A preliminary environmental analysis checklist and Categorical Exclusion Determination are available in the docket where indicated under
The Coast Guard respects the First Amendment rights of protesters. Protesters are asked to contact the person listed in the
Harbors, Marine safety, Navigation (water), Reporting and recordkeeping requirements, Security measures, Waterways.
For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:
33 U.S.C. 1231; 50 U.S.C. 191; 33 CFR 1.05-1, 6.04-1, 6.04-6, and Department of Homeland Security Delegation No. 0170.1.
(a) This rule establishes a safety zone on all Atlantic Ocean waters within a 500 yard radius of Veterans Pier, from which fireworks will be launched.
(b)
(c)
(2) Persons and vessels desiring to enter, transit through, or remain within the regulated area may contact the Captain of the Port Charleston by telephone at 843-740-7050, or a designated representative via VHF radio on channel 16, to request authorization. If authorization to enter, transit through, or remain within the regulated area is granted by the Captain of the Port Charleston or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Charleston or a designated representative.
(3) The Coast Guard will provide notice of the regulated area by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.
(d)
Environmental Protection Agency (EPA).
Direct final rule.
The Environmental Protection Agency (EPA) is taking direct final action to approve a December 1, 2015, State Implementation Plan (SIP) submittal from Kansas concerning allocations of Cross-State Air Pollution Rule (CSAPR) emission allowances. Under CSAPR, large electricity generating units in Kansas are subject to a Federal Implementation Plan (FIP) requiring the units to participate in CSAPR's Federal trading program for annual emissions of nitrogen oxides (NO
This direct final rule will be effective August 15, 2016, without further notice, unless EPA receives adverse comment by July 29, 2016. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2016-0303, to
Mr. Larry Gonzalez, Air Planning and Development Branch, Air and Waste Management Division, EPA Region 7, 11201 Renner Boulevard, Lenexa KS 66219; telephone number: (913) 551-7041; email address:
Throughout this document “we,” “us,” or “our” refer to EPA. This section provides additional information by addressing the following:
EPA is taking direct final action to approve a revision to the SIP for Kansas concerning allocations of allowances used in the CSAPR
The SIP revision approved in this action incorporates into Kansas' SIP state regulations establishing state-determined allowance allocations to replace EPA's default allocations to Kansas units of CSAPR NO
Large electricity generating units in Kansas are also subject to an additional CSAPR FIP requiring them to participate in the Federal CSAPR SO
Section II of this document summarizes relevant aspects of the CSAPR Federal trading programs and FIPs as well as the range of opportunities states have to submit SIP revisions to modify or replace the FIP requirements while continuing to rely on CSAPR's trading programs to address the states' obligations to mitigate interstate air pollution. Section III describes the specific conditions for approval of such SIP revisions. Section IV contains EPA's analysis of Kansas' SIP submittal, and section V sets forth EPA's action on the submittal.
We are publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the Proposed Rules section of this
EPA issued CSAPR in July 2011 to address the requirements of CAA section 110(a)(2)(D)(i)(I) concerning interstate transport of air pollution. As amended, CSAPR requires twenty-eight Eastern states to limit their statewide emissions of SO
CSAPR includes provisions under which states may submit and EPA will approve SIP revisions to modify or replace the CSAPR FIP requirements while allowing states to continue to meet their transport-related obligations using either CSAPR's Federal emissions trading programs or state emissions trading programs integrated with the Federal programs.
States can submit two basic forms of CSAPR-related SIP revisions effective for emissions control periods in 2017 or later years.
Under the second alternative—a “full” SIP revision—a state may submit a SIP revision that upon approval replaces a CSAPR Federal trading program for the state with a state trading program integrated with the Federal trading program, so long as the state trading program is substantively identical to the Federal trading program or does not substantively differ from the Federal trading program except as discussed above with regard to the allowance allocation and/or applicability provisions.
The CSAPR regulations identify several important consequences and limitations associated with approval of a full SIP revision. First, upon EPA's approval of a full SIP revision as correcting the deficiency in the state's SIP that was the basis for a particular CSAPR FIP, the obligation to participate in the corresponding CSAPR Federal trading program is automatically eliminated for units subject to the state's jurisdiction without the need for a separate EPA withdrawal action, so long as EPA's approval of the SIP is full and unconditional.
Certain CSAPR Phase 2 emissions budgets have been remanded to EPA for reconsideration.
In 2015, EPA proposed to update CSAPR to address Eastern states' interstate air pollution mitigation obligations with regard to the 2008 ozone NAAQS. Among other things, the proposed rule would establish a FIP requiring Kansas units to participate in the CSAPR NO
Each CSAPR-related abbreviated or full SIP revision must meet the following general submittal conditions:
•
In addition to the general submittal conditions, a CSAPR-related abbreviated or full SIP seeking to address the allocation or auction of emission allowances must meet the following further conditions:
•
•
•
•
•
In addition to the general submittal conditions, a CSAPR-related abbreviated or full SIP revision seeking to expand applicability under the CSAPR NO
•
•
In addition to the general submittal conditions and the other applicable conditions described above, a CSAPR-related full SIP revision must meet the following further conditions:
•
•
•
In the CSAPR rulemaking, EPA determined that air pollution transported from Kansas unlawfully affected other states' ability to attain or maintain the 2006 24-hour PM
On December 1, 2015, Kansas submitted to EPA an abbreviated SIP revision that, if approved, would replace the default allowance allocation provisions of the CSAPR NO
The SIP revision was submitted to EPA by a letter from the Kansas Secretary of Health and Environment acting as the designated representative of the Governor of Kansas. The letter describes steps taken by Kansas to provide public notice prior to adoption of the state rule. The letter also indicates that paragraphs 28-19-274(a)(2)(A) and (B) of the Kansas rule, which contain definitions of certain terms differing from the definitions of the same terms in the Federal trading program regulations, are excluded from the SIP submittal.
EPA has previously approved a separate Kansas SIP revision replacing the default allowance allocation provisions of the CSAPR NO
Kansas' SIP revision seeks to establish state-determined allocations of CSAPR NO
Paragraph 28-19-274(c) of the Kansas rule provides that the allowance allocation methodology adopted by Kansas in the SIP revision replaces the provisions of 40 CFR 97.411(a), thereby addressing all allowances that under the default allocation provisions for the Federal trading program would be allocated to units considered existing units for CSAPR purposes (prior to allocation of any otherwise unallocated allowances from the NUSA or Indian country NUSA for Kansas). The same Kansas rule paragraph also provides that the state's allocation methodology replaces the provisions of 40 CFR 97.411(b)(1) and 97.412(a), thereby addressing allocation of allowances in the NUSA established for Kansas under the Federal trading program. In addition, paragraphs 28-19-274(d) and (e) of the Kansas rule provide procedures addressing any otherwise unallocated allowances from the Indian country NUSA for Kansas that may be made available for allocation by the state after EPA has carried out the Indian country NUSA allocation procedures. Collectively, the allocation provisions in the Kansas rule therefore enable Kansas' SIP revision to meet the condition under 40 CFR 52.38(a)(4)(i) that the state's allocation or auction methodology must cover all allowances potentially requiring allocation by the state.
Paragraph 28-19-274(d) of the Kansas rule provides for allowance allocations to be made in fixed amounts set forth in tables adopted by reference into the state rules. For each of the three control periods for which the rule allocates allowances, there is a table providing allocations for the allowances that absent this SIP revision would be allocated pursuant to 40 CFR 97.411(a), 97.411(b)(1), and 97.412(a). For each of the control periods, the sum of the fixed amounts allocated according to these tables is 31,323 allowances, which is equal to the Kansas budget for the control period (31,354 tons) less the amount of the Indian country NUSA for Kansas (31 tons).
While the Kansas rule also has provisions providing potential allocations of allowances from the Indian country NUSA for Kansas, under paragraph 28-19-274(b) of the Kansas rule the only allowances available for allocation under those provisions are otherwise unallocated allowances that EPA has made available from the Indian country NUSA for state allocation after having carried out the Indian country NUSA allocation procedures. The total of the allowances allocated under the SIP revision and any allowances allocated by EPA from the Indian country NUSA for Kansas therefore will not exceed the state budget, consistent with the purpose of 40 CFR 52.38(a)(4)(i)(A).
The state-determined allowance allocations established by the Kansas rule for each of the three control periods covered by the rule are included in tables that have been adopted by reference into the state rule and that were provided to EPA as part of the SIP submittal on December 1, 2015. As noted above, in the case of a SIP revision seeking to allocate allowances starting with the 2017 control period, the earliest deadline for submission to EPA of the state-determined allocations is June 1, 2016. Kansas' SIP revision therefore meets the conditions under 40 CFR 52.38(a)(4)(i)(B) and (C) requiring that the SIP revision provide for submission of state-determined allowance allocations to EPA by the deadlines specified in those provisions.
The Kansas rule includes no provision allowing alteration of allocations after the allocation amounts have been provided to EPA and no provision allowing alteration of any allocations made and recorded by EPA under the Federal trading program regulations, thereby meeting the condition under 40 CFR 52.38(a)(4)(i)(D).
Besides the provisions addressing allowance allocations discussed above, the Kansas rule includes a number of provisions defining terms used either in the rule's allocation provisions or in other definitions. In paragraph 28-19-274(a)(1), the rule adopts by reference several terms defined in 40 CFR 97.402, and in paragraph 28-19-274(b), the rule defines a new term “Indian country new unit set-aside allowance” that is used only in the Kansas rule for purposes of allowance allocations. These provisions do not make substantive changes to the Federal trading program provisions.
Paragraphs 28-19-274(a)(2)(A) and (B) of the Kansas rule adopt definitions of “administrator”, “State”, and “permitting authority” that substantively differ from the definitions of these terms in the Federal trading program regulations. While these terms are not used directly in the Kansas rule, they are used in the Federal trading program definitions of some of the other terms that are adopted by reference under paragraph 28-19-274(a)(1). Inclusion of the Kansas rule's definitions of “administrator”, “State”, and “permitting authority” in the SIP revision therefore would cause the meanings of those other adopted terms as used in the Kansas rule to substantively differ from the meanings of the same terms as used in the Federal trading program regulations. After being advised of these differences by EPA, Kansas elected to exclude the provisions of paragraphs 28-19-274(a)(2)(A) and (B) of the Kansas rule from the SIP revision, as the state's letter submitting the SIP revision makes clear. (Without the excluded provisions, the rule remains fully functional for its intended purpose of allocating CSAPR allowances among the state's units.) Considering Kansas' SIP revision without the excluded rule provisions, EPA has determined that the SIP revision meets the condition under 40 CFR 52.38(a)(4) of making no substantive changes to the Federal trading program regulations beyond the provisions addressing allowance allocations.
EPA is taking direct final action to approve the revision to Kansas' SIP submitted on December 1, 2015 concerning allocations to Kansas units of CSAPR NO
Large electricity generating units in Kansas are also subject to an additional CSAPR FIP requiring them to participate in the Federal CSAPR SO
In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In
Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:
• Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);
• Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501
• 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 this rulemaking does not involve technical standards; and
• Does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).
The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).
The Congressional Review Act, 5 U.S.C. 801
Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 29, 2016. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)
Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.
For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:
42 U.S.C. 7401
(c) * * *
Environmental Protection Agency (EPA).
Final rule; correcting amendment.
This document corrects a paragraph designation error that occurred in a January 20, 2016, final rule pertaining to the Environmental Protection Agency's (EPA's) reclassification of the San Joaquin Valley in California from Moderate to Serious for the 2006 PM
This correcting amendment is effective on June 29, 2016.
Wienke Tax, Air Planning Office (AIR-2), U.S. Environmental Protection Agency, Region IX, (415) 947-4192,
The EPA published a final rule document on January 20, 2016 (81 FR 2993) to reclassify the San Joaquin Valley Moderate nonattainment area, including areas of Indian country within it, as a Serious nonattainment area for the 2006 PM
The EPA has determined that this action falls under the “good cause” exemption in section 553(b)(B) of the Administrative Procedure Act (APA) which, upon finding “good cause,” authorizes agencies to dispense with public participation where public notice and comment procedures are impracticable, unnecessary or contrary to the public interest. Public notice and comment for this action are unnecessary because the underlying rule for which this correcting amendment has been prepared was already subject to a 30-day comment period and because the error addressed herein does not change the regulatory language in the rule. It only changes the paragraph designation for the relevant regulatory language. Thus, no purpose would be served by additional public notice and comment, and additional public notice and comment is unnecessary.
The EPA also finds that there is good cause under APA section 553(d)(3) for the correction in the amendatory instructions and related paragraph designation to become effective on the date of publication. Section 553(d)(3) of the APA allows an effective date less than 30 days after publication “as otherwise provided by the agency for good cause found and published with the rule.” 5 U.S.C. 553(d)(3). The EPA finds that resolving the conflict in the amendatory instructions in the two relevant final rules does not create any new regulatory requirements such that affected parties would need time to prepare before the rule takes effect. Rather, this rule eliminates the confusion caused by designating two paragraphs in 40 CFR 52.247 as paragraph (e). For these reasons, the EPA finds good cause under APA section 553(d)(3) for the correction in the amendatory instructions associated with the January 20, 2016 final rule to become effective on the date of publication of this final rule.
Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, this action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). Because the agency has made a “good cause” finding that this action is not subject to notice-and-comment requirements under the Administrative Procedure Act or any other statute as indicated in the
The Congressional Review Act, 5 U.S.C. 801
In final rule FR Doc. 2016-00739, published in the
On page 3000, in the second column, remove amendatory instruction 3.
Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter.
Chapter I, title 40 of the Code of Federal Regulations is amended as follows:
42 U.S.C. 7401
(f) By August 21, 2017, California must adopt and submit a Serious Area plan to provide for attainment of the 2006 PM
Federal Communications Commission.
Final rule.
In this document the Commission addresses two petitions for reconsideration of its Report and Order in this proceeding by describing how it will implement the rules that govern how it recognizes laboratories as accredited and authorized to perform the compliance testing associated with applications for equipment certification and the bodies that accredit those laboratories and extending the transition period by which time all laboratories that test for equipment certification must have FCC-recognized accreditation to perform such testing.
Effective July 29, 2016.
Brian Butler, Office of Engineering and Technology, (202) 418-2702, email:
1. This document does not contain [new or modified] information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13.
2. This is a summary of the Commission's
3. The Commission had previously released a
4. The Memorandum Opinion and Order and Order on Reconsideration grants the petitions in part. To address petitioners' concerns that there is a lack of a clear process for the recognition of accrediting bodies within non-MRA countries, the Commission discussed how the criteria listed in Section 2.949 of its rules will apply to compliance testing laboratories that are seeking to become recognized by the Commission as properly accredited, and directed its Office of Engineering and Technology to publish whatever additional information is needed to address the form and substance application submissions should take. The Commission also extended the transition deadlines for testing laboratories to become accredited, an action that particularly affects laboratories currently operating under a specific rule provision that the
5. Pursuant to Sections 1, 4(i), 7(a), 301, 302, 303(f), 303(g), 303(r), 307(e) and 332 of the Communications Act of 1934, as amended, 47 U.S.C. Sections 151, 154(i), 157(a), 301, 302a, 303(f), 303(g), 303(r), 307(e), and 332, this Memorandum Opinion and Order and Order on Reconsideration
6. The rules and requirements adopted herein will be effective July 29, 2016.
7. The Petition for Reconsideration of The Telecommunications Industry Association is
8. The Petition for Partial Reconsideration of Motorola Solutions, Inc. is
9. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center,
10. The Commission will send a copy of this Memorandum Opinion and Order and Order on Reconsideration to Congress and the Government Accountability Office pursuant to the Congressional Review Act.
Pursuant to the authority contained in Sections 4(i), 4(j), and 303 of the Communications Act, as amended, 47 U.S.C. 154(i), 154(j) and 303, that should no petitions for reconsideration or applications for review be timely filed, this proceeding
Communications equipment, Reporting and recordkeeping requirements.
For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 2 as follows:
47 U.S.C. 154, 302a, 303, and 336, unless otherwise noted.
(e) The Commission will no longer accept applications for § 2.948 test site listing as of July 13, 2015. Laboratories that are listed by the Commission under the § 2.948 process will remain listed until the sooner of their expiration date or through July 12, 2017 and may continue to submit test data in support of certification applications through October 12, 2017. Laboratories with an expiration date before July 13, 2017 may request the Commission to extend their expiration date through July 12, 2017.
Office of Acquisition Policy, Office of Government-wide Policy, General Services Administration (GSA).
Final rule; corrections.
The General Services Administration (GSA) is issuing a correction to Change 72; GSAR Case 2008-G506; Rewrite of GSAR Part 515, Contracting by Negotiation, which was published in the
For clarification about content, contact Ms. Dana Munson at 202-357-9652. For information pertaining to the status or publication schedules, contact the Regulatory Secretariat Division (MVCB), 1800 F Street NW., Washington, DC 20405, (202) 501-4755. Please cite GSAR Case 2008-G506; Corrections.
GSA published a document in the
In the rule FR Doc. 2016-13114, published in the
1. On page 36425, first column, instruction number 3, remove “revised” and add “continues” in its place.
2. On page 36425, second column, under the heading “515.5 and 515.70 [Removed]”, revise instruction number 7 to read as follows:
“7. Remove subparts 515.5 and 515.70.”
40 U.S.C. 121(c).
Pipeline and Hazardous Materials Safety Administration (PHMSA), DOT.
Interim final rule.
PHMSA is revising the maximum and minimum civil penalties for a knowing violation of the Federal hazardous material transportation law or a regulation, order, special permit, or approval issued under that law. The “Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015” (the 2015 Act), which amended the Federal Civil Penalties, Inflation Adjustment Act of 1990 (the Inflation Adjustment Act), requires Agencies to update their civil monetary penalties through interim final rulemaking. The maximum civil penalty for a knowing violation is now $77,114, except for violations that result in death, serious illness, or severe injury to any person or substantial destruction of property, for which the maximum civil penalty is $179,933. In addition, the minimum civil penalty amount for a violation relating to training is now $463.
Laura Ulmer or Shawn Wolsey, Office of Chief Counsel, (202) 366-4400, Pipeline and Hazardous Materials Safety Administration, U.S. Department of Transportation, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
Section 701 of the “Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015” (the 2015 Act) (Pub. L. 114-74, 129 Stat. 599 [November 2, 2015]), which amended the Federal Civil Penalties, Inflation Adjustment Act of 1990 (the Inflation Adjustment Act) (Pub. L. 101-410), requires that the Agency make an initial catch up adjustment with subsequent annual adjustments to the maximum and minimum civil penalties set forth in 49 U.S.C. 5123(a) for a knowing violation of the Federal hazardous material transportation law or a regulation, order, special permit, or approval issued under that law. These changes to the maximum and minimum civil penalty amounts apply to violations assessed on or after the effective date, August 1, 2016.
The Office of Management and Budget's (OMB) “Memorandum for the Heads of Executive Departments and Agencies, Implementation of the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015,” M16-06, provides guidance on how to update agencies' civil penalties pursuant to the 2015 Act. For the catch up adjustment, the calculation uses multipliers to adjust the civil monetary penalties, or the minimum and maximum penalties, based on the year the penalty was established or last adjusted by statute or regulation other than under the Inflation Adjustment Act. The Agency or Department would then use the multiplier, based on the Consumer Price Index for October 2015 provided in a table in that guidance document, and multiply it by the current penalty. Congress passed the Moving Ahead for Progress in the 21st Century Act (MAP-21) in 2012, which amended the maximum penalty for a knowing violation of the Federal hazardous material safety law, regulation, order, special permit, or approval to $75,000, and to $175,000 for a person who knowingly violates the Federal hazardous material transportation law or a regulation, order, special permit, or approval issued under that law that results in death, serious illness, or severe injury to any person or substantial destruction of the property. MAP-21 also added a $450 minimum for a training violation. The multiplier for 2012, which was the last year these civil monetary penalties were amended by statute or regulation other than under the Inflation Adjustment Act, from the guidance document is 1.02819. After making the adjustment, all penalty levels must be rounded to the nearest dollar, but no penalty level may be increased by more than 150 percent of corresponding penalty levels in effect on November 2, 2015.
Accordingly, PHMSA is revising the references to the maximum and minimum civil penalty amounts in its regulations to reflect the changes required by the 2015 Act. In 49 CFR 107.329, Appendix A to subpart D of 49 CFR part 107, and 49 CFR 171.1 are:
• Revising the maximum civil penalty from $75,000 to $77,114 for a person who knowingly violates the Federal hazardous material transportation law or a regulation, order, special permit, or approval issued under that law.
• Revising the maximum civil penalty from $175,000 to $179,933 for a person who knowingly violates the Federal hazardous material transportation law or a regulation, order, special permit, or approval issued under that law that results in death, serious illness, or severe injury to any person or substantial destruction of the property.
• Revising the minimum penalty amount from $450 to $463 for a violation related to training.
As required by the 2015 Act, PHMSA is making these catch up adjustments through an interim final rule. PHMSA is not providing a notice of proposed rulemaking or an opportunity for public comment. The catch up adjustments required by the 2015 Act are statutorily required ministerial acts, for which PHMSA has no discretion, and as a result public comment is unnecessary. As such, notice and comment procedures are “impracticable, unnecessary, or contrary to the public interest” within the meaning of the Administrative Procedure Act. 5 U.S.C. 553(b)(3)(B).
This interim final rule is published under the authority of the Federal hazardous materials transportation law (49 U.S.C. 5101
This interim final rule has been evaluated in accordance with existing policies and procedures and determined to be non-significant under Executive Orders 12866 and 13563. However,
Further, this rule is not a significant regulatory action under the Regulatory Policies and Procedures of the DOT, 44 FR 11034; Feb. 26, 1979. It is a ministerial act for which the agency has no discretion. The economic impact of the interim final rule is minimal to the extent that preparation of a regulatory evaluation is not warranted. Given the low number of penalty actions within the scope of this interim final rule, the impacts will be very limited.
This interim final rule is being undertaken to address our statutory requirements. This rule imposes no new costs upon persons conducting hazardous materials operations in compliance with the requirements of the HMR. Those entities not in compliance with the requirements of the HMR may experience an increased cost based on the penalties levied against them for non-compliance; however, this is an avoidable, variable cost and thus is not considered in any evaluation of the significance of this regulatory action. Moreover, as the cost is an inflationary adjustment and the magnitude of the increase is minimal, since these penalties were recently enacted, reflected costs are nominal. The amendments in this rule could provide safety benefits (
This interim final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13132 (“Federalism”). This rule does not impose any regulation having substantial direct effects 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. Therefore, the consultation and funding requirements of Executive Order 13132 do not apply.
This interim final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13175 (Consultation and Coordination with Indian Tribal Governments). Because this interim final rule does not have adverse tribal implications and does not impose direct compliance costs, the funding and consultation requirements of Executive Order 13175 do not apply, and, a tribal summary impact statement is not required.
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601-611) requires each agency to analyze regulations and assess their impact on small businesses and other small entities to determine whether the rule is expected to have a significant impact on a substantial number of small entities. The provisions of this rule apply specifically to all businesses transporting hazardous material. Therefore, PHMSA certifies this rule would not have a significant economic impact on a substantial number of small entities.
In addition, PHMSA has determined the RFA does not apply to this rulemaking. The 2015 Act requires PHMSA to publish an interim final rule and does not require PHMSA to complete notice and comment procedures under the APA. The Small Business Administration's
If, under the APA or any rule of general applicability governing Federal grants to state and local governments, the agency is required to publish a general notice of proposed rulemaking (NPRM), the RFA must be considered [citing 5 U.S.C. 604(a)] . . . . If an NPRM is not required, the RFA does not apply.
There are no new information requirements in this interim final rule.
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 spring and fall of each year. The RIN contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.
This interim final rule does not impose unfunded mandates under the Unfunded Mandates Reform Act of 1995. It does not result in costs of $141.3 million or more, in the aggregate, to any of the following: State, local, or Native American tribal governments, or to the private sector.
The National Environmental Policy Act of 1969 (NEPA), as amended (42 U.S.C. 4321-4375), requires Federal agencies to consider the consequences of major Federal actions and prepare a detailed statement on actions significantly affecting the quality of the human environment. When developing potential regulatory requirements, PHMSA evaluates those requirements to consider the environmental impact of each amendment. Specifically, PHMSA evaluates the: Risk of release and resulting environmental impact; risk to human safety, including any risk to first responders; longevity of the packaging; and if the proposed regulation would be carried out in a defined geographic area, the resources, especially any sensitive areas, and how they could be impacted by any proposed regulations. These amendments would be generally applicable and not be carried out in a defined geographic area. Civil penalties may act as a deterrent to those violating the HMR, and, this can have a negligible positive environmental impact as a result of increased compliance with the HMR. Based on the above discussion PHMSA concludes there are no significant environmental impacts associated with this interim final rule.
Anyone is able to search the electronic form of all comments received by any of our dockets using the name of the individual submitting the comments (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review DOT's complete Privacy Act Statement in the
Under Executive Order 13609, agencies must consider whether the impacts associated with significant variations between domestic and international regulatory approaches are unnecessary or may impair the ability of American business to export and compete internationally. In meeting shared challenges involving health, safety, labor, security, environmental, and other issues, international regulatory cooperation can identify approaches that are at least as protective as those that are or would be adopted in the absence of such cooperation. International regulatory cooperation can
Similarly, 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 any standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States. For purposes of these requirements, Federal agencies may participate in the establishment of international standards, so long as the standards have a legitimate domestic objective, such as providing for safety, and do not operate to exclude 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.
PHMSA participates in the establishment of international standards in order to protect the safety of the American public, and we have assessed the effects of the interim final rule to ensure that it does not cause unnecessary obstacles to foreign trade. Accordingly, this rulemaking is consistent with Executive Order 13609 and PHMSA's obligations.
Administrative practices and procedure, Hazardous materials transportation, Packaging and containers, Penalties, Reporting and recordkeeping requirements.
General information, Regulations, and Definitions.
In consideration of the foregoing, 49 CFR Chapter I is amended as follows:
49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 4; Pub. L. 104-121, sections 212-213; Pub. L. 104-134, section 31001; Pub. L. 114-74 section 4 (28 U.S.C. 2461 note); 49 CFR 1.81 and 1.97.
(a) A person who knowingly violates a requirement of the Federal hazardous material transportation law, an order issued thereunder, this subchapter, subchapter C of the chapter, or a special permit or approval issued under this subchapter applicable to the transportation of hazardous materials or the causing of them to be transported or shipped is liable for a civil penalty of not more than $77,114 for each violation, except the maximum civil penalty is $179,933 if the violation results in death, serious illness or severe injury to any person or substantial destruction of property. There is no minimum civil penalty, except for a minimum civil penalty of $463 for violations relating to training. When the violation is a continuing one, each day of the violation constitutes a separate offense.
(b) A person who knowingly violates a requirement of the Federal hazardous material transportation law, an order issued thereunder, this subchapter, subchapter C of the chapter, or a special permit or approval issued under this subchapter applicable to the design, manufacture, fabrication, inspection, marking, maintenance, reconditioning, repair or testing of a package, container, or packaging component which is represented, marked, certified, or sold by that person as qualified for use in the transportation of hazardous materials in commerce is liable for a civil penalty of not more than $77,114 for each violation, except the maximum civil penalty is $179,933 if the violation results in death, serious illness or severe injury to any person or substantial destruction of property. There is no minimum civil penalty, except for a minimum civil penalty of $463 for violations relating to training.
Under the Federal hazmat law, 49 U.S.C. 5123(a), each violation of the HMR and each day of a continuing violation (except for violations relating to packaging manufacture or qualification) is subject to a civil penalty of up to $77,114 or $179,933 for a violation occurring on or after August 1, 2016.
49 U.S.C. 5101-5128, 44701; Pub. L. 101-410 section 4; Pub. L. 104-134, section 31001; Pub. L. 114-74 section 4 (28 U.S.C. 2461 note); 49 CFR 1.81 and 1.97.
(g)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule; request for information.
We, NMFS, are publishing this final rule to implement our determination to list the Nassau grouper (
The effective date of this final rule is July 29, 2016. Information on features, areas, and potential impacts, that may support designation of critical habitat for Nassau grouper must be received by August 29, 2016.
Information regarding this final rule may be obtained by contacting NMFS, Southeast Regional Office, 263 13th Avenue South, Saint Petersburg, FL 33701. Supporting information, including the Biological Report, is available electronically on the NMFS Web site at:
You may submit information regarding potential critical habitat designation to the Protected Resources Division by either of the following methods:
•
•
Adam Brame, NMFS, Southeast Regional Office (727) 209-5958; or Lisa Manning, NMFS, Office of Protected Resources (301) 427-8466.
On September 3, 2010, we received a petition from the WildEarth Guardians to list speckled hind (
On October 10, 2012, we published a 90-day finding for Nassau grouper with our determination that the petition presented substantial scientific and commercial information indicating that the petitioned action may be warranted (77 FR 61559). At that time, we announced the initiation of a formal status review and requested scientific and commercial information from the public on: (1) The status of historical and current spawning aggregation sites; (2) historical and current distribution, abundance, and population trends; (3) biological information (life history, genetics, population connectivity, etc.); (4) management measures, regulatory mechanisms designed to protect spawning aggregations, and enforcement information; (5) any current or planned activities that may adversely impact the species; and (6) ongoing or planned efforts to protect and restore the species and its habitat.
As part of the status review process to determine whether the Nassau grouper warrants listing under the ESA, we completed a Biological Report and an extinction risk analysis (ERA). The Biological Report summarizes the taxonomy, distribution, abundance, life history, and biology of the species. The Biological Report also identifies threats or stressors affecting the status of the species as well as a description of the fisheries, fisheries management, and conservation efforts. The Biological Report incorporates information received in response to our request for information (77 FR 61559, October 10, 2012) and comments from three independent peer reviewers. We used the Biological Report to complete a threats evaluation and an ERA to determine the status of the species.
After completing the Biological Report and considering the information received on the 90-day finding, we published a proposed rule to list Nassau grouper as a threatened species on September 2, 2014 (79 FR 51929). During a 90-day comment period, we solicited comments on our proposal from the public and any other interested parties.
We are responsible for determining whether the Nassau grouper is threatened or endangered under the ESA (16 U.S.C. 1531
Section 3 of the ESA defines an endangered species as “any species which is in danger of extinction throughout all or a significant portion of its range” and a threatened species as one “which is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” Thus, we interpret an “endangered species” to be one that is presently in danger of extinction. A “threatened species,” on the other hand, is not currently in danger of extinction but is likely to become so in the foreseeable future. In other words, a key statutory difference between a threatened and endangered species is the timing of when a species may be in danger of extinction, either presently (endangered) or in the foreseeable future (threatened).
Under section 4(a) of the ESA, we must determine whether any species is endangered or threatened due to any of the following five factors: (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
In determining whether the Nassau grouper meets the standard of endangered or threatened, we followed a stepwise approach. First we considered the specific life history, ecology, and status of the species as documented in the Biological Report. We then considered information on factors adversely affecting and posing extinction risk to the species in a threats evaluation. In this evaluation we assessed the threats affecting the status of the species using the factors identified in ESA section 4(a)(1). We considered the nature of the threats and the species response to those threats. We also considered each threat identified, both individually and cumulatively. Once we evaluated the threats, we assessed the efforts being made to protect the species to determine if these conservation efforts were adequate to mitigate the existing threats and alter extinction risk. Finally, we considered the public comments received in response to the proposed rule. In making this finding, we have relied on the best available scientific and commercial data.
Below we address the comments received on the proposed listing for Nassau grouper. In response to our request for public comments, we received 17 written responses. The overall feedback was supportive of the rule with the exception of three commenters, who believe current regulations within the United States are sufficient in protecting this species. No comments addressed threats to Nassau grouper throughout the rest of their range. We did not receive any information on additional conservation efforts being taken.
In addition to responding to the comments, we made a number of changes in this final rule. These included making revisions to the Biological Review section (most notably in the Population Structure and Genetics, and the Fishing Impacts on Spawning Aggregations subsections), including a more detailed description of our role in the Threats Evaluation, providing more detail in the Extinction Risk Analysis section, and clarifying the role of foreign conservation measures as they relate to making our final listing determination. We made several of these changes to provide clarity on how we reached our listing determination in response to the comment that, “. . . Nassau grouper is likely to be at risk of extinction in the foreseeable future, and may in fact be in danger of extinction now.”
This section provides a summary of key biological information presented in the Biological Report (Hill and Sadovy de Mitcheson 2013), which provides the baseline context and foundation for our listing determination.
The Nassau grouper,
Maximum age has been estimated as 29 years, based on an ageing study using sagittal otoliths (Bush
The Nassau grouper's confirmed distribution currently includes “Bermuda and Florida (USA), throughout the Bahamas and Caribbean Sea” (
The Nassau grouper is primarily a shallow-water, insular fish species that has long been valued as a major fishery resource throughout the wider Caribbean, South Florida, Bermuda, and the Bahamas (Carter
Juvenile Nassau grouper (12-15 cm TL) are relatively solitary and remain in specific areas for months (Bardach 1958). Juveniles of this size class are associated with macroalgae, and both natural and artificial reef structure. As juveniles grow, they move progressively to deeper areas and offshore reefs (Tucker
Recent work by Nemeth and coworkers in the U. S. Virgin Islands (U.S.V.I.; manuscript, in prep) found more overlap in home ranges of smaller juveniles compared to larger juveniles and adults have larger home ranges with less overlap. Mean home range of adult Nassau grouper in the Bahamas was 18,305 m
Adult Nassau grouper tend to be relatively sedentary and are generally associated with high-relief coral reefs or rocky substrate in clear waters to depths of 130 m. Generally, adults are most common at depths less than 100 m (Hill and Sadovy de Mitcheson, 2013) except when at spawning aggregations where they are known to descend to depths of 255 m (Starr
Adult Nassau grouper are unspecialized, bottom-dwelling, ambush-suction predators (Randall 1965, Thompson and Munro 1978). Numerous studies describe adult Nassau grouper as piscivorous (Randall and Brock 1960, Randall 1965, Randall 1967, Carter
Early genetic analyses indicated high gene flow throughout the geographic range of Nassau grouper but were unable to determine the relative contributions of populations (Hinegardner and Rosen 1972, Hateley 2005). A study of Nassau grouper genetic population structure, using mitochondrial DNA (mtDNA) and nuclear microsatellite DNA, revealed no clearly defined population substructuring based on samples from Belize, Cuba, Bahamas, and Florida. These data indicated that spawning aggregations are not exclusively self-recruiting and that larvae can disperse over great distances, but the relative importance of self-recruitment and larval immigration to local populations was unclear (Sedberry
A recent study, published subsequent to the Biological Report, analyzed genetic variation in mtDNA, microsatellites, and single nucleotide polymorphisms for Nassau grouper (Jackson
The Nassau grouper was originally considered to be a monandric protogynous hermaphrodite, meaning males derive from adult females that undergo a change in sex (Smith 1971, Claro
Both male and female Nassau grouper typically mature at 4-5 years of age and at lengths between 40 and 45 cm SL (44 and 50 cm TL). Size, rather than age, may be the major determinant of sexual maturation (Sadovy and Eklund 1999).
Fecundity estimates vary by location throughout the Caribbean. Mean fecundity estimates are generally between 3 and 5 eggs/mg of ripe ovary. For example, Carter
Nassau grouper form spawning aggregations at predictable locations around the winter full moons, or between full and new moons (Smith 1971, Colin 1992, Tucker
About 50 individual spawning aggregation sites have been recorded, mostly from insular areas in the Bahamas, Belize, Bermuda, British Virgin Islands, Cayman Islands, Cuba, Honduras, Jamaica, Mexico, Puerto Rico, Turks and Caicos, and the U.S.V.I.; however, many of these may no longer form (Figure 10 in Hill and Sadovy de Mitcheson 2013). Recent evidence suggests that spawning is occurring at what may be reconstituted or novel spawning sites in both Puerto Rico and the U.S.V.I. (Hill and Sadovy de Mitcheson 2013). Suspected or anecdotal evidence also identifies spawning aggregations in Los Roques, Venezuela (Boomhower
“Spawning runs,” or movements of adult Nassau grouper from coral reefs to spawning aggregation sites, were first described in Cuba in 1884 by Vilaro Diaz, and later by Guitart-Manday and Juarez-Fernandez (1966). Nassau grouper migrate to aggregation sites in groups numbering between 25 and 500, moving parallel to the coast or along shelf edges or even inshore reefs (Colin 1992, Carter
Observations suggest that individuals can return to their original home reef following spawning. Bolden (2001) reported 2 out of 22 tagged fish returning to home reefs in the Bahamas one year after spawning. Sonic tracking studies around Little Cayman Island have demonstrated that spawners may return to the aggregation site in successive months with returns to their residential reefs in between (Semmens
It is not known how Nassau grouper select and locate aggregation sites or why they aggregate to spawn. Spawning aggregation sites are typically located near significant geomorphological features, such as projections (promontories) of the reef as little as 50 m from the shore, and close to a drop-off into deep water over a wide (6-60 m) depth range (Craig 1966, Smith 1972, Burnett-Herkes 1975, Olsen and LaPlace 1979, Colin
The link between spawning sites and settlement sites is also not well understood. Researchers speculate the location of spawning sites assists offshore transport of fertilized eggs. However, currents nearby aggregation sites do not necessarily favor offshore egg transport, indicating some locations may be at least partially self-recruiting (
Spawning aggregations form around the full moon between December and March (reviewed in Sadovy and Eklund 1999), though this may occur later (May-August) in more northerly latitudes (La Gorce 1939, Bardach
Spawning occurs for up to 1.5 hours around sunset for several days (Whaylen
Spawning involves a rapid horizontal swim or a “rush” of bicolor fish following dark fish closely in either a column or cone rising to within 20-25 m of the water surface where group-spawning occurs in sub-groups of 3-25 fish (Olsen and LaPlace 1979, Carter 1986, Aguilar-Perera and Aguilar-Davila 1996). Following the release of sperm and eggs, there is a rapid return of the fragmented sub-group to the bottom. All spawning events have been recorded within 20 minutes of sunset, with most within 10 minutes of sunset (Colin 1992).
Repeated spawning occurs at the same site for up to three consecutive months generally around the full moon or between the full and new moons (Smith 1971, Colin 1992, Tucker
Few formal stock assessments have been conducted for the Nassau grouper. The most recent published assessment, conducted in the Bahamas, indicates fishing effort, and hence fishing mortality (F), in the Bahamas needs to be reduced from the 1998-2001 levels, otherwise the stocks are likely to be overexploited relative to biological reference points (Cheung
The Nassau grouper was formerly one of the most common and important commercial groupers in the insular tropical western Atlantic and Caribbean (Smith 1978, Randall 1983, Appeldoorn
While fisheries dependent data are generally limited for the species throughout its range, there are some 1970s and 1980s port-sampling data from the U.S.V.I. and Puerto Rico. In the U.S.V.I., Nassau grouper accounted for 22 percent of total grouper landings, and 85 percent of the Nassau grouper catch came from spawning aggregations (D. Olsen, Chief Scientist—St. Thomas Fishermen's Association, pers. comm. to J. Rueter, NMFS, October 2013). The first U.S. survey of the fishery resources of Puerto Rico noted the Nassau grouper was common and a very important food fish, reaching a weight of 22.7 kg or more (Evermann 1900). The Nassau grouper was still the fourth-most common shallow-water species landed in Puerto Rico in the 1970s (Thompson 1978), and it was common in the reef fish fishery of the U.S.V.I. (Olsen and LaPlace 1979). By 1981, “the Nassau grouper ha[d] practically disappeared from the local catches and the ones that d[id] appear [were] small compared with previous years” (CFMC 1985). By 1986, the Nassau grouper was considered commercially extinct in the U.S. Caribbean (Bohnsack
A number of organizations and agencies have conducted surveys to examine the status of coral reefs and reef-fish populations throughout the western Atlantic. Results from these monitoring studies offer some indication of relative abundance of Nassau grouper in various locations, although different methods are often employed and thus results of different studies cannot be directly compared (Kellison
Because we lack sufficient stock assessments or population estimates, we considered the changes in spawning aggregations as a proxy for the status of the current population. We believe the
In general, slow-growing, long-lived species (such as snappers and groupers) with limited spawning periods, and possibly with narrow recruitment windows, are susceptible to overexploitation (Bannerot
Overexploitation has also occurred in Belize. Between 1975 and 2001 there was an 80 percent decline in the number of Nassau grouper (15,000 fish to 3,000) at the Glover's Reef aggregation (Sala
Further indicators of population decline through over-exploitation include reduced size and/or age of fish harvested compared to maximum sizes and ages. Nassau grouper can attain sizes of greater than 120 cm (Heemstra and Randall 1993, Humann and Deloach 2002, Froese and Pauly 2010) and live as long as 29 years (Bush
While direct fishing of spawning aggregations was a primary driver of Nassau grouper population declines as indicated by the observed declines in spawning aggregations (Sadovy de Mitcheson and Erisman 2012), other factors also affect abundance. For example, removal of adults from spawning runs and intensive capture of juveniles, either through direct targeting (
The threats evaluation was the second step in the process of making an ESA listing determination for Nassau grouper as described above in “Listing Determinations under the ESA”. The Extinction Risk Analysis Group (ERAG), which consisted of 12 NOAA Fisheries Science Center and Regional Office personnel, was asked to independently review the Biological Report and assess 4 demographic factors (abundance, growth rate/productivity, spatial structure/connectivity, and diversity) and 13 specific threats (see ERA Threat Table under supporting documents). The group members were asked to provide qualitative scores based on their perceived severity of each factor and threat.
Members of the ERAG were asked to independently evaluate the severity, scope, and certainty for these threats currently and in the foreseeable future (30 years from now). The foreseeable future was based on the upper estimate of generation time for Nassau grouper (9-10 years) as described by Sadovy and Eklund (1999) and an age at maturity of 8 years (Bush
Members of the ERAG were asked to rank each of four demographic factors and 13 identified threats as “very low risk,” “low risk,” “moderate risk,” “increasing risk,” “high risk,” or “unknown.” “Very low risk” meant that it is unlikely that the demographic factor or threat affects the species' overall status. “Low risk” meant that the demographic factor may affect species' status, but only to a degree that it is unlikely that this factor significantly elevates risk of extinction now or in the future. “Moderate risk” meant that the demographic factor or threat contributes significantly to long term risk of extinction, but does not constitute a danger of extinction in the near future. “Increasing risk” meant that the present demographic risk or threat is low or moderate, but is likely to increase to high risk in the foreseeable future if present conditions continue. Finally, “high risk” meant that the demographic factor or threat indicates danger of extinction in the near future. Each member of the ERAG evaluated risk on this scale, and we then interpreted these rankings against the statutory language for threatened or endangered to determine the status of Nassau grouper. We did not directly relate the risk levels with particular listing outcomes, because the risk levels alone are not very informative. Acknowledging the differences in terminology between the ERAG risk scale and the ESA statutory definitions of threatened and endangered, we relied upon our own judgment and expertise in reviewing the ERA to determine the status of Nassau grouper and form our final listing determination.
ERAG members were also asked to consider the potential interactions between demographic factors and threats. If the demographic factor or threat was ranked higher due to interactions with other demographic factors or threats, each member was asked to then identify those factors or threats that caused them to score the risk higher or lower than it would have been if it were considered independently. We then examined the independent responses from each ERAG member for each demographic factor and threat and used the modal response to determine the level of threat to Nassau grouper.
Climate change and international trade regulations (
Spatial structure/connectivity and habitat alteration were considered under ESA Factor A; this included habitat loss or degradation, and the loss of habitat patches, critical source populations, subpopulations, or dispersal among populations.
Nassau grouper use many different habitat types within the coral reef ecosystem. The increase in urban, industrial, and tourist developments throughout the species range impacts coastal mangroves, seagrass beds, estuaries, and live coral (Mahon 1990). Loss of juvenile habitat, such as macroalgae, seagrass beds, and mangrove channels is likely to negatively affect recruitment rates. Habitat alteration was ranked by the ERAG as a “low risk” threat to Nassau grouper. We agree with the ERAG that habitat alteration presents a low risk to the species and is unlikely to contribute to the threat of extinction presently or over the foreseeable future. The use of many different habitat types by Nassau grouper may spread the risk of impacts associated with habitat loss to a point that reduces overall extinction risk to the species.
The range of Nassau grouper is influenced by spatial structure and connectivity of the population. As described in Hill and Sadovy de Mitcheson (2013), a study of genetic population structure in Nassau grouper revealed no clearly defined population substructuring at the geographic locations sampled,
Based on ERAG rankings, historical harvest and fishing at spawning aggregations are two of the three most severe threats (the third being inadequate law enforcement) to Nassau grouper. Historical harvest and fishing at spawning aggregations were both classified as “high” risk threats to Nassau grouper. Curiously, the ERAG rankings for commercial harvest, which often includes the fishing on spawning aggregations, were lower and indicated current commercial harvest was a “moderate” threat for Nassau grouper. We believe this lower ranking may be related to the fact that the species has declined to the point that commercial harvest is not as large a threat as in decades past. This is also related to abundance which was similarly classified as a “moderate” risk for Nassau grouper.
Two different aspects of fishing affect Nassau grouper abundance: Fishing effort throughout the non-spawning months and directed fishing at spawning aggregations or on migrating adults. In some countries Nassau grouper are fished commercially and recreationally throughout the year by handline, longline, fish traps, spear guns, and gillnets (NMFS General Canvas Landing System). Fishing at spawning aggregations is mainly conducted by handlines or by fish traps, although gillnets were being used in Mexico in the early to mid-1990s (Aguilar-Perera 2004). Declines in landings, catch per unit effort (CPUE) and, by implication, abundance in the late 1980s and early 1990s occurred throughout its range, which has led Nassau grouper to now be considered commercially extinct in a number of areas (Sadovy and Eklund 1999). Population declines and loss of spawning aggregations continue throughout the Nassau grouper's range (Sadovy de Mitcheson 2012).
We agree with the ERAG's assessment for the threat of abundance. It is clear that the abundance of Nassau grouper has diminished dramatically over the past several decades. This decline is a direct impact of historical harvest and the overfishing of spawning aggregations. The current abundance of Nassau grouper is not causing or contributing to the species currently being in danger of extinction but does raise concern for the status of the species over the foreseeable future if abundance continues to decline.
We disagree with the ERAG's “high risk” rating for historical harvest. We believe that while historical harvest has reduced the population size of Nassau grouper, which has in turn affected the ability of the population to recover, we don't agree that this threat continues to be a “high risk”. It seems more appropriate to consider the ERAG's risk assessment for the abundance of the current population in making our listing determination.
Predictable spawning aggregations make Nassau grouper a vulnerable fishing target. In many places, annual landings for Nassau grouper were mostly from aggregation-fishing (
We agree that fishing at spawning aggregations has reduced the population of Nassau grouper and has affected its current status. While the ERAG determined this is a “high risk” threat, we are less certain about our determination. We believe that this threat is in large part exacerbated by the inadequacy of regulatory mechanisms as discussed further below under Factor D. If existing regulatory mechanisms and corresponding law enforcement were adequate, this threat would be less of a concern. In the absence of adequate law enforcement, we believe that fishing at spawning aggregations is increasing the extinction risk of Nassau grouper.
The final threat analyzed for Factor B was artificial selection. The ERAG scores indicated artificial selection was a “moderate” threat; however, ranking of this threat was widely distributed amongst ERAG members, indicating a high level of uncertainty about the effects of artificial selection on Nassau grouper. We recognize the uncertainty associated with this threat and believe more information is needed. That said, we do not believe available information indicates artificial selection is currently impacting the species' risk of extinction.
There is very little information on the impacts of disease, parasites, and abnormalities on Nassau grouper, yet the species is not known to be affected by any specific disease or parasite. Given this, NMFS agrees with the ERAG ranking indicating a “very low risk” threat from disease, parasites, and abnormalities. We do not believe any of these threats will rise to the level of impacting the species' status over the foreseeable future.
Consideration of the inadequacy of existing regulatory mechanisms, includes whether enforcement of those mechanisms is adequate. The relevance of existing regulatory mechanisms to extinction risk for an individual species depends on the vulnerability of that species to each of the threats identified under the other factors of ESA section 4, and the extent to which regulatory mechanisms could or do control the threats that are contributing to the species' extinction risk. If a species is not currently, and not expected within the foreseeable future to become, vulnerable to a particular threat, it is not necessary to evaluate the adequacy of existing regulatory mechanisms for addressing that threat. Conversely, if a species is vulnerable to a particular threat (now or in the foreseeable future), we do evaluate the adequacy of existing measures, if any, in controlling or mitigating that threat. In the following paragraphs, we will discuss existing regulatory mechanisms for addressing the threats to Nassau grouper generally, and assess their adequacy for controlling those threats. In the Extinction Risk Analysis section, we determine if the inadequacy of regulatory mechanisms is a contributing factor to the species' status as threatened or endangered because the existing regulatory mechanisms fail to adequately control or mitigate the underlying threats.
As discussed in detail in the Biological Report (Hill and Sadovy de Mitcheson 2013), a wide array of regulatory mechanisms exists throughout the range of Nassau grouper that are intended to limit harvest and
The Bahamas has implemented a number of regulatory mechanisms to limit harvest. In the 1980s, the Bahamas introduced a minimum size of 3 lbs. (1.36 kg) for Nassau grouper. This was followed in 1998 with a 10-day seasonal closure at several spawning aggregations. An annual “two-month” fishery closure was added in December 2003 to coincide with the spawning period and was extended to three months in 2005 to encompass the December through February spawning period. Up until 2015, the implementation of the 3-month closure was determined annually and could be shortened or otherwise influenced by such factors as the economy (Sadovy and Eklund 1999). In 2015, the annual assessment of the closure was removed ensuring a fixed 3-month closure each year moving forward (Fisheries Resources [Jurisdiction and Conservation] [Amendment] Regulations 2015). During the 3-month closure there is a national ban on Nassau grouper catches; however, the Bahamas Reef Educational Foundation (BREEF; unpub. data), has reported large numbers of fish being taken according to fisher accounts with photo-documentation and confirming reports of poaching of the species during the aggregation season.
The Bahamas has implemented several other actions that aid the conservation of Nassau grouper. There are marine parks in the Bahamas that are closed to fishing year round and therefore protect Nassau grouper. The Exuma Cays Land and Sea Park, first established in 1959, has been closed to fishing since 1986, thus protecting both nursery and adult habitat for Nassau grouper and other depleted marine species. Other sites, including the South Berry Islands Marine Reserve (established on December 29, 2008), Southwest New Providence National Park, and North Exumas Study Site have also been established and closed to fishing. Several gear restrictions in the Bahamas are also protective of Nassau grouper. Fishing with SCUBA and the use of explosives, poisons, and spearguns is prohibited in the Bahamas, although snorkeling with sling spears is allowed. The use of bleach or other noxious or poisonous substances for fishing, or possession of such substances on board a fishing vessel, without written approval of the Minister, is prohibited. Commercial fishing in the Bahamas is restricted to only the native population and, as a consequence, all vessels fishing within the Bahamas Exclusive Fishery Zone must be fully owned by a Bahamian citizen residing in the Bahamas.
In Belize, the first measure to protect Nassau grouper was a seasonal closure within the Glover's Reef Marine Reserve in 1993; the area was closed from December 1 to March 1 to protect spawning aggregations. A seasonal closure zone to protect Nassau grouper spawning aggregations was included when the Bacalar Chico marine reserve was established in 1996 (Paz and Truly 2007). Minimum and maximum capture sizes were later introduced (Hill and Sadovy de Mitcheson 2013 and citations therein).
In 2001 the Belize National Spawning Aggregation Working Group established protective legislation for 11 of the known Nassau grouper spawning sites within Belize. Seven of those 11 sites are monitored as regularly as possible. The Working Group meets regularly to share data and develop management strategies (
In 2009, Belize issued additional protective measures to help manage and protect the Nassau grouper. These include minimum and maximum size limits of 20 inches and 30 inches, respectively. Belize has also introduced a plan to ban spear fishing within all marine reserves (yet to be implemented). Furthermore, as a large proportion of finfish are landed as fillets, the new regulations require that all Nassau grouper be landed whole, and if filleted must have a 1-inch by 2-inch skin patch (The Belize Spawning Aggregation Working Group 2009). Other gear restrictions are in place to generally aid in the management of reef fish, such as no spearfishing on compressed air.
Although Bermuda closed red hind aggregation sites in 1974, Nassau grouper aggregation sites located seaward of these sites were not included and continued to be fished. In 1990, a two-fish bag limit and minimum size restriction (35.6 cm FL) were enacted in Bermuda (Luckhurst 1996). Since 1996, Nassau grouper has been completely protected through a prohibition on take and possession and likely benefits from numerous no-take marine reserves (Hill and Sadovy de Mitcheson 2013).
In the Cayman Islands, the three main (“traditional”) grouper “holes” were officially protected in the late 1970's and only residents were allowed to fish by lines during the spawning season (Hill and Sadovy de Mitcheson 2013). In 1986, increasing complaints from fishermen of a decline in both numbers and size of Nassau grouper taken from the fishery prompted the implementation of a monitoring program by the Department of the Environment (Bush
Following the development of the monitoring program, the Cayman Islands implemented a number of management measures. In the early 1990s, legislation prohibited spearfishing at spawning aggregation sites. In 1998, the three main grouper holes at the eastern end of the islands were formally designated as “Restricted Marine Areas” where access requires licensing by the Marine Conservation Board (Bush
In Cuba, there is a minimum size limit for Nassau grouper though this regulation is largely unprotective. The minimum size of 32 cm TL (or 570g) for Nassau grouper is less than the reported average size at maturity of 50 cm TL, indicating that Nassau grouper can be harvested before having the opportunity
In Mexico, following scientific documentation of declines of Nassau grouper at Mahahual (Aguilar-Perera 1994), two regulations were enacted: (1) In 1993 spear-fishing was banned at any spawning aggregation site in southern Quintana Roo; and (2) in 1997 the fishing of any grouper species was banned during December and January (Aguilar-Perera 2006). Then, in 2003, a closed season for all grouper was implemented from February 15 to March 15 in all waters of the Mexican Exclusive Economic Zone. Although aimed at protecting red grouper this closure also protects Nassau grouper during a part of its spawning season (Aguilar-Perera
In the Turks and Caicos Islands, the only documented Nassau grouper spawning aggregation site is protected from fishing in Northwest Point Marine National Park, Providenciales (DECR 2004; National Parks Ordinance and Subsidiary Legislation CAP. 80 of 1988). Similar to situations in other countries, protection of Nassau grouper habitat and spawning migration corridors on the narrow ledge of Caicos Bank is problematic as it would impose economic hardship on local fishers who depend on those areas for commercial species (
In U.S. federal waters, including those federal waters around Puerto Rico and the U.S.V.I., take and possession of Nassau grouper have been prohibited since 1990. Since 1993, a ban on fishing/possessing Nassau grouper was implemented for the state of Florida and has since been enacted in all U.S. state waters. The species was fully protected in both state and federal waters of Puerto Rico by 2004. The Caribbean Fishery Management Council, with support of local fishermen, established a no-take marine protected area off the southwest coast of St. Thomas, U.S.V.I. in 1990. This area, known as the Hind Bank Marine Conservation District (HBMCD), was intended to protect red hind and their spawning aggregations, as well as a former Nassau grouper spawning site (Brown 2007). The HBMCD was first subject to a seasonal closure beginning in 1990 (Beets and Friedlander 1999, Nemeth 2005, Nemeth
In Colombia, the San Andrés Archipelago has a number of areas that are designated as no-take fishing zones, and in 2000 the entire archipelago was declared by the United Nations Educational, Scientific and Cultural Organization (UNESCO) as the Seaflower Biosphere Reserve. In 2004, large portions of the archipelago were declared as a system of marine protected areas with varying zones of fisheries management; however, enforcement is largely lacking (M. Prada, Coralina, San Andres, Colombia, pers. comm. R. Hill, NMFS, 2010). Right-to-fish laws in Colombia also require that fishermen be allowed to fish at a subsistence level even within the no-take zones (M. Prada, Coralina, San Andres, Colombia, pers. comm. R. Hill, NMFS, 2010).
There are other Caribbean countries that have either few management measures in place or have yet to implement any conservation measures for Nassau grouper. We are not aware of special conservation or management regulations for Nassau grouper in Anguilla. In Antigua-Barbuda, while Nassau grouper is not specifically managed or protected, closed seasons were considered in 2008 for Nassau grouper and red hind, though the status of these closed seasons is not known. In the British Virgin Islands, there is a closed season for landing Nassau grouper between March 1 and May 31 (Munro and Blok 2005). In the Dominican Republic the catch and sale of ripe female Nassau grouper during the spawning season is not allowed (Bohnsack 1989, Sadovy and Eklund 1999, Box and Bonilla Mejia 2008) and at least one marine park has been established with fishing regulations. In Guadeloupe and Martinique, there are plans to protect the species (F. Gourdin, Regional Activity Center for Specially Protected Areas and Wildlife—UNEP, pers. comm. to Y. Sadovy, University of Hong Kong, 2011) although no details are available at this time. In Honduras, there is no legislation that controls fishing in the snapper/grouper fishery; however, traps and spears are illegal in the Bay Islands. There are no Nassau grouper special regulations in Jamaica; yet, some marine protected areas were designated in 2011.
The ERAG considered several threats under Factor D including law enforcement, international trade regulations, foreign regulations in their jurisdictional waters, U.S. federal laws, and U.S. state and territorial laws. The ERAG determined that these threats substantially contribute to the overall risk to the species. Inadequate law enforcement was noted by several ERAG members as influencing their scoring for abundance, fishing of spawning aggregations, commercial harvest, and historical harvest. Inadequate law enforcement led to higher risk scores for each of these threats. The ERAG scored law enforcement as a “high risk” threat for Nassau grouper. ERAG rankings for the other threats were widely distributed. The inadequacy of foreign regulations in jurisdictional waters was considered an “increasing” risk while the risk of international trade regulations was “unknown.” The remaining two categories of regulations (U.S. Federal and State of Florida/U.S. territory regulations) were considered “low risk” and “moderate risk” respectively. While the ERAG rankings for threats impacting the adequacy of regulatory mechanisms were generally moderate, we believe the concern about fishing at spawning aggregations (“high risk” according to the ERAG) is due in part to the inadequacy of existing regulatory mechanisms.
Overall, we believe existing regulatory mechanisms throughout the species' range (international trade, foreign, U.S. federal, and U.S. state and territorial regulations) vary in their effectiveness, especially in addressing the most serious threat to Nassau grouper—fishing of spawning aggregations. In some countries, an array of national regulatory mechanisms, increases in marine protected areas, and customary
We note, however, that many countries have few, if any, specific Nassau grouper regulations. Instead they rely on general fisheries regulations (
Some foreign regulations may be ephemeral, unprotective of migrating adults, or inadequate to conserve the viability of a species. In some cases, regulations do not completely protect all known spawning aggregations (
In some places, such as Bermuda, no recovery has been documented after years of regulations (B. Luckhurst, Bermuda Department of Agriculture, Fisheries, and Parks, pers. comm. to Y. Sadovy, University of Hong Kong, September, 2012). In other places (
In conclusion, although many countries have taken regulatory measures to conserve Nassau grouper, the species faces an ongoing threat due to the inadequacy of regulatory mechanisms to prevent or remediate the impacts of other threats that are elevating the species' extinction risk, particularly fishing of spawning aggregations.
The ERAG considered climate change as a threat to Nassau grouper including global warming, sea level rise, and ocean acidification for Factor E. Although Nassau grouper occur across a range of temperatures, spawning occurs when sea surface temperatures range between 25 °C-26 °C (Colin 1992, Tucker and Woodward 1996). Because Nassau grouper spawn in a narrow window of temperatures, a rise in sea surface temperature outside that range could impact spawning or shift the geographic range of it to overlap with waters within the required temperature parameters. Increased sea surface temperatures have also been linked to coral loss through bleaching and disease. Further, increased global temperatures are also predicted to change parasite-host relationships and may present additional unknown concerns (Harvell
Another potential effect of climate change could be the loss of structural habitat in coral reef ecosystems as ocean acidification is anticipated to affect the integrity of coral reefs (Munday
The ERAG also considered threats from aquaculture to Nassau grouper under Factor E and determined that aquaculture was a “very low” risk threat to Nassau grouper. Experiments to determine the success rate of larval Nassau grouper culture (Watanabe
Demographic factors of abundance, population growth rate/productivity and diversity were also considered by the ERAG under Factor E. Each ERAG member considered whether the species is likely to be able to maintain a sustainable population size and adequate genetic diversity. They also considered whether the species is at risk due to a loss in the breeding population, which leads to a reduction in survival and production of eggs and offspring. Trends or shifts in demographic or reproductive traits were considered when assessing the ranking of threats by each ERAG member to identify a decline in population growth rate. The ERAG scores indicated that abundance of Nassau grouper was a “moderate risk,” growth rate/productivity was an “increasing risk,” and that diversity was a “moderate risk.” We agree with these rankings and believe they are supported by the declining number and size of spawning aggregations, which affects growth rate/productivity and diversity.
The most serious threats to Nassau grouper are fishing at spawning aggregations and inadequate law enforcement. These threats, considered under Factors B and D, were rated by the ERAG as “high risk” threats to the species. We agree with the ERAG's assessment that these threats are currently affecting the status of Nassau grouper, putting it at a heightened risk
We must assess the ERA results and make a determination as to whether the Nassau grouper is currently in danger of extinction, or likely to become so within the foreseeable future. We first evaluated the current status of the Nassau grouper in light of the four demographic factors. Based on our assessment of the ERA in regards to these demographic factors (abundance, growth rate/productivity, spatial structure and connectivity, and diversity) we do not believe the Nassau grouper is currently in danger of extinction. Each of these demographic factors was ranked by the ERAG as a moderate or increasing risk to the species' current status.
We acknowledge that the abundance of Nassau grouper has been dramatically reduced in relation to historical records, but we do not believe abundance is currently so low that the species is at risk of extinction from stochastic events, environmental variation, anthropogenic perturbations, lack of genetic diversity, or depensatory processes. Although the reduced abundance of Nassau grouper has diminished the size and number of spawning aggregations, spawning is still occurring and abundance is increasing in some locations (
Abundance is closely related with the other three demographic factors. Growth rate/productivity, spatial structure and connectivity, and diversity are all negatively affected by decreased abundance associated with overexploitation. Historical overfishing has led to a decreased average length and earlier age at maturity in exploited populations, which affects the species' ability to maintain the population growth rate above replacement level. Reductions in the number and distribution of spawning aggregations has the potential to affect larval and juvenile dispersal. This can further affect genetic diversity within the population. However, we don't believe that any of these demographic factors have been adversely affected to the point that Nassau grouper is currently in danger of extinction. As described previously, the species continues to occupy its current range, spawning is still occurring in several locations thus continuing to deliver new recruits to the population, and recovery of spawning aggregations has been documented in locations with adequate regulatory mechanisms and enforcement. The size of Nassau grouper is also increasing in areas where protections are in place (
After considering the current status of Nassau grouper based on the four demographic factors, we next assessed how the identified threats are expected to affect the status of the species, including its demographic factors, over the foreseeable future. The ERAG identified a variety of threats that have the potential to impact Nassau grouper. The ERAG ranked and we agreed that several threats (habitat alteration, disease, aquaculture, and U.S. federal regulations) ranked as “very low” or “low” risk, will have little to no effect on the extinction risk of Nassau grouper within the foreseeable future. Several other threats (commercial harvest, artificial selection, foreign regulations within jurisdictional waters, and regulations of the U.S. and its territories), were ranked as moderate or increasing risks to the status of Nassau grouper. We agree that collectively these threats could cause Nassau grouper to become in danger of extinction within the foreseeable future.
Finally, the ERAG identified three threats that present a “high” risk to the status of Nassau grouper over the foreseeable future. We agree with the ERAG's assessment that fishing of spawning aggregations combined with inadequate law enforcement is currently adversely affecting the status of Nassau grouper as discussed above, but disagree with the ERAG's ranking of historic harvest as a high risk. These high risk threats will continue to elevate the extinction risk of Nassau grouper over the foreseeable future. Both threats directly affect the current abundance of the species, its ability to maintain population growth rate, the population structure of the species, and its diversity in terms of genetics and overall ecology.
As previously described, the ERAG analyzed inadequate law enforcement as a standalone threat under Factor D, inadequacy of existing regulatory mechanisms, and ranked it as a “high risk” threat. We agree that existing regulations, and enforcement of existing regulations, are inadequate to control the threat posed by fishing on spawning aggregations, and thus this threat under Factor D is contributing to the extinction risk and status of Nassau grouper.
Based on the information in the Biological Report and the results from the ERA, we conclude that ESA Factors B (overutilization for commercial, recreational, scientific, or educational purposes), D (inadequacy of regulatory mechanisms), and E (other natural or manmade factors) are contributing to a threatened status for Nassau grouper. Overutilization in the form of historical harvest has reduced population size and led to the collapse of spawning aggregations in many locations. While some countries have made efforts to curb harvest, fishing at spawning aggregation sites remains a “high risk” threat. Further contributing to the risk of Nassau grouper extinction is the inadequacy of regulatory control and law enforcement, which leads to continued overutilization (low abundance), reduced reproductive output, and reduced recruitment. If growth and sexual recruitment rates cannot balance the loss from these threats, populations will become more vulnerable to extinction over the future (Primack 1993).
Section 4(b)(1)(A) of the ESA requires the Secretary, when making a listing determination for a species, to take into consideration those efforts, if any, being made by any State or foreign nation to protect the species. To evaluate the efficacy of domestic efforts that have not yet implemented or that have been implemented, but have not yet demonstrated to be effective, the Services developed a joint “Policy for Evaluation of Conservation Efforts When Making Listing Decisions” (“PECE”; 68 FR 15100; March 28, 2003).
The PECE establishes two overarching criteria to use in evaluating efforts identified in conservations plans, conservation agreements, management plans or similar documents: (1) The certainty that the conservation efforts will be implemented; and (2) the certainty that the efforts will be effective. While section 4(b)(1)(A) requires that we evaluate both domestic and foreign conservation efforts, it does not set out particular criteria for doing so. While the particular framework of the PECE policy only directly applies to consideration of domestic efforts, we have discretion to evaluate foreign efforts using a similar approach and find that it is reasonable to do so here. In our discretion, we evaluated foreign conservation efforts to protect and recover Nassau grouper that are either underway, but not yet fully implemented, or are only planned, using these overarching criteria.
Conservation efforts with the potential to address identified threats to Nassau grouper include, but are not limited to, fisheries management plans, education about overfishing and fishing of spawning aggregations, and projects addressing the health of coral reef ecosystems. These conservation efforts may be conducted by countries, states, local governments, individuals, NGOs, academic institutions, private companies, individuals, or other entities. They also include global conservation organizations that conduct coral reef and/or marine environment conservation projects, global coral reef monitoring networks and research projects, regional or global conventions, and education and outreach projects throughout the range of Nassau grouper.
The Biological Report summarizes known conservation efforts, including those that have yet to be fully implemented or have yet to demonstrate effectiveness. Conservation efforts that we considered that are yet to be fully implemented include Mexico's 2012 proposed management plan, Antigua-Barbuda's 2008 closed season proposal, and Guadeloupe and Martinique's plans to protect the species. Because these proposed plans are several years old with no updates or known implementation, we find that there is not a sufficient basis to conclude that there is a reasonable certainty of implementation or effectiveness. We also considered the marine protected areas implemented by Jamaica in 2011, though based on Jamaica's historic overfishing and difficulty in enforcing existing regulations, we find that there is not a sufficient basis to conclude that these marine protected areas present a reasonable certainty of effectiveness in reducing threats that contribute to Nassau grouper's extinction risk. We carefully considered the other conservation efforts summarized in the Biological Report and acknowledge that time is required to see the benefit of mature adults in the spawning aggregations; however, the continued decline in number and size of Nassau grouper spawning aggregations indicates the effectiveness of those conservation efforts is currently unknown and thus there is insufficient basis to conclude there is a reasonable certainty of effectiveness. While some conservation efforts have been partially successful on localized scales, Nassau grouper appear to still be overutilized and at heightened risk of extinction based on the ERA. After taking into account these conservation efforts, our evaluation of the section 4(a)(1) factors is that the conservation efforts do not reduce the risk of extinction of Nassau grouper to the point at which listing is not warranted.
There are two situations under which a species is eligible for listing under ESA: A species may be endangered or threatened throughout all of its range or a species may be endangered or threatened throughout only a “significant portion of its range” (SPOIR). Although the ESA does not define “SPOIR,” NMFS and the U.S. Fish and Wildlife Service (USFWS) published a final policy clarifying their interpretation of this phrase (79 FR 37577; July 7, 2014). Under the policy, if a species is found to be endangered or threatened throughout only a significant portion of its range, the entire species is subject to listing and must be protected everywhere. A portion of a species' range is “significant” if “. . . the species is not currently endangered or threatened throughout its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range.” Thus, if the species is found to be threatened or endangered throughout its range, we do not separately evaluate portions of the species' range.
Although the SPOIR Policy had yet to go into effect during our status review of Nassau grouper, we considered the interpretations and principles contained in the 2014 Draft Policy with regards to the Nassau grouper and completed an assessment of potential “SPOIR,” which is documented in the ERA. However, throughout the status review process NMFS determined threats and risks to the status of Nassau grouper are affecting the species over the entirety of its range. Because the threats and risks are widespread throughout the entire range of this species, there is no portion of the range that can be considered “significant.”
Based on the Biological Report, the Threats Evaluation, the Extinction Risk Analysis, and Protective Efforts we determined that the Nassau grouper warrants a threatened status under the ESA. We summarize the results of our comprehensive status review as follows: (1) The species is made up of a single population over a broad geographic range, and its current range is indistinguishable from its historical range; (2) the species possesses life history characteristics that increase vulnerability to unregulated harvest; (3) historical harvest greatly diminished the population of Nassau grouper and the species has yet to recover from this overexploitation; (4) spawning aggregations have drastically declined in size and number across the species' range; (5) there are two threats the ERAG rated as “high risk,” that we agree are affecting the current status of the species and will continue to do so over the foreseeable future—fishing at spawning aggregations and inadequate law enforcement; and (6) historical harvest has abated, though existing regulatory mechanisms and law enforcement have not been effective in preventing fishing at many spawning aggregation sites. Conservation efforts in some nations (U.S., Puerto Rico, U.S.V.I., and Belize) have almost certainly prevented further declines. Given the life history characteristics of Nassau grouper, more time will be needed to determine if these protective measures are successful in recovering the population. Collectively, the information obtained during the status review indicates the species is not currently in danger of extinction
Conservation measures provided for species listed as endangered or threatened under the ESA include recovery plans (16 U.S.C. 1533(f)), critical habitat designations (16 U.S.C. 1533(a)(3)(A)), Federal agency consultation requirements (16 U.S.C. 1536), and protective regulations (16 U.S.C. 1533(d)). Recognition of the species' status through listing promotes conservation actions by Federal and state agencies, private groups, and individuals, as well as the international community. Both a recovery program and designation of critical habitat could result from this final listing. Given its broad range across the Caribbean Sea, a regional cooperative effort to protect and restore Nassau grouper is necessary. We anticipate that protective regulations for Nassau grouper will also be necessary for the conservation of the species. Federal, state, and the private sectors will need to cooperate to conserve listed Nassau grouper and the ecosystems upon which they depend.
Section 7(a)(2) of the ESA and NMFS/FWS regulations require Federal agencies to consult with us on any actions they authorize, fund, or carry out if those actions may affect the listed species or designated critical habitat. Based on currently available information, we can conclude that examples of Federal actions that may affect Nassau grouper include, but are not limited to, artificial reef creation, dredging, pile-driving, military activities, and fisheries management practices.
Critical habitat is defined in section 3 of the ESA (16 U.S.C. 1532(5)) as: (1) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the ESA, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) specific areas outside the geographical 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” means the use of all methods and procedures needed to bring the species to the point at which listing under the ESA is no longer necessary. Critical habitat may also include areas unoccupied by Nassau grouper if those areas are essential to the conservation of the species.
Section 4(a)(3)(A) of the ESA (16 U.S.C. 1533(a)(3)(A)) requires that, to the maximum extent prudent and determinable, critical habitat be designated concurrently with the listing of a species. Pursuant to 50 CFR 424.12(a), designation of critical habitat is not determinable when one or both of the following situations exist: Data sufficient to perform required analyses are lacking; or the biological needs of the species are not sufficiently well known to identify any area that meets the definition of “critical habitat.” Although we have gathered information through the status review and public comment periods on the habitats occupied by this species, we currently do not have enough information to determine what physical and biological features within those habitats facilitate the species' life history strategy and are thus essential to the conservation of Nassau grouper, and may require special management considerations or protection. To the maximum extent prudent and determinable, we will publish a proposed designation of critical habitat for Nassau grouper in a separate rule. Designations of critical habitat must be based on the best scientific data available and must take into consideration the economic, national security, and other relevant impacts of specifying any particular area as critical habitat. Once critical habitat is designated, section 7 of the ESA requires Federal agencies to ensure that they do not fund, authorize, or carry out any actions that are likely to destroy or adversely modify that habitat. This requirement is in addition to the section 7 requirement that Federal agencies ensure that their actions do not jeopardize the continued existence of listed species.
Because we are proposing to list Nassau grouper as threatened, the ESA section 9 prohibitions do not automatically apply. Therefore, pursuant to ESA section 4(d), we will evaluate whether there are protective regulations we deem necessary and advisable for the conservation of Nassau grouper, including application of some or all of the take prohibitions. If protective regulations are deemed necessary, a proposed 4(d) rule would be subject to public comment.
In December 2004, the Office of Management and Budget (OMB) issued a Final Information Quality Bulletin for Peer Review establishing minimum peer review standards, a transparent process for public disclosure of peer review planning, and opportunities for public participation. The OMB Bulletin, implemented under the Information Quality Act (Pub. L. 106-554) is intended to enhance the quality and credibility of the Federal government's scientific information, and applies to influential or highly influential scientific information disseminated on or after June 16, 2005. To satisfy our requirements under the OMB Bulletin, we obtained independent peer review of the Biological Report. Five independent specialists were selected from the academic and scientific community, Federal and state agencies, and the private sector for this review (with three respondents). All peer reviewer comments were addressed prior to dissemination of the final Biological Report and publication of this final rule.
We are soliciting information on features and areas that may support designation of critical habitat for Nassau grouper. Information provided should identify the physical and biological features essential to the conservation of the species and areas that contain these features. Areas outside the occupied geographical area should also be identified if such areas themselves are essential to the conservation of the species. Essential features may include, but are not limited to, features specific to the species' range, habitats, and life history characteristics within the following general categories of habitat features: (1) Space for individual growth and for normal behavior; (2) food, water, air, light, minerals, or other nutritional or physiological requirements; (3) cover or shelter; (4) sites for reproduction and development of offspring; and (5) habitats that are protected from disturbance or are representative of the historical, geographical, and ecological distributions of the species (50 CFR 424.12(b)). ESA implementing regulations at 50 CFR 424.12(h) specify that critical habitat shall not be
For features and areas potentially qualifying as critical habitat, we also request information describing: (1) Activities or other threats to the essential features or activities that could be affected by designating them as critical habitat, and (2) the positive and negative economic, national security and other relevant impacts, including benefits to the recovery of the species, likely to result if these areas are designated as critical habitat.
A complete list of the references used in this final rule is available at: (
The 1982 amendments to the ESA, in section 4(b)(1)(A), restrict the information that may be considered when assessing species for listing. Based on this limitation of criteria for a listing decision and the opinion in
As noted in the Conference Report on the 1982 amendments to the ESA, economic impacts cannot be considered when assessing the status of a species. Therefore, the economic analysis requirements of the Regulatory Flexibility Act are not applicable to the listing process. In addition, this final rule is exempt from review under Executive Order 12866. This final rule does not contain a collection-of-information requirement for the purposes of the Paperwork Reduction Act.
In keeping with the intent of the Administration and Congress to provide continuing and meaningful dialogue on issues of mutual state and Federal interest, the proposed rule was provided to the relevant agencies in each state in which the subject species occurs, and these agencies were invited to comment. We did not receive comments from any state agencies.
Executive Order 12898 requires that Federal actions address environmental justice in the decision-making process. In particular, the environmental effects of the actions should not have a disproportionate effect on minority and low-income communities. This final rule is not expected to have a disproportionately high effect on minority populations or low-income populations.
Endangered and threatened species, Exports, Transportation.
For the reasons set out in the preamble, we amend 50 CFR part 223 as follows:
16 U.S.C. 1531-1543; subpart B, § 223.201-202 also issued under 16 U.S.C. 1361
(e) * * *
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
This final action updates agency regulations consistent with provisions of the Shark Conservation Act of 2010 (SCA) and prohibits any person from removing any of the fins of a shark at sea, possessing shark fins on board a fishing vessel unless they are naturally attached to the corresponding carcass, transferring or receiving fins from one vessel to another at sea unless the fins are naturally attached to the corresponding carcass, landing shark fins unless they are naturally attached to the corresponding carcass, or landing shark carcasses without their fins naturally attached. This action amends existing regulations and makes them consistent with the SCA.
Effective July 29, 2016.
Copies of the Environmental Assessment (EA)/Regulatory Impact Review (RIR)/Final Regulatory Flexibility Analysis (FRFA) prepared for this action can be obtained from: Erin Wilkinson, National Marine Fisheries Service, 1315 East-West Highway, Room 13437, Silver Spring MD 20910. An electronic copy of the EA/RIR/FRFA document as well as copies of public comments received can be viewed at the Federal e-rulemaking portal:
Erin Wilkinson by phone at 301-427-8561, or by email:
Background information and an overview of the Shark Conservation Act can be found in the preamble of the proposed rule published on May 2, 2013 (78 FR 25685). Copies are available from NMFS (see
Retaining a shark fin while discarding the shark carcass (shark finning) has been prohibited in the United States since the 2000 Shark Finning Prohibition Act. The 2010 SCA included provisions that amended the Magnuson-Stevens Fishery Conservation and Management Act (MSA) to prohibit any person from: (1) Removing any of the fins of a shark (including the tail) at sea; (2) having custody, control, or possession of a fin aboard a fishing vessel unless it is naturally attached to the corresponding carcass; (3) transferring a fin from one vessel to another vessel at sea, or receiving a fin in such transfer, unless the fin is naturally attached to the corresponding carcass; or (4) landing a fin that is not naturally attached to the corresponding carcass, or landing a shark carcass without its fins naturally attached. For the purpose of the SCA and these regulations, “naturally attached,” with respect to a shark fin, means to be attached to the corresponding shark carcass through some portion of uncut skin.
This action amends NMFS' regulations consistent with these provisions of the SCA. Specifically, the rule amends regulations at 50 CFR part 600, subpart N, to prohibit the removal of shark fins at sea, namely, the possession, transfer and landing of shark fins that are not naturally attached to the corresponding carcass, and the landing of shark carcasses without the corresponding fins naturally attached. In the preamble to the proposed rule, NMFS noted that it interprets the prohibitions in subpart N as applying to sharks, not skates and rays, and solicited public comment on whether clarification was needed in the regulatory text on this issue. See 78 FR 25685, 25686 (May 2, 2013). NMFS received only one public comment on this point, which was supportive of this interpretation, and NMFS thus affirms in this final rule that the prohibitions do not apply to skates and rays.
This final rule also updates subpart N to be consistent with section 103(b) of the SCA regarding an exception for individuals engaged in commercial fishing for smooth dogfish. Interpretation of that exception was addressed in a rule finalized in November 2015, for Amendment 9 to the 2006 Consolidated Atlantic Highly Migratory Species Fishery Management Plan (November 24, 2015; 80 FR 73128). That final rule, among other things, allows for the at-sea removal of smooth dogfish fins provided that fishing occurs within 50 nautical miles of shore along the Atlantic Coast from Maine through the east coast of Florida; smooth dogfish fin weight does not exceed 12 percent of the carcass weight on board; smooth dogfish make up at least 25 percent of the total retained catch, by weight; and the fisherman/vessel holds both federal and state permits appropriate for the retention of smooth dogfish.
This final rule also combines the existing §§ 600.1203 and 600.1204 into one section. The text throughout 50 CFR part 600, subpart N, is amended to make it consistent with the provisions of the SCA.
The MSA authorizes the Secretary to regulate fisheries seaward of the inner boundary of the U.S. exclusive economic zone (EEZ), which is defined as a line coterminous with the seaward boundary of each U.S. coastal state. 16 U.S.C. 1802(11). Thus, as noted in the proposed rule, the SCA provisions apply to any person subject to the jurisdiction of the United States, including persons on board U.S. and foreign vessels, engaging in activities prohibited under the statute with respect to sharks harvested seaward of the inner boundary of the EEZ. See 78 FR 25685, 25686 (May 2, 2013). Federal regulations pertaining to the conservation and management of specific shark fisheries are set forth in parts 635, 648, and 660 of title 50 of the Code of Federal Regulations. For Atlantic highly migratory species fisheries, as a condition of its Federal permit, a vessel's fishing, catch, and gear are subject to federal requirements even when fishing in state waters. See 50 CFR 635.4(a)(10) (noting also that, when fishing within the waters of a state with more restrictive regulations, persons aboard the vessel must comply with those requirements). This rule amends 50 CFR part 600, subpart N, and does not supersede or amend any other federal regulation or requirement related to the conservation and management of sharks.
The SCA also amended the High Seas Driftnet Fishing Moratorium Protection Act, which provides for identification and certification of nations to address illegal, unreported, or unregulated fishing; bycatch of protected living marine resources; and, as amended by the SCA, shark catches. 16 U.S.C. 1826h-1826k. With regard to sharks, the High Seas Driftnet Fishing Moratorium
The MSA provides for Federal management of fisheries in the U.S. exclusive economic zone (16 U.S.C. 1812(a)). In § 600.1201(d) of the proposed rule, NMFS noted that State and territorial statutes that address shark fins are preempted if they are inconsistent with the MSA as amended by the Shark Conservation Act of 2010, regulations under this part, and applicable federal fishery management plans and regulations. This text did not state that specific state laws were in fact preempted, and the proposed regulations themselves would not have preempted any state or territorial laws. NMFS included this text because a number of states and territories had enacted their own laws regarding shark fins, and NMFS was concerned that some of those laws, which differ from state to state, might restrict the possession of shark fins in a way that could conflict with the broader goals of the MSA as amended by the SCA, and might therefore be preempted by the MSA as amended by the SCA.
NMFS engaged in extensive discussions with states and territories that have existing shark fin laws. During these discussions, the states and territories all expressed concern over language in the proposed rule regarding the potential for preemption of state shark fin laws that conflict with the SCA. In those discussions, NMFS sought additional information about the nature and details of the state laws and fisheries, economic factors, and the ability of federally-permitted shark fishermen to dispose of legally-landed shark fins. Following the discussions described above and further exchanges of information between NMFS and the relevant states and territories, NMFS has determined that the current shark fin laws for these states and territories are consistent with, and therefore are not preempted by, the MSA as amended by the SCA: California, Delaware, Hawaii, Maryland, Massachusetts, New York, Oregon, Washington, the Commonwealth of the Northern Mariana Islands, and Guam. The bases for these conclusions were that the shark fin laws in those states and territories would have minimal impacts on federally licensed and permitted shark harvesters, because the laws did not prohibit federally licensed and permitted fishermen from landing a legally-caught shark with fins naturally attached or selling the non-fin parts of the shark, and, based on the scale and nature of the shark fisheries in those states and territories, the laws would have minimal impacts on federal fishermen. Copies of letters exchanged between NMFS and applicable states and territories documenting those conclusions may be found on the Office of Sustainable Fisheries Web site:
NMFS received over 180,000 public comments on the proposed rule. These comments came from non-governmental organizations, members of Congress, Fishery Management Councils and Commissions, state governments, commercial and recreational fishermen, and other interested members of the public. Many of the comment letters were similar or raised similar issues. NMFS reviewed and considered all comments during the development of this final rule. Due to the large volume of comments received and the overlapping nature of many of the comments, we have not responded to each individually, but instead have responded to the major topics addressed in the comments. Many comments expressed support for the rule as written and have not been summarized below.
As explained above, proposed § 600.1201(d) did not state that any state law was in fact preempted, and other sections of this rule merely codify SCA text. Any preemption would stem from a conflict between the MSA, as amended by the SCA, and a state law. NMFS has decided to remove § 600.1201(d), though, given public comment on and apparent confusion regarding the language.
The U.S. manages shark fisheries using an adaptive process under the MSA based on sound science, effective and enforced management measures, and collaboration with diverse stakeholders, states, and federal partners. Sustainably managed shark fisheries provide opportunities for both commercial and recreational fishermen.
NMFS also works with international organizations to establish global shark conservation and management measures. In addition to prohibiting shark finning in the United States, we continue to promote our fins-naturally-attached policy overseas.
NMFS made only two changes from the proposed rule. First, based on NMFS' discussions with states with shark fin laws and on public comments, NMFS has removed preemption language in the proposed rule from the regulatory text of the final rule. Specifically, NMFS removed proposed § 600.1201(d), which stated that State and territorial statutes that address shark fins are preempted if they are inconsistent with the MSA as amended by the Shark Conservation Act of 2010, regulations under this part, and applicable federal fishery management plans and regulations.
Second, NMFS revised § 600.1201(b), which addresses the exception for individuals engaged in commercial fishing for smooth dogfish. Specifically, NMFS combined proposed paragraphs (b)(1) and (2) and replaced the proposed language for those paragraphs with a cross-reference to the relevant paragraph in NMFS' regulations that interprets the smooth dogfish exception (§ 635.30(c)(5)), which was finalized on November 24, 2015 (80 FR 73128), after the proposed rule for this rulemaking was published. This change was made to ensure that NMFS' interpretation and application of the smooth dogfish exception is consistent across NMFS' regulations and to make it easy for the reader to find the applicable provisions. This is not a substantive change from the proposed rule, because the language codified in § 635.30(c)(5) is consistent with the language originally proposed for § 600.1201(b)(1), and the definition of “Atlantic States” (§ 635.2) applicable to § 635.30(c)(5) is consistent with the definition of “State” originally proposed in § 600.1201(b)(2).
Pursuant to section 305(d) of the MSA, NMFS has determined that this final rule is consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable law.
This final rule has been determined to be not significant for purposes of Executive Order 12866.
As explained in Section III and the response to comments, several states and territories have enacted statutes that address shark fins. In light of E.O. 13132, and in the interest of working with them, NMFS engaged in discussions with states and territories that have existing shark fin laws, and NMFS and the states and territories identified in Section III have reached agreement that the current shark fin laws in those states and territories are consistent with, and therefore are not preempted by, the MSA as amended by the SCA.
The final rule is necessary to update NMFS' regulations to be consistent with the SCA, and it does not preempt any state laws. Any federalism implications are triggered by the provisions of the MSA, as amended by the SCA. The extent to which any state shark fin law conflicts with and might be preempted by the MSA itself, as amended by the SCA, is a fact-specific determination to be made on a case-by-case basis. Thus, after considering the public comment on and apparent confusion regarding the language, NMFS has removed the preemption language from the final rule.
Should the facts presented to NMFS regarding any existing state or territory shark fin law change significantly, NMFS may re-engage in discussions with the applicable state or territory. If any additional states or territories are considering enacting shark fin laws, NMFS encourages them to reach out to NMFS to discuss such legislation. NMFS will continue to take appropriate steps, including engaging with states as necessary, to support federally licensed and permitted shark harvesters.
Pursuant to section 604 of the Regulatory Flexibility Act (RFA), NMFS has prepared a Final Regulatory Flexibility Analysis (FRFA) in support of this action. The FRFA incorporates the Initial Regulatory Flexibility Analysis (IRFA) that was published with the proposed rule for this action, a summary of the significant issues raised by the public comments in response to the IRFA, NMFS' response to those comments, relevant analysis contained in the action and its Environmental Assessment (EA), and a summary of the analyses in this rule. Copies of the analyses, EA, and FRFA are available from NMFS (see
The rule updates agency regulations consistent with provisions of the SCA and prohibits any person from removing any of the fins of a shark at sea, possessing shark fins on board a fishing vessel unless they are naturally attached to the corresponding carcass, transferring or receiving fins from one vessel to another at sea unless the fins are naturally attached to the corresponding carcass, landing shark fins unless they are naturally attached to the corresponding carcass, or landing shark carcasses without their fins naturally attached. This action amends existing regulations and makes them consistent with the SCA.
No significant issues were raised by the public comments in response to the IRFA. The Chief Counsel for Advocacy of the Small Business Administration (SBA) did not provide any comments on the IRFA. NMFS received one comment on the proposed rule that suggested that the preemption language would impact the commenter's business. However, as explained in section III and the response to comment topic 3, any preemption would stem from a conflict between the MSA, as amended by the SCA, and a state law. In any event, NMFS has removed the preemption language from the final rule, and therefore, the commenter's concern has been addressed.
The FRFA contains new economic information that was added to clarify
No duplicative, overlapping, or conflicting Federal rules have been identified. This rule does not establish any new reporting or record-keeping requirements.
One alternative, the status quo, was considered for the proposed action. This alternative would maintain the current regulations under the Shark Finning Prohibition Act. Under this alternative, any person may remove and retain on the vessel fins (including the tail) from a shark harvested seaward of the inner boundary of the U.S. EEZ; however, the corresponding carcass must also be retained on board the vessel. It would be a rebuttable presumption that shark fins landed by a U.S. or foreign fishing vessel were taken, held, or landed in violation of the regulations if the total weight of the shark fins landed exceeds 5 percent of the total dressed weight of shark carcasses on board or landed from the fishing vessel. NMFS rejected this alternative because it would not comply with the requirements of the SCA. No other alternatives meet the statutory requirements, and so none were considered.
Administrative practice and procedure, Confidential business information, Fisheries, Fishing, Fishing vessels, Foreign relations, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Statistics.
For the reasons set out in the preamble, NMFS amends 50 CFR part 600 as follows:
5 U.S.C. 561 and 16 U.S.C. 1801
The regulations in this subpart implement the Shark Conservation Act of 2010.
(a) Regulations pertaining to conservation and management (including record keeping and reporting) for certain shark fisheries are also set forth in parts 635 (for Federal Atlantic Ocean, Gulf of Mexico, and Caribbean shark fisheries), 648 (for spiny dogfish fisheries), 660 (for fisheries off West Coast states), and 665 (for fisheries in the western Pacific) of this chapter.
(b) This subpart does not apply to an individual engaged in commercial fishing for smooth dogfish (
(c) This subpart does not supersede state laws or regulations governing conservation and management of state shark fisheries in state waters.
(a) In addition to the definitions in the Magnuson-Stevens Act and in § 600.10, the terms used in this subpart have the following meanings:
(b) If there is any difference between a definition in this section and in § 600.10, the definition in this section is the operative definition for the purposes of this subpart.
(a) It is unlawful for any person to do, or attempt to do, any of the following:
(1) Remove a fin at sea.
(2) To have custody, control, or possession of a fin, aboard a fishing vessel, unless the fin is naturally attached.
(3) Transfer a fin from one vessel to another vessel at sea unless the fin is naturally attached.
(4) Receive a fin in a transfer from one vessel to another vessel at sea unless the fin is naturally attached.
(5) Land a fin unless the fin is naturally attached.
(6) Land a shark carcass without all of its fins naturally attached.
(7) Possess, purchase, offer to sell, or sell fins or shark carcasses taken, transferred, landed, or possessed in violation of this section.
(8) When requested, fail to allow an authorized officer or any employee of NMFS designated by a Regional Administrator, or by the Director of the Office of Sustainable Fisheries in the case of the Atlantic Highly Migratory Species, access to or inspection or copying of any records pertaining to the landing, sale, transfer, purchase, or other disposition of fins or shark carcasses.
(b) For purposes of this section, it is a rebuttable presumption that:
(1) If a fin is found aboard a vessel, other than a fishing vessel, without being naturally attached, such fin was transferred in violation of this section.
(2) If, after landing, the total weight of fins landed from any vessel exceeds five percent of the total weight of shark carcasses landed, such fins were taken, held, or landed in violation of this section.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Final rule.
NMFS is announcing a change in the dealer landings reporting methodology for Atlantic bluefin tuna (BFT) from use of handwritten and faxed landings reports to use of an electronic reporting system via the Internet. The online BFT dealer report system is now available, and NMFS has determined that expedited transition to this online system is in the public interest and necessary to maintain accurate reporting given issues with the software currently being used to process faxed documents. This rule specifies the effective date for use of the online system and elimination of the fax option. These requirements apply to all Highly Migratory Species (HMS) dealers with a valid Atlantic Tunas dealer permit issued under applicable regulations.
This final rule is effective July 28, 2016. Public conference call and webinars will be held on July 19 and July 22, from 1:30 to 3:30 p.m., Eastern Daylight Time.
For details on the call-in and Web site information for the two public conference call and webinars, please see the table in the
Brad McHale or Dianne Stephan, 978-281-9260.
Regulations implemented under the authority of the Atlantic Tunas Convention Act (ATCA; 16 U.S.C. 971
NMFS is publishing this rule without a prior proposed rule because the software NMFS uses to process the faxed forms is no longer supported and thus is unreliable and could affect reporting. Furthermore, the online reporting process will simplify and improve reporting, should not impact any members of the regulated community negatively, and will not change the substance or value of the reports. Thus, it is in the best interest of the regulated public.
In addition to this rule, NMFS will notify the regulated community of this change through directed outreach to bluefin tuna dealers via phone calls. NMFS will hold two webinars (see Table 1 below) with instructions on use of the system, and a user manual will be posted online. No other aspects of the landings reporting system or associated requirements are affected by this final rule.
NMFS will hold two public conference call and webinars to provide further information about the requirements of the final rule and use of the online BFT dealer reporting system. To participate in those calls, use the following information:
To participate in the webinars online, enter your name and email address, and click the “JOIN” button. Participants that have not used WebEx before will be prompted to download and run a plug-in program that will enable them to view the webinar. Presentation materials and other supporting information will be posted on the HMS Web site at
The Assistant Administrator for NMFS (AA) has determined that this final rule is consistent with the Magnuson-Stevens Act, the 2006 Consolidated Atlantic HMS FMP and its amendments, ATCA, and other applicable law.
The AA finds that it is impracticable and contrary to the public interest to provide an opportunity for public comment on this action for the following reasons:
In 2005, NMFS notified the regulated community that NMFS anticipated
This final rule has been determined to be not significant for purposes of Executive Order 12866.
Additionally, although there are no new collection-of-information requirements associated with this action that are subject to the Paperwork Reduction Act, existing collection-of information requirements still apply under the following Control Number: (1) 0648-0040, the HMS Dealer Reporting Family of Forms. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection-of-information subject to the requirements of the PRA, unless that collection-of-information displays a currently valid OMB control number. Because prior notice and opportunity for public comment are not required for this rule by 5 U.S.C. 553, or any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601
Fisheries, Fishing, Fishing vessels, Foreign relations, Imports, Penalties, Reporting and recordkeeping requirements, Treaties.
For the reasons set out in the preamble, 50 CFR part 635 is amended as follows:
16 U.S.C. 971
(b) * * *
(2) * * *
(i) * * *
(A)
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Temporary rule; reduction of possession limit.
NMFS is prohibiting—beginning June 27, 2016, and ending August 31, 2016—Federal longfin squid vessel permit holders from fishing for, catching, possessing, transferring, or landing more than 2,500 lb (907.2 kg) of longfin squid per trip and landing such squid more than once per calendar day. This prohibition is required by regulation because NMFS projects that 90 percent of the 2016 annual Trimester II seasonal catch limit will have been caught by the effective date. In addition, based on this determination, other restrictions regarding catch of longfin squid by federally permitted
Effective 0001 hr local time, June 27, 2016, through August 31, 2016.
Daniel Luers, Fishery Management Specialist, (978) 282-8457.
The reader can find regulations governing the longfin squid fishery at 50 CFR part 648. The regulations require specifications for maximum sustainable yield, initial optimum yield, allowable biological catch (ABC), domestic annual harvest (DAH), domestic annual processing, joint venture processing, and total allowable levels of foreign fishing for the species managed under the Atlantic Mackerel, Squid, and Butterfish Fishery Management Plan (FMP). The
The 2016 longfin squid Trimester II quota was increased from 7,976,325 lb (3,618 mt) to 12,619,260 lb (5,724 mt) to account for the underage in the 2016 Trimester I catch. Trimester III quota for longfin squid will be available for harvest on September 1, 2016.
The regulations at § 648.24(a)(1) require that when the NMFS Administrator of the Greater Atlantic Region (Regional Administrator) projects longfin squid catch will reach 90 percent of the Trimester II quota designated in the Atlantic Mackerel, Squid, and Butterfish FMP, NMFS must prohibit Federal longfin squid vessel permit holders from fishing for, catching, possessing, transferring, or landing more than 2,500 lb (907.2 kg) of longfin squid per trip and landing such squid more than once per calendar day for the remainder of the prohibition period. This type of prohibition effectively closes the directed squid fishery. The Regional Administrator monitors the longfin squid fishery catch in each trimester based on dealer reports, state data, and other available information. Upon the projection that 90 percent of a Trimester seasonal quota has been reached, NMFS must provide at least 72 hours of advance notice to the public that this determination has been made. NMFS also publishes in the
The Regional Administrator has determined, based on dealer reports and other available information, that the longfin squid fleet will catch 90 percent of the total longfin squid Trimester II quota for the 2016 seasonal period from May 1, 2016 through August 31, 2016, by June 27, 2016. Therefore, effective 0001 hr local time, June 27, 2016, federally permitted vessels may not fish for, catch, possess, transfer, or land more than 2,500 lb (907.2 kg) of longfin squid per trip and land such squid more than once per calendar day. In addition, vessels that have entered port before 0001 hr on June 27, 2016, may offload and sell more than 2,500 lb (907.2 kg) of longfin squid from that trip. Vessels possessing a Federal Longfin Squid/Butterfish Moratorium permit on directed
This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.
NMFS finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest and impracticable. The longfin squid Trimester II fishery opened for the 2016 fishing year on May 1, 2016. Data and other information indicating the longfin squid fleet will have landed at least 90 percent of the 2016 Trimester II quota have only recently become available. Landings data is updated on a weekly basis, and NMFS monitors catch data on a daily basis as catch increases toward the limit. Further, high-volume catch and landings in this fishery increases total catch relative to the quota quickly. The regulations at § 648.24(a)(1) require such action to ensure that longfin squid vessels do not exceed the 2016 Trimester II quota. If implementation of this action is delayed to solicit prior public comment, the quota for this Trimester II may be exceeded, thereby undermining the conservation objectives of the FMP. If quotas are exceeded, the excess must also be deducted from a future Trimester and would reduce future fishing opportunities. Also, the public had prior notice and full opportunity to comment on this process when these provisions were put in place. Based on these considerations, NMFS further finds, pursuant to 5 U.S.C 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reasons stated above.
16 U.S.C. 1801
Federal Aviation Administration (FAA), DOT.
Notice of proposed rulemaking (NPRM).
This action proposes to modify Class E airspace extending upward from 700 feet above the surface at McNary Field, Salem, OR. Two approaches, the Localizer (LOC) Y runway (RWY) 31 and the LOC/Distance Measuring Equipment (DME) Back Course (BC) approach RWY 13 were identified as needing additional airspace to meet airspace requirements. The FAA, also, found modification of the airspace for the LOC/DME BC RWY 13 posed an increased risk to the safety of Instrument Flight Rules (IFR) operations for Standard Instrument Approach Procedures (SIAPs) at the airport.
Comments must be received on or before August 15, 2016.
Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Bldg. Ground Floor Rm W12-140, Washington, DC 20590; Telephone: 1-800-647-5527, or 202-366-9826.
You must identify FAA Docket No. FAA-2016-6984; Airspace Docket No. 16-ANM-5, at the beginning of your comments. You may also submit comments through the Internet at
FAA Order 7400.9Z, Airspace Designations and Reporting Points, and subsequent amendments can be viewed online at
FAA Order 7400.9, Airspace Designations and Reporting Points, is published yearly and effective on September 15.
Tracey Johnson, Federal Aviation Administration, Operations Support Group, Western Service Center, 1601 Lind Avenue SW., Renton, WA 98057; telephone (425) 203-4500.
The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace at McNary Field, Salem, OR.
Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2016-6984/Airspace Docket No. 16-ANM-5.” The postcard will be date/time stamped and returned to the commenter.
An electronic copy of this document may be downloaded through the Internet at
You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the
Persons interested in being placed on a mailing list for future NPRMs should contact the FAA's Office of Rulemaking, (202) 267-9677, for a copy of Advisory Circular No. 11-2A, Notice of Proposed Rulemaking Distribution System, which describes the application procedure.
This document would amend FAA Order 7400.9Z, Airspace Designations and Reporting Points, dated August 6, 2015, and effective September 15, 2015. FAA Order 7400.9Z is publicly available as listed in the
The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) Part 71 by modifying Class E airspace extending upward from 700 feet above the surface at McNary Field Airport, Salem, OR. On March 8, 2016 a Final Rule was published modifying the airspace at McNary Field, Salem, OR (81FR 12002). A comment was received on May 10, 2016 questioning the safety of the LOC/DME BC RWY 13 approach. The FAA concurred that the presence of terrain in the procedure turn transition airspace increased the risk to IFR operations into McNary Field, Salem, OR. A Notice to Airmen (NOTAM) was issued advising pilots this approach was non-available pending the outcome of this proposal. After a review of the airspace, the FAA identified that the approach to runway 31 also was not fully contained in controlled airspace and would also be modified by this proposal. The Class E airspace extending upward from 700 feet above the surface would be modified by adding segments extending from the 6.7-mile radius to 13.50 miles northwest of the airport, and extending from the 8.2-mile radius to 16.5 miles southeast of the airport.
Class E airspace designations are published in paragraph 6005 of FAA Order 7400.9Z, dated August 6, 2015, and effective September 15, 2015, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.
The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current, is non-controversial and unlikely to result in adverse or negative comments. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this rule, when promulgated, would not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.
This proposal will be subject to an environmental analysis in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” prior to any FAA final regulatory action.
Airspace, Incorporation by reference, Navigation (air).
Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:
49 U.S.C. 106(f), 106(g), 40103, 40113, 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959-1963 Comp., p. 389.
That airspace extending upward from 700 feet above the surface within a 6.2-mile radius of McNary Field from the 168° bearing from the airport clockwise to the 311° bearing, and that airspace within a 6.7-mile radius of McNary Field from the 311° bearing from the airport clockwise to the 074° bearing, and that airspace within an 8.2-mile radius of McNary Field from the 074° bearing from the airport clockwise to the 168° bearing from the airport, and that airspace 2 miles either side of the 330° bearing extending from the 6.7-mile radius 13.5 miles northwest of the airport and that airspace 4 miles southwest and 5 miles northeast of the 150° bearing extending from the 8.2-mile radius 16.5 miles southeast of the airport.
Environmental Protection Agency (EPA).
Proposed rule.
The Environmental Protection Agency (EPA) is proposing to approve a December 1, 2015, State Implementation Plan (SIP) submittal from Kansas concerning allocations of Cross-State Air Pollution Rule (CSAPR) emission allowances. Under CSAPR, large electricity generating units in Kansas are subject to a Federal Implementation Plan (FIP) requiring the units to participate in CSAPR's Federal trading program for annual emissions of nitrogen oxides (NO
Comments must be received by July 29, 2016.
Submit your comments, identified by Docket ID No. EPA-R07-OAR-2016-0303, to
Mr. Larry Gonzalez, Air Planning and Development Branch, Air and Waste Management Division, EPA Region 7, 11201 Renner Boulevard, Lenexa, KS 66219; telephone number: (913) 551-7041; email address:
This document proposes to take action on a revision to the SIP for Kansas concerning allocations of allowances used in the Cross-State Air Pollution Rule (CSAPR)
Large electricity generating units in Kansas are subject to a CSAPR Federal Implementation Plan (FIP) that requires the units to participate in the Federal CSAPR NO
The SIP revision approved in the direct final rule incorporates into Kansas's SIP state regulations establishing state-determined allowance allocations to replace EPA's default allocations to Kansas units of CSAPR NO
Large electricity generating units in Kansas are also subject to an additional CSAPR FIP requiring them to participate in the Federal CSAPR SO
Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Proposed rule; request for comments.
In January 2011, NMFS implemented the trawl rationalization program, a type of catch share program, for the Pacific coast groundfish fishery's limited entry trawl fleet, which includes an individual fishing quota program for limited entry trawl participants. At the time of implementation, the widow rockfish stock was overfished and quota shares were allocated to quota share permit owners in the individual fishing quota program using an overfished species formula. Now that the widow rockfish stock has been rebuilt, NMFS proposes to reallocate quota shares to initial recipients based on a target species formula that will more closely represent the fishing history of permit owners when widow rockfish was a targeted species. Through this rule, NMFS also proposes to allow the trading of widow rockfish quota shares, set a deadline for divestiture in case the reallocation of widow rockfish puts any QS permit owner over an accumulation limit, and remove the daily vessel limit for widow rockfish since it is no longer an overfished species.
Comments on this proposed rule must be received on or before July 29, 2016.
You may submit comments on this document, identified by NOAA-NMFS-2016-0037, by any of the following methods:
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Sarah Towne, 206-526-4140,
In January 2011, NMFS implemented a trawl rationalization program, which is a catch share program, for the Pacific coast groundfish limited entry trawl fishery. The program was implemented through Amendments 20 and 21 to the Pacific Coast Groundfish Fishery Management Plan and the corresponding implementing regulations at 50 CFR part 660. Amendment 20 established the trawl rationalization program that consists of: an individual fishing quota (IFQ) program for the shorebased trawl fleet (including whiting and nonwhiting sectors), and cooperative programs for the at-sea mothership and catcher/processor trawl fleets (whiting only). Amendment 21 set long-term allocations for the limited entry trawl sectors of certain groundfish species.
In the IFQ fishery, NMFS initially allocated quota shares (QS) based on allocation formulas developed through the Pacific Fishery Management Council (Council). Target species QS was allocated using limited entry trawl permit catch history. Overfished species QS was allocated based on QS of 11 target species, area of catch based on logbook data, and average bycatch ratios from observer data. The widow rockfish stock was overfished at the time of initial allocation, so widow rockfish QS was allocated to QS permit owners using the overfished species formula.
Amendment 20 states that when an overfished species is rebuilt, there may be a reallocation of QS to facilitate the reestablishment of historic fishing opportunities. In its May 2012 Status of the Stocks Report, NMFS officially declared widow rockfish rebuilt. Based on the 2011 stock assessment results, which indicated that widow was rebuilt, the Council decided that it would consider a reallocation of widow rockfish QS. In June 2012 QS for all species was not yet transferrable, but the Council placed a moratorium on the future transfer of widow rockfish QS until the reallocation could be considered, to protect permit owners from trading an asset that the Council might redistribute. In November 2014 the Council adopted a range of alternatives for widow rockfish QS reallocation, and in April 2015 made a final recommendation to NMFS to reallocate widow rockfish using a modified target species formula.
Accumulation limits in the IFQ program cap the amount of QS or individual bycatch quota (IBQ) that a person, individually or collectively, may own or control (QS and IBQ control limits), and set limits on the amount of quota pounds (QP) that a vessel may catch or hold in its vessel account during the year (annual vessel limits). Overfished species such as widow rockfish also have QP vessel limits (also called daily limits) that restrict the amount of available overfished species QP that a vessel account can hold on any given day.
NMFS proposes this rule to: (1) Reallocate widow rockfish QS in the shorebased IFQ fishery to more closely reflect historic target fishing opportunities; (2) remove the moratorium on widow QS trading once reallocation and any appeals are completed; (3) set a divestiture deadline in case the reallocation puts any QS permit owner over the widow rockfish QS control limit or the aggregate nonwhiting control limit; and (4) remove the overfished species daily vessel limit for widow rockfish that restricts the amount of available QP that any vessel owner can hold on a given day. Each of these proposed actions is described in further detail below.
In 2011, NMFS initially allocated QS for 29 different species to limited entry trawl permit owners in the form of a new QS permit and associated online account (lingcod was later subdivided into two areas, so there are currently 30 IFQ species). Each year NMFS allocates QPs to QS permit owners in their online accounts, based on the amount of QS each permit owner holds and the current sector allocation. QS permit owners must transfer these pounds to a vessel account in order for them to be fished, and when a vessel goes out fishing in the IFQ program, the landings and discards are debited against their vessel account much like a check being debited against a checking account. In addition to transferring annual pounds to vessel accounts, QS permit owners can also permanently transfer shares between QS accounts (for all species except widow rockfish, pending the widow rockfish reallocation). When a QS permit owner transfers QS, they are permanently transferring their ability to access and use that percentage of the annual sector allocation. For example, if QS permit owner A sold all of their sablefish South of 36° N to permit owner B, permit owner A would no longer be allocated any sablefish South of 36° N. QPs in future years.
The QS and IBQ that was initially allocated in 2011 was calculated in four different groups, with four different allocation formulas: 21 target species in “Group 1;” 6 incidentally caught overfished species, including widow rockfish, in “Group 2;” canary rockfish—an incidentally-caught overfished species calculated using a different formula than Group 2 species—in “Group 3;” and Pacific halibut IBQ in “Group 4.”
The widow rockfish stock was overfished at the time of initial allocation, and therefore widow QS was calculated using a Group 2 formula. Because the Group 2 formula was based on the amount of target species (Group 1 species) QS the permit owner received, the Group 2 QS allocations purposely did not reflect the historical fishing efforts of fishermen who may have targeted those Group 2 species before they became overfished; instead the goal was to address the QS recipient's need to cover incidental catch of those overfished species based on their allocations of target species.
Consistent with Amendment 20, and at the urging of some fishermen who were interested in a redistribution of widow rockfish QS to reflect target history instead of bycatch needs, the Council adopted a range of widow reallocation alternatives for consideration in November 2014, including: Alternative 1—status quo (no reallocation); Alternative 2—a reallocation based on the Group 1 species formula used at the time of initial allocation, with two suboptions
In coming to its final preferred alternative, Alternative 5, the Council took into account the expected impacts of each alternative on harvesters, processors, workers, investments, and communities, using the most recent data available, as reflected in the environmental assessment. The Council considered the geographic distribution of impacts among the communities in Washington, Oregon, and California. The Council chose to blend the Alternative 2 suboptions, which set proportions for reallocating widow rockfish based on whiting and nonwhiting trips, to balance impacts to the whiting and nonwhiting fisheries. Of all the alternatives, the Council's final preferred alternative moves the most directly toward reestablishing the targeted widow rockfish fishery and is therefore expected to better achieve optimum yield and more immediately benefit struggling communities.
The proposed action would reallocate widow rockfish QS to individual QS permit owners in the IFQ program using the formula the Council selected in its final preferred alternative. This formula is very similar to the Group 1 species calculation that was initially used to allocate target species QS in 2011. Specifically, NMFS would reallocate widow rockfish in two parts: One portion based on the history of permits retired in the 2003 buyback program, divided equally among qualified limited entry trawl permits, and the other portion based on widow rockfish landings history. NMFS would continue to hold 10 percent of the total widow QS aside for the adaptive management program (AMP).
For the portion of the reallocation resulting from the buyback, this rule proposes to use landings history from Federal limited entry groundfish permits that were retired through the 2003 Federal buyback program. NMFS would calculate the total buyback permit history as a percent of the total fleet history from 1994-2003, separately for whiting and nonwhiting trips. The whiting and nonwhiting QS pools associated with the buyback permits would be divided equally among all qualifying limited entry permits.
For the portion of the reallocation resulting from widow rockfish landings history, this rule proposes to allocate one pool of QS based on the amount of Pacific whiting QS allocated for each permit, and the other pool based on the amount of widow rockfish caught on nonwhiting trips between 1994 and 2002, dropping the three lowest years. The Council's final preferred alternative excluded 2003 from nonwhiting trip history since widow rockfish was managed for rebuilding from late 2002-2012, and the 2003 regulations aimed to eliminate widow targeting. Because only a few nonwhiting vessels made widow landings in 2003 and because the proposed reallocation formula calculates history based on a limited entry trawl permit's share of the fleet total for each year, a relatively small amount of widow landed by a single permit in 2003 would constitute a large portion of the fleet total for that year and have a disproportionate effect on the widow QS reallocation. The Council decided that this disproportionate allocation would be unfair, and that fishermen who harvested widow in the nonwhiting fishery when it was overfished should not be rewarded with additional QS from those trips. The Council therefore excluded 2003 from the nonwhiting landings history portion of the allocation formula.
The Council's final preferred alternative reallocates widow rockfish based on the Group 1 species calculation that was initially used to allocate target species QS in 2011. For the portion of the reallocation resulting from the buyback, the 1994-2003 period reflects the years used for Group 1 species at the time of initial allocation. For the portion of the reallocation resulting from widow rockfish landings history, 2003 was dropped from the nonwhiting pool for the reasons described above. 2003 landings would have a minimal impact on the amount of buyback QS allocated equally because all landings would be summed across all years and the buyback portion would be a subset of that total. Therefore no adjustment was made to the years used for the buyback portion (1994-2003). In contrast, 2003 landings would have a disproportionate impact on the portion of widow QS reallocated based on nonwhiting landings history because each permit's portion of landings is determined for each year. Instead of being spread equally (like buyback QS), including 2003 would allocate a disproportionate amount of widow QS directly to fishermen who targeted widow rockfish in the nonwhiting fishery when widow rockfish was overfished, as described above. For these reasons, 2003 history is included in all parts of the formula except the nonwhiting pool of the landings history portion.
To determine how much of the total QS for each limited entry permit's widow rockfish landings history would be based on whiting trips versus nonwhiting trips, NMFS proposes to weigh each pool according to the initial issuance allocation formula specified in Amendment 21 and current regulations at § 660.140(d)(8)(iv)(A)(
By blending the two suboptions for Alternative 2, the Council established a one-time annual catch limit (ACL) value for widow of 2,569 metric tons (mt) to use for the initial issuance allocation formula. This ACL value is needed to determine the harvest guideline amount, limited entry trawl allocation, and whiting and nonwhiting sector allocations. The whiting sector allocation is then subdivided into shorebased and at-sea sector allocations. The shorebased whiting and non-whiting allocations can then be compared in order to set the percentages NMFS would use to weigh whiting and nonwhiting history in the reallocation formula. Figure 1 below walks through the entire calculation from the ACL value to the shorebased whiting and nonwhiting percentages that NMFS proposes to use for widow reallocation, and a full description of the calculation follows.
NMFS proposes to use an ACL value of 2,569 mt, the midpoint of the two Alternative 2 suboptions as given in the Council's final preferred alternative, in order to determine how much of the total QS for each limited entry permit's widow rockfish landings history would be based on whiting trips versus nonwhiting trips. NMFS proposes to use a set-aside amount of 120 mt, the same value used for the widow rockfish set-aside in 2016 (in Table 2a to 50 CFR part 660, subpart C), to determine the harvest guidelines amount. NMFS would subtract the set-aside amount (120 mt) from the ACL (2,569 mt) in order to determine the harvest guideline amount (2,449 mt).
Next, NMFS proposes to use a limited entry trawl/non-limited entry trawl split of 91 percent and 9 percent, respectively, the same split percentages used in the 2015-2016 harvest specifications (in Tables 1b and 2b to 50 CFR part 660, subpart C), to determine the limited entry trawl and non-limited entry trawl allocations. NMFS would multiply the harvest guidelines (2,449 mt) by 91 percent in order to determine the limited entry trawl allocation (2,228.59 mt), and by 9 percent in order to determine the non-limited entry trawl allocation (220.41 mt).
As described above, NMFS proposes to use the initial issuance allocation formula specified in Amendment 21 and current regulations at § 660.140(d)(8)(iv)(A)(
NMFS proposes to further divide the whiting allocation into shorebased and at-sea whiting sector allocations using a split of 42 percent and 58 percent, respectively, as specified in Amendment 21 and current regulations at § 660.55(f)(2). NMFS would allocate 42 percent of 500 mt (210 mt) to the shorebased whiting sector, and 58 percent of 500 mt (290 mt) to the at-sea whiting sectors.
Next, NMFS proposes to combine the shorebased whiting and nonwhiting allocations to determine the total shorebased sector allocation. Based on the proposed calculation above, the 210 mt shorebased whiting sector allocation would be added to the 1,728.59 mt shorebased nonwhiting sector allocation, for a total shorebased sector allocation of 1,938.59 mt. The shorebased whiting sector allocation is 10.833 percent of the total shorebased sector allocation (210 mt divided by 1,938.59 mt). The shorebased nonwhiting sector allocation is 89.167 percent of the total shorebased sector allocation (1,728.59 mt divided by 1,938.59 mt). NMFS proposes to use these percentages to determine how much of the total QS for each limited entry permit's widow rockfish landings history would be based on whiting trips versus nonwhiting trips.
Different ACLs cause different QS amounts to be allocated based on whiting and nonwhiting trips. The Alternative 2 suboptions, suboptions a and b, set two different ACL levels (2,000 mt and 3,790 mt, respectively), and the Council chose the midpoint of those suboptions (2,569 mt) in order to balance the impacts of widow rockfish reallocation to the shorebased whiting and nonwhiting fisheries. The midpoint ACL was chosen such that each limited entry trawl permit would receive QS based on whiting and nonwhiting landing trip history in an amount that is the midpoint of what their QS would have been under suboptions a and b (2,569 mt), rather than the midpoint between 2,000 mt and 3,790 mt (2,895 mt). Table 1 below shows the whiting/nonwhiting split outcomes of each of the Alternative 2 suboptions, and the Council's final preferred alternative whiting/nonwhiting split, which is the midpoint of suboptions a and b.
QS permit owners are only eligible for a reallocation of widow rockfish if they are one of the 128 original QS permit owners who initially received a QS permit in 2011 based on limited entry trawl permit ownership. The 10 shorebased whiting processors who received initial QS permits with an allocation of Pacific whiting only are not eligible to receive reallocated widow rockfish QS. Those QS permit owners who have obtained a QS permit since 2014 when NMFS accepted new QS permit applications are not eligible to receive reallocated widow rockfish QS. However, since 2011, NMFS has received several U.S. court orders directing NMFS to transfer assets of a deceased person to a beneficiary. For those new QS permits to which NMFS administratively transferred widow rockfish QS based on a U.S. court order, NMFS will reallocate widow rockfish QS directly to these new QS permits because the shares were transferred through a legal process to a beneficiary. Limited entry trawl permit owners who did not apply for and receive a QS permit in 2011 are not eligible for reallocated widow rockfish QS; instead any history accruing to their permit will be redistributed among all other QS permit owners in proportion to their reallocated widow rockfish QS. If any QS permit owner submits a complete widow rockfish QS reallocation application but does not renew their QS permit and account for 2017, NMFS would still reallocate widow rockfish QS to the permit owner but, as stated currently in regulation, would not allocate QP for any species to a non-renewed permit. The permit owner could renew for the following year, which would enable him or her to receive and transfer QP.
Past landings history associated with each limited entry trawl permit will accrue to the current QS permit owner who received initial QS for that limited entry permit, even if the limited entry trawl permit ownership has changed since 2011. For example, if the fictitious company XYZ Fishing owned two limited entry trawl permits in 2010: Permit A and Permit B, they would have received a QS permit (QS Permit #1) in 2011 with an initial issuance of QS that was based on the history of limited entry trawl Permits A and B. For the purposes of widow rockfish reallocation, the linkage between limited entry trawl Permits A and B and QS Permit #1 will remain in place, so that QS Permit #1 will be reallocated widow rockfish QS based on the history from limited entry trawl Permits A and B, regardless of who owns those limited entry trawl permits now. If XYZ Fishing sold both limited entry trawl permits in 2013, and therefore no longer owns them at the time widow rockfish is reallocated, the company would still receive the reallocated widow rockfish QS from limited entry Permits A and B to QS Permit #1.
Based on the Council's action, NMFS proposes to reallocate widow rockfish based on the limited entry permit and QS permit relationship described above because the limited entry permit ownership was severed from the QS permit ownership at the time QS permits became effective in 2011. After that time, limited entry trawl permits could be sold without any effect on the QS holdings, and QS percentages could be transferred without any effect on the limited entry permit. It is likely that QS permit owners would not have sold their limited entry trawl permits if they thought they would not receive the reallocated widow rockfish QS, and similarly, it is likely that any persons who purchased a limited entry trawl permit did not believe that they would receive any future QS as part of the purchase.
For purposes of the widow rockfish reallocation calculation, NMFS intends to use landings data from the Pacific States Marine Fisheries Commission's PacFIN database. Although QS permit owners had the opportunity to review and revise their data in 2009, they may not have reviewed their widow rockfish history closely at that time, since widow rockfish was overfished and the QS allocation used a Group 2 formula that was not based on widow landings. NMFS wants to provide an opportunity for this review before we “freeze” the database for purposes of reallocation. “Freezing” the database means that NMFS intends to extract a dataset of the PacFIN database as of July 27, 2016, and will use that dataset for the reallocation of widow rockfish. QS permit owners have been on notice since 2012 that widow rockfish might be reallocated, and have been able to review their fish ticket data since that time. NMFS also specified at the April 2016 Council meeting that we intended to use landings data from the PacFIN database to calculate the reallocated widow rockfish QS, and that we planned to provide permit owners the opportunity to review their widow catch data before we take a snapshot of the database for the purpose of reallocation.
If QS permit owners in the shorebased trawl IFQ program have concerns over the accuracy of their widow rockfish data in the PacFIN database, they should contact the state in which they landed those fish to correct any errors. Any revisions to an entity's fish tickets would have to be approved by the state in order to be accepted, and must be
After NMFS freezes the database for the purpose of reallocation, and assuming the final rule publishes, we will mail prefilled applications and widow rockfish reallocation QS amounts to each eligible QS permit owner (calculated using the formula in the final rule). On the application, the applicant (the QS permit owner) must: (1) Indicate whether or not they accept NMFS' calculation of the reallocated widow rockfish QS for each limited entry trawl permit, (2) provide a written description of what part of the reallocation formula requires correction and credible information to support the request for correction if they do not accept the calculation, and (3) sign, date and declare that the information in the application is true, correct and complete. NMFS proposes that complete, certified applications would be due to NMFS West Coast Region on or before September 15, 2016, that mailed applications would be postmarked no later than September 15, 2016, and that hand-delivered applications would be received no later than 5 p.m. on September 15, 2016. NMFS would not accept or review any applications postmarked or received in person after the application deadline, and any QS permit owner who does not submit an application would not be eligible to receive reallocated widow rockfish QS. NMFS would not accept applications by email. NMFS would redistribute the shares from any incomplete or non-submitted applications to all other QS permit owners who are eligible for a reallocation of widow rockfish QS in proportion to their reallocated widow QS amount.
Assuming the rule will be final, for all complete, certified applications that were received by the application deadline date, NMFS would issue an initial administrative determination (IAD) on or before October 1, 2016. In the IAD, NMFS would inform the applicant whether or not their application for reallocated widow rockfish QS was approved. Applicants would have 60 calendar days from the date of the IAD to appeal the decision. If any appeals were received, NMFS would reallocate widow QS amounts in 2017 consistent with all of the IADs and await any action resulting from an appeal until 2018. More information is provided below about how the appeals process would affect the widow rockfish QS trading start date and the divestiture deadline.
If an application is approved, the QS permit owner would receive a 2017 QS permit showing the new widow rockfish QS amount in December 2016, and the new QS percentage would show in the associated QS account on or about January 1, 2017. The 2017 IFQ sector allocation for widow rockfish would be allocated to QS accounts on or about January 1, 2017, based on the reallocated widow rockfish QS amount.
Widow rockfish QS has not been transferrable at any time since the start of the IFQ program in 2011. The Council and NMFS initially placed a two-year moratorium on QS trading for all IFQ species in order to create stability during the transition to a new management system. In 2012, the Council decided to reconsider the initial widow rockfish QS allocations, and halted future trading of widow rockfish QS until the reconsideration could be completed. In August 2012, NMFS delayed QS trading for all species for an additional year in response to unrelated litigation that required the Council and NMFS to reconsider the initial allocation of Pacific whiting. In 2013 NMFS put into regulation a moratorium for the transfer of widow rockfish QS until the reallocation could be considered and implemented, but QS trading for all other IFQ species began on January 1, 2014. Since that time, QS permit owners have been able to transfer QS for all species except widow rockfish.
NMFS proposes to lift the moratorium on the transfer of widow rockfish QS once the reallocation is completed and any resulting appeals have been processed; successful appeals could affect all reallocation amounts. Under the proposed rule, once QS permit owners have their reallocated QS percentages, and can be sure those percentages would not change as the result of an appeal, permit owners could begin trading. If NMFS does not receive any appeals by the appeals deadline, we propose to lift the moratorium on widow rockfish QS trading for January 1, 2017. If NMFS receives any appeals by the deadline, we propose to lift the moratorium on widow rockfish QS trading for January 1, 2018, because that is the date when any appeal outcome that might cause a change in widow allocations would be finalized. NMFS proposes to announce the official start date of widow rockfish QS trading through a public notice in December 2016, once we are able to determine whether appeals have been submitted.
Control limits in the IFQ program cap the amount of QS or IBQ that a person, individually or collectively, may own or control. Amendment 20 and implementing regulations set individual control limits for each of the 30 IFQ species, as well as an aggregate limit of 2.7 percent across nonwhiting species. The individual control limit for widow rockfish is 5.1 percent. Consistent with the trawl rationalization program, some QS permit owners were initially allocated an amount of QS and IBQ that exceeded one or more of the control limits, based on their catch history during the qualifying years. The regulations provided these QS permit owners an adjustment period to hold the excess shares, but required divestiture of excess QS by November 30, 2015, for all species except widow rockfish, because widow rockfish QS was being considered for reallocation and could not be traded.
When NMFS reallocates widow rockfish, we propose to allocate the full amount the applicant qualifies for, even if it pushes the permit owner over the 5.1 percent control limit for widow, or the 2.7 percent nonwhiting aggregate limit. NMFS would allow the QS permit owner an adjustment period to hold the excess shares and divest, consistent with the process that was used during initial allocation in 2011. Should the reallocation of widow rockfish put any QS permit owner over a QS control limit, NMFS, based on the Council's recommendation, proposes to set a divestiture deadline of November 30 in the year widow rockfish QS becomes transferrable. If NMFS does not receive any appeals on the reallocation, widow QS would become transferrable on or about January 1, 2017, and any QS permit owner who exceeded the control limit as the result of the reallocation would have until November 30, 2017, to divest of their excess holdings. If NMFS does receive one or more appeals, widow QS would become transferrable on or about January 1, 2018, and any QS permit owner who exceeded the control limit as the result of the reallocation would have until November 30, 2018, to divest of their excess holdings. QS trading occurs between January 1 through November 30 each year, but trading is halted in the month of
Vessel limits in vessel accounts restrict the amount of QPs that any vessel can catch or hold. Annual QP vessel limits are a set percentage of the IFQ sector allocation, and NMFS calculates and publishes a table annually showing the quota pound equivalents. For example, the annual QP vessel limit for widow rockfish is 8.5 percent of the current year's sector allocation. In 2016, the IFQ sector allocation for widow rockfish is 3,131,931 pounds, so the maximum amount any vessel owner can catch or bring into their vessel account in 2016 is 8.5 percent of the sector allocation, or 266,214 pounds. Unused QP vessel limits, also called “daily vessel limits,” only apply to overfished species and cap the amount of overfished species QPs any vessel account can have sitting available in their account on a given day. For example, the daily QP vessel limit for widow rockfish is 5.1 percent, or 159,728 pounds in 2016, which is lower than the annual QP vessel limit. So if a vessel account owner held the full daily vessel limit amount (159,728 pounds) available in their account and then caught 20,000 pounds, they would have 139,728 available QPs and could bring in 20,000 more, up to the daily and annual vessel limit.
The Council and NMFS established daily vessel limits to prevent hoarding of available overfished species QPs in any one vessel account, since the IFQ sector allocations of some overfished species are so low. Now that widow rockfish is rebuilt, and the ACL has increased, NMFS proposes to remove the daily vessel limit since daily vessel limits only apply to overfished species. NMFS would remove the daily vessel limit for widow rockfish only, and would not change widow's annual vessel limit or the vessel limit of any other species. This change would better reflect the status of widow rockfish as rebuilt, and allow fishermen to hold the full annual vessel limit at any time if they chose to do so, in line with every other non-overfished IFQ species.
Pursuant to sections 304(b)(1)(A) and 305(d) of the Magnuson-Stevens Act (MSA), the NMFS Assistant Administrator has determined that this proposed rule is consistent with the Pacific Coast Groundfish Fishery Management Plan, other provisions of the MSA, and other applicable law, subject to further consideration after public comment.
The Council prepared an environmental assessment (EA) for this action. The draft EA is available on the Council's Web site at
NMFS is amending the supporting statement for the Pacific Coast groundfish trawl rationalization program permit and license information collection Office of Management and Business (OMB) Paperwork Reduction Act (PRA) requirements (OMB Control No. 0648-0620) to include an application form for widow rockfish reallocation. NMFS estimates the public reporting burden for this collection of information to average one hour per form, including the time for reviewing instructions, reviewing data and calculations for reallocated widow rockfish QS, and completing the form. NMFS requests any comments on the addition of the widow rockfish reallocation application form to the PRA package, including whether the paperwork would unnecessarily burden any QS permit owners.
Pursuant to the procedures established to implement section 6 of Executive Order 12866, the Office of Management and Budget has determined that this proposed rule is not significant.
This proposed rule was developed after meaningful collaboration, through the Council process, with the tribal representative on the Council. The proposed regulations have no direct effect on the tribes.
NMFS prepared an initial regulatory flexibility analysis (IRFA) for this rule, as required by section 603 of the Regulatory Flexibility Act (RFA). The IRFA describes the economic impact that this proposed rule, if adopted, would have on small entities. A description of the action, why it is being considered, and the legal basis for this action are contained in the preamble and in the
When an agency proposes regulations, the RFA requires the agency to prepare and make available for public comment an IRFA that describes the impact on small businesses, non-profit enterprises, local governments, and other small entities. The IRFA aids the agency in considering all reasonable regulatory alternatives that would minimize the economic impact on affected small entities.
The Small Business Administration defines a “small” harvesting business as one with combined annual receipts of $11 million or less for all affiliated operations worldwide. For related fish-processing businesses, a small business is one that employs 750 or fewer persons for all affiliated operations worldwide.
This rule affects 128 QS permit owners who have received widow quota shares. When renewing their QS permits, permit owners are asked if they considered themselves small businesses based on the SBA definitions of small businesses provided above. Based on their responses, NMFS estimates that there are 110 small businesses affected by this rule.
In January 2011, NMFS implemented the trawl rationalization program (a catch share program) for the Pacific coast groundfish limited entry trawl fishery, which includes an individual fishing quota program for limited entry trawl participants. At the time of implementation, the widow rockfish stock was overfished and quota shares were allocated to quota share permit owners in the individual fishing quota program using an overfished species formula. Now that widow rockfish has been rebuilt, NMFS proposes to reallocate quota shares to initial recipients based on a target species formula that will more closely represent the fishing history of permit owners when widow rockfish was a targeted species. Through this rule NMFS also proposes to allow the trading of widow rockfish quota shares, set a deadline for divestiture in case the reallocation of widow rockfish puts any QS permit owner over an accumulation limit, and remove the daily vessel limit for widow rockfish since it is no longer an overfished species. The reallocation of widow rockfish and lifting of the moratorium are the major measures analyzed below. Setting the divestiture deadline is administrative in nature, while elimination of the daily limit is
The Council adopted a range of widow rockfish reallocation alternatives for consideration in November 2014 including: Alternative 1—status quo (no reallocation), Alternative 2—reallocate widow using same formula (Group I species formula) that was used for other target species at the at the time of initial allocation, Alternative 3—reallocate widow based on nonwhiting groundfish revenue as a basis for recent participation, and Alternative 4—reallocate widow by blending Alternatives 1 and 2, where a portion of widow QS would not be reallocated, and a portion would be reallocated using the formula from Alternative 2. In April 2015, the Council selected Alternative 2 as its final preferred alternative, and blended two suboptions for the alternative into a final suboption-Alternative 5.
In assessing these alternatives, the Council took into account expected impacts of each alternative on harvesters, processors, workers, investments, and communities, using the most recent data available, as reflected in the environmental assessment. The Council recognized its final decision as drawing a balance between impacts to the whiting and nonwhiting fishery, not allocating too much away from any one sector, re-establishing historic fisheries, and the geographic distribution of impacts among the communities in Washington, Oregon, and California. This action is part of an overall program designed to ensure that conservation objectives are met and is focused on mitigating some of the distributional effects of those conservation measures. As compared to Alternatives 3 or 4, Alternative 2 and the Council's final preferred alternative, Alternative 5, move most directly toward reestablishing the targeted widow rockfish fishery and is therefore expected to better achieve the OY and more immediately benefit struggling communities.
The economic dimensions of the fishery are as follows. Annual widow rockfish ex-vessel revenues in the shorebased trawl sector ranged from $5 million to $6 million (inflation adjusted) in the mid-1990s. Annual ex-vessel revenues in the pre-trawl rationalization rebuilding era (2002-2010) averaged about $0.1 million. Since the start of trawl rationalization (2011-2014), annual ex-vessel values averaged $0.3 million. (Widow rockfish was determined to be rebuilt in 2011 and was no longer managed under a rebuilding plan beginning in the 2013-2014 biennial harvest specifications). Estimated widow catch has increased every year: in 2013, approximately 400 mt were caught; in 2014, approximately 650 mt were caught; and in 2015, about 840 mt were caught. With an ex-vessel price of $0.41 per pound, the total revenues earned in the 2015 fishery are about $760,000. The 2016 sector allocation for widow is similar to 2015, and recognizing past growth of the fishery, landings may reach 1,000 mt.
Widow rockfish is just one of many species landed on the West Coast. During 2015, landings of groundfish, crab, salmon, and other species, generated $335 million in ex-vessel revenues. 2015 groundfish ex-vessel revenues were about $64 million with IFQ revenues estimated at $42 million. Widow rockfish ex-vessel revenues were about $760,000, constituting a very small percentage of total groundfish ex-vessel revenues.
If the Council increases the 2017 ACL from 2,000 mt (No Action) to 13,508 mt (Alternative 1), revenues could grow to $9.0 million if prices do not change, the number of non-whiting mid-water trawlers rapidly increases, and if processors could process the increased widow rockfish landings and find the proper markets. These changes would yield an increase of $23.1 million in total West Coast income impacts, and an increase of an estimated 320 jobs.
This rulemaking proposes to reallocate widow rockfish QS and allow those shares to be traded. With trading, QS will flow to those QS holders that most efficiently can use the QS—by using the associated QP to support their own vessels, selling or leasing the QP to other vessels, or by selling the QS to others. At the fishery level, in the long run, the alternatives reviewed here will not have a major effect on the overall amount of fish landed and processed across all the groundfish fishing communities.
At the individual quota share holder level, this rule affects the starting point by which QS is traded and the amounts that can be traded by individual QS holders. Depending on the alternative, the total amount of QS that is to be reallocated in the IFQ fishery ranges from 0% (Alternative 1, Status Quo, Bycatch) to 28.2% (Alternative 5, Alternative 2 Midpoint). Based on ex-vessel price of $0.41 per pound, and projected sector allocations of 12,000 mt based on 2017 ACL of 13,500 mt, and projected attainment rate of 80%, the annual value of the quota pounds associated with a potential transfer of 28.2% of the quota shares is about $2.5 million. Depending on the alternative, the potential transfer of QS among communities ranges from 0 to 18%. The annual value of quota pounds associated with QS being transferred is about $1.5 million based on the 2017 ACL.
The proposed 2017-18 ACLs of 13,500 mt and 13,800 mt are six times higher than 2015-2016 ACLs. From a fishery-wide perspective, there should not be any negative impacts on communities, QS holders, or processors because of the increase in ACLs. This huge increase in the ACLs provides increased opportunities for all of these participants.
However, with any reallocation scheme there are some that are negatively impacted. The maximum reduction for a QS holder under either Alternative 2 or 5 is about 1.9%. Based on 2015 revenues of $760,000, the QP associated with this reduction would have a value of $15,000. Under the 2017 ACL, estimated revenues are $9.0 million, and a loss of 1.9% would be worth about $175,000. At an individual level, these two values represent maximum 2015 losses ($15,000) versus maximum potential future losses should the high ACL be implemented, prices stay constant, and 80 percent of the sector allocation be harvested ($175,000). Others will be positively impacted. The maximum increase for a QS holder under any alternative is about 2%.
NMFS does not believe that small businesses as a class of QS holders will be negatively impacted by the proposed reallocation of widow rockfish QS. The reallocation options in large part decrease widow QS holdings for some small businesses while increasing QS holdings for other small businesses, based on historical reliance on widow rockfish as a target species. Trading of widow QS should also be beneficial to all small businesses as it gives these businesses the option to buy, sell, or lease their widow QS. Setting the divesture deadline gives any affected entities time to sell off their excess QS. Eliminating the no-longer-needed daily vessel limit for widow rockfish provides more flexibility to small businesses.
Fisheries, Fishing, Indian fisheries.
For the reasons set out in the preamble, 50 CFR part 660 is proposed to be amended as follows:
16 U.S.C. 1801
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(C)
(D)
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(A)
(B)
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(ii)
(iii)
(A) First, for each limited entry trawl permit, NMFS will determine a preliminary QS allocation for non-whiting trips.
(B) Second, for each limited entry trawl permit, NMFS will determine a preliminary QS allocation for whiting trips.
(C) Third, for each limited entry trawl permit, NMFS will combine the amounts resulting from paragraphs (d)(9)(iii)(A) and (B) of this section.
(D) Fourth, NMFS will reduce the total widow QS reallocated to QS permit owners by 10 percent as a set aside for AMP.
(iv)
(A)
(
(
(
(
(
(
(
(
(
(
(B)
(
(
(C)
(
(
(D)
(
(
(E)
(F)
(v)
(vi)
(A) Errors in NMFS' use or application of data, including:
(
(
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(vii)
(A)
(
(
(
(
(B)
(viii)
(ix)
(e) * * *
(4) * * *
(i)
The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) 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; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
Comments regarding this information collection received by July 29, 2016 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725-17th Street NW., Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to:
An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.
Forest Service, USDA.
Notice; request for comment.
In accordance with the Paperwork Reduction Act of 1995, the Forest Service is seeking comments from all interested individuals and organizations on the extension of a currently approved information collection; Annual Wildfire Summary Report.
Comments must be received in writing on or before August 29, 2016 to be assured of consideration. Comments received after that date will be considered to the extent practicable.
Comments concerning this notice should be addressed to Tim Melchert, Fire and Aviation Management, National Interagency Fire Center, USDA Forest Service, 3833 S. Development Avenue, Boise, ID 83705.
Comments also may be submitted via facsimile to 208-387-5375 or by email to:
The public may inspect comments received at National Interagency Fire Center, 3833 S. Development Avenue, Boise, ID 83705 during normal business hours. Visitors are encouraged to call ahead to 208-387-5604 to facilitate entry to the building.
Tim Melchert, Fire and Aviation Manager, National Interagency Fire Center, 208-387-5887.
Individuals who use TDD may call the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours a day, every day of the year, including holidays.
State fire marshals and State forestry officials use form FS-3100-8 (Annual Wildfire Summary Report) to report information to the Forest Service regarding State and local wildfire suppression efforts. The Forest Service is unable to assess the effectiveness of the State and Private Forestry Cooperative Fire Program without this information. Forest Service managers evaluate the information to determine if the Cooperative Fire Program funds used by State and local fire agencies have improved fire suppression capabilities. The Forest Service shares the information with Congress as part of the annual request for funding for this program.
The information collected includes the number of fires responded to by State or local firefighting agencies within a fiscal year, as well as the following information pertaining to such fires:
• Fire type (timber, structural, or grassland);
• Size (in acres) of the fires;
• Cause of fires (lightning, campfires, arson, etc.); and
• Suppression costs associated with the fires.
The data gathered is not available from any other sources.
Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (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 the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.
All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the request for Office of Management and Budget approval.
Forest Service, USDA.
Notice of extension of public scoping period for the Shoshone National Forest Travel Management environmental impact statement.
The Shoshone National Forest (SNF) is extending the public scoping period for the SNF Travel Management environmental impact statement (EIS). The SNF previously published a notice of intent to prepare an EIS as well as notice of public scoping in the
Several individuals and organizations requested an extension of the public scoping period. The SNF Forest Supervisor has decided to accommodate these requests by extending the public scoping period through July 27, 2016.
Send written comments to Rob Robertson, 333 East Main Street, Lander, Wyoming 82520. Comments may also be sent via email to
Rob Robertson at 307-335-2156 or
Written comments should be submitted to Shoshone National Forest, Attn: Rob Robertson, 333 E. Main St., Lander, WY 82520, or fax: 307-332-0264; or email at
Electronic comments must be submitted to
It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the environmental impact statement. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.
Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered, however.
Rural Housing Service, USDA.
Notice.
The U.S. Department of Agriculture (USDA) in fiscal year (FY) 2006 established the demonstration Rural Development Voucher Program (RDVP), as authorized under Section 542 of the Housing Act of 1949 as amended (42 U.S.C. 1490R) (without regard to Section 542(b)). This Notice informs the public of the general policies and procedures for the RDVP for FY 2016. Rural Development Vouchers are only available to low-income tenants of Rural Development (RD)-financed multi-family properties where the Rural Rental Housing loan (Section 515) has been prepaid (either through prepayment or foreclosure action); prior to the loan's maturity date.
In order for eligible tenants to participate, a voucher obligation form must be submitted within 10 months of the foreclosure or pre-payment.
Stephanie B.M. White, Director, Multi-
This Notice outlines the process for providing voucher assistance to eligible tenants when a property owner either prepays a Section 515 loan or USDA action results in a foreclosure after September 30, 2005.
The Consolidated Appropriations Act, 2016, Public Law 114-113, provided that the Secretary of the USDA shall carry out the Rural Development Voucher program as follows:
That of the funds made available under this heading, $15,000,000, shall be available for rural housing vouchers to any low-income household (including those not receiving rental assistance) residing in a property financed with a Section 515 loan which has been prepaid after September 30, 2005. Provided further, that the amount of such voucher shall be the difference between comparable market rent for the Section 515 unit and the tenant paid rent for such unit: Provided further, that funds made available for such vouchers shall be subject to the availability of annual appropriations: Provided further, that the Secretary shall, to the maximum extent practicable, administer such vouchers with current regulations and administrative guidance applicable to Section 8 housing vouchers administered by the Secretary of the Department of Housing and Urban Development.
This Notice outlines the process for providing voucher assistance to the eligible impacted families when an owner prepays a Section 515 loan or USDA action results in a foreclosure.
This section sets forth the design features of the RDVP, including the eligibility of tenants, the inspection of the housing units, and the calculation of the subsidy amount.
Rural Development Vouchers under this part are administered by the Rural Housing Service, an agency under the RD mission area, in accordance with requirements set forth in this Notice and further explained in, “The Rural Development Voucher Program Guide,” which can be obtained by contacting any RD Office. Contact information for RD offices can be found at:
The RDVP is intended to offer protection to eligible Multi-Family Housing tenants in properties financed through RD's Section 515 Rural Rental Housing program (Section 515 property) who may be subject to economic hardship due to the property owner's prepayment of the RD mortgage. When the owner of a Section 515 property pays off the loan prior to the loan's maturity date (either through prepayment or foreclosure action), the RD affordable housing requirements and Rental Assistance (RA) subsidies generally cease to exist. Rents may increase, thereby making the housing unaffordable to tenants. Regardless, the tenant may become responsible for the full payment of rent when a prepayment occurs, whether or not the rent increases.
The Rural Development Voucher is intended to help tenants by providing an annual rental subsidy, renewable on the terms and conditions set forth herein and subject to the availability of funds, that will supplement the tenant's rent payment. This program enables a tenant to make an informed decision about remaining in the property, moving to a new property, or obtaining other financial housing assistance. Low-income tenants in the prepaying property are eligible to receive a voucher to use at their current rental property, or to take to any other rental unit in the United States and its territories. Tenants in properties foreclosed on by RD are eligible for a Rural Development Voucher under the same conditions as properties that go through the standard prepayment process.
There are some general limitations on the use of a voucher:
• The rental unit must pass a RD health and safety inspection, and the owner must be willing to accept a Rural Development Voucher.
• Rural Development Vouchers cannot be used for units in subsidized housing, like Section 8 and public housing, where two housing subsidies would result. The Rural Development Voucher may be used for rental units in other properties financed by RD, but it cannot be used in combination with the RD RA program.
• The Rural Development Voucher may not be used to purchase a home.
a.
1. Be residing in the Section 515 project on the date of the prepayment of the Section 515 loan or foreclosure by RD;
2. Be a United States (U.S.) citizen, U.S. citizen national, or a resident alien that meets certain qualifications. In accordance with Section 214 of the Housing and Community Development Act of 1980 (42 U.S.C. 1436a), financial assistance under this voucher program can only be provided to a United States (U.S.) citizen, U.S. non-citizen national, or a resident alien that meets certain qualifications. RD considers the tenant who applies for the voucher under this Notice as the individual receiving the financial assistance from the voucher. Accordingly, the individual tenant who applies for a voucher under this program must submit the following documentation (42 U.S.C. 1436a (d)):
i. For citizens, a written declaration of U.S. citizenship signed under the penalty of perjury. RD may request verification of the declaration by requiring presentation of a U.S. passport, Social Security card, or other appropriate documentation, as determined by RD;
ii. For non-citizens who are 62 years of age or older, the evidence consists of:
A. A signed declaration of eligible immigration status; and
B. Proof of age document; and
iii. For all other non-citizens:
A. A signed declaration of eligible immigration status;
B. Alien registration documentation or other proof of immigration registration from the United States Citizenship and Immigration Services (USCIS) that contains the individual's alien admission number or alien file number; and
C. A signed verification consent form that provides that evidence of eligible immigration status may be released to RD and USCIS for purposes of verifying the immigration status of the individual. RD shall provide a reasonable opportunity, not to exceed 30 days, for an individual to submit evidence indicating a satisfactory immigration status, or to appeal to the Immigration and Naturalization Service the verification determination of the Immigration and Naturalization Service; and
3. Be a low-income tenant on the date of the prepayment or foreclosure. A low-income tenant is a tenant whose annual income does not exceed 80 percent of the tenant median income for the area as defined by HUD. HUD's definition of
During the prepayment or foreclosure process, RD will evaluate the tenant to determine if the tenant is low-income. If RD determines a tenant is low-income, then within 90 days following the foreclosure or prepayment, RD will send the tenant a letter offering the tenant a voucher and will enclose a Voucher Obligation Request Form and a citizenship declaration form. If the tenant wants to participate in the RDVP, the tenant has 10 months from the date of prepayment or foreclosure to return the Voucher Obligation Request Form and the citizenship declaration to the local RD Office. If RD determines that the tenant is ineligible, RD will provide administrative appeal rights in accordance with 7 CFR part 11.
b.
As noted above, all tenants will be notified if they are eligible and the amount of the voucher within 90 days following the date of prepayment or foreclosure. The tenant notice will include a description of the RDVP, a Voucher Obligation Request Form, and letter from RD offering the tenant participation in RDVP. The tenant has 10 months from the date of prepayment or foreclosure to return the Voucher Obligation Request Form and the signed citizenship declaration. Failure to submit the Voucher Obligation Request Form and the signed citizenship declaration within the required timeframes eliminates the tenant's opportunity to receive a voucher. A tenant's failure to respond within the required timeframes is not appealable.
Once the tenant returns the Voucher Obligation Request Form and the citizenship declaration to RD, a voucher will be issued within 30 days subject to the availability of funding. All information necessary for a housing search, explanations of unit acceptability, and RD contact information will be provided by RD to the tenant after the Voucher Obligation Request Form and citizenship declaration are received. In cases where the foreclosure sale yields no successful bidders and the property enters RD inventory, vouchers will only be offered upon the property's entry into inventory. The voucher cannot be used at an inventory property.
The tenant receiving a Rural Development Voucher has an initial period of 60 calendar days from issuance of the voucher to find a housing unit. At its discretion, RD may grant one or more extensions of the initial period for up to an additional 60 days. Generally, the maximum voucher period for any tenant participating in the RDVP is 120 days. RD will extend the voucher search period beyond the 120 days only if the tenant needs and requests an extension of the initial period as a reasonable accommodation to make the program accessible to a disabled family member. If the Rural Development Voucher remains unused after a period of 150 days from the date of original issuance, the Rural Development Voucher will become void, any funding will be cancelled, and the tenant will no longer be eligible to receive a Rural Development Voucher at that property.
If a tenant previously participated in the RDVP and was subsequently terminated, that tenant is ineligible for future participation in the RDVP.
c.
d.
1. The unit has been inspected by RD and passes the housing standards inspection or has otherwise been found acceptable by RD, as noted previously; and
2. The lease includes the HUD Tenancy Addendum. A copy of the HUD Tenancy Addendum will be provided by RD when the tenant is informed he/she is eligible for a voucher.
Once the conditions in the above paragraph are met, RD will approve the unit for leasing. RD will then execute with the owner a Housing Assistance Payments (HAP) contract, Form HUD-52641. The HAP contract must be executed before Rural Development Voucher payments can be made. RD will attempt to execute the HAP contract on behalf of the tenant before the beginning of the lease term. In the event that this does not occur, the HAP contract may be executed up to 60 calendar days after the beginning of the lease term. If the HAP contract is executed during this 60-day period, RD will make retroactive housing assistance payments to the owner, on behalf of the tenant, to cover the portion of the approved lease term before execution of the HAP contract. The HAP contract and lease will need to be revised to the later effective date. RD will not execute a HAP contract that is dated prior to either the prepayment date of the Section 515 loan, or the date of foreclosure, as appropriate. Any HAP contract executed after the 60-day period will be considered untimely. If the failure to execute the HAP contract within the aforementioned 60-day period lies with the owner, as determined by RD, then RD will not pay any housing assistance payment to the owner for that period.
e.
Also, in no event will the Rural Development Voucher payment exceed the actual tenant lease rent. The amount of the voucher will not change either
f.
g.
The voucher is renewable subject to the availability of appropriations to the USDA. In order to renew a voucher, a tenant must return a signed Voucher Obligation Request Form, which will be sent to the tenant within 60-90 days before the current voucher expires. If the voucher holder fails to return the renewal Voucher Obligation Request Form before the current voucher funding expires, the voucher will be terminated and no renewal will occur.
In order to ensure continued eligibility to use the Rural Development Voucher, tenants must certify at the time they apply for renewal of the voucher that the current tenant income does not exceed the “maximum income level,” which is 80 percent of family median income (a HUD dataset broken down by State, and then by county). RD will advise the tenant of the maximum income level when the renewal Voucher Obligation Request Form is sent.
Renewal requests will enjoy no preference over other voucher requests, and will be processed as described in this Notice.
In accordance with Federal civil rights law and U.S. Department of Agriculture (USDA) civil rights regulations and policies, the USDA its Agencies, offices, and employees, and institutions participating in or administering USDA programs are prohibited from discrimination based on race, color, national origin, religion, sex, gender identity (including gender expression, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, political beliefs, or reprisal or retaliation for prior civil rights activity, in any program or activity conducted or funded by USDA (not all bases apply to all programs). Remedies and complaint filing deadlines vary by program or incident.
Persons with disabilities who require alternative means of communication for program information (
To file a program discrimination complaint, complete the USDA Program Discrimination Complaint Form, AD-3027, found online at
(1)
(2) fax (202) 690-7442; or
(3)
USDA is an equal opportunity provider, employer, and lender.
The information collection requirements contained in this document are those of the Housing Choice Voucher Program, which have been approved by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) and assigned OMB control number 2577-0169.
International Trade Administration, U.S. Department of Commerce.
Notice of an opportunity to apply for membership on the President's Advisory Council on Doing Business in Africa.
The Department of Commerce is currently seeking applications for membership on the President's Advisory Council (Advisory Council) on Doing Business in Africa. The purpose of the Advisory Council is to advise the President through the Secretary of Commerce on strengthening commercial engagement between the United States and Africa, with a focus on advancing the President's Doing Business in Africa Campaign as described in the U.S. Strategy Toward Sub-Saharan Africa of June 14, 2012.
All applications for immediate consideration for appointment must be received by the Office of Advisory Committees and Industry Outreach by 5:00 p.m. Eastern Daylight Time (EDT) on July 22, 2016. After that date, ITA will continue to accept applications under this notice for a period of up to two years from the deadline to fill any vacancies that may arise.
Please submit applications by email to
President's Advisory Council on Doing Business in Africa Executive Secretariat, U.S. Department of Commerce, Room 4043, 1401 Constitution Avenue NW., Washington, DC 20230,
The President's Advisory Council on Doing Business in Africa (Advisory Council) was established pursuant to Executive Order No. 13675 dated August 5, 2014, and continued by Executive Order 13708 until September 30, 2017. The Advisory Council was established in accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended, 5 U.S.C. App., to advise the President through the Secretary of Commerce (Secretary) on strengthening commercial engagement between the United States and Africa, with a focus on advancing the President's Doing Business in Africa Campaign as described in the U.S. Strategy Toward Sub-Saharan Africa of June 14, 2012 (
The Department of Commerce, International Trade Administration, Office of Advisory Committees and Industry Outreach, is accepting applications for Advisory Council members. The Advisory Council shall provide information, analysis, and recommendations to the President that address the following, in addition to other topics deemed relevant by the President, the Secretary, or the Advisory Council:
(i) Creating jobs in the United States and Africa through trade and investment;
(ii) developing strategies by which the U.S. private sector can identify and take advantage of trade and investment opportunities in Africa;
(iii) building lasting commercial partnerships between the U.S. and African private sectors;
(iv) facilitating U.S. business participation in Africa's infrastructure development;
(v) contributing to the growth and improvement of Africa's agricultural sector by encouraging partnerships between U.S. and African companies to bring innovative agricultural technologies to Africa;
(vi) making available to the U.S. private sector an accurate understanding of the opportunities presented for increasing trade with and investment in Africa;
(vii) developing and strengthening partnerships and other mechanisms to increase U.S. public and private sector financing of trade with and investment in Africa;
(viii) analyzing the effect of policies in the United States and Africa on U.S. trade and investment interests in Africa;
(ix) identifying other means to expand commercial ties between the United States and Africa; and
(x) building the capacity of Africa's young entrepreneurs to develop trade and investment ties with U.S. partners.
Executive Order 13675 provides that the Advisory Council shall consist of not more than 15 private sector corporate members, including small businesses and representatives from infrastructure, agriculture, consumer goods, banking, services, and other industries. In light of the broad objectives, scope, and duties of the Advisory Council; the scope of recommendations provided during the 2014-2016 charter term; and the anticipated breadth of issues on which the new appointees may be requested to advise, the appropriate size of the Advisory Council is being discussed as part of the current rechartering process, including the possibility of a significant expansion. Any decision to alter the size of the Advisory Council will be posted on the Advisory Council Web site at
The Advisory Council shall be broadly representative of the key industries with business interests in the functions of the Advisory Council as set forth above. Each Advisory Council member shall serve as the representative of a U.S. company engaged in activities involving trade, investment, development or finance with African markets. The Department particularly seeks applicants who are active executives (Chief Executive Officer, Executive Chairman, President or comparable level of responsibility); however, for very large companies, a person having substantial responsibility for the company's commercial activities in Africa may be considered.
For eligibility purposes, a “U.S. company” is a for-profit firm incorporated in the United States or with its principal place of business in the United States that is (a) majority controlled (more than 50 percent ownership interest and/or voting stock) by U.S. citizens or by another U.S. entity or (b) majority controlled (more than 50 percent ownership interest and/or voting stock) directly or indirectly by a foreign parent company. Members are not required to be a U.S. citizen; however, members may not be registered as a foreign agent under the Foreign Agents Registration Act. Additionally, no member shall represent a company that is majority owned or controlled by a foreign government entity or entities.
Members of the Advisory Council will be selected, in accordance with applicable Department of Commerce guidelines, based on their ability to carry out the objectives of the Advisory Council as set forth above. Members shall be selected in a manner that ensures that the Advisory Council is balanced in terms of points of view, industry subsector, activities in and with African markets, range of products and services, demographics, geography, and company size. Additional factors which will be considered in the selection of Advisory Council members include candidates' proven leadership and experience in the trade, investment, financing, development, or other commercial activities between the United States and Africa. Priority may be given to active executives (Chief Executive Officer, Executive Chairman, President or comparable level of responsibility). Appointments to the Advisory Council shall be made without regard to political affiliation.
The Secretary appoints the members of the Advisory Council in consultation with the Trade Promotion Coordinating Committee (TPCC), a Federal interagency group led by the Secretary of Commerce tasked with coordinating export promotion and export financing activities of the U.S. Government and development of a government-wide strategic plan to carry out such activities. Members shall serve a term of two years, at the pleasure of the Secretary.
Members shall serve in a representative capacity, representing the views and interests of their particular industry sector. Advisory Council members are not special government
To be considered for membership, submit the following information by 5:00 p.m. EDT on July 22, 2016 to the email or mailing address listed in the
1. Name and title of the individual requesting consideration.
2. A sponsor letter from the applicant on his or her company letterhead containing a brief statement of why the applicant should be considered for membership on the Advisory Council. This sponsor letter should also address the applicant's experience and leadership related to trade, investment, financing, development, or other commercial activities between the United States and Africa.
3. The applicant's personal resume and short bio (less than 300 words).
4. An affirmative statement that the applicant meets all eligibility criteria, including an affirmative statement that the applicant is not required to register as a foreign agent under the Foreign Agents Registration Act of 1938, as amended.
5. Information regarding the ownership and control of the company, including the stock holdings as appropriate, signifying compliance with the criteria set forth above.
6. The company's size, product or service line, and major markets in which the company operates.
7. A profile of the company's trade, investment, development, finance, partnership, or other commercial activities in or with African markets.
8. Brief statement describing how the applicant will contribute to the work of the Advisory Council based on his or her unique experience and perspective (not to exceed 100 words).
Enforcement and Compliance, International Trade Administration, Department of Commerce.
The Department of Commerce (the Department) determines that imports of hydrofluorocarbon blends and components thereof (HFCs) from the People's Republic of China (PRC) are being, or likely to be, sold in the United States at less than fair value (LTFV), as provided in section 735 of the Tariff Act of 1930, as amended (the Act). In addition, we determine that critical circumstances exist with respect to imports of the subject merchandise. The final weighted-average dumping margins for this investigation are listed in the “Final Determination Margins” section below. The period of investigation is October 1, 2014, through March 31, 2015.
Elizabeth Eastwood or Dennis McClure, AD/CVD Operations, Office II, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-3874 or (202) 482-5973.
On February 1, 2016, the Department published the preliminary determination of sales at LTFV of HFCs from the PRC.
In February and March 2016, the Department attempted to verify the sales and factors of production (FOP) information submitted by Huantai Dongyue International Trade Co., Ltd. and Shandong Dongyue Chemical Co., Ltd. (collectively, Dongyue), in accordance with section 782(i) of the Act. However, as discussed in more detail below in the the “Verification” section of this notice, we find that Dongyue's reported data, including its separate rate application, are unverifiable, and thus cannot serve as a reliable basis for reaching a determination in this investigation. As a result, we are considering Dongyue to be part of the PRC-wide entity.
In March 2016, we verified the sales and FOP information submitted by T.T. International Co., Ltd. (TTI), in accordance with section 782(i) of the Act.
We invited interested party comments on the preliminary determination in this investigation. In April 2016, the petitioners,
In May 2016, we issued memoranda analyzing certain comments received on the scope of this investigation,
The scope of the investigation covers HFCs and single HFC components of those blends thereof, whether or not imported for blending. For a complete description of the scope of the investigation,
All issues raised in the case and rebuttal briefs by parties in this investigation are addressed in the Issues and Decision Memorandum.
As provided in section 782(i) of the Act, in March 2016, we verified the sales and FOP information submitted by TTI for use in our final determination. We used standard verification procedures, including an examination of relevant accounting and production records, and original source documents provided by TTI.
In addition, as provided in section 782(i) of the Act, in February and March 2016, we also attempted to verify the sales and FOP information submitted by Dongyue, using standard verification procedures.
Based on the Department's analysis of the comments received and our findings at verification, we made certain changes to our margin calculations for TTI. For a discussion of these changes,
In the
For the
In the
With respect to Zhejiang Lantian Environmental Protection Fluoro Material Co., Ltd. (Lantian Fluoro), Lianzhou, Sinochem Lantian Trade Co., Ltd. (Sinochem Lantian), Quhua, and
Under section 735(c)(5)(A) of the Act, the rate for all other companies that have not been individually examined is normally an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and
In our
The Department determines that the final weighted-average dumping margins, and cash deposit rates are as follows:
We
In accordance with section 735(c)(1)(B) of the Act, the Department will instruct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all appropriate entries of HFCs from the PRC for the companies receiving a separate rate which were entered, or withdrawn from warehouse, for consumption on or after February 1, 2016, the date of publication of the preliminary determination of this investigation in the
Further, pursuant to section 735(c)(1)(B)(ii) of the Act, the Department will instruct CBP to require a cash deposit equal to the amount by which normal value exceeds U.S. price as follows: (1) For the exporter/producer combinations listed in the table above, the cash deposit rate will be equal to the dumping margin which the Department determined in this final determination; (2) for all combinations of PRC exporters/producers of merchandise under consideration which have not received their own separate rate above, the cash deposit rate will be equal to the dumping margin established for the PRC-wide entity; and (3) for all non-PRC exporters of merchandise under consideration which have not received their own separate rate above, the cash deposit rate will be equal to the cash deposit rate applicable to the PRC exporter/producer combination that supplied that non-PRC exporter. The suspension of liquidation instructions will remain in effect until further notice.
In accordance with section 735(d) of the Act, we will notify the U.S. International Trade Commission (ITC) of our final determination. As our final determination is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will determine within 45 days whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports or sales (or the likelihood of sales) for importation of the subject merchandise. If the ITC determines that such injury exists, the Department will issue an antidumping duty order directing CBP to assess, upon further instruction by the Department, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
This notice will serve as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.
We are issuing and publishing this determination and notice in accordance with sections 735(d) and 777(i) of the Act.
The products subject to this investigation are HFCs and single HFC components of those blends thereof, whether or not imported for blending. HFC blends covered by the scope are R-404A, a zeotropic mixture consisting of 52 percent 1,1,1 Trifluoroethane, 44 percent Pentafluoroethane, and 4 percent 1,1,1,2-Tetrafluoroethane; R-407A, a zeotropic mixture of 20 percent Difluoromethane, 40 percent Pentafluoroethane, and 40 percent 1,1,1,2-Tetrafluoroethane; R-407C, a zeotropic mixture of 23 percent Difluoromethane, 25 percent Pentafluoroethane, and 52 percent 1,1,1,2-Tetrafluoroethane; R-410A, a zeotropic mixture of 50 percent Difluoromethane and 50 percent Pentafluoroethane; and R-507A, an azeotropic mixture of 50 percent Pentafluoroethane and 50 percent 1,1,1-Trifluoroethane also known as R-507. The foregoing percentages are nominal percentages by weight. Actual percentages of single component refrigerants by weight may vary by plus or minus two percent points from the nominal percentage identified above.
The single component HFCs covered by the scope are R-32, R-125, and R-143a. R-32 or Difluoromethane has the chemical formula CH2F2, and is registered as CAS No. 75-10-5. It may also be known as HFC-32, FC-32, Freon-32, Methylene difluoride, Methylene fluoride, Carbon fluoride hydride, halocarbon R32, fluorocarbon R32, and UN 3252. R-125 or 1,1,1,2,2-Pentafluoroethane has the chemical formula CF3CHF2 and is registered as CAS No. 354-33-6. R-125 may also be known as R-125, HFC-125, Pentafluoroethane, Freon 125, and Fc-125, R-125. R-143a or 1,1,1-Trifluoroethane has the chemical formula CF3CH3 and is registered as CAS No. 420-46-2. R-143a may also be known as R-143a, HFC-143a, Methylfluoroform, 1,1,1-Trifluoroform, and UN2035.
Also included are semi-finished blends of Chinese HFC components. Except as described below, semi-finished blends are blends of two Chinese HFCs components (
This investigation includes any Chinese HFC components (
Any blend or semi-finished blend that includes an HFC component other than R-32, R-125, R-143a, or R-134a is excluded from the scope of this investigation. Furthermore, semi-finished blends do not include any blends containing both HFCs R-32 and R-143a. Single-component HFCs and semi-finished HFC blends are not excluded from the scope of this investigation when blended with HFCs from non-subject countries.
Excluded from this investigation are blends of refrigerant chemicals that include products other than HFCs, such as blends including chlorofluorocarbons (CFCs), hydrochlorofluorocarbons (HCFCs), hydrocarbons (HCs), or hydrofluoroolefins (HFOs).
Also excluded from this investigation are patented HFC blends, including, but not limited to, ISCEON® blends, including MO99
HFC blends covered by the scope of this investigation are currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheadings 3824.78.0020 and 3824.78.0050. Single component HFCs are currently classified at subheadings 2903.39.2035 and 2903.39.2045, HTSUS.
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice of a public meeting.
The Scientific and Statistical Committee (SSC) of the Mid-Atlantic Fishery Management Council (Council) will meet July 20, 2016, through July 21, 2016.
The meeting will begin at 10 a.m. on Wednesday July 20, 2016, and end at 12 p.m. on Thursday, July 21, 2016. For agenda details, see
The meeting will be held at the Royal Sonesta Harbor Court, 550 Light Street, Baltimore, MD 21202; telephone: 410-234-0550.
Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.
Agenda items to be discussed at the SSC meeting include: Review fishery performance report and multi-year ABC specifications for
These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.
16 U.S.C. 1801
National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.
Notice; issuance of an incidental harassment authorization.
In accordance with regulations implementing the Marine Mammal Protection Act (MMPA), notification is hereby given that NMFS has issued an Incidental Harassment Authorization (IHA) to Deepwater Wind Block Island, LLC (DWBI) to take marine
Effective May 31, 2016, through May 30, 2017.
John Fiorentino, Office of Protected Resources, NMFS, (301) 427-8401.
An electronic copy of the application and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the internet at:
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 March 11, 2016, NMFS received an application from DWBI for the taking of marine mammals incidental to the installation of the BIWF export and inter-array cables. This work was originally authorized by NMFS as part of a September 2014 (modified in June 2015) IHA issued to DWBI for construction of the BIWF (offshore installation of wind turbine generator (WTG) jacket foundations and export/inter-array cable installation (79 FR 53409; September 9, 2014)). However, only the construction activities associated with the WTG jacket foundation installation were performed during that one-year authorization which expired in October 2015. Therefore, DWBI has reapplied for a new IHA to complete the remaining export and inter-array cable installation activities. The proposed export and inter-array cable installation activities remain the same as those described in the
DWBI has begun construction of the BIWF, a 30-megawatt offshore wind farm. Construction activities began in July of 2015 with the installation of the five WTG foundations. The submarine cable (export and inter-array cables) installation is scheduled to occur sometime between May and October, 2016. Noise generated from the use of dynamically positioned (DP) vessel thrusters during cable installation may result in the take of marine mammals. Take, by Level B Harassment only, of individuals of nine species is anticipated to result from the specified activity.
A detailed description of the activity was provided in the
The BIWF will consist of five, 6-megawatt WTGs, a submarine cable interconnecting the WTGs, and a transmission cable. The WTG jacket foundations were installed in 2015. Erection of the five WTGs, installation of the inter-array and export cable, and construction of the onshore components of the BIWF are planned for 2016. The scope of the activity covered by this IHA is limited to the use of DP vessel thrusters during installation of the submarine cable interconnecting the WTGs (inter-array cable), and a transmission cable from the northernmost WTG to an interconnection point on Block Island, Rhode Island (export cable). DP vessel thrusters are needed to keep the cable laying vessel in position during the cable installation activities. A jet plow, supported by the DP vessel, will be used to install the inter-array and export cable below the seabed as it is pulled behind the cable laying vessel.
BIWF cable installation activities are schedule to occur sometime between May and October, 2016. NMFS is proposing to issue an authorization effective May 2016 through May 2017, based on the anticipated work window for the in-water cable installation activities that could result in the incidental take of marine mammals. While project activities may occur for over a 6-month period, use of the DP vessel thruster during cable installation is expected to occur for approximately 28 days. Cable installation (and subsequent use of the DP vessel thruster) would be conducted 24 hours per day.
The offshore components of the BIWF will be located in state territorial waters. The WTGs will be located on average about 4.8 kilometers (km) southeast of Block Island, and about 25.7 km south of the Rhode Island mainland. The WTGs will be arranged in a radial configuration spaced about 0.8 km apart. The inter-array cable will connect the five WTGs for a total length of 3.2 km from the northernmost WTG to the southernmost WTG. Water depths along the inter-array cable range up to 23.3 meters (m). The export cable will
A notice of NMFS' proposal to issue an IHA to DWBI was published in the
NMFS further clarifies its take calculations as follows. The WTGs will be arranged in a radial configuration spaced about 0.8 km apart. The inter-array cable will connect the five WTGs for a total length of 3.2 km. The export cable will originate at the northernmost WTG and travel 10 km to Block Island, Rhode Island. The total line kilometers of cable to be installed, then, is 13.2 km. Assuming 28 days of cable installation, this equates to approximately 0.5 km being laid on any of the 28 days of activities. Thus, the zone of influence (ZOI) used to calculate takes is based on a daily ensonified area over 0.5 km traveled per day. As discussed below in the “Estimated Take by Incidental Harassment” section, estimated takes were calculated by multiplying species density (per 100 km
Right whales have been observed in or near Rhode Island during all four seasons. However, they are most common in the spring when they are migrating northward and in the fall during their southbound migration (Kenney and Vigness-Raposa, 2009; Right Whale Consortium, 2014)). Although there is no temporal overlap between the Mid-Atlantic SMA and DWBI's projected cable installation activities, to minimize the potential for vessel collision with right whales and other marine mammal species NMFS will require all DWBI vessels associated with cable installation activities, regardless of their length, to operate at speeds of 10 knots or less throughout the duration of the project. In addition, all DWBI vessels will adhere to NMFS guidelines for marine mammal ship striking avoidance (available online at:
The “Description of Marine Mammals in the Area of the Specified Activities” section has not changed from what was in the proposed IHA (81 FR 22216, April 15, 2016; pages 22217-22218). The following species are both common in the waters of Rhode Island Sound and have the highest likelihood of occurring, at least seasonally, in the project area: North Atlantic right whale (
The proposed IHA and DWBI's application include a complete description of information on the status, distribution, abundance, vocalizations, density estimates, and general biology of marine mammal species in the study area. In addition, NMFS publishes annual stock assessment reports for marine mammals, including some stocks that occur within the study area (
We provided a detailed discussion of the potential effects of the specified activity on marine mammals and their habitat in the notice of the proposed IHA (81 FR 22216; April 15, 2016; pages 22218-22224). That information has not changed and is not repeated here.
In order to issue an incidental take authorization under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable 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 taking for certain subsistence uses (where relevant).
DWBI shall implement the following mitigation measures during export and inter-array cable installation activities.
Consultation with NMFS has indicated that the monitoring zones established out to the 120 dB isopleth for continuous noise will result in zones too large to effectively monitor (up to 4.75 km). Therefore, based on precedent set by the U.S. Department of the Navy and recent European legislation regarding compliance thresholds for wind farm construction noise (U.S. Department of the Navy, 2012; OSPAR, 2008), and consistent with the previous IHA's issued to DWBI and Deepwater Wind Block Island Transmission, L.L.C. (DWBITS), DWBI will establish a monitoring zone equivalent, at a minimum, to the size of the predicted 160 dB isopleth for DP vessel thruster use (5-m radius from the DP vessel) based on DWBI's underwater acoustic modeling. All marine mammal sightings which are visually feasible beyond the 5-m 160 dB isopleth will also be recorded and potential takes will be noted. See
NMFS has carefully evaluated DWBI's mitigation measures in the context of ensuring that we prescribe the means of
• The manner in which, and the degree to which, the successful implementation of the measure is expected to minimize adverse impacts to marine mammals;
• The proven or likely efficacy of the specific measure to minimize adverse impacts as planned; and
• The practicability of the measure for applicant implementation.
Any mitigation measure(s) prescribed by NMFS should be able to accomplish, have a reasonable likelihood of accomplishing (based on current science), or contribute to the accomplishment of one or more of the general goals listed here:
1. Avoidance or minimization of injury or death of marine mammals wherever possible (goals 2, 3, and 4 may contribute to this goal).
2. A reduction in the numbers of marine mammals (total number or number at biologically important time or location) exposed to received levels of activities that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
3. A reduction in the number of times (total number or number at biologically important time or location) individuals would be exposed to received levels of activities that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing harassment takes only).
4. A reduction in the intensity of exposures (either total number or number at biologically important time or location) to received levels of activities that we expect to result in the take of marine mammals (this goal may contribute to 1, above, or to reducing the severity of harassment takes only).
5. Avoidance or minimization of adverse effects to marine mammal habitat, paying special attention to the food base, activities that block or limit passage to or from biologically important areas, permanent destruction of habitat, or temporary destruction/disturbance of habitat during a biologically important time.
6. For monitoring directly related to mitigation—an increase in the probability of detecting marine mammals, thus allowing for more effective implementation of the mitigation.
Based on our evaluation of DWBI's proposed measures, as well as other measures considered by NMFS, NMFS has determined that the proposed mitigation measures provide the means of effecting the least practicable impact on marine mammals species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.
In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for incidental take authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area.
Monitoring measures prescribed by NMFS should accomplish one or more of the following general goals:
1. An increase in our understanding of the likely occurrence of marine mammal species in the vicinity of the action,
2. An increase in our understanding of the nature, scope, or context of the likely exposure of marine mammal species to any of the potential stressor(s) associated with the action (
3. An increase in our understanding of how individual marine mammals respond (behaviorally or physiologically) to the specific stressors associated with the action (in specific contexts, where possible,
4. An increase in our understanding of how anticipated individual responses, to individual stressors or anticipated combinations of stressors, may impact either: the long-term fitness and survival of an individual; or the population, species, or stock (
5. An increase in our understanding of how the activity affects marine mammal habitat, such as through effects on prey sources or acoustic habitat (
6. An increase in understanding of the impacts of the activity on marine mammals in combination with the impacts of other anthropogenic activities or natural factors occurring in the region.
7. An increase in our understanding of the effectiveness of mitigation and monitoring measures.
8. An increase in the probability of detecting marine mammals (through improved technology or methodology), both specifically within the safety zone (thus allowing for more effective implementation of the mitigation) and in general, to better achieve the above goals.
Observers would estimate distances to marine mammals visually, using laser range finders, or by using reticle binoculars during daylight hours. During night operations, night vision binoculars will be used. If vantage points higher than 25 feet (7.6 m) are available, distances can be measured using inclinometers. Position data will be recorded using hand-held or vessel global positioning system (GPS) units for each sighting, vessel position change, and any environmental change.
Each PSO stationed on the cable lay vessel will scan the surrounding area for visual indication of marine mammal presence that may enter the monitoring zone. Observations will take place from
Information recorded during each observation shall be used to estimate numbers of animals potentially taken and shall include the following:
• Date, time, and location of construction operations;
• Numbers of individuals observed;
• Frequency of observations;
• Location (
• DP vessel thruster status (
• Weather conditions (
• Water conditions (
• Details of mammal sightings (species, sex, age classification (if known), numbers)
• Reaction of the animal(s) to relevant sound source (if any) and observed behavior (
• Details of any observed “taking” (behavioral disturbances or injury/mortality).
All marine mammal sightings which are visually feasible beyond the 160 dB isopleth (
In addition, prior to initiation of construction work, all crew members on barges, tugs and support vessels, will undergo environmental training, a component of which will focus on the procedures for sighting and protection of marine mammals. A briefing will also be conducted between the construction supervisors and crews, the PSOs, and DWBI. The purpose of the briefing will be to establish responsibilities of each party, define the chains of command, discuss communication procedures, provide an overview of monitoring purposes, and review operational procedures. The DWBI Construction Compliance Manager (or other authorized individual) will have the authority to stop or delay construction activities, if deemed necessary. New personnel will be briefed as they join the work in progress.
DWBI shall provide the following notifications and reports during construction activities:
• Notification to NMFS and the U.S. Army Corps of Engineers (USACE) within 24-hours of beginning construction activities and again within 24-hours of completion;
• NMFS and USACE should be notified within 24 hours whenever a monitoring zone is re-established by DWBI. After any re-establishment of the monitoring zone, DWBI will provide a report to the USACE and NMFS detailing the field-verification measurements within 7 days. This includes information, such as: a detailed account of the levels, durations, and spectral characteristics of DP thruster use, and the peak, rms, and energy levels of the sound pulses and their durations as a function of distance, water depth, and tidal cycle. NMFS and USACE will be notified within 24 hours if field verification measurements suggest a larger monitoring zone.
• Within 90 days after completion of the construction activities, a draft technical report will be provided to NMFS and USACE that fully documents the methods, mitigation, and monitoring protocols implemented, summarizes the data recorded during monitoring (see
•
○ Time and date of the incident;
○ Description of the incident;
○ Environmental conditions (
○ Description of all marine mammal observations and active sound source use in the 24 hours preceding the incident;
○ Species identification or description of the animal(s) involved;
○ Fate of the animal(s); and
○ Photographs or video footage of the animal(s) (if equipment is available).
Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS will work with DWBI to determine the measures necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. DWBI may not resume their activities until notified by NMFS.
In the event that DWBI 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 (
In the event that DWBI discovers an injured or dead marine mammal and determines that the injury or death is not associated with or related to the activities authorized in the IHA (
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].
Underwater sound associated with the use of DP vessel thrusters during inter-array and export cable installation is the only project activity that has the potential to harass marine mammals, as defined by the MMPA. Harassment could take the form of temporary threshold shift, avoidance, or other changes in marine mammal behavior. NMFS anticipates that impacts to marine mammals would be in the form of Level B behavioral harassment and no take by injury, serious injury, or mortality is authorized. NMFS does not anticipate take resulting from the movement of vessels (
NMFS' current acoustic exposure criteria for estimating take are shown in Table 1 below. DWBI's modeled distances to these acoustic exposure criteria are shown in Table 2. Details on the model characteristics and results are provided in the Underwater Acoustic Modeling Report found in Appendix A of the application. As discussed in the application and in Appendix A, acoustic modeling took into consideration sound sources using the loudest potential operational parameters, bathymetry, geoacoustic properties of the project area, time of year, and marine mammal hearing ranges. Results from the acoustic modeling showed that the estimated maximum distance to the 120 dB re 1 μPa (rms) MMPA threshold was approximately 4,750 m for 10-m water depth, 4,275 m for 20-m water depth, and 3,575 m for 40-m water depth; average distance to the 120 dB re 1 μPa (rms) MMPA threshold was approximately 2,700 m over the three depths (Table 2). More information on results including figures displaying critical distance information can be found in Appendix A of the application. DWBI and NMFS believe that these estimates represent the worst-case scenario and that the actual distances to the Level B harassment threshold may be shorter. DP vessel thruster use will not produce sound levels at 180/190 dB at any appreciable distance, therefore, no injurious (Level A harassment) takes have been requested or are being authorized. To verify the distance to the MMPA thresholds calculated by underwater acoustic modeling, DWBI has committed to conducting real-time underwater acoustic measurements of the DP vessel thrusters. Field verification of actual sound propagation will enable adjustment of the MMPA threshold level distances to fit actual construction conditions, if necessary.
DWBI estimated species densities within the project area in order to estimate the number of marine mammal exposures to sound levels above 120 dB (continuous noise). The data used as the basis for estimating cetacean species density for the project area are sightings per unit effort (SPUE) taken from Kenney and Vigness-Raposa (2009). SPUE (or, the relative abundance of species) is derived by using a measure of survey effort and number of individual cetaceans sighted. SPUE allows for comparison between discrete units of time (
The OPAREA Density Estimates (U.S. Department of the Navy, 2007) were used for estimating takes for harbor and gray seals. In the proposed IHA, NMFS had applied an 80 percent reduction factor for harbor and gray seal densities based on the presumption that original density estimates for the project area were an overestimation because they included breeding populations of Cape Cod (Schroeder, 2000; Ronald and Gots, 2003). NMFS has since determined that the findings used to inform that reduction factor are outdated and do not accurately reflect the average annual rate of population increase (especially for gray seal), and this reduction factor is no longer appropriate for calculating takes for harbor and gray seals.
The methodology for calculating takes was described in the
A detailed description of the model used to calculate zones of influence is provided in the Underwater Acoustic Modeling Report found in Appendix A of the application. Acoustic modeling was completed with the U.S. Naval Research Laboratory's Range-dependent Acoustic Model (RAM) which is widely used by sound engineers and marine biologists due to its adaptability to describe highly complex acoustic scenarios. This modeling analysis method considers range and depth along with a geo-referenced dataset to automatically retrieve the time of year information, bathymetry, and geo-acoustic properties (
DWBI used a ZOI of 25 km
DWBI's requested take numbers are provided in Table 3 and this is also the number of takes NMFS has authorized. DWBI's take calculations do not take into account whether a single animal is harassed multiple times or whether each exposure is a different animal. Therefore, the numbers in Table 3 are the maximum number of animals that may be harassed during the cable installation activities (
DWBI did not request, and NMFS is not proposing, take from vessel strike. We do not anticipate marine mammals to be impacted by vessel movement because a limited number of vessels would be involved in construction activities and they would mostly move at slow speeds during DP vessel thruster use during cable installation activities. However, DWBI shall implement measures (
Negligible impact is “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (
To avoid repetition, the discussion of our analyses applies to all the species listed in Table 3, given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is no information about the nature or severity of the impacts, or the size, status, or structure of any of these species or stocks that would lead to a different analysis for this activity.
As discussed in the “Potential Effects of the Specified Activity on Marine Mammals and Their Habitat” section of the proposed IHA (81 FR 22216; April 15, 2016; pages 22218-22224), permanent threshold shift, masking, non-auditory physical effects, and vessel strike are not expected to occur. There is some potential for limited temporary threshold shift (TTS); however, animals in the area would likely incur no more than brief hearing impairment (
Potential impacts to marine mammal habitat were discussed in the proposed IHA (see the “Potential Effects of the Specified Activity on Marine Mammals and Their Habitat” section) (81 FR 22216; April 15, 2016; pages 22218-22224). Marine mammal habitat may be impacted by elevated sound levels and some sediment disturbance, but these impacts would be temporary. Feeding behavior is not likely to be significantly impacted. Prey species are mobile, and are broadly distributed throughout the project area; therefore, marine mammals that may be temporarily displaced during cable installation activities are expected to be able to resume foraging once they have moved away from areas with disturbing levels of underwater noise. Because of the temporary nature of the disturbance, the availability of similar habitat and resources in the surrounding area, and the lack of important or unique marine mammal habitat, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations. There are no feeding areas known to be biologically important to marine mammals within the project area.
There are no rookeries or mating grounds known to be biologically important to marine mammals within the project area. ESA-listed species for which takes are authorized are North Atlantic right, humpback, and fin whales. Recent estimates of abundance indicate a stable or growing humpback whale population, while examination of the minimum number alive population index calculated from the individual sightings database (as it existed on October 25, 2013) for the years 1990-2010 suggests a positive and slowly accelerating trend in North Atlantic right whale population size (Waring
The mitigation measures are expected to reduce the potential for exposure of marine mammals by reducing the DP thruster power if a marine mammal is observed within the 160 dB isopleth. Additional vessel strike avoidance requirements will further mitigate potential impacts to marine mammals during vessel transit in the study area. DWBI vessels associated with the BIWF construction will adhere to NMFS guidelines for marine mammal ship striking avoidance (available online at:
DWBI did not request, and NMFS is not authorizing, take of marine mammals by injury, serious injury, or mortality. NMFS expects that takes would mainly be in the form of short-term Level B behavioral harassment in the form of brief startling reaction and/or temporary vacating of the area, or temporary decreased foraging (if such activity were occurring)—reactions that are considered to be of low severity and with no lasting biological consequences (
Based on best available science, NMFS concludes that exposures to marine mammal species and stocks due to DWBI's DP vessel thruster use during cable installation activities would result in only short-term (temporary and short in duration) and relatively infrequent effects to individuals exposed, and not of the type or severity that would be expected to be additive for the very small portion of the stocks and species likely to be exposed. Given the intensity of the activities, and the fact that shipping contributes to the ambient sound levels in the surrounding waters, NMFS does not anticipate the authorized take estimates to impact annual rates of recruitment or survival. Animals may temporarily avoid the immediate area, but are not expected to permanently abandon the area. Major shifts in habitat use, distribution, or foraging success, are not expected
Based on the analysis contained herein of the likely effects of the
The takes authorized for the cable installation activities utilizing DP vessel thrusters represent 0.22 percent of the Western North Atlantic (WNA) stock of North Atlantic right whale, 0.24 percent of the Gulf of Maine stock of humpback whale, 1.42 percent of the WNA stock of fin whale, 0.02 percent of the Canadian East Coast stock of minke whale, 0.07 percent of the WNA stock of short-beaked common dolphin, 0.16 percent of the WNA stock of Atlantic white-sided dolphin, 0.01 percent of the Gulf of Maine/Bay of Fundy stock of harbor porpoise, 0.15 percent of the WNA stock of harbor seal, and 0.05 percent of the North Atlantic stock of gray seal. These take estimates represent the percentage of each species or stock that could be taken by Level B behavioral harassment and represent extremely small numbers (less than 1.5 percent) relative to the affected species or stock sizes. Further, the take numbers are the maximum numbers of animals that are expected to be harassed during the project; it is possible that some of these exposures may occur to the same individual. Therefore, NMFS finds that small numbers of marine mammals will be taken relative to the populations of the affected species or stocks.
There are no relevant subsistence uses of marine mammals implicated by this action. Therefore, NMFS has 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.
Under section 7 of the ESA, the USACE (the federal permitting agency for the actual construction) consulted with NMFS' GARFO on the proposed BIWF project. NMFS also consulted internally on the issuance of an IHA under section 101(a)(5)(D) of the MMPA for this activity. The resultant Biological Opinion determined that the proposed action was not likely to jeopardize the continued existence of fin, humpback, and North Atlantic right whale. NMFS has determined that the 2015 Biological Opinion remains valid and that the proposed MMPA authorization provides no new information about the effects of the action, nor does it change the extent of effects of the action, or any other basis to require reinitiation of the opinion. Therefore, the 2015 Biological Opinion meets the requirements of section 7(a)(2) of the ESA and implementing regulations at 50 CFR 402 for our issuance of an IHA under the MMPA, and no further consultation is required.
NMFS conducted the required analysis under the National Environmental Policy Act (NEPA) and prepared an EA for its issuance of the original BIWF IHA, issuing a Finding of No Significant Impact (FONSI) for the action on August 21, 2014 (reaffirmed on June 9, 2015). The potential environmental impacts of issuance of the IHA are within the scope of the environmental impacts analyzed in NMFS' EA, which was used to support NMFS' FONSI. NMFS has determined that there are no substantial changes to the action or significant new circumstances or information relevant to environmental concerns which would require a supplement to the 2014 EA or preparation of a new NEPA document. Therefore, NMFS has determined that a new or supplemental EA or Environmental Impact Statement are unnecessary, and we shall rely on the existing EA and FONSI for this action.
As a result of these determinations, NMFS has issued an IHA to DWBI for cable installation activities that use DP vessel thrusters from May 31, 2016, through May 30, 2017, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.
National Ocean Service, National Oceanic and Atmospheric Administration. (NOAA), Department of Commerce.
Notice; Correction.
The National Oceanic and Atmospheric Administration published a document in the
Stakeholders are invited to submit questions and provide input related to concerns and successes pertaining to HABs and hypoxia in the Great Lakes region. The IWG-HABHRCA continues to seek general and technical feedback on topics including:
• Regional, Great Lakes-specific priorities for:
○ Ecological, economic, and social research on the causes and impacts of HABs and hypoxia;
○ Approaches to improving monitoring and early warnings, scientific understanding, prediction and modeling, and socioeconomics of these events; and
○ Mitigating the causes and impacts of HABs and hypoxia.
• Communication and information dissemination methods that state, tribal, local, and international governments and organizations may undertake to educate and inform the public concerning HABs and hypoxia in the Great Lakes; and
• Perceived needs for handling Great Lakes HAB and hypoxia events, as well as an action strategy for managing future situations.
Inquiries and comments may be submitted via email (
Caitlin Gould (
The National Oceanic and Atmospheric Administration published a document in the
National Ocean Service, National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.
Notice of open public meeting.
The Hydrographic Services Review Panel (HSRP) will hold a meeting that will be open to the public. Information about the HSRP and the meeting agenda will be posted at:
The meeting will be held on August 30, 8:30 a.m. to 3:00 p.m. EDT; August 31, 8:00 a.m. to 5:00 p.m.; and September 1, 8:00 a.m. to 12:00 noon. Times are subject to change. For updates, please check:
City Club of Cleveland, 830 Euclid Avenue, Cleveland, Ohio 44114.
Lynne Mersfelder-Lewis, HSRP program manager, National Ocean Service, Office of Coast Survey, NOAA (N/NSD), 1315 East-West Highway, SSMC3 #6301, Silver Spring, Maryland 20910; telephone: 301-713-2750 ext. 166; email:
The meeting is open to the public, and public seating will be available on a first-come, first-served basis. The times of onsite public comment periods, scheduled for each day, will be included in the final agenda. Each individual or group making verbal comments will be limited to a total time of five (5) minutes. Comments will be recorded. Individuals who would like to submit written statements should email their comments to
The Hydrographic Services Review Panel (HSRP) is a Federal Advisory Committee established to advise the Under Secretary of Commerce for Oceans and Atmosphere, the NOAA Administrator, on matters related to the responsibilities and authorities set forth in section 303 of the Hydrographic Services Improvement Act of 1998, as amended, and such other appropriate matters that the Under Secretary refers to the Panel for review and advice. The charter and other information are located online at
United States Patent and Trademark Office, Commerce.
Notice.
The United States Patent and Trademark Office (USPTO or Office) is implementing a pilot program to provide for earlier review of patent applications pertaining to cancer immunotherapy (“Cancer Immunotherapy Pilot Program” or “Pilot Program”) in support of the White House national $1 billion initiative to achieve ten years' worth of cancer research in the next five years (“National Cancer Moonshot”). The USPTO will advance applications containing a claim(s) to a method of treating a cancer using immunotherapy out of turn for examination if the applicant files a grantable petition to make special under the Pilot Program. The objective of the Pilot Program is to complete the examination of the application within twelve months of special status being granted. Under the Cancer Immunotherapy Pilot Program, an application will be advanced out of turn for examination without meeting all of the current requirements of the accelerated examination program (
Pinchus M. Laufer, Senior Legal Advisor (telephone (571) 272-7726; electronic mail at
For questions relating to a specific petition, please contact Gary B. Nickol, Supervisory Patent Examiner (telephone (571) 272-0835; electronic mail at
On February 1, 2016, the White House Office of the Press Secretary announced a new, national $1 billion initiative to achieve ten years' worth of cancer research in the next five years, with the intent to aid in the global fight against cancer.
New patent applications are normally taken up for examination in the order of their U.S. filing date.
The USPTO is implementing the Cancer Immunotherapy Pilot Program to permit an application containing at least one claim to a method of treating a cancer using immunotherapy to be advanced out of turn (accorded special status) for examination without meeting all of the current requirements of the accelerated examination program set forth in item VIII of MPEP section 708.02(a) (
The USPTO will accept petitions to make special under the Cancer Immunotherapy Pilot Program provided that the petitions, and applications in which they are filed, meet all of the requirements set forth in this notice. The USPTO will periodically evaluate the Pilot Program to determine whether and to what extent its coverage should be expanded. In addition, the USPTO may extend the Pilot Program (with or without modifications) or terminate it depending on the workload and resources needed to administer the Pilot Program, feedback from the public, and the effectiveness of the Pilot Program. If the Pilot Program is extended or terminated, the USPTO will provide notification to the public.
Applicants may participate in the Cancer Immunotherapy Pilot Program by filing a petition to make special under 37 CFR 1.102(d) meeting all of the requirements set forth in this notice in either a new application or in a pending application. However, continuing applications will not automatically be accorded special status based on papers filed with a petition in a parent application. Each application must, on its own, meet all requirements for special status. No fee is required. The fee for a petition to make special under 37 CFR 1.102(d) based upon the procedure specified in this notice is hereby waived.
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(3)
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(5)
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For patent applicants whose claimed cancer immunotherapy both (i) meets the eligibility requirements for this Pilot Program and (ii) is the subject of an active Investigational New Drug (IND) application filed by patent applicant or their agent (
Therefore, the petition is
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As in other programs, eligibility for this pilot is not restricted by (i) the nationality of the patent applicant or its agents, (ii) the location where the underlying research was undertaken or the technology was developed, or (iii) the location where the invention may be produced or manufactured.
Applicant will be notified of the decision on the petition by the deciding official. If the application does not comply with the sequence requirements as set forth in 37 CFR 1.821 through 1.825, such that the application is not in condition for examination, or has an outstanding Office action, or if the application and/or petition does not meet all the formal requirements set forth in this notice, the USPTO will notify the applicant of the deficiency by issuing a notice. The notice will give the applicant only
Commodity Futures Trading Commission.
Notice.
In compliance with the Paperwork Reduction Act of 1995 (“PRA”), this notice announces that the Information Collection Request (“ICR”) abstracted below has been forwarded to the Office of Management and Budget (“OMB”) for review and comment. The ICR describes the nature of the information collection and its expected costs and burden.
Comments must be submitted on or before July 29, 2016.
Comments regarding the burden estimated or any other aspect of the information collection, including suggestions for reducing the burden, may be submitted directly to the Office of Information and Regulatory Affairs (“OIRA”) in OMB, within 30 days of the notice's publication, by email at
Comments may also be mailed to: Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581 or by Hand Deliver/Courier at the same address.
A copy of the supporting statements for the collection of information discussed above may be obtained by visiting
Gary Martinaitis, Division of Market Oversight, Commodity Futures Trading Commission, (202) 418-5209; email:
An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The
The total annual cost burden per respondent is estimated to be $6,875. The Commission based its calculation on a blended hourly wage rate of $55 for a Programmer and Compliance Manager.
44 U.S.C. 3501
Department of Defense.
Renewal of Federal Advisory Committee.
The Department of Defense (DoD) is publishing this notice to announce that it is renewing the charter for the Army Education Advisory Committee (“the Committee”).
Jim Freeman, Advisory Committee Management Officer for the Department of Defense, 703-692-5952.
The Committee's charter is being renewed in accordance with the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and 41 CFR 102-3.50(d). The Committee's charter and contact information for the Committee's Designated Federal Officer (DFO) can be found at
The DoD may establish subcommittees, task forces, or working groups to support the Committee. All subcommittees operate under the provisions of FACA and the Government in the Sunshine Act, will not work independently of the Committee, report all findings to the Committee for full deliberation and discussion, and have no authority to make decisions and recommendations, verbally or in writing, on behalf of the Committee. No subcommittee or any of its members can update or report, verbally or in writing, directly to the DoD or any Federal officers or employees.
The Committee's DFO, pursuant to DoD policy, must be a full-time or permanent part-time DoD employee, and must be in attendance for the duration of each and every Committee or subcommittee meeting. The public or interested organizations may submit written statements to the Committee membership about the Committee's mission and functions. Such statements may be submitted at any time or in response to the stated agenda of planned Committee meetings. All written statements must be submitted to the Committee's DFO who will ensure the written statements are provided to the membership for their consideration.
Office of the Under Secretary of Defense (Acquisition, Technology, and Logistics), Department of Defense (DoD).
Federal advisory committee meeting notice.
The Department of Defense is publishing this notice to announce the following Federal advisory committee meeting of the Government-Industry Advisory Panel. This meeting is open to the public.
The meeting will be held from 1:30 p.m. to 5 p.m. on Tuesday, July 12, 2016. Public registration will begin at 1 p.m. For entrance into the meeting, you must meet the necessary requirements for entrance into the Pentagon. For more detailed information, please see the following link:
Pentagon Library, Washington Headquarters Services, 1155 Defense Pentagon, Washington, DC 20301-1155. The meeting will be held in Room M2. The Pentagon Library is located in the Pentagon Library and Conference Center (PLC2) across the Corridor 8 bridge.
LTC Andrew Lunoff, Office of the Assistant Secretary of Defense (Acquisition), 3090 Defense Pentagon, Washington, DC 20301-3090, email:
Due to circumstances beyond the control of the Designated Federal Officer and the Department of Defense, the Government-Industry Advisory Panel was unable to provide public notification of its meeting of July 12, 2016, 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.
Minor changes to the agenda will be announced at the meeting. All materials will be posted to the FACA database after the meeting.
Individuals requiring special accommodations to access the public meeting or seeking additional information about public access procedures, should contact LTC Lunoff, the committee DFO, at the email address or telephone number listed in the
Defense Logistics Agency, DoD.
Notice.
In compliance with the
Consideration will be given to all comments received by August 29, 2016.
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 Defense Logistics Agency Information Operations at Ogden, ATTN: Ms Janet Hilbish, 2001 Mission Drive Suite 2, DLA J62FA New Cumberland Office, New Cumberland, PA 17070, or call (717) 770-5500.
Respondents are individuals who work for Defense Logistics Agency Information Operations and log into the automated project time record system to annotate their time worked on each project.
Defense Manpower Data Center, DoD.
Notice of a Computer Matching Program.
Subsection (e) (12) of the Privacy Act of 1974 (5 U.S.C. 552a), as amended by the Computer Matching and Privacy Protection Act of 1988 (Pub. L. 100-503), Office of Management and Budget (OMB) Guidelines on the Conduct of Matching Programs (54 FR 25818 published June 19, 1989), and OMB Circular No. A-130, “Management of Federal Information Resources,” revised November 28, 2000, requires agencies to publish advance notice of any proposed or revised computer matching agreement for public comment. The Defense Manpower Data Center (DMDC) of the Department of Defense (DoD), as the matching agency under the Privacy Act is hereby giving notice to the record subjects of a computer matching agreement with the Administration for Children and Families of the Department of Health and Human Services (HHS) acting on behalf of the State Public Assistance Agencies (SPAA).
This proposed action will become effective July 29, 2016 and matching may commence unless changes to the matching program are required due to public comments or by Congressional or by Office of Management and Budget objections. Any public comment must be received before the effective date.
You may submit comments, identified by docket number and title, by any of the following methods:
•
•
Ms. Cindy Allard at telephone (703) 571-0070.
Pursuant to subsection (o) of the Privacy Act of 1974, as amended (5 U.S.C. 552a), the DoD and the HHS have concluded an agreement to conduct a computer matching program between the agencies. The purpose of this computer matching program is to exchange personal data for the purposes of identifying individuals who are receiving Federal compensation or pension payments and are also receiving payments pursuant to Federal benefits programs being administered by the States.
The parties to this agreement have determined that a computer matching program is the most efficient, expeditious, and effective means of
A copy of the computer matching agreement between HHS and DoD is available upon request to the public. Requests should be submitted to Defense Privacy, Civil Liberties, and Transparency Division, Office of the Deputy Chief Management Officer, Office of the Secretary of Defense, 4800 Mark Center Drive, Attention: DPCLTD Mailbox #24, Alexandria, Virginia 22350-1700 or to the Department of Health and Human Services, Administration for Children and Families, 330 C Street, SW Switzer Building, Room 3117B, Washington, DC 20024.
Set forth below is the notice of the establishment of a computer matching program required by paragraph 6.c. of the Office of Management and Budget (OMB) Guidelines on computer matching published in the
The matching agreement, as required by 5 U.S.C. 552a(r) of the Privacy Act, as amended, and an advance copy of this notice was submitted on June 10, 2016, to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the Administrator of the Office of Information and Regulatory Affairs, Office of Management and Budget, pursuant to paragraph 4 of Appendix I to OMB Circular No. A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” revised November 28, 2000 (December 12, 2000 65 FR 77677).
NOTICE OF A COMPUTER MATCHING PROGRAM BETWEEN THE DEFENSE MANPOWER DATA CENTER, DEPARTMENT OF DEFENSE; THE ADMINISTRATION FOR CHILDREN AND FAMILIES, DEPARTMENT OF HEALTH AND HUMAN SERVICES; AND STATE PUBLIC ASSISTANCE AGENCIES FOR VERIFICATION OF CONTINUED ELIGIBILITY FOR PUBLIC ASSISTANCE.
A. PARTICIPATING AGENCIES: Participants in this computer matching program are the State Public Assistance Agencies (SPAA), the Administration for Children and Families (ACF) of the Department of Health and Human Services (HHS), and the Defense Manpower Data Center (DMDC) of the Department of Defense (DoD). The SPAA is the source agency, the agency disclosing the records for the purpose of the match; ACF is the facilitating agency, the agency acting on behalf of the SPAAs; and the DMDC is the matching agency, the agency that actually performs the match.
B. PURPOSE OF THE MATCH: This agreement establishes an arrangement for a periodic computer matching program between DMDC as the matching agency, ACF as the facilitating agency, and the SPAAs as the source agencies who will use the data in their public assistance programs. The purpose of this matching program is to provide the SPAAs with data from DoD military and civilian pay files, the military retired pay files, survivor pay files and the Office of Personnel Management civilian retired and survivor pay files to determine eligibility and to ensure fair and equitable treatment in the delivery of benefits attributable to funds provided by the Federal Government. The SPAAs will use the matched data to verify the continued eligibility of individuals to receive public assistance benefits and, if ineligible, to take such action as may be authorized by law and regulation.
ACF, in its role as match facilitator, will support each SPAA's efforts to ensure appropriate delivery of benefits by assisting with drafting the necessary agreements, helping arrange signatures to the agreements and acting as a central shipping point as necessary.
This agreement sets forth the responsibility of the SPAAs with respect to information obtained pursuant to this agreement. Each SPAA match is expected to comply with pertinent requirements of the Privacy Act, including its implementing regulations and guidance.
C. AUTHORITY FOR CONDUCTING THE MATCH: The legal authority for conducting the matching program is contained in sections 402, 1137, and 1903(r) of the Social Security Act (42 U.S.C. 602, a 1320b-7, and 1396b(r)).
D. RECORDS TO BE MATCHED: The systems of records maintained by the respective agencies under the Privacy Act of 1974, as amended, 5 U.S.C. 552a, from which records will be disclosed for the purpose of this computer match are as follows:
1. Federal, but not State, agencies must publish system notices for “systems of records” pursuant to subsection (e)(4) of the Privacy Act and must identify “routine uses” pursuant to subsection (b)(3) of the Privacy Act for those systems of records from which they intend to disclose this information. The DoD system of records described below contains an appropriate routine use proviso which permits disclosure of information by DMDC as described in this Agreement.
2. DMDC will use personal data from the record system identified as DMDC 01, entitled “Defense Manpower Data Center Data Base”, November 23, 2011, 76 FR 72391. As previously noted, the DoD records will be matched electronically against records supplied by the SPAAs. No information will be disclosed from any systems of records maintained by HHS.
E. DESCRIPTION OF COMPUTER MATCHING PROGRAM: Each participating SPAA will send ACF an electronic file of eligible public assistance client information. These files are non-Federal computer records maintained by the States. Participating SPAAs can submit files to DMDC via “Connect Direct” or other secure portal arranged with DMDC. After DMDC receives the SPAA files, it will match the SPAA files against the DMDC database. The DMDC database consists of pay of DoD personnel and retirement records of non-postal Federal civilian employees and military members, both active and retired and survivor annuitants. The matching activity will take place at DMDC and will use all nine digits of the SSN. Resulting “hits” or matches will be disclosed to the relevant SPAAs.
1. The electronic files provided by each participating SPAA will contain data elements of the client's name, SSN, date of birth, address, sex, marital status, number of dependents, information regarding the specific public assistance benefit being received, and such other data as considered
2. The DMDC computer database file contains approximately 4.85 million records of active duty and retired military members, including the Reserve and Guard, and approximately 3.68 million records of active and retired non-postal Federal civilian employees. Employee or retiree records may include information on benefits payable to employee or retiree dependents and/or survivors.
3. DMDC will match the SSN on the SPAA file by computer against the DMDC database. Matching records, “hits” based on SSNs, will produce data elements of the individual's name; SSN; active or retired; if active, military service or employing agency, and current work or home address, and such other data as considered necessary.
F. INCLUSIVE DATES OF THE MATCHING PROGRAM: This computer matching program is subject to public comment and review by Congress and the Office of Management and Budget (OMB). If the mandatory 30 day period for comment has expired and no comments are received and if no objections are raised by either Congress or the OMB within 40 days of being notified of the proposed match, the computer matching program becomes effective and the respective agencies may begin the exchange at a mutually agreeable time and thereafter on a quarterly basis. By agreement between HHS and DoD, the matching program will be in effect for 18 months with an option to renew for 12 additional months unless one of the parties to the agreement advises the other by written request to terminate or modify the agreement.
G. ADDRESS FOR RECEIPT OF PUBLIC COMMENTS OR INQUIRIES: Department of Defense, Office of the Deputy Chief Management Officer, Directorate for Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Alexandria, VA 22350-1700.
Department of the Army, U.S. Army Corps of Engineers, DoD.
Notice of availability.
The U.S. Army Corps of Engineers (COE), Wilmington District, Wilmington Regulatory Field Office has received a permit application for Department of the Army authorization, pursuant to Section 404 of the Clean Water Act and Section 10 of the Rivers and Harbors Act, from Figure Eight Beach Homeowners' Association Inc. (HOA) to install a terminal groin structure along Rich Inlet and to conduct a supplemental beach nourishment on approximately 4,500 linear feet of oceanfront beach and 1,400 linear feet of back barrier shoreline to protect residential homes and infrastructures along the central and northern sections of Figure Eight Island. The terminal groin structure will be placed perpendicular on the northern tip of the island along the shoulder of Rich Inlet; and the proposed source of the material for the nourishment will be dredged from an area within Nixon Channel, a back barrier channel, that has been previously used for past beach nourishment projects. In case the quantity of material from Nixon Channel is not sufficient, material pumped from (3) nearby upland disposal islands will be used to supplement the nourishment needs. The majority of the material will be disposed within the fillet area, or down shore, of the groin. Pending storm events and shoreline changes, proposed maintenance, or periodic nourishment, of the beach is once every five years, or potentially 6 separate events over the 30-year study period. Nixon Channel and the upland disposal islands are the proposed material sources for the periodic maintenance, or renourishment, events.
Written comments on the FEIS must be received at (see
Copies of comments and questions regarding the FEIS may be addressed to: U.S. Army Corps of Engineers, Wilmington District, Regulatory Division. ATTN: File Number 2006-41158, 69 Darlington Avenue, Wilmington, NC 28403. Copies of the FEIS can be reviewed on the Corps homepage at,
Questions about the proposed action and FEIS and/or to requests receive a CD or written copies of the FEIS can be directed to Mr. Mickey Sugg, Wilmington Regulatory Field Office, telephone: (910) 251-4811 or
1.
2.
Construction of the terminal groin would be kept within a corridor varying in width from 50 feet to 200 feet. Within this corridor, a 40-70 foot wide trench would be excavated to a depth of −2.5 feet NAVD in order to construct the foundation of the landward section. The approximate 6,000 cubic yards of excavated material would be replaced on and around the structure once it's in place. Material used to build the groin would be barged down the Atlantic Intracoastal Waterway (AIWW), through Nixon Channel, and either offloaded onto a temporary loading dock or directly onto shore. It would then be transported, via dump trucks, within the designated corridor to the construction site.
Material used for nourishment would be dredged, using a hydraulic cutterhead plant, from a designated borrow site within Nixon Channel, which has been previously used for beach fill needs. The proposed dredging footprint in the channel area is approximately 30 acres in size and the target depth of dredging is −11.4 feet NAVD. Approximately 294,500 cubic yards would be required for both the oceanfront (237,500 cubic yards) and the Nixon Channel shoreline (57,000 cubic yards) fill areas under the 2006 and 2012 shoreline study conditions. Beach compatible material from (3) upland disposal islands would serve as a contingency sediment source.
Engineer modeling results have shown that periodic nourishment would be required approximately once every five years to maintain the beach and Nixon Channel shorelines. The combined 5-year estimated maintenance needs for both areas are 320,000 cubic yards of material under the 2006 condition and 255,000 cubic yards of material under 2012 condition, equivalent to approximately 58,000 and 45,000 cubic yards per year respectively. This material would come from the designated Nixon Channel borrow site and the (3) upland disposal areas.
3.
4.
The COE is currently consulting with the U.S. Fish and Wildlife Service and the National Marine Fisheries Service Protected Resources Division under the Endangered Species Act; with U.S. Fish and Wildlife under the Fish and Wildlife Coordination Act, and have concluded consultation with the National Marine Fisheries Service Habitat Conservation Division under the Magnuson-Stevens Act. Additionally, the FEIS assesses the potential water quality impacts pursuant to Section 401 of the Clean Water Act, and is coordinated with the North Carolina Division of Coastal Management (DCM) to insure consistency with the Coastal Zone Management Act. The COE has coordinated closely with DCM in the development of the FEIS to ensure the process complies with the requirements of the State Environmental Policy Act (SEPA), as well as the National Environmental Policy Act (NEPA). The FEIS has been designed to consolidate both NEPA and SEPA processes to eliminate duplications.
Department of the Navy, Department of Defense.
Notice.
Pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 United States Code [U.S.C.] Sections 4321-4370h); the Council on Environmental Quality (CEQ) regulations for implementing the procedural provisions of NEPA (Title 40 Code of Federal Regulations (CFR) parts 1500-1508); Department of the Navy (DoN) Procedures for Implementing NEPA (32 CFR part 775); and Marine Corps Order P5090.2A, the United States Marine Corps Forces Reserve (MARFORRES) has prepared an Environmental Assessment (EA) assessing the potential environmental impacts from the consolidation of approximately 55 full-time active duty and 549 reserve staff and their equipment from the Armed Forces Reserve Center Farmingdale and Marine Forces Reserve Center Garden City to Marine Corps Reserve Center Brooklyn. Additionally, MARFORRES would implement several associated facility and infrastructure improvements at MCRC Brooklyn, including a new utility corridor. Based on the EA analysis we are proposing to issue a Finding of No Significant Impact (FONSI) determining that an Environmental Impact Statement (EIS) is not required.
With the filing of the EA, the DON is initiating a 30-day public comment period and has scheduled a public open house to receive written comments on the EA. Federal, state, and local agencies and interested individuals are invited to attend the open house. This notice announces the date and location of the open house, and supplementary information about the environmental planning effort.
The EA public 30-day review period begins June 20, 2016. MARFORRES will hold an open house for the public to learn about the project and ask questions on Wednesday, June 29, 2016 from 6:00 p.m. to 9:00 p.m. at the Aviator Sports Club on Floyd Bennett Field.
The DON will consider all comments received on the EA when preparing the Final EA. The DON expects to issue the Final EA in August 2016, at which time
Copies are available at the Brooklyn Public Library, 2115 Ocean Avenue, Brooklyn, NY. Requests for copies of the EA can be submitted to Mr. Christopher Hurst, NEPA Project Manager U.S. Marine Corps Forces Reserve, 2000 Opelousas Avenue, New Orleans, LA 70114, or by email at
Mr. Christopher Hurst, NEPA Project Manager U.S. Marine Corps Forces Reserve, 2000 Opelousas Avenue, New Orleans, LA 70114, or by email at
MCRC Brooklyn encompasses approximately 70 acres of the 19,000-acre Jamaica Bay Unit of the National Park Service (NPS) Gateway National Recreation Area (NRA). MCRC Brooklyn is on the southernmost end of Floyd Bennett Field. Floyd Bennett Field was formerly U.S. Naval Air Station Brooklyn, New York, and was used from World War II until 1967, prior to its decommissioning in 1971.
Subsequently, the majority of the 1,450-acre property was transferred from the Department of Defense (DoD) to the U.S. Coast Guard and the NPS, a bureau of the Department of the Interior. The Navy retained the southern portion of Floyd Bennett Field and a series of parcel transfers deeded the property to MARFORRES in 1998 for continued use as MCRC Brooklyn. The remainder of Floyd Bennett Field is owned and managed by NPS as part of the Gateway NRA. All utilities, roads, and other infrastructure necessary for the installation require crossing NPS lands; therefore, the Department of Navy executes, on behalf of MARFORRES, any necessary permits with NPS for rights-of-way on NPS lands.
Gateway NRA is the nation's first urban national recreation area. It was established in 1972, is twice the size of Manhattan, and is divided into three administrative units: Jamaica Bay, Sandy Hook, and Staten Island. Gateway NRA has 27,025 acres of open bays, ocean, marsh islands, shoreline, dunes, maritime and successional forests, grasslands, mudflats, and open spaces. It includes marinas, greenways, campgrounds, trails, beaches, picnic grounds within historic landscapes, the remains of coastal defense works, rare structures from aviation history, and the oldest continuously operating lighthouse in the United States.
Due to an overall reduction in reserve forces, MARFORRES has examined options to consolidate training to optimize operational funds. MCRC Brooklyn is considered a highly valuable site by MARFORRES due to its potential for hosting additional units, centralized location, excess capacity, and size of its facilities. As such, MARFORRES continues to invest in modernization and renovation activities at MCRC Brooklyn. The environmental impacts from ongoing activities were analyzed in previous NEPA documents, and are therefore not part of the Proposed Action being addressed in this EA but are included in the cumulative effects analysis. Previously evaluated projects at MCRC Brooklyn include the following:
• Renovate the interior of the MCRC Brooklyn Administration Building, the original vehicle maintenance facility (VMF), and the existing Technical Storage Warehouse. Interior renovations include upgraded utilities and reconfiguration of offices.
• Construct a new VMF (currently under construction).
• Install two temporary armories (440 square feet each) in the tactical vehicle area and a covered weapons cleaning area.
• Install a 100-kilowatt (kW) demand response metering system. This system will help MARFORRES capture energy usage and savings for the installation.
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 August 29, 2016.
To access and review all the documents related to the information collection listed in this notice, please use
For specific questions related to collection activities, please contact Rachael Couch, 202-453-6078.
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.
(1) Public information campaigns designed to inform the community regarding opportunities for postsecondary education and training;
(2) Academic advice and assistance in course selection;
(3) Assistance in completing college admission and financial aid applications;
(4) Assistance in preparing for college entrance examinations;
(5) Education or counseling services designed to improve the financial literacy and economic literacy of students;
(6) Guidance on secondary school reentry or entry to a general educational development (GED) program or other alternative education program for secondary school dropouts;
(7) Individualized personal, career, and academic counseling;
(8) Tutorial services;
(9) Career workshops and counseling;
(10) Mentoring programs involving elementary or secondary school teachers, faculty members at institutions of higher education (IHEs), students, or any combination of these persons; and
(11) Programs and activities as described in items (1) through (10) that are specially designed for students who are limited English proficient, students from groups that are traditionally underrepresented in postsecondary education, students with disabilities, students who are homeless children and youths, students who are in foster care or are aging out of the foster care system, or other disconnected students.
(12) Other activities designed to meet the purposes of the EOC Program.
This is a supplemental notice in the above-referenced proceeding of Western Antelope Dry Ranch 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 July 13, 2016.
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
This is a supplemental notice in the above-referenced proceeding of Tidal Energy Marketing Inc.'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 July 11, 2016.
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 corporate filings:
Take notice that the Commission received the following electric rate filings:
ER10-1817-014.
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:
The Federal Energy Regulatory Commission (Commission) hereby gives notice that members of the Commission's staff may attend the following meeting related to the transmission planning activities of the Northern Tier Transmission Group, whose members include NorthWestern
The above-referenced meeting will be held at: Boise Airport Conference Center, 3201 Airport Way, Suite 1000, Boise, ID 83705.
The above-referenced meeting is open to stakeholders.
Further information may be found at this link.
The discussions at the meeting described above may address matters at issue in the following proceeding:
For more information, contact Navin Shekar (
Take notice that on June 22, 2016, pursuant to Rule 207(a)(2) of the Federal Energy Regulatory Commission's (Commission) Rules of Practice and Procedure, 18 CFR 385.207(a)(2) (2015), BridgeTex Pipeline Company, LLC (BridgeTex), filed a petition for a declaratory order (1) approving the proposed tariff and overall rate structure and terms of service for a proposed expansion of the existing BridgeTex pipeline system to offer service to shippers from the Eaglebine production area in Texas (Eaglebine Expansion Project), and (2) ruling that the regulatory assurances provided by the Commission in its declaratory order issued on October 12, 2012 in Docket No. OR12-25-000, which approved the proposed tariff and rate structure of the existing BridgeTex Pipeline system, are not affected by the Eaglebine Expansion Project, all as more fully explained in the petition.
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
This is a supplemental notice in the above-referenced proceeding of Hydro Renewable Energy Inc.'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 July 11, 2016.
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
This is a supplemental notice in the above-referenced proceeding of Boulder Solar Power, 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 July 11, 2016.
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 has received the following Natural Gas Pipeline Rate and Refund Report filings:
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.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission received the following electric rate filings:
Take notice that the Commission received the following electric securities 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:
This is a supplemental notice in the above-referenced proceeding of Western Antelope Blue Sky Ranch B 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 July 13, 2016.
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 has received the following Natural Gas Pipeline Rate and Refund Report 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:
On June 10, 2016, the City of Libby, MT filed a notice of intent to construct a qualifying conduit hydropower facility, pursuant to section 30 of the Federal Power Act (FPA), as amended by section 4 of the Hydropower Regulatory Efficiency Act of 2013 (HREA). The proposed Libby PRV Station Hydroelectric Project would have an installed capacity of 18 kilowatts (kW) and would be located at a 10-inch-diameter pipe in a pressure reducing station at the City of Libby water treatment plant The project would be located near the City of Libby in Lincoln County, Montana.
A qualifying conduit hydropower facility is one that is determined or deemed to meet all of the criteria shown in the table below.
The deadline for filing motions to intervene is 30 days from the issuance date of this notice.
Anyone may submit comments or a motion to intervene in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210 and 385.214. Any motions to intervene must be received on or before the specified deadline date for the particular proceeding.
The Commission strongly encourages electronic filing. Please file motions to intervene and comments using the Commission's eFiling system at
This is a supplemental notice in the above-referenced proceeding of Marshall Solar, 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 July 11, 2016.
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
This is a supplemental notice in the above-referenced proceeding of Elevation Solar C 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 July 11, 2016.
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
This is a supplemental notice in the above-referenced proceeding of Antelope DSR 2, LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.
Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.
Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is July 13, 2016.
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 corporate filings:
Take notice that the Commission received the following exempt wholesale generator filings:
Take notice that the Commission received the following electric rate filings:
Description: Baseline eTariff Filing: Baseline New to be effective 8/22/2016.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:
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 date(s). Protests may be considered, but intervention is necessary to become a party to the proceeding.
Any person desiring to protest in any of the above proceedings must file in accordance with Rule 211 of the Commission's Regulations (18 CFR 385.211) on or before 5:00 p.m. Eastern time on the specified comment date.
The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.
eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at:
Environmental Protection Agency (EPA).
Notice of adequacy.
The Environmental Protection Agency (EPA) is notifying the public that it has found that the motor vehicle emissions budgets (MVEBs) in the Baton Rouge, Louisiana 2008 8-hour Ozone National Ambient Air Quality Standard (NAAQS) Maintenance Plan State Implementation Plan (SIP) revision, submitted on May 2, 2016 by the Louisiana Department of Environmental Quality (LDEQ) are adequate for transportation conformity purposes. As a result of EPA's finding, the Baton Rouge area must use these budgets for future conformity determinations.
These budgets are effective July 14, 2016.
The essential information in this notice will be available at EPA's conformity Web site:
Throughout this document “we,” “us,” and “our” refers to EPA. The word “budget(s)” refers to the mobile source emissions budget for volatile organic compounds (VOCs) and the mobile source emissions budget for nitrogen oxides (NO
On May 2, 2016, we received a SIP revision from the LDEQ. This revision consisted of a 2008 8-hour ozone NAAQS redesignation request and maintenance plan SIP for the Baton Rouge area. This submission established MVEBs for the Baton Rouge area for the years 2022 and 2027. The MVEB is the amount of emissions allowed in the state implementation plan for on-road motor vehicles; it establishes an emissions ceiling for the regional transportation network. The MVEBs are provided in Table 1:
On May 6, 2016, EPA posted the availability of the Baton Rouge area MVEBs on EPA's Web site for the purpose of soliciting public comments, as part of the adequacy process pursuant to 40 CFR 93.118(e)(4). The comment period closed on June 6, 2016, and we received no comments.
Today's notice is simply an announcement of a finding that EPA has already made. EPA Region 6 sent a letter to LDEQ on June 13, 2016, finding that the MVEBs in the Baton Rouge Maintenance Plan SIP, submitted on May 2, 2016 are adequate and must be used for transportation conformity determinations in the Baton Rouge area. This finding has also been announced on EPA's conformity Web site:
Transportation conformity is required by section 176(c) of the Clean Air Act. EPA's conformity rule, 40 Code of
The criteria by which EPA determines whether a SIP's MVEB is adequate for transportation conformity purposes are outlined in 40 CFR 93.118(e)(4). We have also described the process for determining the adequacy of submitted SIP budgets in our July 1, 2004, final rulemaking entitled, “Transportation Conformity Rule Amendments for the New 8-hour Ozone and PM
These new MVEBs are effective July 14, 2016. Within 24 months from the effective date of this notice, the Baton Rouge area transportation partners, such as the Capital Region Planning Commission, will need to demonstrate conformity to the new MVEBs if the demonstration has not already been made, pursuant to 40 CFR 93.104(e). See 73 FR 4419 (January 24, 2008).
42 U.S.C. 7401
Environmental Protection Agency (EPA).
Notice of proposed consent decree; request for public comment.
In accordance with section 113(g) of the Clean Air Act, as amended (“CAA” or the “Act”), notice is hereby given of a proposed consent decree to address a lawsuit filed by the Sierra Club (“Plaintiff”) in the United States District Court for the Northern District of California:
Written comments on the proposed consent decree must be received by July 29, 2016.
Submit your comments, identified by Docket ID number EPA-HQ-OGC-2016-0364, online at
Zachary Pilchen, Air and Radiation Law Office (2344A), Office of General Counsel, U.S. Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460; telephone: (202) 564-2812; fax number (202) 564-5603; email address:
This proposed consent decree would resolve a lawsuit filed by Plaintiffs seeking to compel the Administrator to take action under CAA section 110(k)(2)-(4). Plaintiffs allege that the Administrator has failed to perform a non-discretionary duty to take final action on the portion of Louisiana's SIP submission intended to address the requirements of 42 U.S.C. 7410(a)(2)(D)(i) for the 2008 ozone NAAQS. Under the terms of the proposed consent decree, EPA would agree to take certain specified actions by August 1, 2016, by October 3, 2016, and by December 15, 2017 to resolve those claims. See the proposed consent decree for more details.
Plaintiffs also allege that the Administrator has failed to perform a non-discretionary duty to take final action on the portion of New Jersey's SIP submission intended to address requirements of 42 U.S.C. 7410(a)(2)(D)(i)(II) for the 2008 ozone NAAQS. Under the terms of the proposed consent decree, EPA would agree to take certain specified actions by September 30, 2016 to resolve those claims. See the proposed consent decree for more details.
Plaintiffs also allege that the Administrator has failed to perform a non-discretionary duty to take final action on the portion of New York's SIP submission intended to address requirements of 42 U.S.C. 7410(a)(2)(D)(i) for the 2008 ozone NAAQS. Under the terms of the proposed consent decree, EPA would agree to take certain specified actions by August 15, 2016 and by November 1, 2016 to resolve those claims. See the proposed consent decree for more details.
Plaintiffs also allege that the Administrator has failed to perform a non-discretionary duty to take final action on the portion of Wisconsin's SIP submission intended to address certain requirements of 42 U.S.C. 7410(a)(2)(D)(i) for the 2008 ozone NAAQS. Under the terms of the proposed consent decree, EPA would agree to take certain specified actions by August 1, 2016 and by December 16, 2016 to resolve those claims. See the proposed consent decree for more details.
Plaintiffs also allege that the Administrator has failed to perform a non-discretionary duty to take final action on the portion of Wisconsin's SIP submission intended to address certain requirements of 42 U.S.C. 7410(a)(2)(D)(i) for the 2008 ozone
Plaintiffs also allege that the Administrator has failed to perform a non-discretionary duty to promulgate a FIP for California to address certain requirements of 42 U.S.C. 7410(a)(2)(A)-(C), (D)(i)(II)-(H), and (J)-(M) for the 2008 ozone NAAQS. Under the terms of the proposed consent decree, EPA would agree to take certain specified actions by September 23, 2016, by December 16, 2016, by March 15, 2017, and by December 15, 2017 to resolve those claims. See the proposed consent decree for more details.
The proposed consent decree also provides for the possibility that circumstances beyond EPA's reasonable control could delay compliance with these deadlines, and provides a framework for extending these deadlines. In addition, the proposed consent decree outlines a process for Plaintiff to seek payment for the costs of litigation, including attorney fees.
For a period of thirty (30) days following the date of publication of this notice, the Agency will accept written comments relating to the proposed consent decree from persons who are not named as parties or intervenors to the litigation in question. EPA or the Department of Justice may withdraw or withhold consent to the proposed consent decree if the comments disclose facts or considerations that indicate that such consent is inappropriate, improper, inadequate, or inconsistent with the requirements of the Act. Unless EPA or the Department of Justice determines that consent to this consent decree should be withdrawn, the terms of the consent decree will be affirmed.
The official public docket for this action (identified by Docket ID No. EPA-HQ-OGC-2016-0364) contains a copy of the proposed consent decree. The official public docket is available for public viewing at the Office of Environmental Information (OEI) Docket in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave. NW., Washington, DC. The EPA Docket Center Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OEI Docket is (202) 566-1752.
An electronic version of the public docket is available through
It is important to note that EPA's policy is that public comments, whether submitted electronically or in paper, will be made available for public viewing online at
You may submit comments as provided in the
If you submit an electronic comment, EPA recommends that you include your name, mailing address, and an email address or other contact information in the body of your comment and with any disk or CD ROM you submit. This ensures that you can be identified as the submitter of the comment and allows EPA to contact you in case EPA cannot read your comment due to technical difficulties or needs further information on the substance of your comment. Any identifying or contact information provided in the body of a comment will be included as part of the comment that is placed in the official public docket, and made available in EPA's electronic public docket. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment.
Use of the
Federal Communications Commission.
Notice and request for comments.
As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communication Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated
The FCC may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.
Written comments should be submitted on or before July 29, 2016. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts below as soon as possible.
Direct all PRA comments to Nicholas A. Fraser, OMB, via email
For additional information or copies of the information collection, contact Cathy Williams at (202) 418-2918. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page <
Federal Deposit Insurance Corporation (FDIC).
Notice and request for comment.
The FDIC, 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 the renewal of existing information collections, as required by the Paperwork Reduction Act of 1995. Currently, the FDIC is soliciting comment on the renewal of the information collections described below.
Comments must be submitted on or before August 29, 2016.
Interested parties are invited to submit written comments to the FDIC by any of the following methods:
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All comments should refer to the relevant OMB control number. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
Manny Cabeza, at the FDIC address above.
Proposal to renew the following currently-approved collections of information:
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This information collection includes the following:
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Comments are invited on: (a) Whether the collections of information are necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the collections of information, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collections of information on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.
The Commission hereby gives notice of the filing of the following agreements under the Shipping Act of 1984. Interested parties may submit comments on the agreements 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.
Board of Governors of the Federal Reserve System.
Notice is hereby given of the final approval of a proposed information collection by the Board of Governors of the Federal Reserve System (Board) under OMB delegated authority. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Board may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551; (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235 725 17th Street NW., Washington, DC 20503.
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In addition, the Board now provides registrants the option of submitting FR 4013 notices via the secure email address
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Board of Governors of the Federal Reserve System.
Notice is hereby given of the final approval of a proposed information collection by the Board of Governors of the Federal Reserve System (Board) under OMB delegated authority. Board-approved collections of information are incorporated into the official OMB inventory of currently approved collections of information. Copies of the Paperwork Reduction Act Submission, supporting statements and approved collection of information instrument(s) are placed into OMB's public docket files. The Federal Reserve may not conduct or sponsor, and the respondent is not required to respond to, an information collection that has been extended, revised, or implemented on or after October 1, 1995, unless it displays a currently valid OMB control number.
Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551 (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.
OMB Desk Officer—Shagufta Ahmed—Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Room 10235 725 17th Street, NW., Washington, DC 20503.
The FR 1379a is not considered confidential. The FR 1379b collects the respondent's name and the respondent may provide other personal information and information regarding his or her complaint. The FR 1379c collects the respondent's third-party representative if the respondent has such a representative. The FR 1379d collects the respondent's name and the respondent may provide other personal information and information regarding his or her complaint. Thus, some of the information collected on the FR 1379b, FR 1379c, and FR 1379d may be considered confidential under the Freedom of Information Act (5 U.S.C. 552(b)(4), (b)(6), (b)(7)).
Information obtained from small business and individuals may be kept confidential under the Freedom of Information Act (FOIA). Information obtained from small businesses can be considered confidential under exemption (b)(4) of the FOIA because the release of information obtained from small businesses would (1) impair the Board's ability to obtain this information from entities that could not be compelled to respond, and (2) cause substantial harm to the competitive position of the entity from whom the information was obtained (5 U.S.C. 552(b)(4)). In addition, information obtained from consumers may be kept confidential under exemption (b)(6) of the FOIA because the information the survey collects is the type of information that would constitute a clearly unwarranted invasion of personal privacy (
Administration for Community Living, HHS.
Notice.
The Administration for Community Living (ACL) is announcing an opportunity for the public to comment on ACL's intention to collect information from the public related to the Senior Medicare Patrol (SMP) Program. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish a notice in the
Submit written comments by on the collection of information by July 29, 2016.
Submit electronic comments on the collection of information to:
Katherine Glendening 202-795-7350.
Under the PRA (44 U.S.C. 3501-3520), Federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. “Collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires Federal agencies to provide a 60-day notice in the
The Senior Medicare Patrol Program (SMP) was created under Titles II and IV of the Older Americans Act, (42 U.S.C. 3032), the amendments of 2006 (Pub. L. 109-365) and the Health Insurance Portability and Accountability Act of 1996 (Pub. L. 104-191). The mission of the SMP program is to empower and assist Medicare beneficiaries, their families, and caregivers to prevent, detect, and report health care fraud, errors, and abuse through outreach, counseling, and education. The SMP program empowers Medicare beneficiaries through increased awareness and understanding of healthcare programs and helps them protect themselves from the economic and health-related consequences of Medicare fraud, waste, and abuse. The SMP program provides services through a national network of SMP grantees that are located in every state, the District of Columbia, Puerto Rico, and Guam. In 2014, SMPs conducted more than 14,000 education session presentations, with a total audience of 450,000 individuals.
The SMP Customer Satisfaction Survey will focus on education session presentations and the individuals who attend them, to determine if the target audience is satisfied with the information they are receiving. While the SMP program currently tracks output and outcome measures such as number of SMP Team members, group outreach and education events, individual interactions and savings, customer satisfaction is not one of them. As a result, there is no current understanding of the link between the quality of the information received and the likelihood to avoid healthcare fraud, errors, and abuse.
The SMP survey will be conducted over a three-year period beginning in Fiscal Year 2017 (FY17), with sites in each of the 50 states, the District of Columbia and the territories of Guam and Puerto Rico being surveyed once during the three-year period. Results from the surveys will be used to understand satisfaction among individuals who attend SMP education sessions, as well as how the program can be improved to provide better service to its target population.
Eighteen (18) unique states will be surveyed in FY17, with each state expected to generate 75 unique responses, for a total of 1,350 individual responses in Year 1. This process will then be replicated in Year 2 (FY18) and Year 3 (FY19), with a different group of 18 states and territories being surveyed each year. By the end of FY19, SMP will obtain 4,050 completed surveys to measure satisfaction at the state and national levels (18 states × 75 responses per state × 3 years). SMP will use the following factors to draw a representative sample of education session attendees:
• Randomly select 18 states and territories to be surveyed each year, with the states stratified by the average number of education session attendees per month.
• Survey a specific site no more than once.
• Sample from at least five presenters in each state.
• Survey no fewer than five events and no more than 20 events in each state.
• Survey no more than two events per month in each state.
To generate a sample with a 95% confidence level at the national level, a minimum of 400 responses will be required, which is based on over 450,000 education session attendees in 2014. SMP anticipates collecting 75 completed surveys per state, for a total collection of 4,050 completed surveys. This larger collection will enable ACL to make state-to-state comparisons, which is an important feature of this survey. It will also provide each state with sufficient information to take local action to improve service within budgetary constraints.
OMB approval is requested for 3 years. There are no costs to respondents other than their time. The average annual burden associated with these activities is summarized below:
Food and Drug Administration, HHS.
Notice; establishment of a public docket; request for comments.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Microbiology Devices Panel of the Medical Devices Advisory Committee. The general function of the committee is to provide advice and recommendations to the Agency on FDA's regulatory issues. The meeting will be open to the public. FDA is establishing a docket for public comment on this document.
The meeting will be held on August 16, 2016, from 8 a.m. to 6 p.m.
FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31 Conference Center, the Great Room (Rm. 1503), Silver Spring, MD 20993-0002. Answers to commonly asked questions including information regarding special accommodations due to a disability, visitor parking, and transportation may be accessed at:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Shanika Craig, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1613, Silver Spring, MD 20993-0002, 301-796-6639,
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA is establishing a docket for public comment on this document. The docket number is FDA-2016-N-1660. The docket will close on September 16, 2016. Comments received on or before July 26, 2016, will be provided to the committee. Comments received after that date will be taken into consideration by the Agency.
For press inquiries, please contact the Office of Media Affairs at
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please contact Artair Mallett, at
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) is announcing the availability of a draft guidance entitled “Procedures for Evaluating Appearance Issues and Granting Authorizations for Participation in FDA Advisory Committees; Guidance for the Public, FDA Advisory Committee Members, and FDA Staff.” This draft guidance addresses FDA's process, under Government-wide Federal regulations, for evaluating whether an advisory committee member has an appearance issue that raises concerns about the member's participation in an advisory committee meeting and describes FDA's process for determining whether to authorize a member with an appearance issue to participate in the advisory committee meeting. This draft guidance is not final nor is it in effect at this time.
FDA is also requesting comment on whether FDA should request that each advisory committee member who has an appearance issue and who has received an authorization from FDA to participate in an advisory committee meeting voluntarily publicly disclose the authorization.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that the Agency considers your comments on this draft guidance before it begins work on the final version of the guidance, submit either electronic or written comments on the draft guidance by September 27, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential,
• 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 CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Submit written requests for a single hard copy of the draft guidance entitled “Procedures for Evaluating Appearance Issues and Granting Authorizations for Participation in FDA Advisory Committees; Guidance for the Public, FDA Advisory Committee Members, and FDA Staff” to the Advisory Committee Oversight and Management Staff, Office of Special Medical Programs, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5103, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request.
Michael Ortwerth, Advisory Committee Oversight and Management Staff, Office of Special Medical Programs, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 32, Rm. 5103, Silver Spring, MD 20993-0002, 301-796-8220.
Advisory committees provide independent, expert advice to FDA on a range of issues affecting the public health. To protect the credibility and integrity of advisory committee advice, FDA screens advisory committee members carefully for two categories of potentially disqualifying interests or relationships: (1) Current financial interests that may create a recusal obligation under Federal conflict of interest laws (18 U.S.C. 208) and (2) other interests and relationships that do not create a recusal obligation under financial conflict of interest laws but may create the appearance that the member lacks impartiality (5 CFR 2635.502). This draft guidance addresses FDA's process for evaluating whether an advisory committee member has potentially disqualifying interests or relationships that fall into the second category of interests, which are known as appearance issues, under 5 CFR 2635.502. It also describes FDA's process for determining whether to authorize a member with an appearance issue to participate in an advisory committee meeting under 5 CFR 2635.502.
In addition, FDA is seeking comment regarding public disclosure of such authorizations. Under Federal laws protecting the confidentiality of information, FDA may not itself disclose confidential information provided by advisory committee members related to appearance issues. FDA is soliciting comment on whether the agency should ask members with appearance issues who are authorized to participate in an advisory committee meeting to voluntarily publicly disclose authorization. The Agency will consider these comments in developing the final guidance document.
This draft guidance is being issued consistent with FDA's good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent the Agency's current thinking on the processes for evaluating appearance issues and granting an authorization. It does not create or confer any rights for or on any person and does not operate to bind FDA or the public. An alternative approach may be used if such approach satisfies the requirements of the applicable statute and regulations.
Persons interested in obtaining a copy of the draft guidance may do so by downloading an electronic copy from the Internet at either
Food and Drug Administration, HHS.
Notice.
The Food and Drug Administration (FDA) announces a forthcoming public advisory committee meeting of the Anesthetic and Analgesic Drug Products Advisory Committee and the Drug Safety and Risk Management Advisory Committee. The general function of the committees is to provide advice and recommendations to the Agency on FDA's regulatory issues. At least one portion of the meeting will be closed to the public.
The meeting will be held on August 4, 2016, from 8 a.m. to 5 p.m.
FDA White Oak Campus, 10903 New Hampshire Ave., Bldg. 31
Philip A. Bautista, Center for Drug Evaluation and Research, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 31, Rm. 2417, Silver Spring, MD 20993-0002, 301-796-9001, FAX: 301-847-8533,
FDA intends to make background material available to the public no later than 2 business days before the meeting. If FDA is unable to post the background material on its Web site prior to the meeting, the background material will be made publicly available at the location of the advisory committee meeting, and the background material will be posted on FDA's Web site after the meeting. Background material is available at
Persons attending FDA's advisory committee meetings are advised that the Agency is not responsible for providing access to electrical outlets.
FDA welcomes the attendance of the public at its advisory committee meetings and will make every effort to accommodate persons with disabilities. If you require accommodations due to a disability, please Philip Bautista at least 7 days in advance of the meeting.
FDA is committed to the orderly conduct of its advisory committee meetings. Please visit our Web site at
Notice of this meeting is given under the Federal Advisory Committee Act (5 U.S.C. app. 2).
Food and Drug Administration, HHS.
Notice of availability.
The Food and Drug Administration (FDA or we) is announcing the availability of a draft guidance for the public and FDA staff entitled “Gifts to FDA: Evaluation and Acceptance.” The Secretary of the Department of Health and Human Services (HHS) has the authority to accept conditional or unconditional gifts on behalf of the United States. The Secretary has delegated this gift authority to the Commissioner of Food and Drugs. This guidance provides the process and principles we will use in implementing this authority.
Although you can comment on any guidance at any time (see 21 CFR 10.115(g)(5)), to ensure that we consider your comment on this draft guidance before we begin work on the final version of the guidance, submit either electronic or written comments on the draft guidance by September 12, 2016.
You may submit comments as follows:
Submit electronic comments in the following way:
•
• If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).
Submit written/paper submissions as follows:
•
• For written/paper comments submitted to the Division of Dockets Management, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”
• Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on
Submit written requests for single copies of the draft guidance to the Office of Policy, Office of the Commissioner, Food and Drug Administration, Bldg. 32, Rm. 4235, 10903 New Hampshire Ave., Silver Spring, MD, 20993. Send one self-addressed adhesive label to assist that office in processing your requests. See the
Aaron Zimmerman, Office of Policy, Office of the Commissioner, Food and Drug Administration, Bldg. 32, Rm. 4235, 10903 New Hampshire Ave., Silver Spring, MD, 20993. 301-796-0339,
FDA is announcing the availability of a draft guidance for the public and FDA staff entitled “Gifts to FDA: Evaluation and Acceptance.” The Secretary of HHS has the authority to accept conditional or unconditional gifts on behalf of the United States. The Secretary has delegated this gift authority to the Commissioner of Food and Drugs. This guidance provides the process and principles we will use in implementing this authority.
FDA will consider gifts from all sources on a case-by-case basis using a balancing test, described in the draft guidance. While any person may offer a gift, there are five reasons we should reject a gift without additional evaluation. We should not accept a gift if: (1) The donor imposes conditions that are illegal, are contrary to public policy, are unreasonable to administer, are contrary to FDA's current policies and procedures, or are contrary to generally accepted public standards; (2) the donor requires us to provide the donor with some privilege, concession, or other present or future benefit in return for the gift; (3) a debarred entity offers the gift; (4) a different authority or financial mechanism applies; or (5) the total costs associated with acceptance are expected to exceed the cost of purchasing a similar item and the cost of normal care and maintenance.
This draft guidance is being issued consistent with our good guidance practices regulation (21 CFR 10.115). The draft guidance, when finalized, will represent our current thinking on this matter. 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.
Persons with access to the Internet may obtain the document at either
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.
This notice is being published less than 15 days prior to the meeting due to the timing
Notice of Meeting.
Pursuant to the NIH Reform Act of 2006 (42 U.S.C. 281(d)(4)), notice is hereby given that the National Institutes of Health (NIH), Precision Medicine Initiative® (PMI) Cohort Program will host two (2) teleconferences to enable public discussion of its proposal to align the authority and responsibility for the execution of PMI Cohort Program by establishing this program within the NIH Office of the Director, and reporting to the NIH Director.
Two (2) teleconferences will be held on the following days:
(1) Tuesday, July 5, 2016, 3:00-3:45 p.m. ET
(2) Wednesday, July 13, 2016, 2:00-2:45 p.m. ET
Any interested person may submit their written comments via the form provided at
Members of the public wishing to attend the July 5 teleconference are asked to Web RSVP by 12:00 p.m., Tuesday, July 5, 2016 at
Members of the public wishing to attend the July 13 teleconference are asked to Web RSVP by 11:00 a.m. ET, Wednesday, July 13, 2016, at
The PMI Cohort Program at
The PMI Working Group of the Advisory Committee to the NIH Director (ACD) recommended that the authority and responsibility for the implementation and execution of the PMI Cohort Program be established in the NIH Office of the Director and that the PMI Cohort Program Director report to the NIH Director. On September 17, 2015, the NIH ACD supported the PMI Working Group Report with this recommendation and this report was subsequently accepted by the NIH Director. For additional information about the PMI Cohort Program, please visit the Web site at
Advisory Council on Historic Preservation.
Notice of Advisory Council on Historic Preservation Quarterly Business Meeting.
Notice is hereby given that the Advisory Council on Historic Preservation (ACHP) will hold its next quarterly meeting on Thursday, July 14, 2016. The meeting will be held in Room SR325 at the Russell Senate Office Building at Constitution and Delaware Avenues NE., Washington, DC, starting at 10:30 a.m. DST.
The quarterly meeting will take place on Thursday, July 14, 2016, starting at 10:30 a.m.
The meeting will be held in Room SR325 at the Russell Senate Office Building at Constitution and Delaware Avenues NE., Washington, DC.
Cindy Bienvenue, 202-517-0202,
The Advisory Council on Historic Preservation (ACHP) is an independent federal agency that promotes the preservation, enhancement, and sustainable use of our nation's diverse historic resources, and advises the President and the Congress on national historic preservation policy. The goal of the National Historic Preservation Act (NHPA), which established the ACHP in 1966, is to have federal agencies act as responsible stewards of our nation's resources when their actions affect historic properties. The ACHP is the only entity with the legal responsibility to encourage federal agencies to factor historic preservation into federal project requirements. For more information on the ACHP, please visit our Web site at
The agenda for the upcoming quarterly meeting of the ACHP is the following:
The meetings of the ACHP are open to the public. If you need special accommodations due to a disability, please contact Cindy Bienvenue, 202-517-0202 or
54 U.S.C. 304102.
Office of the Chief Information Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for renewal of the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Anna P. Guido, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410-5000; telephone 202-402-5535 (this is not a toll-free number) or email at
Anna P. Guido, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Anna P. Guido at
Copies of available documents submitted to OMB may be obtained from Ms. Guido.
This notice informs the public that HUD is seeking approval from OMB for renewal of the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comments in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Assistant Secretary for Housing—Federal Housing Commissioner, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Colette Pollard, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410-5000; telephone 202-402-3400 (this is not a toll-free number) or email at
Robert Iber, Acting Director, Office of Asset Management and Portfolio Oversight, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
In notice document 2016-14895 beginning on page 40899 in the issue of Thursday, June 23, 2016, make the following correction:
1. On page 40899, in the third column, in the 5th line, “June 23, 2016” should read “July 25, 2016”
Office of the Chief Information Officer, HUD.
Notice.
HUD is seeking approval from the Office of Management and Budget (OMB) for renewal of the information collection described below. In accordance with the Paperwork Reduction Act, HUD is requesting comment from all interested parties on the proposed collection of information. The purpose of this notice is to allow for 60 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: Anna P. Guido, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Room 4176, Washington, DC 20410-5000; telephone 202-402-5535 (this is not a toll-free number) or email at
Anna P. Guido, Reports Management Officer, QDAM, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Anna P. Guido at
Copies of available documents submitted to OMB may be obtained from Ms. Guido.
This notice informs the public that HUD is seeking approval from OMB for renewal of the information collection described in Section A.
The
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
Office of the Chief Information Officer, HUD.
Notice.
HUD has submitted the proposed information collection requirement described below to the Office of Management and Budget (OMB) for review, in accordance with the Paperwork Reduction Act. The purpose of this notice is to allow for an additional 30 days of public comment.
Interested persons are invited to submit comments regarding this proposal. Comments should refer to the proposal by name and/or OMB Control Number and should be sent to: HUD Desk Officer, Office of Management and Budget, New Executive Office Building, Washington, DC 20503; fax: 202-395-5806. Email:
Colette Pollard, Reports Management Officer, QMAC, Department of Housing and Urban Development, 451 7th Street SW., Washington, DC 20410; email Colette Pollard at
Copies of available documents submitted to OMB may be obtained from Ms. Pollard.
This notice informs the public that HUD is seeking approval from OMB for the information collection described in Section A.
The
HUD must specify tenant eligibility requirements as well as how tenants' incomes, rents and assistance must be verified and computed so as to prevent HUD from making improper payments to owners on behalf of assisted tenants. These information collections are essential to ensure the reduction of improper payments standard in providing $9.5 billion in rental assistance to low-income families in HUD Multifamily properties.
a. These collections are authorized by the following statutes:
• Section 8 (42 U.S.C. 1437
• Rent Supplement (12 U.S.C. 1701s).
• Rental Assistance Payments (12 U.S.C. 1715z-1).
• Section 236 (12 U.S.C. 1172z-1).
• Section 221(d) (3) Below Market Interest Rate (12 U.S.C. 1715l).
• Title VI of the Civil Rights Act of 1964.
• Title VIII of the Civil Rights Act of 1968, as amended (Section 808).
• Executive Order 11063, Equal Opportunity in Housing.
• Social Security Numbers (42 U.S.C. 3543).
• Section 562 of the Housing and Community Development Act of 1987.
• Section 202 of the Housing Act of 1959, as amended.
• Section 811 of the National Affordable Housing Act of 1980.
• Computer Matching and Privacy Protection Act of 1988 (102 Statute 2507).
• Privacy Act of 1974 (5 U.S.C. 552a), Records Maintained on Individuals.
• Quality Housing and Work Responsibility Act of 1998 (QHWRA).
• Section 658 of Title VI of Subtitle D of the Housing and Community Development Act of 1992.
• Executive Order 13520 of November 20, 2009, The Improper Payments Elimination and Recovery Act (IPERA).
• Executive Order 13515 of October 14, 2009, Increasing Participation of Asian Americans and Pacific Islanders in Federal Programs.
b. These collections are covered by the following regulations:
• Section 8: 24 CFR part 5, 24 CFR 880, 24 CFR 884, 24 CFR 886, 24 CFR 891 Subpart E.
• Section 236 and Rental Assistance Payments: 24 CFR 236.
• Section 221(d) (3): 24 CFR 221.
• Racial, Sex, Ethnic Data: 24 CFR 121.
• Nondiscrimination and Equal Opportunity in Housing: 24 CFR 107.
• Nondiscrimination in Federal Programs: 24 CFR 1.
• Social Security Numbers: 24 CFR part 5.
• Procedures for Obtaining Wage and Claim Information Agencies: 24 CFR part 760.
• Implementation of the Privacy Act of 1974: 24 CFR part 16.
• Mandated use of HUD's Enterprise Income Verification (EIV) System: 24 CFR 5.233.
This notice is soliciting comments from members of the public and affected parties concerning the collection of information described in Section A on the following:
(1) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility;
(2) The accuracy of the agency's estimate of the burden of the proposed collection of information;
(3) Ways to enhance the quality, utility, and clarity of the information to be collected; and
(4) Ways to minimize the burden of the collection of information on those who are to respond; including through the use of appropriate automated collection techniques or other forms of information technology,
HUD encourages interested parties to submit comment in response to these questions.
Section 3507 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35.
U.S. Geological Survey (USGS), Interior.
Notice of an extension of a currently approved information collection (1028-0060) Mine, Development, and Mineral Exploration Supplement.
We (the U.S. Geological Survey) are asking the Office of Management and Budget (OMB) to approve the information collection (IC) described below. This collection consists of 1 form. As required by the Paperwork Reduction Act (PRA) 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 collection is scheduled to expire on June 30, 2016.
To ensure that your comments are considered, OMB must receive them on or before July 29, 2016.
Please submit your written comments on this IC directly to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attention: Desk Officer for the Department of the Interior, at
Shonta Osborne at 703-648-7960 (telephone);
Respondents to this form supply the USGS with domestic production, exploration, and mine development data for nonfuel mineral commodities. This information will be published as an Annual Report for use by Government agencies, industry, education programs, and the general public.
On February 26, 2016, a 60-day
Please note that the comments submitted in response to this notice are a matter of public record. Before including your personal mailing address, phone number, email address, or other personally identifiable information in your comment, you should be aware that your entire comment, including your personally identifiable information, may be made publicly available at any time. While you can ask us in your comment to withhold your personally identifiable information from public view, we cannot guarantee that it will be done.
Bureau of Indian Affairs, Interior.
Notice of availability.
This notice advises the public that the Bureau of Indian Affairs (BIA) as lead agency, with the Seminole Tribe of Florida (STOF), City of Coconut Creek (City), and Broward County (County) serving as cooperating agencies, intends to file a Final Environmental Impact Statement (FEIS) with the U.S. Environmental Protection Agency (EPA) for the Seminole Tribe of Florida Fee-to-Trust Project, City of Coconut Creek, Florida, Broward County, Florida. This notice announces that the FEIS is now available for public review.
The Record of Decision on the proposed action will be issued on or after 30 days from the date the EPA publishes its Notice of Availability in the
You may mail or hand-deliver written comments to Mr. Franklin Keel, Eastern Regional Director, Bureau of Indian Affairs, 545 Marriott Drive, Suite 700, Nashville, Tennessee 37214. Please include your name, return address, and the caption: “FEIS Comments, Seminole Tribe of Florida Fee-to-Trust Project,” on the first page of your written comments.
Mr. Chester McGhee, Regional Environmental Scientist, Bureau of Indian Affairs, Eastern Region, 545 Marriott Drive, Suite 700, Nashville, Tennessee 37214; fax (615) 564-6701; telephone (615) 564-6830.
The BIA serves as the Lead Agency for compliance with the National Environmental Policy Act (NEPA). The BIA held a public scoping meeting for the project on September 15, 2010, at the Coral Springs High School Auditorium, in Coral Springs, Florida. A notice of availability for the Draft EIS was published in the
To obtain a compact disk copy of the FEIS, please provide your name and address in writing or by voicemail to Mr. Chester McGhee, Regional Environmental Scientist, Bureau of Indian Affairs, Eastern Regional Office. Contact information is listed above in the
This notice is published pursuant to the Council of Environmental Quality Regulations (40 CFR parts 1500 through 1508) and the Department of the Interior Regulations (43 CFR part 46), implementing the procedural requirements of the NEPA, as amended (42 U.S.C. 4371,
Bureau of Land Management, Interior.
Public land order.
This order extends the duration of the withdrawal created by Public Land Order No. 7209 for an additional 20-year period, which would otherwise expire on July 24, 2016. This extension is necessary to continue to protect the fragile, unique, and endangered natural and cultural resources at Cape Johnson, which is located adjacent to the Olympic National Park in Clallam County, Washington.
This Public Land Order is effective on July 25, 2016.
Jacob Childers, Land Law Examiner, at 503-808-6225, Bureau of Land Management, Oregon/Washington State Office, P.O. Box 2965, Portland, Oregon 97208-2965. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 to reach the above contact. 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 purpose for which the withdrawal was first made requires this extension to continue to protect the fragile, unique, and endangered natural and cultural resources located at Cape Johnson, Washington, at the request of the National Park Service.
By virtue of the authority vested in the Secretary of the Interior by Section 204 of the Federal Land Policy and Management Act of 1976, 43 U.S.C. 1714, it is ordered as follows:
Public Land Order No. 7209 (61 FR 38783 (1996)), which withdrew 3.25 acres of public land at Cape Johnson, Washington, from settlement, sale, location, or entry under the general land laws, including the United States mining laws and leasing under the mineral leasing laws, is hereby extended for an additional 20-year period. The withdrawal extended by this order will expire on July 24, 2036, unless, as a result of a review conducted prior to the expiration date pursuant to Section 204(f) of the Federal Land Policy and Management Act of 1976 43 U.S.C. 1714, the Secretary determines that the withdrawal shall be further extended.
Bureau of Land Management, Interior.
Notice of intent and notice of realty action.
In compliance with sections 203 and 209 of the Federal Land Policy and Management Act (FLPMA), as amended, and the National Environmental Policy Act (NEPA) of 1969, as amended, the Bureau of Land Management's (BLM) Kemmerer Field Office proposes to amend the May 24, 2010, Kemmerer Resource Management Plan (RMP) and prepare an environmental assessment (EA), to identify and allow the direct sale of an isolated parcel of public land totaling 2.80 acres to the adjacent landowner (Teichert Brothers, LLC) in Lincoln County, Wyoming, at the appraised fair market value (FMV) of $1,470.
Written comments regarding the amendment, classification, or sale must be received by the BLM no later than August 15, 2016 or 30 days after the last public meeting, whichever is later. The date(s) of the scoping meetings will be announced at least 15 days in advance through local news media and newspapers.
You may submit comments on issues and planning criteria related to the plan amendment and realty action by any of the following methods:
•
•
Documents pertinent to this proposal are available at the above address.
Kelly Lamborn, Realty Specialist, BLM Kemmerer Field Office, 430 North Highway 189, Kemmerer, WY 83101; telephone 307-828-4505; email
This document provides notice that the BLM Kemmerer Field Office intends to prepare an RMP amendment with an associated EA for the Kemmerer RMP, announces the beginning of the scoping process, and seeks public input on issues and planning criteria. The purpose of the public scoping process is to determine relevant issues that will influence the scope of the environmental analysis, including alternatives, and guide the planning process. Preliminary issues for the plan amendment area have been identified by BLM personnel, Federal, State and local agencies, and other stakeholders. The Kemmerer RMP does not specifically include nor identify the sale parcel for disposal and therefore, a land-use plan amendment is required.
The BLM is proposing to amend the May 24, 2010, Kemmerer RMP, as amended by the Approved Resource Management Plan Amendments (ARMPA) for the Rocky Mountain Region, approved September 22, 2015, to identify and allow for the classification and direct sale of public land. The parcel is described as:
sec. 29, lot 21.
The area described contains 2.80 acres.
Under Section 203 of FLPMA, as amended (43 U.S.C. 1713), if the BLM determines that the parcel of public land is suitable for disposal, then the BLM may propose to offer it for direct sale at the appraised FMV. The BLM will reserve the minerals for this parcel under Section 209 of FLPMA (43 U.S.C. 1719). This sale parcel has no public access. The parcel is surrounded on all sides by lands owned by Teichert Brothers, LLC. The location makes it difficult and uneconomical for the BLM to manage and is not suitable for management by another Federal agency. The sale is consistent with the objectives, goals, and decision of the BLM Kemmerer RMP, and would be in the public interest. The ARMPA Management Decision, LR 7, allows for lands within Greater Sage-Grouse general habitat management areas to be disposed of, as long as the action is consistent with the goals and objectives of the plan, including, but not limited to, the goal to conserve, recover, and enhance sage-grouse habitat on a landscape scale. In accordance with 43 CFR 2710.0-6(c)(3)(iii) and 43 CFR 2711.3-3(a), direct sale procedures are appropriate to protect existing equities in the land. Conveyance of the sale parcel will be subject to valid existing rights and encumbrances of record, including, but not limited to, rights-of-way (ROWs) for roads and public utilities. The patent will include an appropriate indemnification claim protecting the United States from claims arising out of the patentee's use occupancy or occupations on the patented lands. No warranty of any kind, express or implied, is given by the United States as to the title, physical condition, or potential uses of the parcel of land proposed for sale. The United States will retain all mineral rights.
Upon publication of this Notice in the
The patent if issued, would be subject to the following terms, conditions, and reservations:
1. All minerals, together with the right to prospect for, mine, and remove such deposits from the same under applicable law and such regulation as the Secretary of the Interior may prescribe;
2. A right-of-way for ditches or canals constructed by the authority of the United States pursuant to the Act of August 30, 1890, (43 U.S.C. 945); and
3. All valid existing rights.
All information concerning these actions is available for review at the address above during normal business hours, 7:45 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays.
You may submit comments on issues and planning criteria regarding the RMP amendment process, classification of the direct sale parcel, and notification of any encumbrances or other claims relating to the sale parcel in writing to the BLM at any public scoping meeting. Additionally, you may submit comments to the BLM using one of the methods listed in the
Federal, State, and local agencies, along with other stakeholders that may be interested in or affected by the proposed action that the BLM is evaluating, are invited to participate in the scoping process and, if eligible, may request or be requested by the BLM to participate in the development of the environmental analysis as a cooperating agency. The minutes and list of attendees for each scoping meeting will be available to the public and open for 30 days after the meeting to any participant who wishes to clarify the views he or she expressed. The BLM will address and evaluate all issues and place them into one of three following categories:
1. Issues to be resolved in the plan amendment;
2. Issues to be resolved through policy or administrative action; or
3. Issues beyond the scope of this plan amendment.
The BLM will provide an explanation in the Draft RMP Amendment/Draft EA as to why an issue was placed in Category two or three. The public is encouraged to identify any management questions and concerns that should be addressed in the plan. The BLM will work collaboratively with interested parties to identify the management decisions that are best suited to local, regional, and national needs and concerns.
The BLM will use an interdisciplinary approach to develop the plan amendment in order to consider the variety of resource issues and concerns.
No representation, warranty, or covenant of any kind, express or implied, will be given or made by the United States, its officers or employees as to access to or from the above-described parcel of land, the title to the land, whether or to what extent the land may be developed, its physical condition or its past, present or potential uses, and the conveyance of any such parcel will not be on a contingency basis. It is the responsibility of the buyer to be aware of all applicable Federal, State, and local government policies and regulations that would affect the subject lands. It is also the buyer's responsibility to be aware of existing or prospective uses of nearby properties. Lands without access from a public road or highway will be conveyed as such, and future access acquisition will be the responsibility of the buyer.
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. Any adverse comments will be reviewed by the Wyoming State Director, who may sustain, vacate, or modify this realty action. In the absence of timely filed objections, this realty action will become the final determination of the Department of the Interior.
40 CFR 1501.7, 43 CFR 1610.2, 43 CFR 2400, and 43 CFR 2711.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has found a violation of section 337 in this investigation and has (1) issued a limited exclusion order prohibiting importation of certain network devices, related software and components thereof, and (2) issued a cease and desist order. The Commission terminates the investigation.
Amanda Pitcher Fisherow, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2737. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on January 27, 2015, based on a complaint filed on behalf of Cisco Systems, Inc. (“Complainant”) of San Jose, California. 80 FR 4314-15 (Jan. 27, 2015). The complaint was filed on December 19, 2014 and a supplement was filed on January 8, 2015. The complaint alleges violations of section 337 based upon the importation into the United States, the sale for importation, and the sale within the United States after importation of certain network devices, related software and components thereof by reason of infringement of certain claims of U.S. Patent No. 7,162,537 (“the '537 patent”); U.S. Patent No. 8,356,296 (“the '296 patent”); U.S. Patent No. 7,290,164 (“the '164 patent”); U.S. Patent No. 7,340,597 (“the '597 patent”); U.S. Patent No. 6,741,592 (“the '592 patent”); and U.S. Patent No. 7,200,145 (“the '145 patent”), and alleges that an industry in the United States exists as required by subsection (a)(2) of section 337. The '296 patent was previously terminated from the investigation. The complaint named Arista Networks, Inc. (“Arista”) of Santa Clara, California as the respondent. A Commission investigative attorney (“IA”) is participating in the investigation.
On February 2, 2016, the ALJ issued his final ID finding a violation of section 337. The ID found a violation with respect to the '537, '592 and '145 patents. The ID found no violation based on the '597 and '164 patents. On February 11, 2016, the ALJ issued his Recommended Determination on Remedy and Bonding.
On February 17, 2016, Cisco and Arista filed petitions for review. On March 3, 2016, the parties, including the IA, filed responses to the respective petitions for review. On April 11, 2016, the Commission determined to review the ID in-part. The Commission determined to review the final ID on the following issues: (1) Infringement of the '537, '597, '592 and '145 patents; (2) patentability of the '597, '592, and '145 inventions under 35 U.S.C. 101; (3) the construction of “said router configuration data managed by said database system and derived from configuration commands supplied by a user and executed by a router configuration subsystem before being stored in said database” of claims 1, 10, and 19 of the '537 patent; (4) the construction of “a change to a configuration”/“a change in configuration” of claims 1, 39, and 71 of the '597 patent; (5) equitable estoppel; (6) laches; (7) the technical prong of domestic industry for the '537, '597, '592 and '145 patents; (8) economic prong of domestic industry; and (9) importation. To the extent any findings that the Commission reviewed implicated the ID's findings for the '164 patent (
After considering the final ID, written submissions, and the record in this investigation, the Commission has determined to affirm-in-part the final ID and to terminate the investigation with a finding of violation of section 337. Specifically, the Commission finds that a violation of section 337 has occurred for the '537, '592, and '145 patents and no violation has occurred for the '597 and '164 patents. The Commission finds that the asserted claims of the '597 and '164 patents are not directly infringed by the accused products.
Having found a violation of section 337 in this investigation, the Commission has determined that the appropriate form of relief is (1) a limited exclusion order prohibiting the unlicensed entry of certain network devices, related software and components thereof that infringe one or more of claims 1, 2, 8-11, and 17-19 of the '537 patent; claims 6, 7, 20, and 21 of the '592 patent; and claims 5, 7, 45, and 46 of the '145 patent; and (2) a cease and desist order prohibiting Arista from importing, selling, marketing, advertising, distributing, transferring (except for exportation), and soliciting United States, agents or distributors for States certain network devices, related software and components thereof that infringe one or more of claims 1, 2, 8-11, and 17-19 of the '537 patent; claims 6, 7, 20, and 21 of the '592 patent; and claims 5, 7, 45, and 46 of the '145 patent.
The Commission has also determined that the public interest factors enumerated in section 337(d) and (f) (19 U.S.C. 1337(d) and (f)) do not preclude issuance of the limited exclusion order or a cease and desist order. Finally, the Commission has determined that a bond during the period of Presidential review (19 U.S.C. 1337(j)) shall be in the amount of zero percent (0%) of the entered value of the imported articles that are subject to the limited exclusion order or cease and desist order. The Commission's orders and opinion were delivered to the President and to the United States Trade Representative on the day of their issuance.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and in Part 210 of the Commission's Rules of Practice and Procedure (19 CFR part 210).
By order of the Commission.
United States International Trade Commission.
Notice.
Justin Enck (202) 205-3363, Office of Investigations, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436. Hearing-impaired persons can obtain information on this matter by contacting the Commission's TDD terminal on 202-205-1810. Persons with mobility impairments who will need special assistance in gaining access to the Commission should contact the Office of the Secretary at 202-205-2000. General information concerning the Commission may also be obtained by accessing its internet server (
Effective January 6, 2016, the Commission established a schedule for the conduct of this review (81 FR 1643, January 13, 2016). Subsequently, counsel for the domestic interested parties filed a request to appear at the hearing and for consideration of cancellation of the hearing. Counsel indicated a willingness to submit written testimony and responses to any Commission questions in lieu of an actual hearing. No other party has entered an appearance in this review. Consequently, the public hearing in connection with this review, scheduled to begin at 9:30 a.m. on Thursday, April 28, 2016, at the U.S. International Trade Commission Building, is cancelled. Parties to this review should respond to any written questions posed by the Commission in their posthearing briefs, which are due to be filed on May 5, 2016.
For further information concerning this review see the Commission's notice cited above and the Commission's Rules of Practice and Procedure, part 201, subparts A through E (19 CFR part 201), and part 207, subparts A and C (19 CFR part 207).
This review is being conducted under authority of title VII of the Tariff Act of 1930; this notice is published pursuant to section 207.62 of the Commission's rules.
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has received a complaint entitled
Lisa R. Barton, Secretary to the Commission, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. The public version of the complaint can be accessed on the Commission's Electronic Document Information System (EDIS) at EDIS,
General information concerning the Commission may also be obtained by accessing its Internet server at United States International Trade Commission (USITC) at USITC.
The Commission has received a complaint and a submission pursuant to section 210.8(b) of the Commission's Rules of Practice and Procedure filed on behalf of Lehigh Valley Technologies, Inc.; Endo Global Ventures; Endo Ventures Limited; and Generics Bidco I, LLC (d/b/a Qualitest Pharmaceuticals and Par Pharmaceutical) on June 15, 2016 . The complaint alleges violations of section 337 of the Tariff Act of 1930 (19 U.S.C. 1337) in the importation into the United States, the sale for importation, and the sale within the United States after importation of certain potassium chloride powder products. The complaint names as respondents Viva Pharmaceutical Inc. of Canada; Virtus Pharmaceuticals, LLC of Tampa, FL; and Virtus Pharmaceuticals OPCO II, LLC of Nashville, TN. The complainant requests that the Commission issue a limited exclusion order, cease and desist orders and impose a bond upon respondents' alleged infringing articles during the 60-day Presidential review period pursuant to 19 U.S.C. 1337(j).
Proposed respondents, other interested parties, and members of the public are invited to file comments, not to exceed five (5) pages in length, inclusive of attachments, on any public interest issues raised by the complaint or section 210.8(b) filing. Comments should address whether issuance of the relief specifically requested by the complainant in this investigation would affect the public health and welfare in the United States, competitive conditions in the United States economy, the production of like or directly competitive articles in the United States, or United States consumers.
In particular, the Commission is interested in comments that:
(i) Explain how the articles potentially subject to the requested remedial orders are used in the United States;
(ii) identify any public health, safety, or welfare concerns in the United States relating to the requested remedial orders;
(iii) identify like or directly competitive articles that complainant, its licensees, or third parties make in the United States which could replace the subject articles if they were to be excluded;
(iv) indicate whether complainant, complainant's licensees, and/or third party suppliers have the capacity to replace the volume of articles potentially subject to the requested exclusion order and/or a cease and desist order within a commercially reasonable time; and
(v) explain how the requested remedial orders would impact United States consumers.
Written submissions must be filed no later than by close of business, eight calendar days after the date of publication of this notice in the
Persons filing written submissions must file the original document electronically on or before the deadlines stated above and submit 8 true paper copies to the Office of the Secretary by noon the next day pursuant to section 210.4(f) of the Commission's Rules of Practice and Procedure (19 CFR 210.4(f)). Submissions should refer to the docket number (“Docket No. 3157”) in a prominent place on the cover page and/or the first page. (
Any person desiring to submit a document to the Commission in confidence must request confidential treatment. All such requests should be directed to the Secretary to the Commission and must include a full statement of the reasons why the Commission should grant such treatment.
This action is taken under the authority of section 337 of the Tariff Act of 1930, as amended (19 U.S.C. 1337), and of sections 201.10 and 210.8(c) of the Commission's Rules of Practice and Procedure (19 CFR 201.10, 210.8(c)).
By order of the Commission.
U.S. International Trade Commission.
Notice.
Notice is hereby given that the U.S. International Trade Commission has determined to affirm-in-part, reverse-in-part, and vacate certain portions of a final initial determination (“ID”) of the presiding administrative law judge (“ALJ”) finding a violation of section 337 in the above-captioned investigation, and has issued a general exclusion order directed against infringing footwear products. The Commission has terminated the investigation.
Clint Gerdine, Esq., Office of the General Counsel, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 708-2310. Copies of non-confidential documents filed in connection with this investigation are or will be available for inspection during official business hours (8:45 a.m. to 5:15 p.m.) in the Office of the Secretary, U.S. International Trade Commission, 500 E Street SW., Washington, DC 20436, telephone (202) 205-2000. General information concerning the Commission may also be obtained by accessing its Internet server at
The Commission instituted this investigation on November 17, 2014, based on a complaint filed on behalf of Converse Inc. of North Andover, Massachusetts. 79
On February 10, 2015, the Commission determined not to review an ID (Order No. 32) granting a joint motion of complainant and Skeanie Shoes, Inc. (“Skeanie”) of New South Wales, Australia terminating the investigation as to Skeanie Shoes based on settlement and consent order stipulation. On the same date, the Commission determined not to review an ID (Order No. 33) granting a joint motion of complainant and PW Shoes, Inc. (“PW Shoes”) of Maspeth, New York terminating the investigation as to PW Shoes based on settlement and consent order stipulation. Also on the same date, the Commission determined not to review an ID (Order No. 34) granting a joint motion of complainant and Ositos Shoes, Inc. (“Ositos Shoes”) of South El Monte, California terminating the investigation as to Ositos Shoes based on settlement agreement and consent order stipulation. On March 4, 2015, the Commission determined not to review an ID (Order No. 52) granting a joint motion of complainant and Ralph Lauren Corporation (“Ralph Lauren”) of New York City, New York terminating the investigation as to Ralph Lauren based on settlement agreement and consent order stipulation. On March 12, 2015, the Commission determined not to review an ID (Order No. 55) granting a joint motion of complainant and OPPO Original Corp. (“OPPO”) of City of Industry, California terminating the investigation as to OPPO based on settlement agreement and consent order stipulation. On the same date, the Commission determined not to review an ID (Order No. 57) granting a joint motion of complainant and H & M Hennes & Mauritz LP (“H & M”) of New York City, New York terminating the investigation as to H & M based on settlement agreement and consent order stipulation. On March 24, 2015, the Commission determined not to review an ID (Order No. 59) granting a joint motion of complainant and Zulily, Inc. (“Zulily”) of Seattle, Washington terminating the investigation as to Zulily based on settlement agreement and consent order stipulation. On March 30, 2015, the Commission determined not to review an ID (Order No. 65) granting a joint motion of complainant and Nowhere Co. Ltd. d/b/a Bape (“Nowhere”) of Tokyo, Japan terminating the investigation as to Nowhere based on settlement agreement and consent order stipulation. On the same date, the Commission determined not to review an ID (Order No. 67) granting a joint motion of complainant and The Aldo Group (“Aldo”) of Montreal, Canada terminating the investigation as to Aldo based on settlement agreement and consent order stipulation.
On April 1, 2015, the Commission determined not to review an ID (Order No. 69) granting a joint motion of complainant and Gina Group, LLC (“Gina Group”) of New York City, New York terminating the investigation as to Gina Group based on settlement agreement and consent order stipulation. On the same date, the Commission determined not to review an ID (Order No. 70) granting a joint motion of complainant and Tory Burch LLC (“Tory Burch”) of New York City, New York terminating the investigation as to Tory Burch based on settlement agreement and consent order stipulation. On April 24, 2015, the Commission determined not to review an ID (Order No. 73) granting a joint motion of complainant and Brian Lichtenberg, LLC (“Brian Lichtenberg”) of Los Angeles, California terminating the investigation as to Brian Lichtenberg based on settlement agreement and consent order stipulation. On the same date, the Commission determined not to review an ID (Order No. 80) granting a joint motion of complainant and Fila U.S.A., Inc. (“Fila”) of Sparks, Maryland terminating the investigation as to Fila based on settlement agreement and consent order stipulation. On May 4, 2015, the Commission determined not to review an ID (Order No. 86) granting a joint motion of complainant and Mamiye Imports LLC d/b/a Lilly of New York located in Brooklyn, New York and Shoe Shox of Seattle, Washington (collectively, “Mamiye Imports”) terminating the investigation as to Mamiye Imports based on settlement agreement and consent order stipulation.
On May 6, 2015, the Commission determined not to review an ID (Order No. 83) granting New Balance's motion to terminate the investigation as to New Balance's accused CPT Hi and CPT Lo model sneakers based on a consent order stipulation. On May 13, 2015, the Commission determined not to review an ID (Order No. 93) granting a joint motion of complainant and Iconix Brand Group, Inc. (“Iconix”) of New York City, New York terminating the investigation as to Iconix based on settlement agreement and consent order stipulation. On June 4, 2015, the Commission determined not to review an ID (Order No. 108) granting a joint motion of complainant and A-List, Inc. d/b/a Kitson (“Kitson”) of Los Angeles, California terminating the investigation as to Kitson based on settlement agreement and consent order stipulation. On June 12, 2015, the Commission determined not to review an ID (Order No. 114) granting a joint motion of complainant and Esquire Footwear LLC (“Esquire”) of New York City, New York terminating the investigation as to Esquire based on settlement agreement, consent order stipulation, and consent order. On July 15, 2015, the Commission determined not to review an ID (Order No. 128) granting a joint motion of complainant and Fortune Dynamic, Inc. (“Fortune Dynamic”) of City of Industry, California terminating the investigation as to Fortune Dynamic based on settlement agreement and consent order stipulation. On August 12, 2015, the Commission determined not to review an ID (Order No. 154) granting a joint motion of complainant and CMerit USA, Inc. (“CMerit”) of Chino, California terminating the investigation as to CMerit based on settlement agreement and consent order stipulation. On August 14, 2015, the Commission determined not to review an ID (Order No. 155) granting a joint motion of complainant and Kmart Corporation (“Kmart”) of Hoffman Estates, Illinois terminating the investigation as to Kmart based on settlement agreement and consent order stipulation.
Also, on March 12, 2015, the Commission determined not to review an ID (Order No. 58) finding Dioniso SRL of Perugia, Italy; Shenzhen Foreversun Industrial Co., Ltd. (a/k/a
The ALJ issued his final ID on November 17, 2015, finding a violation of section 337 as to certain accused products of each active respondent and as to all accused products of each defaulting respondent. Specifically, the ALJ found that the '753 trademark is not invalid and that certain accused products of each active respondent, and all accused products of each defaulting respondent, infringe the '753 trademark. The ALJ also found that: (1) Converse satisfied both the economic and technical prongs of the domestic industry requirement with respect to all asserted trademarks; (2) certain accused products of defaulting respondent Foreversun infringe both the '103 and '960 trademarks; and (3) a violation of section 337 with respect to the '103 and '960 trademarks by Foreversun. The ALJ also found no dilution of the '753 trademark. The ALJ also issued his recommendation on remedy and bonding during the period of Presidential review. He recommended a general exclusion order directed to footwear products that infringe the asserted trademarks, and recommended cease and desist orders directed against each active, remaining respondent found to infringe. On December 4, 2015, complainant, respondents, and the Commission investigative attorney (“IA”) each filed a timely petition for review of the final ID. On December 14, 2015, each of these parties filed responses to the other petitions for review.
On February 3, 2016, the Commission issued notice of its determination to review: (1) The ID's finding of no invalidity of the '753 trademark; (2) the ID's findings regarding infringement of the '753 trademark; (3) the ID's finding of invalidity of the common law rights asserted in the design depicted in the '753 trademark; and (4) the ID's finding of no violation of section 337 with respect to the common law rights asserted in the designs depicted in the '103 and '960 trademarks. The Commission also determined not to review the remainder of the final ID. The determinations made in the ALJ's final ID that were not reviewed became final determinations of the Commission by operation of rule.
On February 17 and 24, 2016, respectively, complainant, respondents, and the IA each filed a brief and a reply brief on all issues for which the Commission requested written submissions. Respondents' reply brief included a request for a Commission hearing to present oral argument under Commission rule 210.45(a). On February 29 and March 3, 2016, respectively, both Converse and the IA each filed a response to respondents' request, with each accompanied by a motion for leave to file a sur-reply to the request for oral argument. On March 1, 2016, respondents filed a motion for leave to submit a sur-reply to their request for oral argument. The Commission has determined to grant all motions for leave to file sur-replies submitted by the parties, and to deny respondents' request for a Commission hearing to present oral argument.
Having reviewed the record in this investigation, including the ALJ's final ID and the parties' written submissions, the Commission has determined to affirm-in-part, reverse-in-part, and vacate certain portions of the final ID's findings under review. Specifically, the Commission has reversed the ALJ's finding that the '753 trademark is not invalid, and instead has found the trademark invalid based on lack of secondary meaning. The Commission has also affirmed the ALJ's finding that there is a likelihood of confusion with respect to the '753 trademark for specific accused footwear products if the trademark was not invalid. The Commission has also affirmed the ALJ's finding that there is no likelihood of confusion with respect to the '753 trademark for specific accused footwear products regardless of invalidity. Further, the Commission has affirmed the ALJ's finding that the asserted common law rights in the '753 trademark are invalid. Accordingly, the Commission has determined that there is no violation of section 337 with respect to the '753 trademark. The Commission has vacated the ALJ's finding that the asserted common law rights in the designs depicted in the '103 and '960 trademarks are invalid. The Commission has determined that this finding with respect to these common law rights is moot in view of the Commission's finding of a violation with respect to the federally-registered rights in the '103 and '960 trademarks since the scope of the common law and federally-registered rights in these trademarks is co-extensive.
Having found a violation of section 337 as to the '103 and '960 federally-registered trademarks, the Commission has made its determination on the issues of remedy, the public interest, and bonding. The Commission has determined that the appropriate form of relief is a general exclusion order prohibiting the unlicensed entry of footwear products that infringe the '103 or '960 trademarks.
The Commission further determined that the public interest factors enumerated in section 337(d)(1) (19 U.S.C. 1337(d)(1)) do not preclude issuance of the general exclusion order. Finally, the Commission determined that a bond of 100 percent of the entered value (per pair) of the covered products is required to permit temporary importation during the period of Presidential review (19 U.S.C. 1337(j)). The Commission has also issued an opinion explaining the basis for the Commission's action. The Commission's order and opinion were delivered to the President and to the United States Trade Representative on the day of their issuance. The investigation is terminated.
The authority for the Commission's determination is contained in section 337 of the Tariff Act of 1930, as amended, 19 U.S.C. 1337, and in part 210 of the Commission's Rules of Practice and Procedure, 19 CFR part 210.
By order of the Commission.
The National Science Board, pursuant to NSF regulations (45 CFR part 614), the National Science Foundation Act, as amended (42 U.S.C. 1862n-5), and the Government in the Sunshine Act (5 U.S.C. 552b), hereby gives a corrected notice in regard to the scheduling of a meeting for the transaction of National Science Board business. The original notice appeared at 81 FR 41354, on June 24, 2016.
Wednesday, June 29, 2016 at 2:00-3:00 p.m. EDT.
NSB Chair's opening remarks; NSF remarks; discussion and Board action regarding the project budget for NEON; NSB Chair's closing remarks.
Closed.
This meeting will be held by teleconference originating at the National Science Board Office, National Science Foundation, 4201 Wilson Blvd., Arlington, VA 22230.
Please refer to the National Science Board Web site (
Postal Regulatory Commission.
Notice.
The Commission is noticing a recent Postal Service filing for the Commission's consideration concerning a negotiated service agreement. This notice informs the public of the filing, invites public comment, and takes other administrative steps.
Submit comments electronically via the Commission's Filing Online system at
David A. Trissell, General Counsel, at 202-789-6820.
The Commission gives notice that the Postal Service filed request(s) for the Commission to consider matters related to negotiated service agreement(s). The request(s) may propose the addition or removal of a negotiated service agreement from the market dominant or the competitive product list, or the modification of an existing product currently appearing on the market dominant or the competitive product list.
Section II identifies the docket number(s) associated with each Postal Service request, the title of each Postal Service request, the request's acceptance date, and the authority cited by the Postal Service for each request. For each request, the Commission appoints an officer of the Commission to represent the interests of the general public in the proceeding, pursuant to 39 U.S.C. 505 (Public Representative). Section II also establishes comment deadline(s) pertaining to each request.
The public portions of the Postal Service's request(s) can be accessed via the Commission's Web site (
The Commission invites comments on whether the Postal Service's request(s) in the captioned docket(s) are consistent with the policies of title 39. For request(s) that the Postal Service states concern market dominant product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3622, 39 U.S.C. 3642, 39 CFR part 3010, and 39 CFR part 3020, subpart B. For request(s) that the Postal Service states concern competitive product(s), applicable statutory and regulatory requirements include 39 U.S.C. 3632, 39 U.S.C. 3633, 39 U.S.C. 3642, 39 CFR part 3015, and 39 CFR part 3020, subpart B. Comment deadline(s) for each request appear in section II.
1.
This notice will be published in the
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
CHX proposes to amend the Rules of the Exchange (“CHX Rules”) to adopt Article 20, Rule 13(a) to implement the quoting and trading provisions of the Regulation NMS Plan to Implement a Tick Size Pilot Program (“Plan”). The proposed rule change is substantially similar to a proposed rule change approved by the Commission by the Bats BZX Exchange, Inc. f/k/a BATS Exchange, Inc. (“BZX”) to adopt BZX Rule 11.27(a) which also implemented the quoting and trading provisions of the Plan.
The text of this proposed rule change is available on the Exchange's Web site at (
In its filing with the Commission, the CHX included statements concerning the purpose of and basis for the proposed rule changes and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The CHX has prepared summaries, set forth in sections A, B and C below, of the most significant aspects of such statements.
On August 25, 2014, NYSE Group, Inc., on behalf of the Exchange, BZX, Bats BYX Exchange, Inc. f/k/a BATS Y-Exchange, Inc., Bats EDGA Exchange, Inc. f/k/a EDGA Exchange, Inc., Bats EDGX Exchange, Inc. f/k/a EDGX Exchange, Inc., Financial Industry Regulatory Authority, Inc. (“FINRA”), NASDAQ OMX BX, Inc., NASDAQ OMX PHLX LLC, the Nasdaq Stock Market LLC, New York Stock Exchange LLC (“NYSE”), NYSE MKT LLC, and NYSE Arca, Inc. (collectively “Plan Participants”),
The Plan is designed to allow the Commission, market participants, and the public to study and assess the impact of increment conventions on the liquidity and trading of the common stocks of small-capitalization companies. Each Plan Participant is required to comply with, and to enforce compliance by its member organizations, as applicable, with the provisions of the Plan. As is described more fully below, the proposed rules would require CHX Participants to comply with the applicable quoting and trading increments for Pilot Securities.
The Pilot will include stocks of companies with $3 billion or less in market capitalization, an average daily trading volume of one million shares or less, and a volume weighted average price of at least $2.00 for every trading day. The Pilot will consist of a control group of approximately 1400 Pilot Securities and three test groups with 400 Pilot Securities in each selected by a stratified sampling.
The Plan requires the Exchange to establish, maintain, and enforce written policies and procedures that are reasonably designed to comply with applicable quoting and trading requirements specified in the Plan.
Proposed Rule 13(a) (Compliance with Quoting and Trading Restrictions) sets forth the requirements for the Exchange and CHX Participants in meeting their obligations under the Plan. Rule 13(a)(1) will require CHX Participants to establish, maintain and enforce written policies and procedures that are reasonably designed to comply with the applicable quoting and trading requirements of the Plan. Rule 13(a)(2) provides that the Matching System
Proposed Rule 13(a)(3) clarifies the treatment of Pilot Securities that drop below $1.00 during the Pilot Period. In particular, Rule 13(a)(3) provides that, if the price of a Pilot Security drops below $1.00 during regular trading hours on any trading day, such Pilot Security will continue to be a Pilot Security subject
In approving the Plan, the Commission noted that the Plan Participants had proposed additional selection criteria to minimize the likelihood that securities that trade with a share price of $1.00 or less would be included in the Pilot, and stated that, once established, the universe of Pilot Securities should stay as consistent as possible so that the analysis and data can be accurate throughout the Pilot Period.
Proposed Rule 13(a)(4) sets forth the applicable limitations for securities in Test Group One. Consistent with the language of the Plan, Rule 13(a)(4) provides that no CHX Participant may display, rank, or accept from any person any displayable or non-displayable bids or offers, orders, or indications of interest in any Pilot Security in Test Group One in increments other than $0.05. However, orders priced to execute at the midpoint of the national best bid and national best offer (“NBBO”) or best protected bid and best protected offer (“PBBO”)
Proposed Rule 13(a)(5) sets forth the applicable quoting and trading requirements for securities in Test Group Two. This provision states that no CHX Participant may display, rank, or accept from any person any displayable or non-displayable bids or offers, orders, or indications of interest in any Pilot Security in Test Group Two in increments other than $0.05. However, orders priced to execute at the midpoint of the NBBO or PBBO and orders entered in a Plan Participant-operated retail liquidity program may be ranked and accepted in increments of less than $0.05.
Proposed Rule 13(a)(5) also sets forth the applicable trading restrictions for Test Group Two securities. Absent any of the exceptions listed in the Rule, no CHX Participant may execute orders in any Pilot Security in Test Group Two in price increments other than $0.05. The $0.05 trading increment will apply to all trades, including Brokered Cross Trades.
Consistent with the language of the Plan, the Rule provides that Pilot Securities in Test Group Two may trade in increments of less than $0.05 under the following circumstances: (1) Trading may occur at the midpoint between the NBBO or the PBBO; (2) Retail Investor Orders may be provided with price improvement that is at least $0.005 better than the PBBO; and (3) Negotiated Trades may trade in increments of less than $0.05.
The Exchange also proposes to add an exception to Rule 13(a)(5) to permit CHX Participants to fill a customer order in a Pilot Security in Test Group Two at a non-nickel increment to comply with Article 9, Rule 17 (Prohibition Against Trading Ahead of Customer Orders) under limited circumstances. Specifically, the exception would allow the execution of a customer order following a proprietary trade by the CHX Participant at an increment other than $0.05 in the same security, on the same side and at the same price as (or within the prescribed amount of) a customer order owed a fill pursuant to Article 9, Rule 17, where the triggering proprietary trade was permissible pursuant to an exception under the Plan.
Thus, the Exchange is proposing to add a customer order protection exception to Rule 13(a)(5) that would permit CHX Participants to trade Pilot Securities in Test Group Two in increments less than $0.05, and where the CHX Participant is executing a customer order to comply with Article 9, Rule 17 following the execution of a proprietary trade by the CHX Participant at an increment other than $0.05 where such proprietary trade was permissible pursuant to an exception under the Plan. The Exchange believes that this approach best facilitates the ability of CHX Participants to continue to protect customer orders while retaining the flexibility to engage in proprietary trades that comply with an exception to the Plan.
Proposed Rule 13(a)(6) sets forth the applicable quoting and trading restrictions for Pilot Securities in Test Group Three. The rule provides that no CHX Participant may display, rank, or accept from any person any displayable or non-displayable bids or offers, orders, or indications of interest in any Pilot Security in Test Group Three in increments other than $0.05. However, orders priced to execute at the midpoint of the NBBO or PBBO and orders
Proposed Rule 13(a)(6)(C) sets forth the exceptions pursuant to which Pilot Securities in Test Group Three may trade in increments of less than $0.05. First, trading may occur at the midpoint between the NBBO or PBBO. Second, Retail Investor Orders may be provided with price improvement that is at least $0.005 better than the PBBO. Third, Negotiated Trades may trade in increments of less than $0.05.
Similar to that proposed under Rule 13(a)(5) described above, the Exchange also proposes to add an exception to Rule 13(a)(6) to permit CHX Participants to fill a customer order in a Pilot Security in Test Group Three at a non-nickel increment to comply with Article 9, Rule 17 (Prohibition Against Trading Ahead of Customer Orders) under limited circumstances. Specifically, the exception would allow the execution of a customer order following a proprietary trade by the CHX Participant at an increment other than $0.05 in the same security, on the same side and at the same price as (or within the prescribed amount of) a customer order owed a fill pursuant to Article 9, Rule 17, where the triggering proprietary trade was permissible pursuant to an exception under the Plan.
Proposed Rule 13(a)(6)(D) sets forth the “Trade-at Prohibition,” which is the prohibition against executions by a CHX Participant that operates a Trading Center of a sell order for a Pilot Security in Test Group Three at the price of a Protected Bid or the execution of a buy order for a Pilot Security in Test Group Three at the price of a Protected Offer during regular trading hours, absent any of the exceptions set forth in Rule 13(a)(6)(D). Consistent with the Plan, the rule reiterates that a CHX Participant that operates a Trading Center that is displaying a quotation, via either a processor or an SRO quotation feed that is a Protected Bid or Protected Offer is permitted to execute orders at that level, but only up to the amount of its displayed size. A CHX Participant that operates a Trading Center that was not displaying a quotation that is the same price as a Protected Quotation, via either a processor or an SRO quotation feed, is prohibited from price-matching protected quotations unless an exception applies.
Consistent with the Plan, proposed Rule 13(a)(6)(D) also sets forth the exceptions to the Trade-at prohibition, pursuant to which a CHX Participant that operates a Trading Center may execute a sell order for a Pilot Security in Test Group Three at the price of a Protected Bid or execute a buy order for a Pilot Security in Test Group Three at the price of a Protected Offer. The first exception to the Trade-at Prohibition is the “display exception,” which allows a trade to occur at the price of the Protected Quotation, up to the Trading Center's full displayed size, if the order “is executed by a trading center that is displaying a quotation.”
In Rule 13(a)(6)(D), the Exchange proposes that a CHX Participant that utilizes the independent aggregation unit concept may satisfy the display exception only if the same independent aggregation unit that displays interest via either a processor or an SRO Quotation Feed also executes an order in reliance upon this exception. The rule provides that “independent aggregation unit” has the same meaning as provided under Rule 200(f) of SEC Regulation SHO.
As initially proposed by the Plan Participants, the Plan contained an additional condition to the display exception, which would have required that, where the quotation is displayed through a national securities exchange, the execution at the size of the order must occur against the displayed size on that national securities exchange; and where the quotation is displayed through the Alternative Display Facility or another facility approved by the Commission that does not provide execution functionality, the execution at the size of the order must occur against the displayed size in accordance with the rules of the Alternative Display Facility of such approved facility (“venue limitation”).
In approving the Plan, the Commission modified the Trade-At Prohibition to remove the venue limitation.
Consistent with Plan and the SEC's determination to remove the venue limitation, the Exchange is making clear that the display exception applies to
The proposal also excepts Block Size orders
Consistent with the Plan, the proposal also excepts an order that is a Retail Investor Order that is executed with at least $0.005 price improvement.
The exceptions set forth in proposed Rule 13(a)(6)(D)(ii)(d) through (n) are based on the exceptions found in Rule 611 of Regulation NMS.
The subparagraph (h) exception applies when the order is identified as a Trade-at Intermarket Sweep Order. The subparagraph (i) exception applies when the order is executed by a Trading Center that simultaneously routed Trade-at Intermarket Sweep Orders to execute against the full displayed size of a Protected Quotation with a price that is better than or equal to the limit price of the limit order identified as a Trade-at Intermarket Sweep Order. Depending on whether Rule 611 or the Trade-at requirement applies, an ISO may mean that the sender of the ISO has swept better-priced protected quotations, so that the recipient of that ISO may trade through the price of the protected quotation (Rule 611), or it could mean that the sender of the ISO has swept protected quotations at the same price that it wishes to execute at (in addition to any better-priced quotations), so the recipient of that ISO may trade at the price of the protected quotation (Trade-at). Given that the meaning of an ISO may differ under Rule 611 and Trade-at, the Exchange proposes Rule 13(a)(6)(D)(ii)(h) so that the recipient of an ISO in a Test Group Three security would know, upon receipt of that ISO, that the Trading Center that sent the ISO had already executed against the full size of displayed quotations at that price,
The Exchange proposes to further clarify the use of an ISO in connection with the Trade-at requirement by adopting, as part of proposed Rule 13(a)(7), a definition of “Trade-at Intermarket Sweep Order.” As set forth in the Plan and as noted above, the definition of a Trade-at ISO does not distinguish ISOs that are compliant with Rule 611 from ISOs that are compliant with Trade-at. The Exchange therefore proposes to define a Trade-at ISO as a limit order for a Pilot Security that meets the following requirements: (1) When routed to a Trading Center, the limit order is identified as a Trade-at Intermarket Sweep Order; (2) simultaneously with the routing of the limit order identified as a Trade-at Intermarket Sweep Order, one or more additional limit orders, as necessary, are routed to execute against the full displayed size of any protected bid, in the case of a limit order to sell, or the full displayed size of any protected offer, in the case of a limit order to buy, for the Pilot Security with a price that is better than or equal to the limit price of the limit order identified as a Trade-at Intermarket Sweep Order. These additional routed orders also must be marked as Trade-at Intermarket Sweep Orders. The Exchange believes that this proposed change will further clarify to recipients of ISOs in Group Three securities whether the ISO satisfies the requirements of Rule 611 or Trade-at.
The exception under subparagraph (j) of proposed Rule 13(a)(6)(D)(ii) applies when the order is executed as part of a Negotiated Trade. The subparagraph (k) exception applies when the order is executed when the Trading Center displaying the Protected Quotation that was traded at had displayed, within one second prior to execution of the transaction that constituted the Trade-at, a Best Protected Bid or Best Protected Offer, as applicable, for the Pilot Security with a price that was inferior to the price of the Trade-at transaction.
The exception proposed in subparagraph (l) applies to a “stopped order.” The stopped order exemption in Rule 611 of SEC Regulation NMS applies where “[t]he price of the trade-through transaction was, for a stopped buy order, lower than the national best bid in the NMS stock at the time of execution or, for a stopped sell order, higher than the national best offer in the NMS stock at the time of execution.”
To illustrate the application of the stopped order exemption as it currently operates under Rule 611 of SEC Regulation NMS and as it is currently proposed for Trade-at, assume the NBB is $10.00 and another protected quote is at $9.95. Under Rule 611 of SEC Regulation NMS, a stopped order to buy can be filled at $9.95 and the firm does not have to send an ISO to access the protected quote at $10.00 since the price of the stopped order must be lower than the NBB. For the stopped order to also be executed at $9.95 and satisfy the Trade-at requirements, the Trade-at exception would have to be revised to allow an order to execute at the price of a protected quote which, in this case, could be $9.95.
Based on the fact that a stopped order would be treated differently under the Regulation NMS Rule 611 exception than under the proposed Trade-at exception, the Exchange believes that it is appropriate to amend the Trade-at stopped order exception to ensure that the application of this exception will produce a consistent result under both Regulation NMS and the Plan. The Exchange therefore proposes to amend the stopped order exception to allow a transaction to satisfy the Trade-at requirement if the stopped order price, for a stopped buy order, is equal to or less than the NBB, and for a stopped sell order, is equal to or greater than the NBO, as long as such order is priced at an acceptable increment.
Proposed subparagraph (l) to Rule 13(a)(6)(D)(ii) would define a “stopped order” as an order that is executed by a Trading Center which, at the time of order receipt, the Trading Center had guaranteed an execution at no worse than a specified price, where (1) the stopped order was for the account of a customer; (2) the customer agreed to the specified price on an order-by-order basis; and (3) the price of the Trade-at transaction was, for a stopped buy order, equal to or less than the National Best Bid in the Pilot Security at the time of execution or, for a stopped sell order, equal to or greater than the National Best Offer in the Pilot Security at the time of execution as long as such order is priced at an acceptable increment.
The subparagraph (m) exception applies where the order is for a fractional share of a Pilot Security, provided that such fractional share order was not the result of breaking an order for one or more whole shares of a Pilot Security into orders for fractional shares or was not otherwise effected to evade the requirements of the Trade-at Prohibition or any other provisions of the Plan.
The subparagraph (n) exception applies to bona fide errors transactions. Following the adoption of Rule 611 and its exceptions, the Commission issued exemptive relief that created exceptions from Rule 611 for certain error correction transactions.
As with the corresponding exception under Rule 611 of SEC Regulation NMS, the Exchange proposes to define a “bona fide error” as: (i) The inaccurate conveyance or execution of any term of an order including, but not limited to, price, number of shares or other unit of trading; identification of the security; identification of the account for which securities are purchased or sold; lost or otherwise misplaced order tickets; short sales that were instead sold long or vice versa; or the execution of an order on the wrong side of a market; (ii) the unauthorized or unintended purchase, sale, or allocation of securities, or the failure to follow specific client instructions; (iii) the incorrect entry of data into relevant systems, including reliance on incorrect cash positions, withdrawals, or securities positions reflected in an account; or (iv) a delay, outage, or failure of a communication system used to transmit market data prices or to facilitate the delivery or execution of an order. The bona fide error must be evidenced by objective facts and circumstances, the Trading Center must maintain documentation of such facts and circumstances, and the Trading Center must record the transaction in its error account. To avail itself of the exemption, the Trading Center must establish, maintain, and enforce written policies and procedures that are reasonably designed to address the occurrence of errors and, in the event of an error, the use and terms of a transaction to correct the error in compliance with this exemption. Finally, the Trading Center must regularly surveil to ascertain the effectiveness of its policies and procedures to address errors and transactions to correct errors and take prompt action to remedy deficiencies in such policies and procedures.
Consistent with the Plan, the final exception to the Trade-At Prohibition and its accompanying supplementary material applies to an order that is for a fractional share of a Pilot Security. The supplementary material provides that such fractional share orders may not be the result of breaking an order for one or more whole shares of a Pilot Security into orders for fractional shares or that otherwise were effected to evade the requirements of the Trade-at Prohibition or any other provisions of the Plan. In approving the Plan, the Commission noted that this exception was appropriate, as there could be potential difficulty in the routing and executing of fractional shares.
The proposed rule change will become operative upon the commencement of the Pilot Period.
The Exchange believes that its proposal is consistent with Section 6(b) of the Act
The Exchange believes that this proposal is consistent with the Act because it implements, interprets, and clarifies the provisions of the Plan, and is designed to assist the Exchange and CHX Participants in meeting regulatory obligations pursuant to the Plan. In approving the Plan, the SEC noted that
The Exchange does not believe that the proposed rule change will result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act. The Exchange notes that the proposed rule change implements the provisions of the Plan, and is designed to assist the Exchange in meeting its regulatory obligations pursuant to the Plan. The Exchange also notes that the quoting and trading requirements of the Plan will apply equally to all CHX Participants that trade Pilot Securities.
No written comments were either solicited or received.
The Exchange has designated this rule filing as non-controversial under Section 19(b)(3)(A) of the Act
The Exchange believes that the proposed rule change meets the criteria of subparagraph (f)(6) of Rule 19b-4
At any time within 60 days of the filing of the proposed rule change, the Commission may summarily temporarily suspend such rule change if it appears to the Commission that such action is: (1) Necessary or appropriate in the public interest; (2) for the protection of investors; or (3) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views and arguments concerning the foregoing, including whether the proposal 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 [Name of Secretary], Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Pursuant to Section 19(b)(7) of the Securities Exchange Act of 1934
The Exchange proposes to amend its rule provisions related to disruptive trading practices. The scope of this filing is limited solely to the application of the rule amendments to security futures traded on CFE. The only security futures that have been offered for trading on CFE were traded under Chapter 16 of CFE's Rulebook, which is applicable to Individual Stock Based and Exchange-Traded Fund Based Volatility Index security futures. CFE does not currently list any security futures for trading. The text of the proposed rule change is attached as Exhibit 4 to the filing but is not attached to the publication of this notice.
In its filing with the Commission, CFE included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. CFE has prepared summaries, set forth in Sections A, B, and C below, of the most significant aspects of such statements.
CFE Rule 620 (Disruptive Trading Practices) prohibits various disruptive trading practices and CFE Policy and Procedure XVIII of the Policies and Procedures section of the CFE Rulebook lists various factors that CFE may consider in assessing whether conduct violates Rule 620. The proposed rule change proposes clarifying updates in relation to these provisions with respect to security futures. These rule amendments will also apply to all other products traded on CFE.
CFE Rule 308(d) sets forth the list of rules which are applicable to market participants that are not CFE Trading Privilege Holders (“TPHs”) or related parties of TPHs and are subject to CFE jurisdiction under CFE Rule 308 (Consent to Exchange Jurisdiction). The proposed rule change adds Policy and Procedure XVIII to the list of rules that already apply to these market participants. This is a clarifying change since Rule 620 is one of the rules listed in Rule 308(d) and Policy and Procedure XVIII simply describes how CFE applies Rule 620.
Policy and Procedure XVIII currently provides guidance on prohibited disruptive trading practices. The proposed rule change adds reference to an existing prohibition under CFE Rule 404A(c) as an example of conduct that could also violate Rule 620. Rule 404A(c) provides that during the time period between business days for a CFE contract, entry into CFE's trading system of a Trade at Settlement order in that contract prior to the time at which CFE's trading system disseminates the pre-opening notice for that contract is prohibited.
Additionally, the amendment clarifies that a market participant is not precluded from entering a bona fide order that is intended to be executed where that execution may also serve some other risk management purpose, such as verifying the flow of the executed trades through the market participant's back-office systems.
The proposed rule change is consistent with similar updated guidance provided by other designated contract markets (“DCMs”) regarding disruptive practices.
The Exchange believes that the proposed rule change is consistent with Section 6(b) of the Act,
• To prevent fraudulent and manipulative acts and practices;
• to promote just and equitable principles of trade; and
• to remove impediments to and perfect the mechanism of a free and open market and a national market system, and in general, to protect investors and the public interest.
The Exchange believes that the proposed rule change will benefit market participants because it will provide greater clarity regarding the Exchange's current prohibited disruptive trading practices and the various factors that CFE may consider in assessing whether conduct violates Rule 620. Additionally, the Exchange believes that the proposed rule change will strengthen its ability to carry out its responsibilities as a self-regulatory organization by providing further guidance regarding the type of activity that is prohibited under CFE Rule 620. In addition, the proposed rule change benefits market participants by contributing to the protection of CFE's market and market participants from abusive practices and to the promotion of a fair and orderly market
CFE does not believe that the proposed rule change will impose any burden on competition not necessary or appropriate in furtherance of the purposes of the Act. Specifically, the Exchange believes that the proposed rule change will not burden competition because the new clarifying updates to the prohibited disruptive trading practices will apply equally to all market participants and will help to foster a fair and orderly market. Additionally, the proposed rule change is designed to make CFE's disruptive trading practice rules consistent with the existing rules and guidance published by other DCMs.
No written comments were solicited or received with respect to the proposed rule change.
The proposed rule change will become effective on June 13, 2016.
At any time within 60 days of the date of effectiveness of the proposed rule change, the Commission, after consultation with the CFTC, may summarily abrogate the proposed rule change and require that the proposed rule change be refiled in accordance with the provisions of Section 19(b)(1) of the Act.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
In notice document 2016-14086, beginning on page 39089 in the issue of Wednesday, June 15, 2016, make the following corrections:
1. On page 39091, in the third column, in the ninth and tenth lines, “July 5, 2016” should read “July 6, 2016”.
2. On the same page, in the eleventh line, “July 19, 2016” should read “July 20, 2016”.
Pursuant to Section 19(b)(1) of the Securities Exchange Act of 1934 (“Act”),
The Exchange proposes to allow listed companies not currently subject to Nasdaq's all-inclusive annual listing fee to opt in to that fee program for 2017. The changes proposed herein are effective upon filing.
The text of the proposed rule change is available on the Exchange's Web site at
In its filing with the Commission, the Exchange included statements concerning the purpose of and basis for the proposed rule change and discussed any comments it received on the proposed rule change. The text of these statements may be examined at the places specified in Item IV below. The Exchange has prepared summaries, set forth in sections A, B, and C below, of the most significant aspects of such statements.
Effective January 1, 2015, Nasdaq adopted an all-inclusive annual listing fee, which simplifies billing and provides transparency and certainty to companies as to the annual cost of listing.
While this new fee structure will become operative for all listed companies in 2018, listed companies were allowed to elect to be subject to the all-inclusive annual listing fee effective January 1, 2015, and were provided certain incentives to do so.
Nasdaq now proposes to allow currently listed companies that did not previously opt in to the all-inclusive annual fee program to do so effective January 1, 2017. Specifically, from June 15, 2016 until December 31, 2016, Nasdaq will allow companies to opt in to the all-inclusive annual fee program for 2017. Any company that does so will not be billed for the next $30,000 in fees for the listing of additional shares otherwise payable to Nasdaq, regardless of when the shares were issued. Fees for share issuances that were already billed at the time the opt-in form is submitted will not be forgiven. Nasdaq does not believe that this incentive will have an adverse impact on the amount of funds available for its regulatory programs.
Nasdaq believes that the proposed rule change is consistent with the provisions of Section 6 of the Act,
Nasdaq believes that the proposed incentive offered to companies that elect the all-inclusive annual listing fee starting in 2017 is reasonable, equitable, and not unfairly discriminatory. This incentive is available equally to all companies. Moreover, no company is required to opt in to the all-inclusive annual fee program under this change.
In addition, as noted above, Nasdaq will accrue benefits from companies electing the all-inclusive annual listing fee structure. These benefits include eliminating the multiple invoices that are sent to a company each year and providing more certainty as to revenue. The incentive is designed to help Nasdaq capture those benefits sooner, which is a reasonable and non-discriminatory reason to provide the incentive to companies.
Finally, the proposed incentive is consistent with the investor protection objectives of Section 6(b)(5) of the Act
The proposed rule change will not result in any burden on competition that is not necessary or appropriate in furtherance of the purposes of the Act, as amended. The market for listing services is extremely competitive and listed companies may freely choose alternative venues based on the aggregate fees assessed, and the value provided by each listing. As such, Nasdaq believes that this proposed rule change does not encumber the competition for listings with other listing venues, which are similarly free to set their fees, but rather reflects the competition between listing venues and will further enhance such competition.
No written comments were either solicited or received.
The foregoing rule change has become effective pursuant to Section 19(b)(3)(A)(ii) of the Act.
At any time within 60 days of the filing of the proposed rule change, the Commission summarily may temporarily suspend such rule change if it appears to the Commission that such action is: (i) Necessary or appropriate in the public interest; (ii) for the protection of investors; or (iii) otherwise in furtherance of the purposes of the Act. If the Commission takes such action, the Commission shall institute proceedings to determine whether the proposed rule should be approved or disapproved.
Interested persons are invited to submit written data, views, and arguments concerning the foregoing, including whether the proposed rule change is consistent with the Act. Comments may be submitted by any of the following methods:
• Use the Commission's Internet comment form (
• Send an email to
• Send paper comments in triplicate to Secretary, Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549-1090.
For the Commission, by the Division of Trading and Markets, pursuant to delegated authority.
Notice is hereby given of the following determinations: Pursuant to the authority vested in me by the Act of October 19, 1965 (79 Stat. 985; 22 U.S.C. 2459), E.O. 12047 of March 27, 1978, the Foreign Affairs Reform and Restructuring Act of 1998 (112 Stat. 2681,
For further information, including a list of the imported objects, contact the Office of Public Diplomacy and Public Affairs in the Office of the Legal Adviser, U.S. Department of State (telephone: 202-632-6471; email:
Notice of request for public comment and submission to OMB of proposed collection of information.
The Department of State has submitted the information collection described below to the Office of Management and Budget (OMB) for approval. In accordance with the Paperwork Reduction Act of 1995 we are requesting comments on this collection from all interested individuals and organizations. The purpose of this Notice is to allow 30 days for public comment.
Submit comments directly to the Office of Management and Budget (OMB) up to July 29, 2016.
Direct comments to the Department of State Desk Officer in the Office of Information and Regulatory Affairs at the Office of Management and Budget (OMB). You may submit comments by the following methods:
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Direct requests for additional information regarding the collection listed in this notice, including requests for copies of the proposed collection instrument and supporting documents, by mail to PPT Forms Officer, U.S. Department of State, CA/PPT/S/L/LA 44132 Mercure Cir, P.O. Box 1227 Sterling, VA 20166-1227, by phone at (202) 485-6373, or by email at
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We are soliciting public comments to permit the Department to:
• Evaluate whether the proposed information collection is necessary for the proper functions of the Department.
• Evaluate the accuracy of our estimate of the time and cost burden for this proposed collection, including the validity of the methodology and assumptions used.
• Enhance the quality, utility, and clarity of the information to be collected.
• Minimize the reporting burden on those who are to respond, including the use of automated collection techniques or other forms of information technology.
Please note that comments submitted in response to this Notice are public record. Before including any detailed personal information, you should be aware that your comments as submitted, including your personal information, will be available for public review.
The issuance of U.S. passports requires the determination of identity, nationality, and entitlement with reference to the provisions of Title III of the Immigration and Nationality Act (INA) (8 U.S.C. 1401-1504), the 14th
Passport Services collects information from U.S. citizens and non-citizen nationals when they complete and submit the Application for a U.S. Passport. Passport applicants can either download the DS-11 from the internet or obtain one from an Acceptance Facility/Passport Agency. The form must be completed and executed at an acceptance facility or passport agency, and submitted with evidence of citizenship and identity.
The proposed renewal of Form DS-11 also includes new instruction to applicants requiring submission of a photocopy of the applicant's evidence of U.S. citizenship, in addition to the official or certified copy that is currently required. The official or certified copy will continue to be used to determine whether the applicant has a valid claim to U.S. citizenship. The photocopy will be retained by the Department so that the Department has a complete and accurate record of what the applicant submitted with his or her U.S. passport application. Currently, evidence of U.S. citizenship is only annotated on the application, and a certified copy is generally not retained. The Department considered different alternatives to having the applicant submit a photocopy in addition to the official or certified copy; however, none of these alternatives were logistically feasible or cost effective. Based on a resource analysis study, the additional costs for labor, equipment, supplies, facility modifications and obtaining additional space makes it not feasible for the Department to make photocopies of primary citizenship evidence without significantly affecting agency operations and passport processing times. The Department determined that adding the requirement for a photocopy of the applicant's evidence of U.S. citizenship is the only feasible way to create a complete record of the documentation submitted with applications. The Department also believes that retaining copies of applicant's evidence of U.S. citizenship will help the Department develop and deliver online passport applicant services. Applicants currently submit a photocopy of their photo identification.
The Privacy Act statement has been amended to clarify that an applicant's failure to provide his or her Social Security number may result in the denial of an application, consistent with 22 U.S.C 2714a(f) which authorizes the Department to deny U.S. passport applications when the applicant failed to include his or her Social Security number. These requirements and the underlying legal authorities are further described on page 3 of the instruction titled “Federal Tax Law” which has also been amended to include a reference to 22 U.S.C 2714a(f).
Additionally, the proposed renewal of form DS-11 also includes updated instruction regarding the eyeglass policy change, prohibiting applicants from wearing eyeglasses in passport photographs, unless the applicant presents a signed statement from a doctor demonstrating that the glasses must be worn due to medical reasons. The form also states that passport photos may include hats or head coverings only when they are worn continuously as part of recognized, traditional religious attire, or when the hat or head covering is worn for medical purposes as stated by a doctor in a signed statement.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of final disposition; grant of application for exemption.
FMCSA announces its decision to grant the Missouri DOR and all other State driver licensing agencies (SDLAs) a limited exemption from the Agency's commercial driver's license (CDL) regulations. These regulations allow a State to waive the CDL skills test for applicants regularly employed or previously employed within the last 90 days in a military position requiring operation of a commercial motor vehicle (CMV). The exemption extends the 90-day timeline to one year following the driver's separation from military service. The Missouri DOR believed that the 90-day timeframe is too short to take advantage of the waiver for many of the qualified discharged veterans entering and settling into civilian life. A similar exemption was granted to the Commonwealth of Virginia, Department of Motor Vehicles (VA DMV) and all SDLAs on July 8, 2014, effective through July 8, 2016. FMCSA has analyzed the Missouri DOR exemption application and the public comments and has determined that the exemption will achieve a level of safety that is equivalent to, or greater than, the level that would be achieved absent such exemption.
This exemption is effective July 8, 2016 through July 8, 2018.
Mr. Richard Clemente, FMCSA Driver and Carrier Operations Division; Office of Carrier, Driver and Vehicle Safety Standards; Telephone: 202-366-4325. Email:
FMCSA has authority under 49 U.S.C. 31136(e) and 31315 to grant exemptions from the Federal Motor Carrier Safety Regulations. FMCSA must publish a notice of each exemption request in the
The Agency reviews the safety analyses and the public comments, and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305). The decision of the Agency must be published in the
The Missouri DOR requested an exemption from 49 CFR 383.77(b)(1), which allows States to waive the skills test described in § 383.113 for applicants regularly employed or previously employed within the last 90 days in a military position requiring operation of a CMV. The Missouri DOR proposed that it be allowed to extend the 90-day timeline to one year following the driver's separation from military service.
The Missouri DOR contended that the 90-day timeframe is too short for many of the qualified veterans to utilize while reentering civilian life. They stated that the Department has utilized the military waiver program for years and one of the most common reasons the applicant is not eligible is because the application is beyond the 90-day timeframe. Furthermore, the industry need for new drivers is continually growing each year and providing additional flexibility in § 383.77(b)(1) will help offset that need by transitioning fully-trained military veterans into civilian employment. They further stated that it is their goal to assure highway safety by licensing qualified veterans seeking employment following discharge. A more accessible waiver period would assist in meeting this goal and provide an opportunity to veterans.
FMCSA has previously determined that extending the 90-day skills test waiver period to one year following the driver's separation from military service would maintain a level of safety equivalent to, or greater than, the level achieved without the exemption (49 CFR 381.305(a)). An exemption extending the 90-day skills test waiver period to one year was granted to the Commonwealth of Virginia, Department of Motor Vehicles (Virginia DMV) and all SDLAs on July 8, 2014 (79 FR 38645). This exemption is in effect through July 8, 2016.
On March 16, 2016, FMCSA published a notice of proposed rulemaking (NPRM) and request for comments entitled “Commercial Driver's License Requirements of the Moving Ahead for Progress in the 21st Century Act and the Military Commercial Driver's License Act of 2012” (81 FR 14052). This proposed rulemaking would extend the time period for applying for a skills test waiver from 90 days to one year after leaving a military position requiring the operation of a CMV for
A copy of the Missouri DOR's application for exemption is available for review in the docket for this notice.
On April 11, 2016, FMCSA published notice of the Missouri DOR's application for exemption and requested public comment (81 FR 21443). The Agency received three docket comments submitted, which were all filed in support of the Missouri DOR request.
The American Association of Motor Vehicle Administrators (AAMVA) commented that on July 8, 2014, FMCSA had granted an extension to all SDLAs to extend the allowable timeframe for a military skills test waiver for up to one year. AAMVA applauded FMCSA for granting that exemption and proposing to make it a permanent regulatory change in the Agency's aforementioned NPRM. According to AAMVA, as that NPRM may not become final before the current exemption's [VA DMV] July 8, 2016 expiration, they requested FMCSA extend this important exemption for the maximum extent allowable.
The Oregon Department of Motor Vehicles (OR DMV) commented that they are fully supportive of Missouri's request for exemption from § 383.77(b)(1). Another individual commented that he was in favor of any exemption that benefits both the transportation industry and the veterans.
The FMCSA has evaluated Missouri DOR's application and, following consideration of the comments submitted to the docket, has decided to grant the exemption from 49 CFR 383.77(b)(1). FMCSA does not believe that the veterans' driving skills would decrease during the additional months in which this exemption allows them to apply for a waiver of the CDL skills test. This exemption only extends the period during which application for the skills test waiver may be made, and does not revise any other provisions of the regulations. FMCSA determined that the exemption would maintain a level of safety equivalent to, or greater than, the level achieved without the exemption (49 CFR 381.305(a)).
Federal Railroad Administration (FRA), Department of Transportation (DOT).
Extension of comment period for the Notice of Intent (NOI) to prepare an Environmental Impact Statement (EIS).
On May 9, 2016, FRA published a NOI announcing its intent to jointly prepare an Environmental Impact Report (EIR) and Environmental Impact Statement (EIS) with the California High-Speed Rail Authority (Authority) for the San Francisco to San Jose Section of the California High-Speed Rail (HSR) System, Blended System Project (Blended System Project or Project) and requesting public comments. Through this notice, FRA is extending the comment period and inviting the public and all interested parties to provide comments on the scope of the EIR/EIS, including the proposed purpose and need, the alternatives to consider, potential environmental impacts of concern, and methodologies for analysis of impacts.
FRA must receive written comments by July 20, 2016. FRA may consider comments received after that date if it is practicable.
You can send written comments on the scope to Mr. Mark McLoughlin, Director of Environmental Services, Attention: San Francisco to San Jose Section EIR/EIS, California High-Speed Rail Authority, 770 L Street, Suite 1160, Sacramento, CA 95814, or via email with subject line “San Francisco to San Jose Section EIR/EIS” to:
Ms. Stephanie Perez, Environmental Protection Specialist, Office of Program Delivery, Federal Railroad Administration, 1200 New Jersey Avenue SE. (Mail Stop 20), Washington, DC 20590; Telephone: (202) 493-0388, email:
The FRA and Authority are preparing an EIR/EIS for the San Francisco to San Jose Project Section to comply with the California Environmental Quality Act (CEQA) and the National Environmental Policy Act (NEPA). The Authority has decided to extend the comment period to July 20, 2016 to comply with CEQA. Following discussions with the Authority, FRA has decided to extend the NEPA scoping comment period for consistency with the Authority's extension and to give the public additional time to provide comments. FRA encourages broad participation in the EIS process during scoping and review of the resulting environmental documents. FRA invites Native American Tribes, interested agencies, and the public at large to participate in the scoping process to ensure the EIR/EIS addresses the full range of issues related to the proposed action and reasonable alternatives, and that all significant issues are identified. FRA requests that any public agency having jurisdiction over an aspect of the Project identify the applicable permit and environmental review requirements of the agency and the scope and content of the environmental information germane to the agency's jurisdiction over the Project. Public agencies are requested to advise FRA if they anticipate taking a major action in connection with the proposed project and if they wish to participate as a cooperating agency for the San Francisco to San Jose Section EIR/EIS.
FRA and the California High Speed Rail Authority held public scoping meetings in May 2016. Additional information about the project can be found at
National Highway Traffic Safety Administration (NHTSA), U.S. Department of Transportation (DOT).
Notice
In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3501
Comments must be submitted on or before July 29, 2016.
Send comments, within 30 days, to the Office of Information and Regulatory Affairs, Office of Management and Budget, 725 17th Street NW., Washington, DC 20503, Attention NHTSA Desk Officer.
Mary T. Byrd, 202-366-5595.
Comments are invited on the following:
(i) Whether the proposed collection of information is necessary for the proper performance of the functions of the
(ii) the accuracy of the agency's estimate of the burden of the proposed information collection;
(iii) ways to enhance the quality, utility, and clarity of the information to be collected; and
(iv) ways to minimize the burden of the collection of information on respondents, including the use of automated collection techniques or other forms of information technology.
A comment to OMB is most effective if OMB receives it within 30 days of publication.
44 U.S.C. Section 3506(c)(2)(A).
National Highway Traffic Safety Administration (NHTSA), Department of Transportation (DOT).
Receipt of petition.
Bridgestone Americas Tire Operations, LLC (BATO), has determined that certain Bridgestone VSB heavy-duty radial truck tires do not fully comply with paragraph S6.5(d) of Federal Motor Vehicle Safety Standard (FMVSS) No. 119,
The closing date for comments on the petition is July 29, 2016.
Interested persons are invited to submit written data, views, and arguments on this petition. Comments must refer to the docket and notice number cited in the title of this notice and be submitted by any of the following methods:
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Comments must be written in the English language, and be no greater than 15 pages in length, although there is no limit to the length of necessary attachments to the comments. If comments are submitted in hard copy form, please ensure that two copies are provided. If you wish to receive confirmation that comments you have submitted by mail were received, please enclose a stamped, self-addressed postcard with the comments. Note that all comments received will be posted without change to
The petition, supporting materials, and all comments received before the close of business on the closing date indicated above will be filed in the docket and will be considered. All comments and supporting materials received after the closing date will also be filed and will be considered to the extent possible.
When the petition is granted or denied, notice of the decision will also be published in the
All documents submitted to the docket may be viewed by anyone at the address and times given above. The documents may also be viewed on the Internet at
DOT's complete Privacy Act Statement is available for review in the
This notice of receipt of BATO's petition is published under 49 U.S.C. 30118 and 30120 and does not represent any agency decision or other exercise of judgment concerning the merits of the petition.
S6.5 Tire markings. Except as specified in this paragraph, each tire shall be marked on each sidewall with the information specified in paragraphs (a) through (j) of this section. . . .
(d) The maximum load rating and corresponding inflation pressure of the tire, shown as follows:
(Mark on tires rated for single and dual load): Max load single __kg (__lb) at __kPa (__psi) cold. Max load dual __kg (__lb) at __kPa (__psi) cold.
(Mark on tires rated only for single load): Max load __kg (__lb) at __kPa (__psi) cold. . . .
BATO asserted that NHTSA has previously granted inconsequential noncompliance petitions regarding noncompliances that are similar to the subject noncompliance.
BATO concluded by expressing the belief that the subject noncompliance is inconsequential as it relates to motor vehicle safety, and that its petition to be exempted from providing notification of the noncompliance, as required by 49 U.S.C. 30118, and a remedy for the noncompliance, as required by 49 U.S.C. 30120, should be granted.
NHTSA notes that the statutory provisions (49 U.S.C. 30118(d) and 30120(h)) that permit manufacturers to file petitions for a determination of inconsequentiality allow NHTSA to exempt manufacturers only from the duties found in sections 30118 and 30120, respectively, to notify owners, purchasers, and dealers of a defect or noncompliance and to remedy the defect or noncompliance. Therefore, any decision on this petition only applies to the subject tires that BATO no longer controlled at the time it determined that the noncompliance existed. However, any decision on this petition does not relieve equipment distributors and dealers of the prohibitions on the sale, offer for sale, or introduction or delivery for introduction into interstate commerce of the noncompliant tires under their control after BATO notified them that the subject noncompliance existed.
49 U.S.C. 30118, 30120: delegations of authority at 49 CFR 1.95 and 501.8.
Departmental Offices, Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on this continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments should be received on or before August 29, 2016 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 the Department of the Treasury, Departmental Offices, Federal Insurance Office, ATTN: Lindy Gustafson, 1500 Pennsylvania Avenue NW., Room 1410, Washington, DC 20220.
Requests for additional information should be directed to to the Department of the Treasury, Departmental Offices, Federal Insurance Office, ATTN: Lindy Gustafson, 1500 Pennsylvania Avenue NW., Room 1410, Washington, DC 20220.
Departmental Offices, Treasury.
Notice and request for comments.
The Department of the Treasury, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on this continuing information collection, as required by the Paperwork Reduction Act of 1995, Public Law 104-13 (44 U.S.C. 3506(c)(2)(A)).
Written comments should be received on or before August 29, 2016 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 the Department of the Treasury, Departmental Offices, Office of Financial Stability, ATTN: Sonya Johnson, 1500 Pennsylvania Avenue NW., Washington, DC 20220, (202) 927-8868.
Requests for additional information should be directed to to the Department of the Treasury, Departmental Offices, Office of Financial Stability, ATTN: Sonya Johnson, 1500 Pennsylvania Avenue NW., Washington, DC 20220, (202) 927-8868.
Comment Request.
National Cemetery Administration, Department of Veterans Affairs.
Notice.
The National Cemetery Administration (NCA), Department of Veterans Affairs (VA), is announcing an opportunity for public comment on the proposed collection of certain information by the agency. Under the Paperwork Reduction Act (PRA) of 1995, Federal agencies are required to publish notice in the
Written comments and recommendations on the proposed collection of information should be received on or before August 29, 2016.
Submit written comments on the collection of information through Federal Docket Management System (FDMS) at
Willie Lewis at (202) 461-4242 or FAX (202) 501-2240.
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With respect to the following collection of information, NCA invites comments on: (1) Whether the proposed collection of information is necessary for the proper performance of NCA's functions, including whether the information will have practical utility; (2) the accuracy of NCA'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.
By direction of the Secretary.
(b) The PAGE Program shall be administered by a Director, appointed by the Secretary under authorities of the Department of Commerce (Commerce). Commerce shall provide necessary staff, resources, and administrative support for the PAGE Program to the extent permitted by law and within existing appropriations.
(b) The Secretary shall serve as Chair of the Advisory Board. In addition to the Chair, the membership of the Advisory Board shall include the Secretary of State, the Administrator of the United States Agency for International Development (USAID), the Administrator of the Small Business Administration (SBA), and the Administrator of the National Aeronautics and Space Administration (NASA), or their designees, and such other representatives
(b) PAGE Members may participate in the PAGE Program for periods of 2 years, and may be selected to participate for additional periods at the discretion of the Secretary.
(b) State shall coordinate with Commerce, USAID, and SBA to identify and carry out programs and activities that will further the goals of the GES to the extent permitted by law and within existing appropriations.
(b) The Steering Group shall be composed of a representative from each of the following agencies:
(c) The Chair shall invite a representative from the Federal Communications Commission, and may invite a representative from any other department, agency, component, or office the Chair deems appropriate, to participate as a member of the Steering Group.
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(e) Not later than 6 months after the date of this order, the Steering Group shall report to the Secretary of State. In this report, the Steering Group shall:
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(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
In accordance with the National Environmental Policy Act of 1969 and the Federal Energy Regulatory Commission's (Commission or FERC) regulations, 18 CFR part 380 (Order No. 486, 52 FR 47897), Office of Energy Projects staff have reviewed Clark Canyon Hydro, LLC's application for license for the proposed Clark Canyon Dam Hydroelectric Project. The project would be located at the U.S. Bureau of Reclamation's (Reclamation's) Clark Canyon Dam, on the Beaverhead River near the city of Dillon, Beaverhead County, Montana, and would occupy a total of 62.3 acres of federal land administered by the U.S. Bureau of Reclamation and the U.S. Bureau of Land Management.
Staff have prepared an environmental assessment (EA) analyzing the potential environmental impacts of the project, and conclude that constructing and operating the project, with appropriate environmental protective measures, would not constitute a major federal action that would significantly affect the quality of the human environment.
A copy of the EA is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's Web site at
You may also register online at
Any comments should be filed within 30 days from the date of this notice. Comments may be filed electronically via the Internet. See 18 CFR 385.2001(a)(1)(iii) and the instructions on the Commission's Web site
For assistance, please contact FERC Online Support. Although the Commission strongly encourages electronic filing, documents may also be paper-filed. To paper-file, mail comments to: Kimberly D. Bose, Secretary, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426. The first page of any filing should include docket number P-14677-001.
For further information, contact Kelly Wolcott by telephone at 202-502-6480 or by email at
On November 23, 2015, Clark Canyon Hydro, LLC (applicant) filed an application to construct and operate the 4.7-megawatt (MW) Clark Canyon Dam Hydroelectric Project (project). The project would be located at the U.S. Bureau of Reclamation's (Reclamation's) Clark Canyon Dam on the Beaverhead River, near the city of Dillon, Montana.
Reclamation's Clark Canyon Dam and Reservoir is a flood control and water conservation facility located at the head of the Beaverhead River
Clark Canyon Dam is a 2,950-foot long, 147.5-foot high, zoned, earth-fill structure, with an uncontrolled spillway at a crest elevation of 5,578 feet mean sea level (msl). The reservoir has a volume of 257,152 acre-feet at the flood control pool elevation of 5,560.5 msl. The dam includes an intake structure and conduit located within the reservoir that leads to a shaft house at the dam crest. From the shaft house, a 9-foot-diameter outlet conduit carries water through the dam approximately 360 feet and discharges it into a stilling basin. The discharge capacity of the outlet works is 2,325 cubic feet per second (cfs) at a reservoir water surface elevation of 5,547 feet msl. Reclamation manages approximately 15 recreation sites at Clark Canyon Reservoir and just downstream of the dam, including fishing access, campgrounds, day-use areas, boat ramps, and an overlook.
The proposed Clark Canyon Dam Hydroelectric Project would use the existing dam, reservoir, intake and outlet works, and stilling basin. The proposed project would involve the installation of a new 360-foot long, 8-foot diameter steel lining within Reclamation's outlet works from the existing gate chamber to the stilling basin. At the river end of the liner, a trifurcation would separate flows into two 8-foot-diameter, 35-foot-long steel penstocks leading to a new powerhouse and a new 10-foot long, 8-foot diameter steel outlet pipe that would discharge into the stilling basin through a fixed cone valve.
The project would operate in a run-of-release mode, meaning the project would operate only using flows made available by Reclamation in accordance with its standard practices and procedures; thus project operation would not affect storage or reservoir levels. The project would be operated automatically, but an operator would be on site daily.
Power generation would be seasonally dictated by Reclamation's operations. The project would be able to operate with flow release ranging from 87.5 to 700 cfs (minimum capacity of 87.5 cfs and a maximum capacity of 350 cfs per unit totaling 700 cfs). Flows less than the 87.5-cfs would cause the isolation valve in the penstock to close, allowing all flows to bypass the powerhouse and pass through the existing outlet works into the stilling basin. When the project is operating at maximum capacity, any inflows in excess of 700 cfs would bypass the powerhouse and continue to flow through Reclamation's existing outlet works and over its spillway into the stilling basin. The proposed project would generate up to 15,400 megawatt-hours (MWh) annually.
The applicant proposes the following environmental measures to protect or enhance aquatic, terrestrial, cultural, recreational and visual resources during project design, construction, and operation:
• Implement the Erosion and Sediment Control Plan (ESCP) filed with the license application to minimize soil erosion and dust, protect water quality, and minimize turbidity in the Beaverhead River;
• Implement the Instream Flow Release Plan filed with the license application with provisions to temporarily pump flows around Reclamation's existing intake and outlet works to prevent interrupting Reclamation's flow releases into the Beaverhead River during installation of the proposed project's penstock;
• Maintain compliance monitoring staff on site 24 hours per day and 7 days per week when bypassing flows around Reclamation's intake and outlet works to ensure prompt response to a pumping equipment failure or malfunction and Reclamation's flow releases are maintained in the Beaverhead River downstream.
• Implement the Construction Water Quality Monitoring Plan (CWQMP) filed with the license application that includes monitoring and reporting water temperature, dissolved oxygen (DO), total dissolved gas (TDG), and turbidity levels during construction to protect aquatic resources during construction;
• Implement the Revised Dissolved Oxygen Enhancement Plan (Revised DOEP) filed with the license application that includes installing and operating the aeration basin and monitoring and reporting of water temperature, DO, and TDG levels for a minimum of the first five years of project operation to ensure water quality does not degrade during project operation;
• Implement the Vegetation Management Plan filed with the license application that includes provisions for revegetating disturbed areas, wetland protection, and invasive weed control before, during, and after construction;
• Conduct a pre-construction survey for raptor nests and schedule construction activities or establish a 0.5-mile construction buffer, as appropriate, to minimize disturbance of nesting raptors;
• Design and construct the project transmission line in accordance with current avian protection guidelines, including installing flight diverters and perch deterrents to prevent collision and electrocution hazards and increased predation of upland sage grouse;
• Implement the Visual Resources Management Plan (VRMP) filed with the license application that includes measures to design and select materials to reduce the visual contrast of project facilities;
• Post signs and public notice, limit construction hours, days, and locations, and stage construction traffic to reduce conflicts with recreational users and other motorists;
• Implement the Buffalo Bridge Fishing Access Road Management Plan filed with the license application that includes provisions for flagging, traffic control devices, and public notice of construction activities to maintain traffic safety and minimize effects on fishing access;
• Install and maintain an interpretive sign near the dam that describes the concept and function of the hydroelectric project and how it affects the sport fisheries, including any measures taken to eliminate or reduce adverse effects;
• Use a single-pole design for the transmission line, along with materials and colors that reduce visibility and blend with the surroundings; and
• Implement the revised Historic Properties Management Plan (HPMP) filed February 9, 2016, and stop work if any unanticipated cultural materials or human remains are found.
This project was previously licensed under a similar design as FERC Project No.12429 (P-12429) on August 26, 2009.
The primary issues associated with licensing the project are the protection of wetlands, water quality, fish and wildlife habitat, visual resources, and cultural resources during project construction and operation.
This EA analyzes the effects of project construction and operation and recommends conditions for an original license for the project. The EA considers three alternatives: (1) the applicant's proposal, as outlined above; (2) the applicant's proposal with staff modifications (staff alternative); and (3) no action—no project construction or operation (no-action alternative).
Under the staff alternative, the project would be constructed and operated as proposed by the applicant with the modifications and additional measures described below. This alternative includes all of the mandatory conditions specified by Reclamation under section 4(e) of the Federal Power Act and all but one of the conditions specified by Montana Department of Environmental Quality's (Montana DEQ) section 401 Water Quality Certification (certification).
Under the staff alternative, the project would include most of the applicant's proposed measures, as outlined above, and the following additional measures: (1) TDG and DO compliance monitoring at all times during project operation rather than just potentially for the first five years of operation; (2) water temperature monitoring for the first five years of project operation and, after consultation with the agencies, filing a proposal for Commission approval regarding the possible cessation of temperature monitoring after the first five years; (3) installing and maintaining a pressure transducer and water level alarm in the Beaverhead River when flows are being bypassed around Reclamation's existing intake and outlet works to alert compliance monitoring staff if water levels downstream of the dam are reduced; (4) notifying Montana Department of Fish, Wildlife, and Parks (Montana DFWP) in addition to Reclamation in the event of an unplanned shutdown during project operation; (5) notifying Montana DEQ and Montana DFWP within 24 hours of any deviation from water temperature, DO, TDG, or turbidity requirements during construction and operation and filing a report with the Commission within 30 days describing the deviation, any adverse effects resulting from the deviation, the corrective actions taken, any proposed measures to avoid future deviations, and comments or correspondence, if any, received from the agencies; (6) maintaining records of pre-construction raptor surveys that includes presence of birds, eggs, and active nests, the qualifications of the biologist performing the survey, and measures implemented to avoid disturbing nesting birds; and (7) constructing the transmission line segments that cross the Horse Prairie and Medicine Lodge drainages outside of the greater sage-grouse breeding season (March 1-April 15); and (8) revising the HPMP in consultation with the Montana State Historic Preservation Officer (Montana SHPO) and Reclamation to include a Treatment Plan to resolve project effects on the Clark Canyon Dam and to clarify consultation procedures and filing the plan with the Commission for approval prior to construction.
Under the no-action alternative, the proposed project would not be built and environmental resources in the project area would not be affected.
Some unavoidable minor, short-term increases in turbidity would occur in the Beaverhead River downstream of the project during project construction. These effects would be minimized by implementing the applicant's ESCP.
Operating the project in a run-of-release mode would protect aquatic habitat in the impoundment and in the Beaverhead River downstream of the project. Installing the penstock and associated valves would temporarily impair Reclamation's ability to release stream flows downstream of the dam.
Current dam operations can cause total dissolved gases (TDG) levels to rise above 115 percent saturation, exceeding the state standard of 110 percent and potentially harming fish. Discharging flows through the project instead of Reclamation's outlet works would reduce the plunging effect and potential for entrained air to enter solution under pressure, thereby reducing the potential for TDG supersaturation which would be a project benefit. However, TDG supersaturation could still affect aquatic resources at times in the summer or early fall when flow release requirements exceed the hydraulic capacity of the project or when the project is shut down and flows exit at high pressure through the existing outlet works.
Reducing the turbulence from Reclamation's discharges could also reduce dissolved oxygen (DO) levels downstream. However, injecting air through the proposed aeration basin based on incoming DO levels and the level of aeration needed to maintain the state criteria of 7.5-8.0 mg/L as described in the applicant's Revised DOEP would maintain adequate DO levels in the project tailrace and potentially enhance DO levels in the summer months, which would benefit trout in the Beaverhead River. Deploying corrective measures and emergency shutdown procedures if DO falls below state criteria would further protect aquatic resources during low DO periods.
The applicant's proposal to monitor water temperature, DO, TDG, and turbidity prior to and during construction as described in its CWQMP and its proposal to monitor water temperature, DO, and TDG for a minimum of the first five years of project operation as described in its Revised DOEP would allow the applicant to document and report compliance with state water quality criteria and would inform the need for corrective measures to protect water quality during the monitoring period. Staff's recommendation that the applicant extend monitoring for DO and TDG for the term of any license issued would ensure that the aeration basin continues to function properly and maintains or improves water quality downstream. Staff's recommended reporting requirements during construction and operation would facilitate the Commission's administration of the license and ensure that any appropriate corrective measures to protect water quality are timely identified and implemented.
The applicant's proposal to screen the pump intakes would limit the potential for entrainment of fish during project construction. However, some fish are likely to be entrained and injured as they pass through the project turbines during operation similar to existing conditions.
Project construction would temporarily disturb and displace some wildlife and would permanent remove 0.10 acres of vegetation. Implementing the best management practices in the applicant's proposed VMP would protect wetlands and prevent the introduction and spread of noxious weeds during construction.
Vegetation lost during construction of the transmission line right-of-way and staging and spoil areas would be restored following construction using native plant species approved by Reclamation and BLM which would provide locally-adapted and naturally-occurring habitat and forage for wildlife.
The potential for avian electrocutions and collisions with the transmission line would be reduced by the applicant's proposals to design the transmission line in adherence to current avian protection standards, including installing flight diverters and perch deterrents on the power line. Perch deterrents would also discourage predators from perching on the transmission line poles, which would protect greater sage-grouse. Restricting construction within 0.5 miles of a raptor nests would avoid disturbing or displacing nesting raptors.
Project construction and operation would not affect the federally listed threatened Ute ladies'-tresses, the threatened grizzly bear, or the threatened Canada lynx because the project area does not contain suitable habitat for either species, or for the snowshoe hare, which is the primary prey of the Canada lynx. There is no designated critical habitat within the project area for these species.
Clark Canyon Dam and six other cultural resource sites along the transmission corridor were identified during site investigations. Project construction would only affect the Clark Canyon Dam, which was determined to be eligible for listing on the National Register of Historic Places. The Montana SHPO concurred with these findings.
Clark Canyon Reservoir and the Beaverhead River are popular recreational destinations, particularly for fishing, boating, and camping. The noise and dust associated with construction activities could disturb recreationists, and safety concerns could arise where recreational users and construction vehicles use the same roadways to access areas near the dam or transmission line. The applicant's proposed Buffalo Bridge Fishing Access Road Management Plan would reduce the effects of construction traffic on recreation users at that location. The applicant's proposed limits on construction hours and days, along with public notice of construction activities would help to minimize conflicts with recreational users, and its proposed signing, flagging, barriers, and construction traffic staging would minimize conflicts with other motorists. During project operation, minor noise and light from the powerhouse could be noticeable to recreation users nearby, particularly below the dam.
Installing and maintaining an interpretive sign at the Clark Canyon Dam Fishing Access site would inform visitors of the concept and function of the hydroelectric project, how it affects the sport fisheries, and any measures taken to eliminate or reduce adverse effects.
Construction of the powerhouse, transmission line, and construction and access roads would introduce new visual elements to the existing
Under the no-action alternative, the project would not be constructed and the environmental resources in the project areas would not be affected.
Based on our analysis, we recommend licensing the project as proposed by the applicant with staff modifications and additional measures, as described above under
In section 4.2 of the EA, we estimate the likely cost of alternative power for each of the two alternatives identified above. Our analysis shows that during the first year of operation under the applicant's proposal, project power would cost $2,331,512, or $151.40/MWh, more than the likely alternative cost of power. Under the staff alternative, project power would cost $2,335,362, or $151.65/MWh, more than the likely alternative cost of power.
We chose the staff alternative as the preferred alternative because: (1) the 4.7-MW project would save the equivalent amount of fossil-fueled generation and capacity, thereby helping to conserve non-renewable energy resources and reduce atmospheric pollution; and (2) the recommended environmental measures proposed by the applicant, as modified by staff, would adequately protect and enhance environmental resources affected by the project. The overall benefits of the staff alternative would be worth the cost of the proposed and recommended environmental measures.
We conclude that issuing a license for the project, with the environmental measures that we recommend, would not be a major federal action significantly affecting the quality of the human environment.
On November 23, 2015, Clark Canyon Hydro, LLC (applicant) filed an application for an original license to construct, operate, and maintain the Clark Canyon Dam Hydroelectric Project (project). The 4.7-megawatt (MW) project would be located at the U.S. Bureau of Reclamation's (Reclamation's) Clark Canyon Dam on the Beaverhead River, near the city of Dillon, Montana (figure 1). The proposed project would occupy 62.1 acres of federal lands within the Pick-Sloan Missouri Basin Program, East Bench Unit, administered by Reclamation, and 0.2 acres of land administered by the U.S. Bureau of Land Management. The project would generate an average of about 15,400 megawatt-hours (MWh) of energy annually.
The Federal Energy Regulatory Commission (Commission or FERC) must decide whether to issue a license to the applicant for the project and what conditions should be placed in any license issued. In deciding whether to issue a license for a hydroelectric project, the Commission must determine that the project will be best adapted to a comprehensive plan for improving or developing a waterway. In addition to the power and developmental purposes for which licenses are issued (
Issuing a license for the project would allow the applicant to generate electricity at the project for the term of an original license, making electric power from a renewable resource available to the public.
This environmental assessment (EA) assesses the environmental and economic effects of constructing and operating the proposed hydroelectric project: (1) As proposed by the applicant, and (2) with our recommended measures and agency mandatory conditions. We also consider the effects of the no-action alternative. Important issues that are addressed include the protection of wetlands, water quality, fish and wildlife habitat, visual resources, and cultural resources during project construction and operation.
The project would provide hydroelectric generation to meet part of Montana's power requirements, resource diversity, and capacity needs. The project would have an installed capacity of 4.7 MW and generate approximately 15,400 MWh per year.
The North American Electric Reliability Corporation (NERC) annually forecasts electric supply and demand nationally and regionally for a 10-year period. The proposed project would be located in the Northwest Power Pool area of the Western Electricity Coordinating Council (WECC) region of NERC. For the 2016-2025 time period, NERC projects that total demand for the summer, the peak season for the entire WECC Region, decreased by 2.3 percent due to generally mild temperatures and increased distributed solar generation. The demand for the summer season is projected to increase by 1.1% per year, while the annual energy load is projected to increase by 1.2% per year for the same time period.
We conclude that power from the proposed project would help meet a need for power in the WECC region in both the short and long term. The project would provide power that would displace non-renewable, fossil-fired generation and contribute to a diversified generation mix. Displacing the operation of fossil-fueled facilities avoids some power plant emissions and creates an environmental benefit.
A license for the project is subject to numerous requirements under the Federal Power Act (FPA) and other applicable statutes. The major regulatory and statutory requirements are summarized in table 1 and described below.
Section 18 of the FPA states that the Commission is to require construction, operation, and maintenance by a licensee of such fishways as may be prescribed by the Secretaries of the U.S. Department of Commerce (Commerce) or the U.S. Department of the Interior (Interior). Neither Commerce nor Interior filed a fishway prescription or requested a reservation of authority to prescribe fishways at the project.
Section 4(e) of the FPA provides that any license issued by the Commission for a project within a federal reservation shall be subject to and contain such conditions as the Secretary of the responsible federal land management agency deems necessary for the adequate protection and use of the reservation. Interior, on behalf of Reclamation, filed preliminary conditions on March 17, 2016, pursuant to section 4(e) of the FPA. These conditions are described under section 2.2.5,
Under section 10(j) of the FPA, each hydroelectric license issued by the Commission must include conditions based on recommendations provided by federal and state fish and wildlife agencies for the protection, mitigation, or enhancement of fish and wildlife resources affected by the project. The Commission is required to include these conditions unless it determines that they are inconsistent with the purposes and requirements of the FPA or other applicable law. Before rejecting or modifying an agency recommendation, the Commission is required to attempt
On March 17, 2016, Interior, on behalf of the U.S. Fish and Wildlife Service (FWS), timely filed recommendations under section 10(j), as summarized in table 7 in section 5.4.1,
Under section 401 of the Clean Water Act (CWA), a license applicant must obtain certification from the appropriate state pollution control agency verifying compliance with the CWA. On April 15, 2016, the applicant applied to the Montana Department of Environmental Quality (Montana DEQ) for 401 water quality certification (certification) for the Clark Canyon Dam Hydroelectric Project. Montana DEQ acknowledged receipt of the application on April 18, 2016.
Section 7 of the Endangered Species Act (ESA) requires federal agencies to ensure that their actions are not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modifications of the critical habitat of such species. No federally listed species are known to occur within the project area; however, on April 15, 2016, Commission staff generated an official species list on FWS's Information, Planning, and Conservation (IPaC) Web site that indicates that three threatened species: The Ute ladies'-tresses (
Section 106 of the National Historic Preservation Act of 1966 (NHPA) as amended requires that every federal agency “take into account” how the agency's undertakings could affect historic properties. Historic properties are districts, sites, buildings, structures, traditional cultural properties (TCPs), and objects significant in American history, architecture, engineering, and culture that are eligible for inclusion in the National Register of Historic Places (National Register).
The Clark Canyon Dam was determined to be individually eligible for listing on the National Register and would be adversely affected by project construction; six other sites located along the transmission line corridor that may or may not be eligible would not be adversely affected by project construction and operation. Commission staff and the Montana SHPO concurred with these findings as discussed in a letter and Programmatic Agreement (PA) issued on May 5, 2016. The SHPO signed the PA and filed it on May 31, 2016. In the event that a license is issued for the project, the PA requires the licensee to revise its proposed HPMP
The Commission's regulations (18 Code of Federal Regulations [CFR], section 4.38) require that applicants consult with appropriate resource agencies, tribes, and other entities before filing an application for a license. This consultation is the first step in complying with the Fish and Wildlife Coordination Act, the ESA, the NHPA, and other federal statutes. Pre-filing consultation must be complete and documented according to the Commission's regulations.
In its tendering notice issued December 4, 2015, the Commission stated its intent to waive the three-stage pre-filing consultation process and scoping for this project based on the pre-filing consultation record. No objections were filed.
On February 23, 2016, the Commission issued a notice stating that the applicant's application was accepted and ready for analysis. This notice set March 24, 2016, as the deadline for filing protests and motions to intervene. On March 22, 2016, Upper Missouri Waterkeeper filed a motion to intervene.
The February 23, 2016, notice solicited comments, terms and conditions, recommendations, and prescriptions. In a letter filed March 17, 2016, Interior, on behalf of Reclamation and FWS, filed preliminary comments, terms and conditions, recommendations, and prescriptions. The following entities commented:
The no-action alternative is license denial. Under the no-action alternative, the proposed project would not be built and environmental resources in the project area would not be affected.
Reclamation's Clark Canyon Dam and Reservoir are existing flood control and water conservation facilities at the head of the Beaverhead River in southwestern Montana, about 20 miles southwest of Dillon, Montana. Clark Canyon Dam was completed in 1964 for Reclamation's Pick-Sloan Missouri River Basin Program, East Bench Unit, which was authorized as part of the Flood Control Acts of 1944 and 1946.
The dam is a zoned, earth-fill structure that is approximately 2,950 feet long at the crest. The crest of the dam is at elevation 5,578 feet mean sea level (msl), with a structural height of 147.5 feet and width of 36 feet. The outlet works include an approach channel, an intake structure, a concrete conduit, a shaft house, and a 9-foot-diameter conduit that discharges into a stilling basin. The outlet works contain a gate chamber with four 3-foot by 6.5-foot high pressure gates. The discharge capacity of the outlet works is 2,325 cubic feet per second (cfs) at a reservoir water surface elevation of 5,547 feet msl. In addition, there is a separate uncontrolled spillway with a crest elevation of 5,571.9 feet msl, and a design discharge of 9,520 cfs.
The proposed project (figure 2) would use the existing dam, reservoir, and outlet works, and would consist of the following new facilities: (1) A 360-foot-long, 8-foot-diameter steel penstock within Reclamation's existing concrete conduit, ending in a trifurcation; (2) two 35-foot-long, 8-foot-diameter steel penstocks equipped with isolation valves extending from the trifurcation to the powerhouse, each penstock transitioning to 6-foot-diameter before entering the powerhouse; (3) a 10-foot-long, 8-foot-diameter steel penstock leaving the trifurcation and ending in a 7-foot-diameter cone valve and reducer to control discharge into Reclamation's existing outlet stilling basin; (4) a 65-foot-long, 46-foot-wide reinforced concrete powerhouse, located at the toe of the dam adjacent to the spillway stilling basin, containing two vertical Francis-type turbine/generator units with a total capacity of 4.7 MW; (5) two 25-foot-long steel draft tubes transitioning to a concrete draft tube/tailrace section; (6) a 17-foot-long, 15-foot-wide tailrace channel connecting with Reclamation's existing spillway stilling basin; (7) an aeration basin downstream of the powerhouse with three 45-foot-long, 10-foot-wide frames containing 330 diffusers; (8) a 4.16-kilovolt (kV) buried transmission line from the powerhouse to a substation containing step-up transformers and switchgear located 1,100 feet downstream of the powerhouse; (9) a 500-foot-long access road connecting to the existing access road; (10) a 7.9-mile-long, 69-kV overhead transmission line extending from the substation to the Peterson Flat substation (the point of interconnection); and (11) appurtenant facilities.
The proposed project boundary
As part of the licensing process, the Commission would review the adequacy of the proposed project facilities. Special articles would be included in any license issued, as appropriate. Commission staff would inspect the licensed project both during and after construction. Inspection during construction would concentrate on adherence to Commission-approved plans and specifications, special license articles relating to construction, and accepted engineering practices and procedures. Operational inspections would focus on the continued safety of the structures, identification of unauthorized modifications, efficiency and safety of operation, compliance with the terms of the license, and proper maintenance. Additionally, Reclamation's preliminary section 4(e) conditions require Reclamation review and approval of plans and specifications to ensure structural adequacy and compatibility of the proposed projects with the authorized purposes of Reclamation's East Bench Unit. Any license issued would give Reclamation oversight over construction, operation, and maintenance of the project as they pertain to the structural integrity or operation of the East Bench Unit. Construction, operation, and maintenance of project works that may affect the structural integrity or operation of the East Bench Unit would also be subject to periodic or continuous inspections by Reclamation.
The Clark Canyon Dam and Reservoir are owned and operated by Reclamation for irrigation storage, flood control, and recreational opportunities. Reclamation's existing facilities are not currently capable of providing hydroelectric power generation. Regulation of the reservoir and corresponding water releases are made in accordance with standard procedures developed by Reclamation. The East Bench Irrigation District (District) is responsible for operation of the dam and reservoir in close coordination with Reclamation. Operation of the dam and reservoir would not be altered to accommodate operation of the proposed hydroelectric facilities. The proposed project would use water that is currently released from the reservoir into the Beaverhead River through the existing intake structure and outlet works on the dam.
The proposed hydropower project would require no modification to existing Clark Canyon Dam and Reservoir uses and would operate in a run-of-release mode with no daily storage, using normally released flows to produce power. The hydropower project would have the ability to be operated automatically, but an operator would be on site daily for operation. Power generation would be seasonally dictated as flow regimes, reservoir levels, and so on are set forth by Reclamation.
The project would operate using Reclamation's flow releases ranging from 87.5 to 700 cfs (minimum capacity of 87.5 cfs and a maximum capacity of 350 cfs per unit totaling 700 cfs). Flows less than the 87.5-cfs would cause the isolation valve in the penstock to close, allowing all flows to bypass the powerhouse and flow through the existing outlet works into the stilling basin. When the project is operating at maximum capacity, flows in excess of 700 cfs would continue to flow through Reclamation's existing outlet works and over its spillway into the stilling basin.
The proposed project would have an installed generating capacity of 4.7 MW, with an average annual generation of 15,400 MWh.
The applicant proposes the following environmental measures:
• Implement the Erosion and Sediment Control Plan (ESCP) filed with the license application to minimize soil erosion and dust, protect water quality, and minimize turbidity in the Beaverhead River;
• Implement the Instream Flow Release Plan filed with the license application with provisions to temporarily pump bypassed flows around Reclamation's existing intake and outlet works to prevent interrupting Reclamation's flow releases into the Beaverhead River during installation of the proposed project's penstock;
• Maintain qualified compliance monitoring staff on site 24 hours per day and 7 days per week when flows are bypassing Reclamation's outlet works to ensure staff promptly responds to a pumping equipment failure or malfunction and ensure Reclamation's flow releases are maintained in the Beaverhead River downstream;
• Implement the Construction Water Quality Monitoring Plan (CWQMP) filed with the license application that includes monitoring and reporting water temperature, dissolved oxygen (DO), total dissolved gas (TDG), and turbidity levels during construction;
• Implement the Revised Dissolved Oxygen Enhancement Plan (Revised DOEP) filed with the license application that includes installing and operating an aeration basin to increase DO levels of water exiting the powerhouse and monitoring and reporting water temperature, DO, and TDG levels for a minimum of the first five years of project operation to ensure water quality does not degrade during project operation;
• Implement the Vegetation Management Plan filed with the license application that includes provisions for revegetating disturbed areas, wetland protection, and invasive weed control before, during, and after construction;
• Conduct a pre-construction survey for raptor nests and schedule construction activities or establish a 0.5-mile construction buffer as appropriate to minimize disturbing nesting raptors;
• Design and construct the project transmission line in accordance with current avian protection guidelines, including installing flight diverters and perch deterrents;
• Post signs and public notice, limit construction hours, days, and locations, and stage construction traffic to reduce conflicts with recreational users and other motorists;
• Implement the Buffalo Bridge Fishing Access Road Management Plan filed with the license application, including provisions for flagging, traffic control devices, and public notice of construction activities to maintain traffic safety and minimize effects on fishing access;
• Install and maintain an interpretive sign near the dam that describes the concept and function of the hydroelectric project and how it affects the sport fisheries, including any measures taken to eliminate or reduce adverse effects;
• Use a single-pole design for the transmission line, along with materials and colors that reduce visibility and blend with the surroundings; and
• Implement the revised Historic Properties Management Plan (HPMP) filed February 9, 2016. Stop work if any unanticipated cultural materials or human remains are found.
Interior, on behalf of Reclamation, filed nine mandatory conditions under FPA section 4(e). Conditions 1 through 3 and conditions 5 through 9 are administrative conditions that would require the applicant to enter into a construction, operation, and maintenance agreement with Reclamation; consult with and receive
Montana DEQ's certification includes 13 conditions. Conditions 1 through 7 and condition 11 are environmental measures that are evaluated in the EA. Conditions 8 through 10 and conditions 12 and 13 are administrative or legal in nature and not environmental measures; therefore we do not analyze them in the EA.
The administrative measures specify that Clark Canyon Hydro: Allow Montana DEQ reasonable entry and access to the project and review of appropriate records; obtain all required permits, authorizations, and certifications prior to commencement of any activity that would violate Montana water quality standards; understand that Montana DEQ's reserves its authority to require adaptive management plans that may include corrective actions and monitoring necessary to correct water quality violations that may result from construction or operation; consider the terms and conditions of the certification to be violated if the project is found to not be in compliance with any of the certification conditions or if the project is constructed or operated in any way not specified in the application, supporting documents or as modified by the conditions; and understand that the certification expires upon transfer of property covered by the certification unless the new owner submits to Montana DEQ a written consent to all the certification conditions.
Environmental measures included in Montana DEQ's certification conditions 1 through 7 and condition 11 that are analyzed in this EA are as follows:
• Condition 1 stipulates that Clark Canyon Hydro conduct water quality monitoring for DO, temperature, and TDG for a minimum of five years following initial project operation and to continue monitoring these parameters each year thereafter while discharging between July and October, unless Montana DEQ determines that additional monitoring is not warranted upon review of the five-year monitoring results.
• Condition 2 stipulates that Clark Canyon Hydro submit a plan prior to construction to monitor Clark Canyon Reservoir and the Beaverhead River for turbidity, TDG, DO, and temperature during project construction.
• Condition 3 stipulates that Clark Canyon Hydro maintain minimum DO levels at saturation from June 1 through August 31 and 8.0 milligrams per liter (mg/L) the rest of the year downstream of the project while discharging into the Beaverhead River.
• Condition 4 stipulates that Clark Canyon Hydro maintain TDG levels at 110 percent or lower downstream of the project while discharging into the Beaverhead River.
• Condition 5 stipulates that Clark Canyon Hydro submit a plan prior to construction for project engineering modifications to maintain DO levels during project operation.
• Condition 6 stipulates that the project automatically go offline in the event that DO levels fall below Montana DEQ standards, that an on-call operator arrive at the powerhouse within 30 minutes to evaluate the cause of any noncompliance reading, and that Clark Canyon Hydro deploy a redundant DO probe at its compliance point in the Beaverhead River.
• Condition 7 stipulates that Clark Canyon Hydro notify Montana DFWP and Montana DEQ within 24 hours of any unauthorized discharge of pollutants to state waters within the project boundary.
• Condition 11 stipulates that Clark Canyon Hydro meet annually with all watershed stakeholders to discuss water quality monitoring efforts associated with project operation.
Under the staff alternative, the project would include all of the applicant's proposals, all of Reclamation's conditions specified under FPA section 4(e), all but one of Montana DEQ's certification conditions,
• Conduct TDG and DO compliance monitoring at all times during project operation;
• Conduct water temperature monitoring for the first five years of project operation and, after consultation with Montana DFWP, Montana DEQ, and FWS, file a proposal for Commission approval regarding the possible cessation of the temperature monitoring program after 5 years;
• Install and maintain a pressure transducer and water level alarm in the Beaverhead River when flows are being bypassed around Reclamation's existing intake and outlet works to alert compliance monitoring staff if water levels downstream of the dam are reduced;
• During project operation, notify Montana DFWP in addition to Reclamation in the event of an unplanned shutdown;
• Notify Montana DEQ and Montana DFWP, within 24 hours of any deviation from water temperature, DO, TDG, or turbidity requirements during construction and operation and file a report with the Commission within 30 days describing the deviation, any adverse effects resulting from the deviation, the corrective actions taken, any proposed measures to avoid future deviations, and comments or correspondence, if any, received from the agencies;
• Document the results of the pre-construction raptor survey and the measures taken to avoid disturbing raptors by maintaining a record that includes nesting bird survey data, including the presence of migratory birds, eggs, and active nests, the qualifications of the biologist performing the survey, and any avoidance measures implemented;
• Construct the transmission line segments that cross the Horse Prairie
• Revise the Historic Properties Management Plan (HPMP) in consultation with the Montana SHPO and Reclamation to include a Treatment Plan to resolve project effects on the Clark Canyon Dam and to clarify consultation procedures in the plan (see section 3.3.6). File the HPMP with the Commission for approval prior to construction.
Proposed and recommended measures are discussed under the appropriate resource sections and summarized in section 4 of this EA.
In this section, we present: (1) A general description of the project vicinity; (2) an explanation of the scope of our cumulative effects analysis; and (3) our analysis of the proposed action and other recommended environmental measures. Sections are organized by resource area (
The Beaverhead River is formed by the confluence of the Red Rock River and Horse Prairie Creek immediately upstream of Clark Canyon Dam. Other important tributaries include Cedar Creek, Medicine Lodge Creek, and Maurer Creek upstream of the dam, and Gallagher Creek and Grasshopper Creek downstream of the dam. From its origin at the tailrace of Clark Canyon Dam, the river flows approximately 71 miles to its confluence with the Big Hole River at Twin Bridges, Montana, where it forms the Jefferson River. The Jefferson River merges with the Madison and Gallatin rivers at Three Forks, Montana, about 100 miles downstream of Clark Canyon Dam, to form the Missouri River.
The topography of the Beaverhead River Basin is characterized by arid hillsides throughout the first 12 river miles (RM), opening into a wide valley about 8 miles south of Dillon, Montana. The total drainage area encompasses 3,619 square miles. Average annual precipitation in the basin is largely dependent on location and elevation. The southeast and western portions of the basin receive up to 20 inches. At the city of Dillon, about 20 miles from Clark Canyon Dam, the average annual precipitation is 11.7 inches. Winter and summer temperatures average about 26 and 63 degrees Fahrenheit (°F), respectively, at Dillon.
Clark Canyon Reservoir and the Beaverhead River provide water for Reclamation's East Bench Unit of the Pick-Sloan Missouri Basin Irrigation Program. The program provides full irrigation services for up to 28,055 acres of land to support the agricultural industry.
According to the Council on Environmental Quality's regulations for implementing the National Environmental Policy Act (40 CFR, section 1508.7), cumulative effect is the impact on the environment that results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (federal or non-federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time, including hydropower and other land and water development activities.
Based on our review of the license application and agency and public comments, we have identified aquatic resources, including fisheries and water quality, as resources that may be cumulatively affected by the project in combination with other past, present, and future activities, because of the potential for the project to adversely affect aquatic habitat and water quality, which are affected by upstream land uses and water storage and diversion.
The geographic scope of the analysis defines the physical limits or boundaries of the proposed action's effects on the resources. Because the proposed action would affect these resources differently, the geographic scope for each resource varies.
We have determined that the geographic scope for cumulatively affected fishery resources would encompass the Beaverhead River from Clark Canyon Dam to Barrett's Diversion Dam, located about 11 miles downstream. We chose this geographic scope because construction and operation of the project may affect streamflows and aquatic habitat in this reach.
For water quality, we have determined that the geographic scope would encompass Clark Canyon Reservoir, its two primary tributaries (Red Rock River and Horse Prairie Creek), and the Beaverhead River from Clark Canyon Dam downstream to Barrett's Diversion Dam. We chose this geographic scope because these stream reaches are on the CWA section 303(d) list as being impaired for water quality, and actions within these waterbodies together with construction and operation of the project may affect water quality in the Beaverhead River.
The temporal scope of analysis includes a discussion of the past, present, and reasonably foreseeable future actions and their effects on fishery and water quality resources. Based on the term of the proposed license, we will look 30 to 50 years into the future, concentrating on the effects on fish, fish habitat, and water quality from reasonably foreseeable future actions. The historical discussion is limited, by necessity, to the amount of available information. We identified the present resource conditions based on the license application, agency comments, and comprehensive plans.
In this section, we discuss the effects of the project alternatives on environmental resources. For each resource, we first describe the affected environment, which is the existing condition and baseline against which we measure effects. We then discuss and analyze the specific cumulative and site-specific environmental issues.
Only the resources that would be affected, or about which comments have been received, are addressed in detail in this EA. Based on this, we have determined that geology and soils, fishery, water quality and quantity, terrestrial, threatened and endangered species, recreation, cultural, and aesthetic resources may be affected by the proposed action and action alternatives. We have not identified any substantive issues related to socioeconomics associated with the
Clark Canyon Dam is located at the confluence of the Red Rock River and Horse Prairie Creek, where the watercourses become the Beaverhead River. The terrain in the area is generally characterized as arid rolling hills with watercourses carving floodplains and canyons into volcanic rock. In areas where the canyon sides become unstable as a result of erosion or seismic activity, landslides do occur and some affect the path of river flow.
Downstream of the dam, the river valley is relatively deep and narrow for about 12 miles, with an average gradient of 0.244 percent. The valley widens as the river crosses an area near the Blacktail Fault at Barrett's Diversion Dam, where the Blacktail uplift was developed by late movement of this active fault (described in more detail below). Below the diversion, the valley is characterized by agricultural activity and the irrigation that supports it, stemming from the irrigation and flood control functions of Clark Canyon Reservoir. Surface soils in the hills and mountains are generally loamy and sandy with rock escarpments and fragments, while the alluvial valley soils are loamy and clayey. Watercourses have generally carved soil down to bedrock and loose gravel.
Seismic activity in the southwestern region of Montana is significant and has been shown to have the highest degree of tectonic plate movement within the state (Bartholomew et al., 1999). A portion of the region borders the highly active Yellowstone caldera in Wyoming. Documented earthquakes occurred in 1925, 1959, and 1983, centered at Clarkston Valley, Hebgen Lake, and Borah Peak, Idaho, respectively. These epicenters all lie within 90 miles of Clark Canyon Reservoir, and at least one of the earthquakes (Hebgen Lake) was felt in nine states and three Canadian provinces. It also caused subsidence within the Hebgen Lake Basin of as much as 6.7 meters, as well as a landslide large enough to dam Madison Canyon and create Earthquake Lake.
The nearest faults to Clark Canyon Dam are known as Red Rock Fault and Blacktail Fault. Both run approximately southeast to northwest, perpendicular to the flow of the Beaverhead River downstream of the dam. Red Rock Fault is about 10 miles upstream along the Red Rock River, while the Blacktail Fault is about 12 miles downstream toward the city of Dillon. Being close to a population center, Blacktail Fault has been well-documented as an active fault.
In 2000, Reclamation commissioned a study to assess the amount of sedimentation that has accumulated in Clark Canyon Reservoir since operation of the earthfill dam began in 1964. The sedimentation is generally believed to be contributed by the drainage area to the reservoir, although a minor amount is trapped upstream by Lima reservoir. Loss of storage below the normal operating water surface level could also occur from shoreline erosion, although this has not been studied. Reclamation's mapping of the reservoir concluded that 2.3 percent of the reservoir's storage volume had been lost since operation began, an average of 114.7 acre-feet of sedimentation per year.
The areas where construction of the proposed project would occur are all areas that were disturbed during construction of Clark Canyon Dam, completed in 1964. The valve house, powerhouse, and staging area would all be located on the toe of the downstream face of the dam adjacent to the existing spillway and stilling basin. There would be no new penetrations through the dam structure; the project would use the existing outlet tunnel downstream of the intake gates by installing a new steel liner in the tunnel with a new trifurcated diversion structure to allow for flows to the existing outlet stilling basin or to the proposed powerhouse.
Ground disturbance associated with construction of the project, including the powerhouse, access road, and transmission line, could release sediment into nearby wetland areas and the Beaverhead River downstream of the dam, and it could adversely affect the structural stability or seepage characteristics of the existing dam. Turbidity could also be increased by a change in flow patterns through the dam during construction.
Proposed construction work would disturb multiple areas on the downstream side of the dam, as well as inside the dam. The disturbance downstream of the dam would include burial of 0.3 miles of transmission line. The applicant proposes to lengthen the existing access road and place a temporary staging and spoil site on the uphill side of the proposed transmission line burial corridor and existing access road.
To minimize soil erosion and dust, protect water quality, and minimize turbidity in the Beaverhead River, the applicant proposes to implement the measures contained in its ESCP. The ESCP includes best management practices (BMPs) such as:
• Defining clearing limits within project area and buffer zones around sensitive areas, including wetlands;
• Stabilizing construction access road entrances and exits, parking and staging areas;
• Controlling flow rates coming onto and leaving the project area utilizing, but not limited to, swales, dikes, sediment ponds, or sediment traps, as necessary;
• Installing sediment controls to minimize erosion and stabilize soils including, but not limited to, silt fences, wattles, interceptor dikes, swales, and vegetative filtration;
• Preserving natural vegetation and stabilize soils utilizing nets, blankets, mulch, and seeding, as necessary;
• Protecting slopes utilizing, but not limited to, terracing or pipe slope drains;
• Protecting stormwater drain inlets utilizing catch basin inserts;
• Stabilizing channels and outlets;
• Controlling the release of pollutants to protect water quality and aquatic resources by keeping chemical storage areas covered or designating a concrete handing area; and taking all precautions to avoid spills (
• Controlling de-watering processes within the project area;
• Visually inspecting all construction and disturbance areas every two weeks throughout the entirety of construction activity, or after any project related discharges or rain events; and
• Using existing developed and primitive roads where possible to access the project area and construction features.
Constructing facilities at an existing earthfill dam such as the Clark Canyon Dam has the potential to adversely affect the dam's structural ability to withstand a seismic or flood event by adversely affecting the seepage characteristics of the dam. The applicant proposes to construct the powerhouse and appurtenant facilities in a manner to avoid any effects on reservoir levels or dam stability. The proposed hydroelectric facilities would also be designed to withstand seismic and hydrostatic forces.
To ensure that the area is suitable for the foundation loading of the hydroelectric facilities, geotechnical borings would be drilled and the results reviewed and approved by the Commission and Reclamation. To confirm that the proposed facilities would not affect the stability of the existing structures, and to confirm that the proposed structures would be compatible with applicable seismic and hydrostatic load standards, the applicant would finalize design plans and drawings and submit for Commission and Reclamation review and approval. The plans would include structural drawings, construction methods, and mitigation measures for potential impacts from construction of the powerhouse, steel conduit liner, shaft house, transmission line, and all appurtenant facilities. The Commission and Reclamation would review final design plans before the start of construction, as well as the results of geotechnical borings. Borings would be located and drilled after final design plans specify the exact location of the hydroelectric facilities. The results of the borings would show the composition of the subsurface geology and dam structures, including the location of bedrock, to confirm the suitability of the final design location of the powerhouse and foundation loading.
The proposed project would disturb areas downstream of the dam during construction of the powerhouse and appurtenant facilities, burial of the transmission line, and upgrade of the access road. The ESCP would control sediment release, if properly implemented. Approved and properly implemented erosion and sediment control measures, consistent with the Commission's guidelines, would minimize sediment releases that could result from construction disturbance. Inspection and maintenance of the erosion and sediment control structures, especially around rainfall events and disturbance activities, would ensure compliance with Commission guidelines. With effective erosion control measures in place, sediment from construction activities would not likely enter wetlands or the Beaverhead River.
The applicant's proposal to avoid any jurisdictional wetlands and route the transmission line along the uphill side of the existing access road would limit the potential for sediment release from construction activities into wetlands and the Beaverhead River. Although project construction would result in ground disturbance and could potentially result in sediment release into the river, the applicant's proposed plan would protect environmental resources.
Potential effects on geology and soils during project operation could occur as a result of sediment release caused by concentrated runoff. Revegetated or paved surfaces such as the access roads, parking area, or walkways could generate runoff. If improperly managed, that runoff could cause rills or gullies that transport sediment into Beaverhead River. Similarly, construction areas and the spoil area, especially the buried transmission line corridor, could be susceptible to increased erosion if revegetation work were not completed properly.
Post-construction stabilization and effective site restoration as discussed in section 3.3.3.2,
Once in operation, the project should have little or no effect on geology and soils. Proper implementation of the applicant's ESCP would prevent excessive runoff that could possibly cause rills or gullies to form, thereby protecting water quality, wetlands, and soil resources. Intake and discharge of water for project use would be confined to areas already established for those purposes.
The proposed project has the potential to affect water quantity, water quality, and fisheries resources in Clark Canyon Reservoir and the Beaverhead River. The Affected Environment section describes these resources in the project area.
The hydrology of the Beaverhead River is dictated by Reclamation's operation of the Clark Canyon Reservoir as an irrigation and flood control facility. On average, the lowest reservoir elevations typically occur in late summer or early fall at the end of the irrigation season, with the highest reservoir elevations typically occurring in mid-May just prior to the irrigation season. For the period of record of 1965 to 2007, the estimated mean monthly streamflow downstream of the dam ranged from a low of about 170 cfs during the winter to a high of about 750 cfs during the peak summer irrigation season (figures 3 and 4). Starting in April, water releases from the reservoir are increased until mid-July when the pool in the reservoir is nearly full. Flows then drop until around mid-October before stabilizing until the following April, which corresponds to a period of reduced reservoir storage.
Extended periods of low flows (<100 cfs) occurred in 1967, 1975, 1986, 1990-1993, 2001-2009, and 2013-2014. The low-flow period of 2001-2004 reduced the reservoir storage to its lowest level since construction, with flow releases during this period ranging from a fall/winter low of about 30 cfs to a summer high of about 500 cfs (figure 3). Unusually high flow years occurred in 1976, 1984, 1996, and 1999. In 1984, spring snow melt, accompanied by spring rains, contributed to a maximum combined release of 2,586 cfs through the dam outlet works and spillway.
Discharge from Clark Canyon Dam during the fall through winter period generally averaged between 200 to 300 cfs from 1965 to 2003. The maximum discharge recorded for the period of 1965 to 2003 for the fall and winter seasons ranged from a high of about 1,300 cfs in October to about 700 to 500 cfs from November through February.
Minimum instream flow releases specified by existing water uses during non-irrigation (winter) seasons are 23 cfs during dry conditions.
Water quality standards applicable to Clark Canyon Reservoir and the Beaverhead River downstream of Clark Canyon Dam are shown in table 2. These waters are classified as B-1, which means they are to be maintained suitable for drinking, culinary, and food
Red Rock River and Horse Prairie Creek (the primary tributaries to Clark Canyon Reservoir), as well as the Beaverhead River downstream to Grasshopper Creek (11.8 miles downstream from Clark Canyon Dam), are identified on the state of Montana's CWA section 303(d) list as being water quality impaired (EPA, 2008). The Red Rock River is listed as being impaired due to habitat alteration, flow alteration, sediment, temperature, lead and zinc. Horse Prairie Creek is impaired by flow alteration, arsenic, cadmium, copper, lead, mercury, and zinc. The Beaverhead River from Clark Canyon Dam to Grasshopper Creek is listed as being impaired due to flow and habitat alteration, as well as lead, and downstream from Grasshopper Creek, the river is listed as being impaired by flow and habitat alteration, sediment, and temperature. Montana DEQ is currently working on defining acceptable total maximum daily loads (TMDLs) for the Red Rock River and Beaverhead River Basins.
Clark Canyon Reservoir is included in Montana DEQ's 2014 Integrated Water Quality Report as impaired by a non-pollutant for alterations to flow regimes relating to drought impacts and irrigated crop production. These impacts cause impairments for the beneficial uses of primary contact recreation and aquatic life but because these impairments are not considered pollutants, no TMDL will be established (Montana DEQ 2014).
The causes of water quality impairment in the Beaverhead River Basin identified on the 303(d) list include grazing in riparian or shoreline zones, flow regulation and diversion for irrigated crop production, leaching of toxic materials from abandoned mines, and land clearing for development. Each of these sources likely contributes to a cumulative reduction in water quality in the project area, although water quality in Clark Canyon Reservoir and in the Beaverhead River downstream of Clark Canyon Dam is generally sufficient to support a high-quality trout fishery.
The applicant collected water quality data at six sites in the project vicinity between 2007 and 2009. The sites were chosen to provide baseline data for assessment of the potential effects of project construction and operation on water quality of the Beaverhead River. Monitoring efforts documented DO and temperature profiles in the forebay area of Clark Canyon Reservoir, as well as DO, temperature, TDG, and turbidity at five sites in the Beaverhead River downstream from the dam.
Reservoir profiles reported by the applicant during the sampling period captured reservoir dynamics over a wide range of reservoir elevations. In 2007, reservoir surface elevations dropped about 15 feet during the sampling period from a high of about 5,535 feet during early May to a low of about 5,520 feet from August through October. The reservoir was cool but well stratified in May, with surface temperatures of approximately 14.5 degrees Celsius (°C), a thermocline depth of about 10 meters, and hypolimnion temperatures of approximately 10 °C. Surface temperatures continued to warm through July, but began to cool in August and were down to 12.5 °C by September. The maximum surface temperature observed was in early July when surface waters reached 22 °C. The thermocline was relatively constant at about 10 meters deep despite changes in reservoir elevations and reservoir temperatures. Stratification was strong from May through July, but lessened by mid-August and was completely absent by late September when the profile reflected complete mixing throughout the water column and a uniform temperature of approximately 12.5 °C.
DO patterns from data collected in 2007 reflected the temperature stratification of Clark Canyon Reservoir. Surface DO concentrations were highest in May at about 9 mg/L, but declined below the thermocline and were below the standard of 8 mg/L in the bottom 3 meters of the reservoir. Late June showed a similar pattern of stratification, with only slightly lower DO concentrations. In July and August, DO levels were below the 8 mg/L water quality standard at the surface, and fell below 4 mg/L at depths greater than 15 meters. By late September, however, the reservoir uniformly mixed and DO concentrations met and exceeded the standard of 8 mg/L. Reservoir profiles of DO were also performed in 2010. The 2010 reservoir profiles showed that fall turnover occurred during late September or early October. However, the lowest hypolimnion DO level was 1.3 mg/L in late July during that sampling year.
Additional information about reservoir stratification patterns is available from temperature and DO profiles measured by Reclamation in 2001, 2002, and 2003 (Reclamation, 2005). In 2001, a substantial degree of stratification was evident in late June and in mid-August, with complete mixing (as reflected by uniform temperature and DO profiles) occurring by the next measurement on October 14. In 2002, the reservoir exhibited
The applicant conducted continuous monitoring of water temperature, DO, TDG, and turbidity at a site approximately 300 feet downstream of Clark Canyon Dam from June 2007 through 2009 and also collected water temperature, DO, and turbidity data at this site again in 2013. In addition, the 2009 monitoring effort included four additional sites located 0.9, 3.0, 5.7, and 10.7 miles downstream from Clark Canyon Dam. Water temperature, DO, TDG and turbidity were monitored for a minimum period of 48 hours in each month at each of these sites.
Temperature observations in 2013 were consistent with historical monitoring, with winter temperatures generally less than 5 °C and summer temperatures peaking at approximately 18 °C with a maximum daily average temperature of 18.6 °C recorded on August 25 (figure 5). The applicant states that the range of daily variation throughout the year averaged less than 1 °C in 2013 which is consistent with data collected in 2007.
Dissolved Oxygen—Minimum DO values measured at the five monitoring sites from May 2007 through 2009 generally exceeded the 8-mg/L (March through September) and 4 mg/L (October through February) water quality standards in most months and locations, although measurements at sites closest to the reservoir did measure levels lower than the state standard of 8 mg/L at times during the late summer and early fall months (figure 6).
Monitoring conducted near the reservoir outlet in 2008 and 2009 revealed some diel DO patterns, primarily during the spring and winter months. For instance, DO generally increased during the day from morning to late afternoon before declining. The greatest amplitudes were observed during the spring. During the summer months, there was little or no diel pattern. The applicant stated that discharges during those times likely reduced the opportunity for DO to be absorbed into
DO observations in 2013 were consistent with historical monitoring. Seasonal highs occurred during the spring and winter months, with a peak concentration in the month of May, and lowest concentrations occurring in late summer. DO concentrations were temporarily below the 8 mg/L standard during the month of June, and concentrations stayed below the standard continuously from mid-July through September during the 2013 sampling year (figure 7).
Upper Missouri Waterkeeper, Montana Trout Unlimited, Rhonda Sellers (on behalf of the International Federation of Fly Fishers), and several local residents filed comments stating concerns with recent algal blooms that occurred in the Beaverhead River downstream of the dam during the summers of 2014 and 2015.
Although no spill occurred over Clark Canyon Dam during the 2007 monitoring period, TDG saturation levels exceeded the state standard of 110 percent saturation during high flow periods in 2007, and did so again during the 2008 and 2009 monitoring years (figure 8). The applicant states that statistically, the 110 percent saturation standard was exceeded when flows were greater than about 360 cfs. Overall, TDG levels appeared to track discharge from Clark Canyon Dam and frequently exceeded state standards between June and September. Peak TDG levels exceeded 115-120 percent saturation during mid-summer in all years, when flows were in the range of 600 to 900 cfs. Measurements taken at downstream sites indicated that saturation levels were reduced as water moved downstream, although at times TDG levels remained above the 110 percent standard at the next three measurement sites, extending 5.7 miles downstream from Clark Canyon Dam.
In 2008, average turbidity levels ranged between 0.2 and 29.3 NTU. The 29.3-NTU peak in turbidity reported in March 2008 at station RM 0 is of questionable accuracy because this peak is not reflected in measurements taken at the downstream monitoring stations (figure 9). In its CWQMP, the applicant states that such spikes may be due to the gradual buildup of algae on the sensor or to debris becoming lodged in the probe casing near the sensor, thus causing a faulty reading.
Except for the questionable spike in turbidity observed at the site closest to the dam in March 2008, turbidity remained generally below 5 NTU at all sites throughout the majority of the 2008 and 2009 monitoring years. Exceptions to this were most often recorded at the monitoring site located the furthest downstream of the dam. For example, during May 2009, a measurement of about 20 NTU was recorded at this site. The applicant noted that this site occurs below several tributaries and irrigation returns and is downstream of river portions that may be more vulnerable to shoreline erosion, all of which can elevate turbidity in the river.
In addition to tributary inflow and irrigation sources, turbidity may also be affected in Clark Canyon Reservoir and in the Beaverhead downstream due to algal blooms. Recent limnological and bathymetric survey data from Montana DFWP and Montana DEQ collected in 2015 indicated that both inorganic fine sediments and concentrations of nitrogen and phosphorus are likely being transported downstream through the existing outlet works (Selch, 2015; Flynn, 2015). Downstream transport of nitrogen and phosphorous can feed algal growth and, along with other sediment sources, contribute to turbid conditions in the Beaverhead River downstream of Clark Canyon Dam.
The Beaverhead River is recognized as one of the most popular and productive trout fisheries in North America and is designated as a blue ribbon fishery by Montana DFWP. Native fish species occurring in the Beaverhead River and in Clark Canyon Reservoir include mountain whitefish, burbot, mottled sculpin, mountain sucker, longnose sucker, and white sucker. Introduced fish species include rainbow trout, brown trout, brook trout, redside shiner, and common carp. Brown and rainbow trout are well established, and often attain trophy size in the Beaverhead River. Special status species that may occur in the project area include the westslope cutthroat trout (
The westslope cutthroat trout is a subspecies that occurred historically throughout the Northern Rocky Mountain states, including the Beaverhead River Basin. Genetically pure and near-pure populations have been documented in portions of the Beaverhead River in recent years, and some individuals may occur in the project vicinity. The U.S. Bureau of Land Management (BLM) categorizes the westslope cutthroat trout as having special status, which indicates that the species is imperiled throughout at least part of its range and documented to occur on BLM lands. It is currently listed as a S2
The Montana Arctic grayling historically occurred throughout the upper Missouri River Basin upstream of Great Falls, Montana, including the Beaverhead River. In recent years, the Montana Arctic grayling has been stocked into the Beaverhead River downstream of the city of Dillon in an attempt to re-establish the species. The species is listed as sensitive by the U.S. Forest Service, indicating there is a concern for population viability within the state due to a significant current or predicted downward trend in populations or habitat. The species has also been petitioned for listing under the ESA several times since 1991 although the FWS determined it was not warranted for listing in 2014 (79 FR 49384). BLM affords the species special status and Montana DFWP lists it as G1-S1 species, indicating it is at high risk because of extremely limited and potentially declining numbers, extent, and/or habitat, making it highly vulnerable to global extinction or extirpation in the state.
Fisheries in the Beaverhead River Basin have been cumulatively affected by grazing in riparian or shoreline zones, flow regulation and diversion for irrigated crop production, land clearing for development, and cumulative effects on water quality from these and other sources.
The Beaverhead River between Clark Canyon Dam and Barrett's Diversion Dam is a productive tailwater fishery. This portion of the river is designated as a blue ribbon fishery and angler use can be very high from May through November. The dominant fish species in the Beaverhead River are brown trout and, to a lesser degree, rainbow trout. While neither of these species is native to the river, their populations are considered to be wild and self-sustaining.
Surveys to determine the abundance of age 1+ rainbow and brown trout have been conducted by Montana DFWP within the project vicinity annually since 1986. Survey data collected by between RM 74.9 to RM 73.3 in the Beaverhead River below Clark Canyon Dam between 1991 and 2013 are shown on figure 10 below. Brown trout abundance was observed to range from 473 fish per mile to 2,619 fish per mile and averaged 1,369 fish per mile between 1991 and 2013. Rainbow trout abundance was observed to range from 99 fish per mile to 680 fish per mile and averaged 305 fish per mile between 1991 and 2013. Oswald (2003) reports that rainbow trout in the reach downstream of Clark Canyon Dam have declined as the population of brown trout has expanded.
Trout abundance in the survey area of the Beaverhead River has been observed to fluctuate with discharge flows which are generally attributable to regional weather conditions. Populations of both species appear to be adversely affected in dry water years, when the minimum flow released from Clark Canyon Dam may be reduced substantially during the winter (non-irrigation) season. Oswald (2006) reported that the number of brown trout greater than 18 inches in length in the Beaverhead River exceeded 600 fish per mile from 1998 to 2000, after a series of wet water years when the mean winter flow releases were over 200 cfs. Dry water years from 2001 through 2006 resulted in winter flow releases of less than 50 cfs, and the estimated number of brown trout greater than 18 inches in length subsequently declined to about 400 fish per mile by 2002, to 300 fish per mile by 2004, and to 100 fish per mile by 2006.
Gas bubble trauma has been documented in trout populations in the Beaverhead River (Oswald, 1985, as cited by Clark Canyon Hydro, LLC, 2015a). The primary cause of gas bubble trauma in regulated systems is TDG supersaturation from water spilled at dams, which commonly occurs when entrained air is dissolved in water under pressure at depth in plunge pools (Beeman et al., 2003). Gas bubble trauma induces a variety of sub-lethal and lethal effects in fish and other aquatic species (EPRI, 1990; Weitkamp and Katz, 1980). Gas bubble trauma is characterized by the formation of gas bubbles in the body cavities of fish, such as behind the eyes or between layers of skin tissue. Small bubbles can form within the vascular system, blocking the flow of blood and causing tissue death. Bubbles can also form in the gill lamellae and block blood flow, occasionally resulting in death by asphyxiation. The effects of gas bubble trauma can range from mild to fatal depending on the level of TDG supersaturation, species, life stage, depth, condition of the aquatic organism, and temperature of the water (Beeman et al., 2003).
In 1983, elevated TDG levels and gas bubble trauma were observed for the first time in the Beaverhead River downstream of Clark Canyon Dam. It was originally believed that the elevated TDG levels were caused by very high flows that included releasing the maximum quantity of flow through the outlet works and—for the first and only time since construction—releasing water through the spillway. Data collected by Oswald (1985) indicated that 8.8 percent of brown trout and 3 percent of the rainbow trout sampled downstream of the dam exhibited gas bubble trauma symptoms. Data collected by Falter and Bennett (1987) during a non-spill period, however, also found elevated levels of TDG in the river. In fact, the highest TDG concentration observed for the non-spill period was 126 percent of saturation compared to 127 percent of saturation during the spill event. Falter and Bennett (1987) suggested that the primary cause of TDG supersaturation downstream of Clark Canyon Dam is the turbulent mixing and plunging of flows released through the existing outlet structure of the dam. Data reported by the applicant indicate that TDG levels continue to remain above state standards, even in the absence of spills.
Other factors that may adversely affect trout populations in the Beaverhead River include outbreaks of bacterial furunculosis, and the more recent introductions of New Zealand mud snail (an exotic nuisance species that may displace species of greater forage value to trout) and whirling disease (Reclamation, 2006).
Clark Canyon Reservoir supports a popular fishery for rainbow trout. Other common or abundant fish species include white sucker, redside shiner, brown trout and burbot. Rare species present in the reservoir include brook
Relative abundance of rainbow and brown trout in Clark Canyon Reservoir has been documented since 1980 by gill netting. Rainbow trout abundance in fall surveys conducted between 1989 and 2011 was observed to range from 1.2 fish per net to 50 fish per net in 2004 and 2006, respectively. Rainbow trout abundance in spring surveys conducted between 1980 and 2006 was observed to range from 2.9 fish per net to 18.7 fish per net in 1991 and 2006, respectively. Brown trout abundance in spring and fall surveys has remained fairly low and stable; generally ranging between 1 fish per net and 10 fish per net. To augment the existing rainbow trout population in Clark Canyon Reservoir, Montana DFWP collects and spawns broodstock from Red Rock River. Fertilized eggs from these fish are incubated and reared in hatcheries and then are released into the reservoir as fingerlings or yearlings. Between 100,000 and 300,000 fingerling trout are stocked into the reservoir in most years, and approximately 70,000 additional yearling fish have been released in most years since 2002. Broodstock collection has not been undertaken in some drought years, when flows in the Red Rock River were too low to support a spawning migration of rainbow trout (Reclamation, 2006).
The health of the Clark Canyon Reservoir fishery has been linked to reservoir operation. Reclamation (2006) reports that fish populations typically remain healthy in years where storage remains over 60,000 acre-feet at the end of the summer irrigation season, with year-end storage levels of 100,000 acre-feet or greater providing optimum habitat conditions.
Aquatic resources downstream of the dam may be affected during construction if project construction impairs the ability of streamflows to be released downstream into the Beaverhead River, or if it alters water quality compared to existing conditions. Because the existing outlet works would not be available to provide flow releases during part of the construction period, the applicant developed a plan for maintaining the continuity of flow releases during construction in consultation with Reclamation, FWS, Montana DFWP, District, Clark Canyon Water Supply Company, and Montana DEQ. The final Instream Flow Release Plan, incorporating comments received from the consulted agencies, was filed with the license application.
During installation and pressure-grouting of the steel penstock liner, construction of the trifurcation leading to the powerhouse turbines, and installation of associated valves, minimum flows to the Beaverhead River would need to be bypassed around the existing penstock. The applicant estimates that this phase of the construction process would require approximately 8 to 12 weeks, extending from October into December. In its Final Instream Flow Release Plan, the applicant proposes to provide streamflows during this period using electric pumps mounted on a barge anchored in the project forebay. After this phase of the construction has been completed, flow would be released through the existing penstock.
Prior to the start of construction, the number of primary and backup pumps would be determined based on the minimum flow release that would be required by Reclamation during the construction period. The number of primary and backup pump units would be a function of the final construction specifications and bypass flow requirements. The applicant anticipates that one or two pumps would most likely be required, but it proposes to provide as many pumps as are needed to pass the minimum flow specified by Reclamation. The applicant provided cost estimates for the installation of up to four pumps. The applicant proposes to mount the primary and backup pump units on a platform anchored in the forebay near the spillway, and to screen the pump intakes to meet resource agency requirements for fish exclusion.
Magnetic flow measuring equipment would be installed on each discharge pipe so that the discharge from each pump can be measured. In addition, the applicant proposes to install a gaging station immediately downstream of the project prior to construction. Reclamation would be consulted prior to construction regarding how the exchange of flow releases from the regulating outlet to the pumps and back again would occur, and continuous contact would be maintained between representatives of the applicant and Reclamation during this period.
A diesel generator located above the reservoir shoreline would be available to provide backup power in the event of a power outage. The generator would be enclosed in a spill containment unit of sufficient capacity to handle the diesel generator fuel storage. Additionally, an earthen berm would be placed around the generator site. The diesel generator would provide controls for automatic startup and electrical transfer if an outage occurs. The applicant also proposes to provide full-time/24-hour staff attendance of the pumping system when flows are being bypassed around Reclamation's existing intake and outlet works during construction of the proposed penstock.
The applicant's proposal to implement its Final Instream Flow Release Plan, with provisions to pump flows around the existing penstock to the Beaverhead River at flows dictated by Reclamation, would ensure that streamflows and water quality suitable to protect aquatic life are maintained in the Beaverhead River downstream of the dam during project construction. Providing stable flow releases would be especially important to brown trout and mountain whitefish, which spawn in the Beaverhead River in October and November and rely on stable river flows for reproductive success.
The applicant estimates that this phase of the construction process would require approximately 8 to 12 weeks, extending from October into December. Elevated flows associated with irrigation demands have typically ended by late September. The timing of irrigation releases and the amount of minimum flow to be released after irrigation releases end are determined jointly by Reclamation and the East Bench Joint Board of Control, which is composed of the District and the Clark Canyon Water Supply Company. Minimum flows released during the post-irrigation season are determined using guidelines based on the amount of reservoir storage at the beginning of September plus the total inflow that occurs during July and August (table 3).
Staff examined the end-of-month storage for Clark Canyon Reservoir for the years 1965-2016. Over the period of record, end-of-month storage for the month of September was generally less than 160,000 acre-feet with very few exceptions (Reclamation, 2016). Data for the most recent three years showed that storage for September ranged from 47,983-59,215 acre-feet (Reclamation,
Additional provisions proposed by the applicant that would help ensure flow continuity during project operation include:
• When flows drop below 87.5 cfs (the minimum hydraulic capacity of the powerhouse), the flow would be gradually transferred to the main penstock through synchronization between the powerhouse and the penstock valves. As flow is reduced through the powerhouse valves, flow would increase correspondingly through the penstock valve, and vice versa.
• The project is being engineered such that, in the event of emergency shut down or during a drop in flows that precludes power generation, the closure of the powerhouse valves and the return of flows to the normal outlet works would be automatically synchronized to eliminate the potential for unintended ramping. There would be no transition between pressurized and non-pressurized flows through the regulating outlet once the project is operational. Upon completion of the project, flows exiting the dam would be pressurized at all exit points except for the spillway.
• A project operator would be on site daily and Reclamation personnel would be notified immediately in the event of an unplanned shutdown or in case of any other type of emergency.
Implementing these measures would help ensure a very low likelihood of unintended ramping or dewatering of aquatic habitat as a result of project operation. Also informing Montana DFWP of any unplanned shutdown would provide that agency with information relevant to its management of fishery resources downstream of the project.
Providing 24-hour attendance of the pumping system for the duration of time that minimum flows are to be maintained by pumping would help avoid or minimize any adverse effects on aquatic resources caused by failure or malfunction of any component of the pumping system. Failure of the pumping system could have catastrophic consequences on fish and aquatic resources, especially brown trout and whitefish that are known to spawn during October and November in areas downstream of the dam. Because the pumps would provide the only means to transfer water from the reservoir to the river, it is anticipated that streamflows downstream of the dam would immediately begin to recede in the event of a pumping system failure. Any potential adverse effects of a pumping failure would be minimized by having properly trained staff on site to ensure a return to normal operations as quickly as possible. Further, installing a water level alarm to detect falling water levels in the Beaverhead River near the instream flow release point could help alert onsite staff of any need to activate back-up pumps or address any unforeseen problems with the pumping system.
Notifying Montana DEQ and Montana DFWP within 24 hours of any unauthorized discharge of pollutants, as the applicant proposes in its CWQMP, would help ensure that best management practices are adhered to and that any spills are addressed in a timely and thorough manner.
Montana DEQ's condition 2 stipulates the applicant submit a plan to monitor turbidity, temperature, DO, and TDG during construction. In its CWQMP, the applicant proposes to monitor DO, temperature, and turbidity at a site approximately 300 feet downstream of the proposed powerhouse and parking construction areas while TDG would be monitored immediately below the spillway pool when flows are being bypassed around Reclamation's existing intake and outlet works during construction of the proposed penstock.
If monitoring indicates that the state of Montana standard for TDG of 110 percent saturation is exceeded during pumping, the applicant would reposition the pump outlets until the state standard is met. Data would be transmitted in real time to the construction manager's trailer at the construction site, with mean values recorded at 15-minute intervals. Routine calibration and maintenance of field equipment would be accomplished in accordance with the manufacturer's guidelines.
The applicant's plan also includes provisions to take a vertical profile of dissolved oxygen levels and water temperatures in Clark Canyon Reservoir prior to commencement of pumping activities to ensure that reservoir mixing has occurred. If mixing has not occurred, then the applicant would delay modifying Reclamation's penstock and inlet works until this determination is made; thereby ensuring that any water pumped around Reclamation's penstock does not degrade water quality conditions below the dam.
For turbidity monitoring, the applicant proposes to use 5 NTU as background from which to evaluate turbidity levels generated by construction activities. Should this level be exceeded by more than 5 NTU during construction, the applicant would conduct a ground survey to determine if there is noticeable sedimentation arising from the construction area, take a water sample to verify the reading, and also determine if the probe is functioning properly and clear of algae or other debris. Any event resulting in a discharge of sediment would be reported within 24 hours to Montana DEQ and Montana DFWP to determine the need for corrective measures.
The applicant proposes to submit annual water quality monitoring reports to Reclamation, FWS, Montana DFWP, and Montana DEQ by February 15 following each year of construction. Agencies would have 60 days to review the draft reports and the applicant would submit a final report to the Commission each year addressing agency comments. The reports would include the raw data, documentation of any deviations from water quality criteria, and documentation of procedures to correct any deviations. In addition to annual reporting, the applicant proposes and Montana DEQ's condition 7 stipulates that the applicant notify Montana DEQ and Montana DFWP within 24 hours of any event that results in the discharge of sediment or pollutants as described above. The applicant also proposes to file an incident report with the Commission following the event.
Monitoring water temperature, DO, TDG, and turbidity prior to and during construction as the applicant proposes and as stipulated by Montana DEQ's condition 2 would ensure that any adverse effects on water quality are
Available information on water temperature and DO levels in Clark Canyon Reservoir indicate that the reservoir is typically well-mixed by late September so that the depth at which water is drawn from the reservoir during the October start date for pumping flows around the existing intake and outlet works should have no effect on downstream water quality conditions. Collecting reservoir profile data prior to the start of project construction, as the applicant proposes, would help to determine whether reservoir mixing has occurred and to assess whether project construction can be initiated without causing any adverse changes in downstream water quality. If pre-construction water quality monitoring indicates that temperature and DO are not uniform by the proposed October start date, delaying the start date of construction would further ensure that downstream water quality is protected prior to initiating pumping activities.
There is some potential that the pumping system used to bypass flows around the existing intake and outlet works during construction of the proposed penstock would provide a different level of aeration than currently occurs in the existing outlet structure, which could affect DO and TDG concentrations. If the pump discharge lines do not extend to the base of the spillway, aeration that would occur as flows pass down the spillway should ensure that DO and TDG concentrations equilibrate with atmospheric conditions, which would likely improve water quality for a temporary period compared to existing conditions. In the unlikely event that water quality conditions during pumping activities are adversely affected and water quality standards are not met, this would be detected by the proposed water quality monitoring program and appropriate measures could be taken (
The proposed temporary pumping facility could affect turbidity levels downstream by taking in sediment through its intake in the reservoir, or by disturbance during installation or removal of the intake. Monitoring turbidity levels downstream of the construction footprint immediately prior to and during construction as described in the applicant's CWQMP would alert the construction manager of a spike in turbidity and the need to determine the cause of the event and any necessary corrective measures to protect water quality. Because turbidity levels near the proposed construction footprint are generally less than 5 NTU during the year, using 5 NTU as a background turbidity level as the applicant proposes would be more than adequate to identify when a spike in turbidity has occurred beyond naturally occurring background levels. Notifying Montana DFWP and Montana DEQ within 24 hours of a discharge of sediment or pollutants would alert the agencies of these events as they occur and allow for these agencies to provide timely recommendations to protect water quality and fish resources downstream during construction.
Providing annual water quality monitoring reports to the agencies and the Commission during construction as the applicant proposes would provide a mechanism to evaluate whether any changes are needed to achieve water quality standards on a year-to-year basis during construction. However, in addition to annual reporting, notifying the agencies within 24 hours of a deviation from water quality criteria, and submitting an incident report to the Commission following the incident would enable the Commission and agencies to determine whether best management practices are being followed and that any needed corrective actions are addressed in a timely manner.
Also, notifying Montana DEQ and Montana DFWP within 24 hours of any discharge of pollutants and submitting an incident report with the Commission following the event would help ensure that best management practices are adhered to and that any spills are addressed in a timely and thorough manner.
The applicant proposes that the project be operated as a run-of-release project, in which the flows downstream of the project powerhouse would be dictated by Reclamation, thus the flows would be identical to the flows that would be released by Reclamation in the absence of the project. This is consistent with Reclamation's 4(e) condition 9, which states that the timing, quantity, and location of water releases and release changes from the facilities would be at the sole discretion of Reclamation.
Interior, Upper Missouri Waterkeeper, and Montana Trout Unlimited recommend that the applicant work closely with water users and federal and state agencies to improve minimum instream flow conditions in the Beaverhead River, and support the implementation of the 2006 MOU between Reclamation and Montana DFWP entitled Betterment of the Beaverhead River and Valley.
Interior and Montana Trout Unlimited also recommend that the applicant contribute to improvements in water use efficiency to enhance instream flows for fisheries and environmental health of the river. They recommend that the applicant dedicate 4 percent of the gross hydropower revenues to funding independent technical studies of water efficiency improvements or funding on-the-ground water conservation measures designed to result in instream flow improvements. Interior and Montana Trout Unlimited recommend that the applicant prepare annual reports that explain the uses and expenditures of such funds, and the expected benefits of funded activities. In advance of submitting the annual report to the Commission, the applicant would provide the report to Montana DFWP and FWS for a 30-day review, and attach any comments received on the report when filing it with the Commission.
Available information indicates that trout populations in the Beaverhead River are adversely affected by low flows that occur during the non-irrigation season and that fish populations in Clark Canyon Reservoir are adversely affected by low reservoir levels during periods of drought. Encouraging the implementation of water conservation strategies in the basin could alleviate adverse conditions that occur in Clark Canyon Reservoir and in the Beaverhead River during drought conditions. However, we note that operation of the project as proposed by the applicant would not cause any changes in the flows in the Beaverhead River or on water storage levels in Clark Canyon Reservoir.
The 2006 Reclamation/Montana DFWP MOU includes the following elements: (1) Identify environmental degradation issues of the Beaverhead River; (2) investigate possible solutions to correct degradation issues; (3) review Clark Canyon Reservoir operation to increase river and reservoir environmental health; (4) explore water conservation projects; (5) describe fishery goals and fish management objectives; and (6) work through a collaborative process with interested groups to develop resource management strategies to improve the environmental health of Clark Canyon Reservoir and the Beaverhead River. Implementing the applicant's proposed water quality
The applicant's proposal to operate the project to provide flows determined by Reclamation, consistent with Reclamation's 4(e) condition 9, would ensure that any changes in reservoir operation or flow regimes implemented under the MOU or through any other agreements that Reclamation enters into would not be impeded by operation of the project.
We make our final recommendation for water efficiency improvements in section 5.2,
Montana DEQ's condition 3 stipulates that the applicant maintain DO levels at saturation (approximately 7.5 mg/L or higher, depending on the temperature of the reservoir water at the intakes) from June 1 through August 31 and 8.0 mg/L the rest of the year while operating. Condition 5 stipulates that the applicant submit a plan prior to construction describing any project design engineering modifications for maintaining DO at these levels. Condition 4 stipulates that the applicant maintain TDG levels at 110 percent or lower downstream of the project while operating.
Diverting water through the applicant's proposed penstock and turbines at Clark Canyon Dam has the potential to reduce DO concentrations downstream compared to current conditions by reducing the turbulence and the entrainment of gases in water exiting the powerhouse. Reduced DO concentrations may limit salmonid growth and reproduction and delay embryonic development and hatching of juveniles if concentrations remain low for extended periods (EPRI, 1990). In order to address potential DO and other water quality concerns during project operation and to comply with Montana DEQ's certification conditions, the applicant proposes to construct and operate an aeration basin downstream of the powerhouse and to implement its Revised DOEP during project operation which includes: (1) Procedures for monitoring and reporting temperature, DO, and TDG levels in project waters for a minimum of five years following initial project operation; (2) procedures for enhancing DO concentrations for water exiting the tailrace; and (3) corrective measures and emergency shutdown procedures to be implemented if deviations from state water quality criteria occur during project operation. The applicant states that the plan was developed in consultation with Reclamation, FWS, Montana DFWP, and Montana DEQ. Water quality monitoring provisions included in the plan are evaluated in section 3.3.2.2,
The proposed aeration basin would consist of three 45-foot-long, 10-foot-wide frames containing 330 diffusers with the capacity to add additional frames if needed. The diffuser system would feature two mechanical blowers, an electronic control system, and ducted aeration diffuser disks to inject fine bubbles of air into the water column to provide the additional aeration. The applicant states that the blower and diffuser system would be designed with the capacity to elevate DO levels by a maximum of 7.5 mg/L before the water enters the Beaverhead River and could be adjusted based on the level of aeration needed to meet state criteria. The applicant anticipates that operation of the aeration basin would likely occur from June through mid-September each year, which is the time that DO concentrations at the bottom of the reservoir (
The blower for the aeration basin would include sensors to monitor flow rates and could be adjusted by the operator using controls located both remotely and in the powerhouse. The volume of air supplied by the blower would be based on the level of DO enhancement that is required for a given volume of water and would take into account empirically observed oxygen transfer rates. The applicant states that in early summer, as DO levels decline, the air diffusers in the aeration basin would be gradually brought online to maintain DO concentrations in the Beaverhead River downstream. If DO concentrations decline to such levels that the diffusers are insufficient to meet Montana DEQ's DO criteria (
In an emergency shutdown or if probes at compliance monitoring Site 3 located approximately 300 feet downstream of the project in the Beaverhead River (described further below in section 3.3.2.2
Montana DFWP recommends that the applicant's aeration system be designed to achieve water quality standards downstream when water entering the project works has DO concentrations of 0 mg/L or the applicant should be willing to shut the project down. In its reply comments, the applicant reiterated that its proposed aeration basin is designed to provide the necessary level of DO enhancement downstream, but in any case it would shift flows through the existing outlet works or shut the project down as a last resort to meet water quality standards.
In addition, Montana DFWP and Upper Missouri Waterkeeper recommend that the applicant evaluate the need for dam infrastructure alterations and/or changes in long-term operations to minimize downstream turbidity resulting from entrainment of organic material or inorganic fine sediment from the reservoir into the project works. In its reply comments, the applicant stated that the Clark Canyon Project would not alter the depth of the reservoir intake, or the rate, volume, or velocity of water withdrawn. As a result, the applicant contends that minimizing entrainment of suspended organic and inorganic material is not within its operational control.
Installation of turbines at the outlet works as proposed by the applicant has the potential to alter TDG levels downstream of the project. Under existing conditions, water leaving the outlet structures is subject to aeration and plunging as it exits the outlet works, which likely causes supersaturated TDG levels that have been documented in the dam tailrace during the months of June through September (
This would especially be the case when flow release requirements exceed the 700-cfs hydraulic capacity of the powerhouse. Under this scenario, additional flows would bypass the powerhouse penstock at the trifurcation and would be discharged through the existing outlet works, and in rare circumstances, through the spillway. As previously noted, TDG supersaturation frequently occurs when flows are released through the existing outlet works at the dam. Therefore, any time that flows exceed the 700-cfs capacity of the powerhouse which can occur at times during the peak summer irrigation season (
According to its Revised DOEP, the applicant plans to take an adaptive management approach to correct any deviations from state water quality criteria, including TDG levels that occur during operation. At this time, we are not aware of any additional potential measures that could be implemented at the project to minimize TDG levels; therefore, we assume that the project would be required to cease operation should TDG levels exceed the 110 percent saturation criteria stipulated by Montana DEQ's condition 4 similar to what would occur if DO criteria aren't met. Under a shutdown scenario, supersaturation of gases may occur at times during the summer and early fall as is typical under existing conditions until any future corrective actions are identified and implemented.
Although reduced turbulence in the tailrace area could benefit aquatic resources by reducing the frequency and extent of gas supersaturation, it could also decrease DO concentrations in the Beaverhead River by reducing the degree of aeration that occurs to water that is discharged downstream of the dam. Water currently discharges through the dam's outlet works under turbulent conditions, which tend to entrain atmospheric gases, thus increasing DO concentrations relative to Clark Canyon reservoir background levels. In contrast, discharging water through a powerhouse would reduce the turbulence and plunging effect and thus capacity for DO entrainment. The potential to pass water with decreased DO concentrations would be greatest in July, August, and September when DO concentrations at the bottom of the reservoir (near the depth of the intake) would be expected to be at the lowest levels of the year (
Early life stages of trout begin to see declines in their growth rates when DO levels fall below 8 mg/L and cannot survive in extremely hypoxic conditions when DO levels fall below 1-3 mg/L (EPRI, 1990). Because baseline information indicates that DO levels in the upper Beaverhead River can at times fall below the 7.5-8.0 mg/L criteria in the summer months, providing the necessary aeration to achieve this criteria throughout the summer would enhance water quality and provide a benefit to aquatic resources during these months, particularly early life stages of trout that are typically more vulnerable to low DO levels (EPRI, 1990). Foust et al. (2008) determined that an air admission system is a particularly cost-effective method for improving DO conditions in a hydroelectric project tailrace and EPRI (2002) states that tailrace diffusers are widely accepted as devices capable of providing supplemental aeration. A similar aeration basin and diffuser array was built and operating effectively at the Island Park Hydroelectric Project (FERC Project No. 2973) in Idaho. Water quality monitoring reports filed from 2001-2016 confirmed that the Island Park Hydroelectric Project was successful at meeting state DO standards of 7.0 mg/L approximately 99 percent of the time during that period.
In regard to Montana DFWP's and Upper Missouri Waterkeeper's recommendations that the applicant evaluate the need for dam infrastructure alterations and/or changes in long-term operations to minimize downstream turbidity, we echo the applicant's reply comment that it wouldn't alter the depth of the reservoir intake, or the rate,
Montana DEQ's condition 1 stipulates that the applicant conduct water quality monitoring for temperature, DO, and TDG for a minimum of the first five years of project operation and each year thereafter while discharging from July through October, unless Montana DEQ determines that additional monitoring is not warranted based on a review of the monitoring results for the first five years of project operation. Condition 6 stipulates that the project shut down automatically if DO levels fall below Montana DEQ standards and that a second, redundant DO probe be deployed at site 3 to ensure compliance with DO criteria during project operation. Condition 6 also stipulates that in the event that automated alarms indicate that water quality standards may have been exceeded (
In its Revised DOEP, the applicant proposes to continuously monitor TDG, DO and water temperature for at least the first five years of project operation consistent with Montana DEQ's condition 1. The applicant would monitor DO and temperature at three sites and TDG at two sites during this initial monitoring period (table 4).
Temperature and DO levels of the intake water would be monitored by diverting small amounts of water from the project penstock upstream of the turbines into a small pressurized chamber containing a monitoring probe (Site 1) that would continuously transmit data to the powerhouse. Probes would also be deployed in the aeration basin (Site 2) and at a site approximately 300 feet downstream of the project in the Beaverhead River (Site 3). A second redundant probe to “double-check” DO concentrations would also be deployed at Site 3 consistent with Montana DEQ's condition 6 for the first monitoring year and then from June 1 through September 15 each year thereafter or until the DO criteria is met for 14 consecutive days without supplemental aeration, whichever date is later, subject to approval from Montana DEQ and Montana DFWP. The applicant also states that Montana DEQ or Montana DFWP can request to extended or shortened deployment of the redundant probe at Site 3 if necessary.
As discussed in section 3.3.2.2,
In addition to the automatic shutdown procedures described above, a powerhouse operator would oversee compliance with Montana DEQ's water quality standards and would take action in the event of a non-compliance reading for temperature, TDG, or if only one of the probes at Site 3 indicate that DO criteria is not being met. The operator would visit the powerhouse at least once daily during all phases of operation and would determine the ability of the aeration basin to provide sufficient aeration. If a non-compliance reading for temperature or TDG occurs at Site 3 or if only one probe indicates non-compliance with DO criteria, the operator would immediately investigate and determine if corrective actions, such as shutting the project down, is warranted.
Whenever the operator is not at the powerhouse, a series of automated alarms would dispatch an on-call operator to the powerhouse within 30 minutes following a non-compliance reading consistent with the procedures stipulated by Montana DEQ's condition 6. If the operator is not able to reach the powerhouse for any reason, or if the cause of any noncompliance reading cannot be determined, the project would be manually shut down either at the powerhouse or remotely and all water would be diverted through the cone valves at the existing project works. Thus, the applicant states that whenever
Although water quality would be monitored continuously, the applicant proposes to log and store hourly data for reporting purposes and to submit annual monitoring reports to Reclamation, Montana DEQ, Montana DFWP, and FWS for review by March 1 for the prior calendar year.
Upper Missouri Waterkeeper recommends that the applicant tier operation of oxygen supplementation systems to ongoing monitoring of hypolimnion conditions in the reservoir to ensure the system in fact discharges water that achieves water quality standards and to consider immediate shutdown of diversions if water quality is shown through monitoring to be negatively affected downstream. In its reply comments, the applicant states that implementation of its Revised DOEP, which includes water quality monitoring compliance sites and corrective measures that would be taken, would ensure that adequate DO concentrations are maintained during project operation.
Upper Missouri Waterkeeper recommends that the applicant support ongoing studies evaluating turbidity and nutrient pollution events occurring in the project vicinity and to develop and implement an adaptive management plan that addresses these concerns based on the results of those studies. In its reply comments, the applicant states that the proposed project has no nexus to the upstream land-use practices and subsequent nutrient loading to the Clark Canyon Reservoir and that it is beyond their control to eliminate or mitigate water quality impacts manifested from upstream land-use practices and reservoir operations.
Montana DFWP recommends that the applicant conduct water quality monitoring at three additional sites for a minimum of three years to empirically assess water quality dynamics within the mixing zone in the Beaverhead River downstream of the project prior to selecting a permanent site in consultation with Montana DEQ and Montana DFWP. Specifically, Montana DFWP recommends the additional sites be located: (1) Immediately downstream of the cone valve; (2) 100 feet downstream of the project; and (3) 200 feet downstream of the project. Upper Missouri Waterkeeper also recommends that the applicant consider additional upstream and downstream monitoring sites as part of its water quality monitoring program. In its reply comments, the applicant states that its water quality compliance sites were selected in consultation with Montana DEQ under the previous licensing process but that it would collaborate with Montana DFWP and Montana DEQ as needed.
Monitoring TDG, DO, and water temperature for a minimum of five years during project operation as proposed by the applicant and as stipulated by Montana DEQ's condition 1 would document compliance with state water quality criteria and help identify whether the project is adequately protecting and enhancing water quality conditions and aquatic resources of the Beaverhead River over a range of hydrologic and meteorological conditions encountered during the monitoring period. This would be especially important for TDG and DO, two parameters that are expected to be affected by project operation.
Monitoring DO concentrations of reservoir water at Site 1 as the applicant proposes and as recommended by Upper Missouri Waterkeeper would alert the project operator of the need to operate the aeration basin to maintain adequate water quality downstream. Monitoring DO at Site 2 in the aeration basin would confirm the amount of additional aeration being provided by the diffusers when the aeration basin is operating. Monitoring DO at Site 3 in the Beaverhead River downstream of the project would help confirm that DO enhancement measures are effective at maintaining adequate DO levels downstream of the project. Deploying a redundant probe at Site 3 as proposed by the applicant and as stipulated by Montana DEQ's condition 6 would ensure that the equipment is working properly for the first year of project operation and each additional year it is deployed.
However, if monitoring ceases after the first five years of project operation, it is unclear how the applicant would ensure compliance with Montana DEQ's DO, TDG and temperature criteria beyond the initial monitoring period. The applicant and Montana DEQ did not identify what criteria would be used to determine that further monitoring would not be necessary, leaving that to occur in consultation with the agencies based on the five-year monitoring results. Presumably, the annual reports would show that with supplemental aeration that DO and TDG levels are always meeting or better than state water quality criteria. Consequently, the applicant would then be able to identify a set timeframe for operating the diffusers each year rather than tying operation of the diffusers to the results of DO monitoring. Operating the diffusers on this as-yet unidentified set schedule may cause DO levels to fall below state standards at certain times outside of this set period. Thus, extending the DO monitoring period through the term of any license issued would provide a means to track that DO enhancement equipment is working properly and that adequate DO levels are maintained at all times downstream for the protection of aquatic resources.
Monitoring TDG levels in the aeration basin at Site 2 and in the Beaverhead River downstream of the project at Site 3 would confirm whether the project reduces TDG levels from October through April and also determine whether the project complies with Montana DEQ's TDG standard at other times to protect fish and other aquatic resources downstream. Our analysis in section 3.3.2.2,
Deploying probes at the cone valve and 100, 200, and 300 feet below the project, as recommended by Montana DFW and Upper Missouri Waterkeeper would permit the applicant to determine the extent of the mixing zone and potentially the best place to document compliance with DO and TDG levels. According to Urban et al (2008), the factors contributing to TDG concentrations in river systems downstream of a dam changes with distance. Elevated TDG levels in hydropower releases are generally caused by the entrainment of air in spillway releases and the subsequent exchange of atmospheric gasses into solution during passage through the stilling basin. Aerated water plunging off steep drops into pools is the typical mechanism by which entrained air is forced into solution causing gas supersaturation. These interactions cause TDG to fluctuate for a short distance downstream of the plunge or release point before TDG levels plateau and remain plateaued often for several miles downstream. This was consistent with the applicant's water quality sampling results from 2009 which showed that TDG saturation levels slightly reduced as water moved downstream from the dam but quickly plateaued and still remained above state criteria at times as much as 5.7 miles downstream of the project. Given the documented small changes in TDG levels and because conditions downstream are likely to be better represented by the applicant's proposed monitoring site than the turbulent mixing zone, it is unclear what additional benefits to aquatic resources would be derived from monitoring DO and TDG levels within the mixing zone.
Because the project would be operated run-of-release and would withdraw water from the same depth and through the existing intake structure, operation of the project should not cause any change in water temperature in the Beaverhead River downstream of the project. If initial project operation causes any unforeseen adverse effects on downstream water temperatures, consulting with the agencies on the annual reports and extending the monitoring program beyond the initial five-year monitoring period would help ensure that any modifications needed to protect beneficial uses could be developed and implemented, if warranted.
Conducting additional water quality monitoring at upstream sites as recommended by Upper Missouri Waterkeeper would provide general information on water quality conditions within the Clark Canyon Reservoir above the intake as well as possibly in tributaries feeding the reservoir but it is unclear what nexus this would have to the project as these areas would not be affected by the project.
Supporting ongoing studies evaluating turbidity and nutrient pollution events occurring in the watershed and participating in the development of an adaptive management plan with other regional entities as recommended by Upper Missouri Waterkeeper would likely provide some information on specific land-use practices and upstream sources of nutrient loading of project waters to support ongoing watershed management efforts. However, it is unclear what nexus this effort has to the effects of the project and at this time we are not able to evaluate specific actions that would be required by the as-yet undeveloped adaptive management plan. However, implementing the applicant's proposed water quality monitoring program would assist with identifying any effects associated with project construction and operation, and determine whether measures are needed to address project effects. The monitoring program would also contribute information on water quality conditions that would be useful to entities as they conduct future studies addressing nutrient pollution events and their effects on aquatic resources in the project area.
Also, the applicant's proposal to operate the project to provide flows determined by Reclamation, consistent with Reclamation's 4(e) condition 9, would ensure that any changes in reservoir operation or flow regimes implemented under any future adaptive management plan that Reclamation enters into would not be impeded by operation of the project.
Submitting annual water quality monitoring reports to the agencies would provide a mechanism to evaluate whether any changes are needed to achieve water quality standards on a year-to-year basis during the initial few years of project operation. Holding an annual meeting with watershed stakeholders to discuss water quality monitoring efforts as stipulated by Montana DEQ's condition 11 would provide another mechanism to evaluate whether any changes are needed on a yearly basis.
Notifying Reclamation, Montana DEQ, and Montana DFWP within 24 hours of any deviation from water temperature, DO, or TDG requirements as the applicant proposes would allow the agencies to provide timely input on corrective actions needed to protect aquatic resources as they occur. However, also submitting an incident report with the Commission within 30 days following any deviation from water quality criteria would enable the Commission to review actions taken by the applicant in the short-term when these deviations occur and would facilitate Commission administration of the license.
Also, notifying Montana DFWP in addition to Reclamation immediately in the event of an unplanned shutdown or other operating emergency would ensure that Montana DFWP provides input on any corrective actions needed to protect water quality and fish resources in the event of an unplanned shutdown.
Entrainment of fish from Clark Canyon Reservoir during project construction and operation could cause some reduction in fish populations in Clark Canyon Reservoir, and installation of the proposed Francis turbines could increase the mortality rate of entrained fish and reduce the number of fish that are recruited to downstream fish populations.
During project construction, the applicant proposes to screen the pump intakes to meet resource agency requirements for fish exclusion using 0.5-inch mesh screens of sufficient size to limit approach velocities to a maximum of 1.0 foot per second.
Interior and Montana Trout Unlimited recommend that the applicant prepare, in consultation with Montana DFWP and FWS, a feasibility assessment of technical procedures to evaluate the effects of fish entrainment (including pressure differential effects) and impingement of the dam outlet and project works, to include monitoring a range of water supply and operating conditions. These entities recommend that, based on the feasibility assessment, the reviewing agencies and the Commission determine whether monitoring or preventive measures to avoid or minimize damage and mortality of native fish would be required.
Although the applicant does not specify the depth from which the pumps would withdraw water from Clark Canyon Reservoir during project construction, it is expected that the water would likely be withdrawn from a shallow depth to minimize pipe length and pumping costs and to facilitate the inspection and maintenance of the proposed intake screens. Because the depth of the intakes would be much shallower than the existing dam intake, the potential for fish entrainment would
Screening the pump intakes as proposed by the applicant would limit the potential for increasing the entrainment rates of fish species that use shallower areas of the reservoir, and would limit the potential for adversely affecting fish populations in the reservoir during project construction.
The fish entrainment feasibility assessment recommended by Interior and Montana Trout Unlimited would determine what, if any, procedures are possible to study the magnitude of fish entrainment and the mortality rate of fish passing through the outlet works, with the ultimate goal of determining whether measures to reduce entrainment are warranted to minimize injury and mortality of fish.
Numerous studies of resident fish entrainment and mortality have been conducted at hydroelectric projects over the past several decades. Comprehensive reviews of these studies have been done by FERC (1995), the Electric Power Research Institute (EPRI, 1997, 1992), and Winchell et al. (2000). While none of these studies specifically evaluated the entrainment potential of resident trout, CH2M HILL (2007) summarized the results of several trout entrainment studies conducted at hydropower projects in the Pacific Northwest. The study reports summarized in the document suggest that the type of analysis requested by Interior and Montana Trout Unlimited could be conducted at the Clark Canyon Dam Project, and may be effective at developing estimates of entrainment and mortality if baseline information is lacking. In this instance, however, sufficient information appears to exist to describe how entrainment rates might change between baseline conditions and proposed project operation. Project operation would have no effect on the rate of fish entrained from Clark Canyon Reservoir because the project would not alter the timing, rate, or volume of water withdrawals, and all water passing the dam would pass via the existing deep intake and outlet structure (and by the spillway during spill events), as it does under existing conditions. During project operation, however, it is possible that the mortality rate of fish that are entrained into the intake facilities on the dam may increase due to the routing of fish through the turbines instead of the existing outlet works.
The best available information suggests that the mortality rate of entrained fish under existing conditions appears to be quite high. In its comments under the previous license issued for the Clark Canyon project (
It is unlikely that the addition of a penstock and turbines would alter the existing pressure-induced mortality rates of fish entrained into the dam. As previously noted, the project would not alter the depth of the intake, or the rate, volume, or velocity of water withdrawal. Therefore, similar to existing conditions, fish would pass through the turbines having been acclimated to the pressures of the deep reservoir and would experience rapid depressurization when they are exposed to atmospheric pressures in the relatively shallow tailrace. Because the mortality rate of fish passing through the existing outlet works likely approaches 100 percent based on the available information, any additional turbine-induced injury caused by mechanical strike or shear effects would not result in additional fish losses.
The fish entrainment feasibility assessment recommended by Interior and Montana Trout Unlimited would ultimately determine whether measures to reduce entrainment are warranted to minimize damage and mortality of native fish. The probable outcome of this evaluation would be to determine whether a fish screen to preclude fish from exiting the reservoir would be appropriate. However, installing and maintaining a fish screen at the existing intake structure would be a substantial undertaking given the depth of the intake.
Finally, the fishery in the Beaverhead River consists of self-reproducing populations of brown and rainbow trout. Any increase in the mortality rate of fish that are entrained from Clark Canyon Reservoir, if it were to occur, is unlikely to affect the fishery for these species. Brown trout, the dominant trout species in the Beaverhead River, are not abundant in Clark Canyon Reservoir, and as a result, only small numbers of this species are likely to be entrained. Any rainbow trout that survived passage through the existing outlet works would likely be stocked fish that were hatched and reared in a hatchery environment, and are not likely to be as well adapted to conditions in the Beaverhead River as naturally spawned fish recruited from the existing, self-sustaining population.
Montana DEQ put the Beaverhead River as well as several tributaries to Clark Canyon Reservoir on the list of impaired waterbodies (CWA section 303[d]) for violations of state water quality standards. The listing of these waterbodies on the 303(d) list triggered the development of a TMDL for each parameter listed. TMDLs are designed to limit the inputs of potentially degrading agents to waterbodies by limiting the sources responsible for the degradation. Future implementation of TMDLs for tributaries to Clark Canyon Reservoir and the Beaverhead River could have a cumulative benefit of reducing harmful algal blooms caused by excessive nutrient inputs from several upstream and downstream sources within the watershed. However, because the project would not contribute to or affect such inputs, constructing and operating the project would not directly or cumulatively affect nutrient levels within the tributaries or the reservoir that may cause algal blooms.
DO in the tailrace has been shown to fall below the state criteria of 8 mg/L at times during the summer and early fall when early life stages of fish are present. Project operation could further reduce DO concentrations in the tailrace. However, implementing the applicant's DO enhancement program would maintain adequate DO concentrations in the project tailrace throughout the year and potentially enhance DO levels in the summer months compared to existing conditions. Monitoring DO levels in the aeration basin and downstream would ensure that DO enhancement measures are successful at meeting state DO criteria during project operation.
The proposed project would likely cumulatively contribute to efforts to improve water quality in the Beaverhead River by lowering TDG concentrations in the project tailrace at least during the months of October through April. Monitoring TDG levels within the aeration basin and downstream would inform whether additional corrective actions need to be taken to maintain compliance with state TDG criteria.
Overall, construction and operation of the project is likely to cause cumulative enhancement to aquatic resources within the area defined for our
Clark Canyon Dam and Reservoir are located within the Beaverhead Mountains Ecoregion, which extends from the Centennial Mountains south of Red Rock Lakes National Wildlife Refuge in southwestern Montana, west to the Continental divide along the Beaverhead Mountains, and includes the headwaters for the Beaverhead, Madison, and Big Hole rivers.
Shrub steppe is the prevalent vegetation type in the Clark Canyon Reservoir area. Big sagebrush and green rabbitbrush are common shrubs. Rocky areas support mountain mahogany and broom snake weed. Perennial bunch grasses such as bluebunch wheatgrass, fescue, and Indian ricegrass occupy the understory alongside drought-adapted forbs.
The proposed powerhouse site, at the base of Clark Canyon Dam, is characterized by low to mid-height grasses and forbs.
The proposed transmission line route would extend over 7.9 miles to the south to the Peterson Flat substation. This area consists primarily of basin big sagebrush and bluebunch wheatgrasss. Other vegetation types found along the right-of-way (ROW) are Rocky Mountain juniper/bluebunch wheatgrass woodland, quackgrass herbaceous vegetation, and wetland areas along the two small creeks west of the reservoir. Hayfields occur at the western end of the proposed transmission line ROW.
The Montana Natural Heritage Program (Montana NHP) lists 93 plant species within Beaverhead County that are species of concern or potential species of concern. Eleven of these species are listed as sensitive species by BLM. Five of these plant species occur near the project: bitterroot milkvetch, scallop-leaf lousewort (at high risk of extirpation in Montana), hoary phacilia (a BLM watch species), chicken sage, and limestone larkspur. The known populations of bitterroot milkvetch, chicken sage, limestone larkspur, and hoary phacilia are located outside of the area that would be affected by the project. The scallop-leaf lousewort, which is known to occur in wetland and river bottom areas, is located along the Beaverhead River riparian zone downstream of Clark Canyon Dam.
Wetlands are transitional land areas between terrestrial and aquatic systems where the water table is usually at or near the land surface or the land is covered by shallow water.
The Beaverhead River at the base of the dam consists of a mix of open water and emergent and shrub-scrub wetland habitats. A narrow riparian corridor with a diversity of wetland plants along the river bottom land borders the Beaverhead River downstream of Clark Canyon Dam. Common riparian species include Baltic rush, hardstem bulrush, and coyote willow. Immediately downstream of the tailrace and along the original river channel, seepage has created a marsh wetland adjacent to the Beaverhead River.
Wetlands within the bottomlands of Horse Prairie Creek and Medicine Lodge Creek along the transmission line ROW are dominated by cultivated grasses such as quack grass, Kentucky bluegrass, and redtop, as well as native species such as Baltic rush, sedges, and cattail. Coyote willow was also present in the Horse Prairie Creek bottomland wetlands.
The marsh wetland and riparian areas provide feeding and nesting habitat for gulls, cormorants, sandhill cranes, and waterfowl. The open water of Clark Canyon Reservoir and the Beaverhead River provide feeding areas for waterfowl, bald eagles, and osprey, as well as breeding habitat for amphibians. Mule deer, moose, pronghorn antelope, and elk occasionally use the riparian meadows along the river and are commonly found in the upland sagebrush steppe. Song birds nest and feed in these habitats. The upland steppe provides feeding, breeding, and nesting habitat for songbirds, game birds such as sage grouse, and raptors such as ferruginous hawk.
Common big game mammals in the area include mule deer, white-tailed deer, elk, pronghorn, moose, and black bear. Mule deer comprise most of the big game take in management districts of Montana DFWP Region 3, which includes the project area. Pronghorn and mule deer also feed and rear young in sage steppe habitats. Upland game birds popular with hunters in the region include blue grouse and sage grouse. Other upland game birds include chuckar, ruffed grouse, spruce grouse, Hungarian partridge, pheasant, and sharp tailed grouse.
Several furbearing mammals that occur in the region include coyote, beaver, mountain lion, bobcat, wolverine, otter, marten, skunk, weasel, mink, muskrat, raccoon, badger, and fox. Many of these species are highly mobile, with large home ranges incorporating many habitat types. Mink and muskrat and rodents such as voles may den along the banks of the tailrace and meadow habitats. Others such as beaver, muskrat, and otter are more restricted to the riparian corridor.
The ferruginous hawk is a BLM special status species, a Montana DFWP S2 species of concern (SOC), and is considered at risk for extirpation from the state by Montana NHP. In Montana, ferruginous hawks breed in the shortgrass foothills and steppe-habitat east of the Rocky Mountains. These hawks commonly migrate south in the fall. Ferruginous hawks are found on semi-arid plains and in arid steppe habitats and prefer relatively unbroken terrain. In Montana they inhabit shrub steppe and shortgrass prairie. Ferruginous hawks prefer tall trees for nesting, but will use a variety of structures including mounds, short cliffs, cutbacks, low hills, haystacks, and human structures. Ferruginous hawks feed on ground squirrels, rabbits, pocket gophers, kangaroo rats, mice, voles, lizards, and snakes. Populations can be adversely influenced by agricultural activities. The Montana NHP has records of 14 nest locations in the vicinity of the proposed transmission ROW; however, no breeding birds have been documented by the Montana NHP database since 2000. Nonetheless, there is suitable nesting habitat in the project vicinity, and breeding pairs may use the area for foraging. Call (1978
Montana NHP has one local record of occurrence of a sagebrush sparrow (S2 SOC in Montana and a BLM sensitive species) from a couple of miles north of the proposed transmission ROW in 2002. Southwestern Montana is near the northern extent of the species' breeding range, and sagebrush sparrows are generally uncommon. Nonetheless, there is abundant suitable habitat in the vicinity of the proposed transmission ROW and sagebrush sparrows could be present in the area during the breeding season.
Trumpeter swans are a Montana S2 and BLM sensitive species that utilize the Clark Canyon reservoir as migration stopover and winter habitat. A great
The pygmy rabbit, a BLM special status species and a Beaverhead National Forest sensitive species, is found from the Great Basin region north to extreme southwestern Montana. Isolated populations are known from east central Washington and Oregon. The project is located within the range of pygmy rabbits, but pygmy rabbits have not been documented in the vicinity of the project. The Great Basin pocket mouse is another BLM sensitive species and a S1 SOC for Montana FWP. Southwestern Montana is near the northern extent of the species' range. Occupied habitats in Montana are arid and sometimes sparsely vegetated. They include grassland‐shrubland, stabilized sandhills, and other landscapes with sandy soils where sagebrush cover exceeds 25 percent. Elsewhere, they are also known to occur in pine woodlands, juniper‐sagebrush scablands, shortgrass steppes, and shrublands. They tend not to occur in heavily forested habitats. The Montana NHP does not have records of occurrence near the project, but there are known populations in Beaverhead County and suitable habitat nearby.
Preble's shrew and Merriam's shrew, both S2 SOC in Montana, have not been documented in the project area, but have been known to occur in Beaverhead County and have suitable habitat that exists in the project area. Similarly, Southwestern Montana is at the western edge of the known range for the Dwarf shrew, another S2 SOC in Montana. It is possible, but unlikely, that this species occurs in the project area.
The bald eagle is a Montana DFWP S1 species. Bald eagles continue to be protected at the federal level under the Bald and Golden Eagle Protection Act of 1940 and the Migratory Bird Treaty Act. The State of Montana also has regulations that protect bald eagles. The 1994 Montana Bald Eagle Management Plan developed by the Montana Bald Eagle Working Group, and their addendum, the 2010 Bald Eagle Management Guidelines, detail restrictions on human activities near known nest sites. Bald eagles are found primarily near coastlines, rivers, reservoirs, and lakes. Eagles principally eat fish, but also feed on carrion, waterfowl, and small mammals. They use large trees as nest sites and hunting perches. Eagles winter throughout much of the United States; both wintering and nesting eagles can be found in the project vicinity.
Bald eagles are known to nest near the proposed transmission line ROW and downstream of Clark Canyon Dam. The Montana NHP has one record of a bald eagle nest attempt in 2011 about 334 feet north of the proposed project transmission ROW in the Horse Prairie Creek drainage, west of the reservoir and a pair of eagles were observed at the nest tree in February 2012. Montana DFW assumes the territory to be occupied yearly. Bald eagle nests also have been observed downstream of the dam, one of which was last documented in 2014. Bald eagles also utilize the Clark Canyon Reservoir area in winter and during migration.
The golden eagle is a BLM sensitive species, a Montana DFWP S2 SOC, and a FWS Bird of Conservation Concern that is protected under the federal Bald and Golden Eagle Protection Act. They are common year round in open rangelands and mountainous habitats throughout Montana. Golden eagles prey primarily on small mammals, particularly rabbits and ground squirrels, but are also known to eat a wide variety of prey, including birds, snakes, insects, and carrion. They usually nest in large trees or on cliffs. Since the year 2000, there are no records of active breeding territories for golden eagles within 0.5 mile of the proposed project. However, the Clark Canyon Reservoir area does provide suitable nesting and wintering habitat, and golden eagles may be present at any time of year.
On September 22, 2015, FWS determined that the greater sage-grouse does not warrant protection under the ESA. A landmark landscape-scale conservation initiative was started with conservation partnerships instituted between federal and state governments, private land owners, and others that provided sufficient protections to prevent listing (FWS, 2015). However, the greater sage-grouse remains a Montana DFWP S1 SOC and a BLM sensitive species. It is the largest grouse species in North America and a sagebrush‐obligate, depending on sagebrush communities for breeding, nesting, brood‐rearing, and winter habitat. Seasonal habitat characteristics vary considerably and greater sage-grouse frequently move over large areas annually to meet their seasonal needs. Populations are found scattered throughout Montana, excluding the northwest and extreme northeast portions of the state. Greater sage-grouse leks generally occur in open areas with sparse shrub cover, while nests are usually located under sagebrush. Brood‐rearing habitat tends to have higher cover of herbaceous vegetation and abundant insects, which are an important food resource for juveniles. Greater sage-grouse move to more mesic habitats as herbaceous vegetation dries out and late summer brood‐rearing habitats become more variable.
In winter, greater sage-grouse feed almost exclusively on sagebrush, which they also rely on for thermal and escape cover. Winter habitat is often in areas with moderate cover of tall sagebrush that emerges at least 10 to 12 inches from snow cover. Predators of adults and juveniles include hawks, eagles, ravens, weasels, coyotes, and foxes. Common nest predators include ground squirrels, badgers, coyotes, ravens, and snakes. Predation can cause low rates of nest success and juvenile survival.
The greater sage-grouse population within the project area is designated as part of the Southwest Montana Population, which occurs in Madison and Beaverhead Counties. FWS developed a report titled
As of 2012, greater sage-grouse had not been observed close to Highway 324 and the proposed transmission ROW; however, they may utilize the area during the late brooding season, when food resources become scarce in more xeric habitats, or during migration to and from breeding grounds. Any movement between breeding grounds in the Horse Prairie and Medicine Lodge drainages would entail crossing the highway and proposed transmission ROW. Movement to and from breeding grounds in Montana and wintering areas in Idaho would also entail crossing through the project area.
Approximately 0.10 acres of upland habitat near the dam would be permanently converted for project features: 0.07 acres for the powerhouse
The proposed access road currently appears to be little more than an infrequently used track through perennial grasses and sagebrush steppe vegetation. The increase in traffic associated with the project, including heavy construction vehicle traffic, would likely cause soil compaction and remove the existing perennial grasses from the roadway. The increase in traffic during construction would temporarily disturb wildlife in the vicinity of the road.
The buried transmission line segment between the powerhouse and powerhouse substation would roughly follow the south and east side of the access road for about 0.3 mile. Transmission line construction would require excavation of a 3-foot-wide by 3-foot-deep trench, placement of conductor, and backfilling. The applicant states that removed material would likely be temporarily placed alongside the trench and would be replaced in the trench following placement of the conductor. The buried transmission line would temporarily disturb about 8,000 square feet of perennial grasses and sagebrush steppe vegetation.
Approximately five miles of the 7.9-mile long transmission line would be located 100 to 200 feet north of Highway 324. The westernmost two miles and several shorter sections (generally at road curves) would be located closer to the highway. The proposed ROW would be 80 feet wide. The applicant proposes to construct the transmission line as single pole structures with an average span distance of 428 feet between the poles. Clark Canyon Hydro estimates that 13 poles would be required per mile and that each pole would displace approximately three square feet of vegetation and temporarily disturb an additional 22 square feet. Less than 0.01 ac of vegetation would be permanently removed to construct the proposed transmission line and approximately 0.05 acre could be temporarily disturbed by construction activities. No trees would be removed within the proposed ROW.
Construction activities, including pole placement for the transmission line, would avoid wetlands to the extent practicable. The wetland areas adjacent to the original river channel, tailrace channel, and along the river would be protected from adverse construction effects by avoidance and the installation of a silt fence to prevent sediments from reaching the wetland areas.
The applicant proposes to implement its Vegetation Management Plan (VMP) to minimize effects to wetland, riparian, and upland vegetation. The plan also includes measure to control noxious weeds. The VMP includes the following best management practices to minimize vegetation disturbance and loss and promote quick recovery of disturbed areas:
• Avoid driving off designated access routes whenever possible, use existing developed and primitive roads;
• Clearly mark wetland/riparian areas with signs and/or highly visible flagging during construction;
• Do not drive equipment, or stage materials in wetland/riparian areas;
• Limit ground disturbance and grading to where absolutely necessary;
• Educate equipment operators through: Review of this plan; explicit delineation of all sensitive areas (
• Visually inspect of all construction and disturbance areas a minimum of every seven days throughout the entirety of construction activity;
• Minimize compaction by heavy equipment in previously undisturbed off-road areas;
• Do not temporarily or permanently place fill material within the channel in the delineated wetland area, unless specifically permitted as part of the project design;
• Install biodegradable erosion control logs as needed (
• Place biodegradable erosion control mats (coir fabric) on slopes exceeding 5% (
• Employ silt fence as needed if working during rain events that may cause excess sediment to be washed into the Beaverhead River, or into wetland areas; and
• Reclaim and revegetate temporarily disturbed areas as soon as practicable after construction.
The VMP also includes the following revegetation measures, which would be applied to all construction areas on and below the dam, the staging and spoil areas, temporary vehicle use and parking areas, and areas temporarily disturbed by installation of the transmission line poles:
• Preserving existing topography wherever possible;
• Following construction, ripping to a depth of 6 inches any soils compacted by construction equipment;
• Removing noxious weeds around areas to be reseeded;
• Reseeding or replanting all disturbed soils using a mix of native plants that meets Reclamation and BLM requirements; and
• Spreading certified weed-free mulch over seeded areas to retain moisture and protect from soil erosion.
The applicant proposes to use native topsoil for all revegetation efforts. However, if this is not possible (
The applicant also proposes measures to treat and prevent the spread of invasive weeds in the project area. Gravel and fill material would be obtained from inspected and certified weed-free sources, and all equipment would be cleaned and inspected prior to arrival at the project area. Invasive weeds found prior to construction would be flagged and treated manually (for small infestations), and larger infestations would be treated with herbicides by an applicator certified by the Montana Department of Agriculture. Flagging would remain in place to designate the site as an area where additional weed precautions must be taken. Access roads leading to construction areas would also be inspected and weeds would be treated to preclude their spread by equipment moving through the area.
Under the proposed VMP, the applicant would monitor the revegetation and invasive weed control efforts for a minimum of three years post-construction, and until the
• Vegetation cover would be comparable to conditions in the adjacent, undisturbed reference area (within 70 percent of adjacent cover) within five years of revegetation.
• Soil stability would be evident based on the absence of rills, sediment fans, and other indicators of soil movement.
The applicant would provide annual monitoring reports to Reclamation and BLM by December 31 of each year. The reports would include at a minimum:
• Description of each monitoring location including vegetation cover, species composition, condition, and any evidence of soil erosion;
• Discussion comparing revegetated versus reference plots with regards to performance criteria;
• Declaration of any performance criteria that have been met and a description of the progress made toward reaching any criteria that are not yet attained; and
• Maintenance recommendations to be implemented to achieve performance criteria.
The measures identified in the proposed VMP, if properly implemented, would minimize adverse effects of vegetation loss and disturbance and minimize the potential introduction and spread of invasive weeds. Wetlands adjacent to the original river channel, tailrace channel, along the river, and within the transmission line ROW would be protected from negative construction effects by avoidance and the installation of a silt fence to prevent sediments from reaching the wetland areas.
There would be a loss of perennial grassland habitat during the construction period. Because the applicant would reseed this area with native grass species from the area, this impact would be temporary. Using certified weed-free mulch, as well as removing invasive weeds from the areas to be revegetated, would aid in the success of these mitigation efforts.
Revegetation with native species, and using biodegradable erosion control mats and logs until these efforts are established would prevent revegetation material, such as seed and mulch, from being released into wetlands or the river. Post-construction stabilization and effective site restoration with native plants would minimize long-term effects on environmental resources.
Constructing the project would mostly be in an area already disturbed by construction and operation of Reclamation's facilities. The project transmission line may pose an electrocution risk to perching birds and a collision risk to birds in flight. Raptors are at risk of electrocution due to their use of power line poles as perching structures. Species that are less maneuverable such as cranes, pelicans, and large waterfowl are also susceptible to power line collision. Birds that fly fast and low, such as geese, ducks, and smaller flocking birds, are also at higher risk. Lines that pose a high risk of collision include those over water, those that cross draws or other natural flyways, and those placed immediately above tree tops and ridgelines. Transmission lines that bisect areas of high bird movement, such as lines placed between nesting and feeding habitats, also pose a collision risk. The Montana DFWP identified three segments of the proposed transmission right-of-way where bird activity is concentrated and relatively high, including the portions within the Beaverhead River corridor and where the lines cross Horse Prairie and Medicine Lodge creeks.
The applicant proposes to conduct pre-construction raptor surveys within the transmission line ROW and coordinate with FWS, BLM, and Montana DFWP on nest locations and nesting activity prior to and during construction. Based on the survey results and agency consultation, the applicant would incorporate any recommended construction buffers or seasonal constraints to protect raptors. The applicant would construct the transmission line in accordance with Avian Power Line Interaction Committee (APLIC) standards
In their letter filed March 17, 2016, Interior recommended that to the maximum extent practicable, project construction shall be scheduled so as not to disrupt nesting raptors or other birds during the breeding season. This includes a 0.5-mile no construction buffer during the breeding season (species-specific) for most nesting raptor species, including ferruginous hawks that nest in the project area. If work is proposed to take place during the breeding season or at any other time which may result in take of migratory birds, their eggs, or active nests, the licensee shall take all practicable measures to avoid and minimize take, such as maintaining adequate buffers, to protect the birds until the young have fledged. Active nests may not be removed. If field surveys for nesting birds are conducted with the intent of avoiding take during construction, any documentation of the presence of migratory birds, eggs, and active nests, along with information regarding the qualifications of the biologist(s) performing the surveys, and any avoidance measures implemented at the project site shall be maintained
In addition, they recommended that if any active bald eagle nests occur within 0.5 mile of the project during construction, the licensee shall comply with the temporary seasonal disturbance restrictions (generally February 1-August 15) and distance buffer (0.5 mile) specified in
In addition, Interior recommended that the applicant coordinate with Montana DNRC and BLM regarding compliance with the Montana Executive Order 12-2015 and the Idaho Southwestern Montana Greater Sage-Grouse Land Use Plan Amendment, where applicable. Interior also recommended that the applicant provide compensatory mitigation to offset any unavoidable effects that remain after implementing avoidance and minimization measures for greater sage-grouse. In its reply comments, the applicant stated that no effects to greater sage-grouse were anticipated, and did not expect compensatory mitigation to be required after implementation if its proposed avoidance and mitigation measures.
Project construction would temporarily disturb and displace wildlife in the immediate vicinity of construction activities. The population of ferruginous hawks in the vicinity may use the area of the access road and transmission line ROW for foraging. This activity would be unavoidably but temporarily lost during the construction period.
Because most construction would occur in areas disturbed from constructing and operating Reclamation's dam, the greatest potential for disturbing and displacing nesting birds would be during construction of the transmission line. Highway 324 already fragments wildlife habitat. Locating the transmission line within the road ROW would minimize further habitat losses, but it would also add a new vertical dimension to that fragmentation. Conducting pre-construction raptor nest surveys in coordination with FWS, BLM, and Montana DFWP would identify any raptor nests that might be disturbed during construction of the project. Disturbance and displacement of nesting raptors would be avoided if construction activities are scheduled to avoid the nesting period or through the use of 0.5-mile construction buffer as recommended by Interior and agreed to by the applicant. However, because the nesting period for the ferruginous hawks (March 10-July 2) and the seasonal disturbance restrictions (generally February 1-August 15) and distance buffers (0.5 mile) for the bald eagle overlap significantly with the available construction season, implementing these construction limits could significantly delay construction, particular for the transmission line.
Therefore, avoidance of the entire breeding season for all birds may not be practicable. Maintaining records of the pre-construction survey results and the measures taken to avoid disturbing nesting raptors and birds during construction would allow the applicant to document its efforts to minimize and avoid adverse effects on migratory birds. Those records should include the reproductive status of any identified nests, qualifications of the surveyor, and the applicant's proposed avoidance measures.
The applicant's proposal to adhere to APLIC guidance in the design and construction of the transmission line, including installing flight diverters and perch deterrents to prevent perching, would reduce the risk of avian collision and electrocution, as well as predation of sage grouse.
Greater sage grouse may abandon leks if repeatedly disturbed by raptors perching on power lines or other tall vertical structures near leks (Ellis 1984), by vehicular traffic on roads (Lyon and Anderson 2003), or by noise and human activity associated with energy development (Braun
Because the project would be co-located with existing development, it is unlikely that any greater sage grouse leks or breeding habitat occur near any project facility, except possibly where the proposed transmission line crosses Horse Prairie and Medicine Lodge drainages. Scheduling construction of these segments of the transmission line outside of the greater sage grouse breeding season would avoid disturbing sage grouse. The breeding season for greater sage-grouse is highly dependent on elevation and the length of winter conditions, and leks occurring in higher elevations may continue through early to mid-May (Connelly
Commission staff accessed the IPaC Web site on April 15, 2016, and generated the following list of threatened and endangered species with the potential to occur in the vicinity of the project: the threatened plant Ute ladies'-tresses (ULT), threatened grizzly bear, and the threatened Canada lynx. There are no critical habitats present in or around the project area.
ULT was listed as threatened under the ESA on January 17, 1992 (50 CFR part 17, Vol. 57, No. 12). Clark Canyon Hydro conducted a survey for ULT in 2007 and 2011 in support of application for prior proceedings. No UTL were found and no suitable habitat was found within the areas that would be subject to disturbance from project construction and operation (ERM, 2015).
FWS listed the grizzly bear as threatened on July 28, 1975. Grizzly bears are normally solitary, except during breeding season or when caring for cubs. Home ranges for individual bears vary depending on food availability, weather conditions, other bears, and season. Female bears need large home ranges to support their offspring. Grizzly bears are opportunistic in their eating habits and will feed on prey items like small mammals or fish, but will also forage for
Canada lynx are medium-sized cats that inhabit boreal forests and feed almost exclusively on snowshoe hare. The United States, primarily the Northeast, western Great Lakes, northern and southern Rockies, and northern Cascades, is the southern-most extent of its range. Populations of snowshoe hare have a direct effect on local lynx populations, which fluctuate in response to its prey. In the United States, Canada lynx prefer conifer-hardwood forests that support snowshoe hare. The Canada lynx was listed under the ESA as threatened on March 24, 2000 (FWS, 2005). The Canada lynx is not expected to occur at the project site due to the lack of habitat.
No effects to threatened or endangered species are anticipated as a result of project construction and operation. ULT was not found during surveys in the project area in 2007 or 2011. Although the proposed transmission line route has a slightly different alignment than surveyed in 2011, surveys covered habitats that might support the species such as Medicine Lodge Creek, Horse Prairie Creek, and the wetlands near Beaverhead Creek below the dam.
With respect to grizzly bears and Canada lynx, the project area does not contain suitable habitat for either species. Suitable habitat for the snowshoe hare, the primary prey species for Canada lynx, is also not available in the project area. Therefore, constructing and operating the project would have no effect on Ute ladies'-tresses, grizzly bears or Canada lynx, and no further action is warranted.
Reclamation manages approximately 15 recreation sites at Clark Canyon Reservoir and just downstream of the dam (figure 11). The sites include fishing access, campgrounds, day-use areas, boat ramps, and an overlook. Recreational opportunities at the reservoir include boating, visiting cultural/historic sites, camping, fishing, hiking, hunting, picnicking, water sports, wildlife viewing, and using recreational vehicles. According to Reclamation's Great Plains Region Clark Canyon Web site (Reclamation, 2016), the reservoir, at full pool, has 4,935 surface acres and 17 miles of shoreline offering good fishing for rainbow and brown trout. There are several concrete boat ramps, picnic shelters, and a marina, along with 9 campgrounds, including one recreational vehicle-only site, for a total of 96 campsites. The Cattail Marsh Nature Trail offers wildlife watching opportunities for seasonal waterfowl. Montana DFWP also manages several fishing access areas (figure 11) on the Beaverhead River downstream of the dam that are used by wading and bank anglers as well as by anglers on both guided and unguided float trips (Montana DFWP, 2003). In a letter filed September 19, 2007, during review of the prior license application, the Park Service stated that the Montana DFWP-managed Henneberry fishing access is an L&WCF site. The site is about 5 miles downstream of the proposed project (figure 11).
As noted in section 3.3.2.1, the Beaverhead River is recognized as one of the most popular and productive trout fisheries in North America, and is designated as a blue ribbon fishery by Montana DFWP. Brown and rainbow trout are well established, and often attain trophy size in the Beaverhead River. Recreational use of the reservoir is also quite high, with heavy use from personal watercraft, water-skiers and pleasure boaters, as well as from anglers due to the high quality of the fishing.
Of the recreational sites at the reservoir and immediately downstream of the dam (figure 11), those closest to the proposed project area include Beaverhead Campground (17.08 acres), Buffalo Bridge fishing access area, High Bridge fishing access area (0.18 acres), and Clark Canyon Dam fishing access area (also known as Beaverhead River fishing access area, 3.27 acres). Use figures from a 2004 recreation survey of the area indicated that the Beaverhead Campground and Beaverhead River fishing access area are frequently used by campers (10,423 visitors per year) and anglers (3,042 visitors per year), respectively (Dvorak et al., 2004). The survey did not include the Buffalo Bridge or High Bridge fishing access areas. Traffic count data from Reclamation for 2007 and 2008 indicated that more than 75 percent of the vehicle use of the Clark Canyon Dam and Buffalo Bridge fishing access areas occurred from March through October (email from Steve Davies, Reclamation, to FERC staff, filed on March 25, 2009). During those two years, the greatest use at Clark Canyon Dam fishing access area occurred in June (781 vehicles in 2007 and 789 in 2008). At Buffalo Bridge fishing access area, the greatest use occurred in June (728 vehicles in 2008) or July (647 vehicles in 2007). Reclamation did not have traffic count data for the High Bridge fishing access area, which is managed by Montana DFWP.
In 2009, the Beaverhead River had 38,706 angler days in 2009 (Montana DFWP, 2015). Fishing regulations are in place to help manage heavy use, and fishing closures have occurred in drought years.
The proposed project, including most of the transmission line corridor, would occupy 62.1 acres of federal lands within the Pick-Sloan Missouri Basin Program, East Bench Unit, administered by Reclamation. It would also occupy 0.2 acres of federal land administered by BLM. In addition to substantial recreation opportunities, the dam and reservoir provide for irrigation and flood control across a wide area downstream of the project.
The Clark Canyon Dam and Reservoir present a relatively natural appearance in a broad, open valley of scenic, rolling landscape, with low vegetation cover of grasses and shrubs with a few patches of taller, thicker vegetation. The dam and reservoir are dominant landscape features that are quite visible to motorists traveling on Interstate Highway 15 (I-15) and very visible from adjacent lands. Dominant features include the dam structure, the reservoir, Armstead Island (see figure 11), and several recreation facilities. Wildlife viewing areas include a developed bird watching trail, as well as the delta areas near the mouths of Horse Prairie Creek and Red Rock River (see figure 1). A 3.2-mile-long section of the Beaverhead River between the I-15 bridge at Pipe Organ Rock and the Dalys highway exit has been evaluated for eligibility for “Recreation” classification of the Wild and Scenic River Act and is considered “outstandingly remarkable” for recreation, fish and historic values (BLM, 2005). This section of the river starts about 6 miles downstream of the project area.
Several transmission lines are present in the vicinity of the project; however, transmission lines are absent along approximately five miles of Montana Highway 324, north and west of the Clark Canyon Reservoir. The proposed new transmission line would parallel this portion of the highway.
Issues that have been identified with respect to recreation apply primarily to the year-long construction period. Construction equipment activity could generate temporary disturbance to recreational use, including noise and dust, which could diminish the quality of the recreation experience in the vicinity of the proposed project, particularly at the Clark Canyon Dam/Beaverhead River fishing access site (figure 11). Additionally, there could be safety concerns where recreational users and construction vehicles use the same roadways to access areas near the dam. Construction access would use the Buffalo Bridge approach and could affect fishing access to the river at that location, although regular use of the road by construction vehicles is not expected.
To reduce effects on fishing access, the applicant proposes to implement its Buffalo Bridge Fishing Access Road Management Plan. The plan provides for alerting the public to potential traffic hazards during construction and specifies the contents of a public notice, locations for posting, the number, type, and locations of any barriers that would be installed, a process to evaluate effectiveness of the plan and modify the plan if needed, and an implementation schedule. Flagging, traffic control devices, and signs would be used to further reduce effects on traffic and traffic safety. During project operation, minor noise and nighttime security light from the powerhouse could be noticeable to recreational users nearby.
To minimize the effects of construction activities on nearby recreation users, the applicant proposes to limit construction activities in summer (Memorial Day through Labor Day) to daytime hours (7:00 a.m. to 8:00 p.m.). The applicant also proposes to have no construction taking place over peak summer holiday weekends (Memorial Day, Independence Day, and Labor Day), including the day before and day after those weekends. A sign with contact information would be posted at a location approved by Reclamation and would provide dates and hours of construction.
The southbound exit ramp from I-15 to Montana Route 324 is proposed as a secondary access route for construction vehicles. This route is also an existing access route to the dam site and is gated to prevent unauthorized access. Construction traffic on the secondary route may affect exit ramp traffic.
The applicant's proposal also includes installation and maintenance of an interpretive sign near the dam to inform visitors of the concept and function of the project, its relationship to aquatic resources and the recreational fishery, and measures taken to reduce adverse effects. The sign would be placed at a location acceptable to Reclamation.
During project construction, the applicant's proposed limits on construction hours, days, and locations would reduce conflicts with recreational users, and its proposed construction access routes and vehicle staging would reduce potential conflicts with other motorists. If public notices, signage, and barriers are used where appropriate, and the Buffalo Bridge Fishing Access Road Management Plan is implemented, this would further reduce potential concerns about traffic safety and effects on fishing access.
Secondary use of the I-5 exit ramp for construction vehicles would have little effect on traffic or recreational use, including the two nearest recreational sites, due to relatively light traffic and only occasional use of the ramp and access route for construction. The entrance to Beaverhead Campground is located at the top of Exit 44 on Route 324, and the access to the Clark Canyon Dam/Beaverhead River fishing access site is located on the opposite side of the river from the construction access routes, which would minimize any potential disturbance to recreation users in the areas that are nearest the construction activity.
During project operation, minor noise and light from the powerhouse could be noticeable to recreational users nearby, particularly those fishing or camping immediately below the dam, but the proximity of I-15 to both the project site and the nearby recreation sites suggests that this effect would be minimal. All existing recreation sites would remain accessible to the public during project operation.
The applicant proposes to operate the project in run-of-release mode, consistent with the current method of operation employed by Reclamation. Run-of-release operation would maintain the existing water surface elevations. Therefore, fishing and boating on the reservoir would not be affected, and neither would fishing opportunities downstream of the dam in the Beaverhead River be affected.
With respect to the potential effects of the project on the Henneberry Fishing Access, the applicant does not propose any project-related activities that would result in water quantity or quality effects at the site or interfere with access during construction or operation. The site would continue to be available for recreational use.
The applicant's proposed interpretive sign would enhance the recreational experience for users and would also assist the public in understanding the project's potential effects on the prized fishery (see section, 3.3.2.2,
Except for the footprint of the hydropower facilities and transmission line, land uses and public access in the vicinity of the project would remain
Project construction activities would be visible from I-15, Highway 324, recreation sites below the dam, and from other sites near the dam and along the transmission line corridor. Once construction is complete, the permanent presence of above-ground facilities, including the powerhouse, transformer, parking area, and transmission line would alter the current visual environment.
A major portion of the new overhead transmission line would be located along approximately five miles of Montana Highway 324 west of the Camp Fortunate Overlook, where no transmission line currently exists. This could affect the aesthetic quality of nearby recreation and cultural resources, including the Clark Canyon Reservoir, the Lewis and Clark Trail, Camp Fortunate Overlook, several campgrounds, and a day-use area that are located along this stretch of the highway and above the shore of the reservoir.
As part of its Visual Resources Management Plan (VRMP), the applicant proposes to address short-term impacts by limiting disturbance or displacement of vegetation to the extent possible. To reduce long-term effects, the applicant proposes to bury a short, 0.3-mile-long transmission line between the proposed powerhouse and substation; use contouring and replanting to help the areas disturbed by construction, including the transmission line corridor, blend with the surrounding terrain; and consult with Reclamation on the design of project features, including color and construction materials. The applicant also states that it would use relevant comprehensive management plans to ensure that all new features of the proposed hydroelectric project meet established visual quality objectives.
The applicant's VRMP, filed with the Commission on February 1, 2016, lists the following as basic design criteria:
• Prevention of adverse visual impacts, whenever possible, by means of preconstruction planning and design, particularly in the selection of facility locations;
• Reduction of adverse visual impacts that cannot be completely prevented, by designing features with appearances consistent with existing structures;
• Reduction of adverse visual impacts to existing vegetation during construction by means of post-construction vegetation rehabilitation; and
• Quality control during construction, operation, and construction rehabilitation to ensure that the preceding objectives are achieved.
After license issuance but prior to the start of construction activities, including any land-disturbing or land-clearing activities, the VRMP calls for the applicant to file with the Commission a pre-construction visual impact assessment of the project area. That assessment would include photographs taken from three proposed key observation points (the parking area at the Clark Canyon Dam/Beaverhead River fishing access area, Highway 324 immediately above the power house, and the secondary access point on I-15 north of Clark Canyon Dam). The plan also includes the filing of post-construction photographic assessments annually for the first three years of project operation. If a license is issued for the project, the applicant would consult with Reclamation during the design phase to identify appropriate colors for structures on Reclamation lands and to identify appropriate vegetation mixes for disturbed areas of the project.
As noted by the applicant, the proposed hydropower facility would be designed to blend in with the existing dam structure as much as possible. Implementation of the applicant's VRMP, including consultation with Reclamation concerning structure color and appropriate vegetation mixes, would minimize any long-term effect on the aesthetic character of the project site.
The previously altered landscape, including construction of the existing dam and its appurtenant features is highly visible to people using area roads and recreation sites. The proposed hydroelectric facility would be generally out of view from areas above the dam, but would be conspicuous below the dam. However, the proposed facilities would not be inconsistent with the existing or associated landscape features.
The overhead portion of the transmission line would have a modest effect on the visual character of the area west of the Camp Fortunate Overlook, where no transmission line currently exists. Scenic and cultural values in the vicinity are associated with the extensive recreational amenities around the reservoir and near the highway. However, the transmission line would be generally located on the uphill side of the highway and away from the reservoir and recreation sites. Much of the transmission line would be located 100 to 200 feet from the highway, which would reduce its visibility to highway motorists and recreation users on or near the reservoir. As described above, the use of a single-pole design and unobtrusive materials and colors would further reduce its visibility and would be consistent with the criteria of VRMP. However, the transmission line was not specifically identified as a project facility that would be addressed by the proposed VRMP. While no additional measures are necessary, any deviation from the proposed design could have more of a negative effect on the aesthetic landscape. Applying the criteria and consultation procedures in the VRMP to the transmission line would ensure that visual effects are kept to a minimum.
NHPA section 106 requires that the Commission evaluate the potential effects on properties listed or eligible for listing in the National Register. Such properties listed or eligible for listing in the National Register are called historic properties. In this document, we also use the term “cultural resources” for properties that have not been evaluated for eligibility for listing in the National Register. Cultural resources represent things, structures, places, or archeological sites that can be either prehistoric or historic in origin. In most cases, cultural resources less than 50 years old are not considered historic. Section 106 also requires that the Commission seek concurrence with the SHPO on any finding involving effects or no effects to historic properties, and allow the Advisory Council on Historic Preservation (Council) an opportunity to comment on any finding of effects to historic properties. If Native American (
Pursuant to section 106, the Commission must take into account whether any historic property could be affected by the issuance of a proposed
The APE includes all lands within the project boundary and construction footprint, as well as the 7.9-mile-long, 80-feet-wide transmission line corridor and a portion of the Clark Canyon Dam, including the spillway. The APE is defined in the February 2016 HPMP. In an amendment to the HPMP filed on March 11, 2016, the applicant corrected the total area of the APE to 88.6 acres, including 68.3 acres of federal land owned by Reclamation.
The immediate area within the vicinity of the proposed project was an important prehistoric and historic travel route. During the ethnographic period (pre-European contact), the Clark Canyon watershed was occupied seasonally by the Lemhi-Shoshone Tribes. Lewis and Clark were the first Euro-Americans to pass through the Beaverhead Valley on August 13, 1805.
The Lewis and Clark expedition made its first contact with Sacagawea's Shoshone Tribe at a location that is currently inundated by Clark Canyon Reservoir. The location was named “Camp Fortunate” due to the hospitality of the tribe and its willingness to trade for horses, a necessity for crossing the Rockies.
In 1862, gold was discovered near the town of Bannock, Montana, and caused the first wave of rapid Euro-American settlement in the area. At the height of the area's gold rush, Bannock, about 175 miles from the proposed project site, had a population of more than 3,000 and was the first Montana territorial capital. The period was short lived, however, and old mining camps and ghost towns are all that remain.
In 1877, approximately 750 Nez Perce Native Americans fled north out of Idaho because of the demands of the U.S. Army that they move onto a reservation. On August 9, 1877, the U.S. Army attacked the Nez Perce along the north fork of the Big Hole River, about 50 miles from the proposed project site. Although the Battle of Big Hole lasted less than 36 hours, significant casualties were suffered on both sides. In 1992, legislation incorporated Big Hole National Battlefield with the Nez Perce National Historical Park.
The city of Dillon, about 20 miles from the proposed project site, originated during construction of the Utah and Northern Railroad. The city was the site of a construction camp during the winter of 1880. The railroad was pushing north toward Butte, but winter conditions halted progress until the spring of 1881. When construction resumed in the spring, the town remained. The city was named in honor of Sidney Dillon, the president of the Union Pacific Railroad.
An archaeological survey of the applicant's cultural resources inventory area for the prior license application identified one prehistoric artifact, a single chert flake. As an isolated find, this artifact does not meet the criteria for listing on the National Register. No prehistoric or historic-era sites were documented at that time.
The project APE contains a single structure that is considered eligible for listing on the National Register—Clark Canyon Dam. Clark Canyon Dam (24BE1740) is an earthen dam constructed in 1964 by Reclamation. This structure meets the 50-year age requirement for listing on the National Register. Although the Clark Canyon Dam was potentially eligible for listing on the National Register as a contributing element to a broad, but undefined Pick-Sloan Missouri Basin historic district, the dam was also determined to be individually eligible for listing on the National Register. Commission staff and the Montana SHPO concurred that the dam was individually eligible, as discussed in a letter and Programmatic Agreement (PA) issued on May 5, 2016. Six additional sites that may or may not be eligible for listing were identified in 2012 during a cultural resources inventory for the proposed transmission line corridor.
Additionally, the Commission contacted the Shoshone-Bannock, Eastern Shoshone, Nez Perce, and Salish-Kootenai tribes inviting comments and consultation. No comments or requests for consultation were received from the tribes.
The Commission consulted with the Nez Perce, Salish-Kootenai, Eastern Shoshone, Shoshone-Bannock, and Northern Arapaho tribes regarding the project. None of these tribes expressed concern about potential TCPs that might be present within the project APE.
Commission staff and the Montana SHPO concurred that the Clark Canyon Dam would be adversely affected by constructing and operating the project, as stated in the PA and HPMP. Construction of the project, including retrofitting project features on or adjacent to the dam, or other alteration, would diminish the historical integrity of the structure's location, design, setting, materials, workmanship, feeling, or association. The applicant would consult with the SHPO and Reclamation to develop a Memorandum of Agreement that would include measures to address adverse effects to Clark Canyon Dam. A final PA has been signed that requires the licensee, if a license is issued, to revise its proposed HPMP to include a Treatment Plan to resolve effects on the dam prior to construction.
The SHPO concurred in 2012 that none of the six sites along the transmission line corridor would be adversely affected by the project. To ensure that a specific rock feature was not affected, the applicant proposed to maintain a buffer around that area so that construction activity would not inadvertently disturb the site.
Alterations to the Clark Canyon Dam that would result from construction of the proposed project require specific measures to avoid or reduce adverse effects. The HPMP was originally developed by the applicant for the prior license before the Clark Canyon Dam was determined to be eligible for listing on the National Register. The HPMP filed on February 9, 2016 does not indicate what specific measures would be developed or how or when they might be implemented. Revising the HPMP, as required by the PA, to include these measures in a Treatment Plan for the dam before construction begins would resolve the adverse effects.
The February HPMP defines consultation procedures for maintenance activities that would and would not affect the dam and what steps would be taken if human remains are discovered during project construction and operation. The PA requires the applicant to revise the HPMP to allow the SHPO and Reclamation to review and comment on maintenance activities that the licensee may determine have no effect on the dam, and clarifies the process to be followed in the event of an unanticipated discovery of human remains. Revising the HPMP accordingly, in consultation with the
The February HPMP also defines procedures, in the event that cultural resources are inadvertently discovered during the course of constructing or developing project works or other facilities at the project. Those procedures include stopping all land-clearing and land-disturbing activities in the vicinity of the discoveries and consulting with both Reclamation and the SHPO to determine next steps. Implementing the procedures in an approved, revised HPMP would prevent adverse effects on any newly identified cultural resources.
Under the no-action alternative, the project would not be constructed. There would be no changes to the physical, biological, or cultural resources of the area and electrical generation from the project would not occur. The power that would have been developed from a renewable resource would have to be replaced with other sources, and the anticipated benefits of reduced TDG supersaturation on aquatic resources would not be realized.
In this section, we look at the Clark Canyon Dam Hydroelectric Project's use of the Beaverhead River for hydropower purposes to see what effect various environmental measures would have on the project's costs and power generation. Consistent with the Commission's approach to evaluating the economics of hydropower projects, as articulated in
For each of the licensing alternatives, our analysis includes an estimate of: (1) The cost of individual measures considered in the EA for the protection, mitigation and enhancement of environmental resources affected by the project; (2) the cost of alternative power; (3) the total project cost (
As proposed, the 4.7-MW project would generate an average of 15,400 MWh annually. We have assumed the project would have a dependable capacity of 4.7 MW; however, because the project inflow is dependent on releases from the Clark Canyon Dam, which is directed by Reclamation and beyond the control of the applicant, the actual dependable capacity of the project could be lower.
Table 5 summarizes the assumptions and economic information we use in our analysis. This information was provided by the applicant in its license application and supplemental submittals, or estimated by staff. We find that the values provided by the applicant are reasonable for the purposes of our analysis. Cost items common to all alternatives include; licensing costs; and normal operation and maintenance cost.
Under the no-action alternative, the project would not be constructed as proposed and would not produce any electricity. No costs for construction, operation and maintenance, or proposed environmental protection, mitigation, or enhancement measures would be incurred by the applicant.
Under the applicant's proposal, the project would require construction of a new hydroelectric facility at the existing Clark Canyon Dam. The proposed project would have a total capacity of 4.7 MW, an average annual generation of 15,400 MWh, and an average annual power value of $1,245,398 ($80.87/MWh). With an annual production cost (levelized over the 30-year period of analysis) of $3,576,910 ($232.27/MWh), the project would produce energy at a cost which is $2,331,512, or about $151.40/MWh, more than the cost of alternative power.
Table 6 shows the staff's recommended additions, deletions, and modifications to the applicant's proposed environmental protection and
Based on the same total capacity and average annual generation, the project under the staff alternative would have an average annual power value of $1,245,398 ($80.87/MWh). With an annual production cost (levelized over the 30-year period of our analysis) of $3,580,760 ($232.52/MWh), the project would produce energy at a cost which is $2,335,362, or about $151.65/MWh, more than the cost of alternative power.
The staff alternative also included all mandatory conditions specified by Montana DEQ section 401 certification, except for the except for condition 11 which stipulates that the applicant meet annually with all watershed stakeholders to discuss water quality monitoring efforts associated with project operation.
Table 6 gives the cost for each of the environmental enhancement measures considered in our analysis. We convert all costs to equal annual (levelized) costs over a 30-year period of analysis to give a uniform basis for comparing the benefits of a measure to its cost.
In this section we compare the developmental and non-developmental effects of the applicant's proposal, the applicant's proposal as modified by staff, the staff alternative with all agency mandatory conditions, and the no-action alternative. The major differences between the applicant's proposal and our staff-recommended modifications are that we recommend monitoring TDG and DO at all times during project operation rather than just potentially the first five years of project operation and the following additional measures: Installing and maintaining a pressure transducer and water level alarm in the Beaverhead River during construction when flows are bypassed around Reclamation's existing intake and outlet works; notifying Montana DFWP in addition to Reclamation in the event of an unplanned shutdown; notifying Montana DEQ and Montana DFWP within 24 hours of any deviation from water temperature, DO, TDG, or turbidity requirements during construction and operation and filing a report with the Commission within 30 days describing the deviation, any adverse effects resulting from the deviation, the corrective actions taken, any proposed measures to avoid future deviations; and maintaining records of pre-construction raptor surveys that includes presence of birds, eggs, and active nests, information regarding the qualifications of the biologist performing the survey, and measures implemented to avoid disturbing nesting birds. The staff alternative also includes all of the mandatory conditions specified by Reclamation under FPA section 4(e) and all of Montana DEQ's section 401 water quality certification conditions except for condition 11 which stipulates that the applicant meet annually with watershed stakeholders to discuss water quality monitoring efforts associated with project operation.
The environmental effects of the staff alternative and applicant's proposal are essentially the same. Both alternatives would result in short-term changes in water quality from erosion and sedimentation and minor impacts from vegetation removal and disturbance of wildlife during construction. Proposed measures would minimize the adverse effects to greatest extent practicable. Both alternatives would also result in long-term benefits to water quality and aquatic resources from increased oxygen through the aeration basin in the summer and reduced potential for TDG supersaturation in the late fall. Staff's recommended measures would improve Commission administration of the license and ensure timely identification of any needed corrective actions.
Sections 4(e) and 10(a)(1) of the FPA require the Commission to give equal consideration to the power development purposes and to the purposes of energy conservation, the protection, mitigation of damage to, and enhancement of fish and wildlife, the protection of recreational opportunities, and the preservation of other aspects of environmental quality. Any license issued shall be such as in the Commission's judgment will be best adapted to a comprehensive plan for improving or developing a waterway or waterways for all beneficial public uses. This section contains the basis for, and a summary of, our recommendations for licensing the Clark Canyon Dam Hydroelectric Project. We weigh the costs and benefits of our recommended alternative against other proposed measures.
Based on our independent review of agency and public comments filed on this project and our review of the environmental and economic effects of the proposed project and its alternatives, we selected the staff alternative as the preferred alternative. This alternative includes elements of the applicant's proposal, all of the section 4(e) conditions, most of the section 401 water quality certification conditions, most of the resource agency recommendations, and some additional measures.
We recommend this alternative because: (1) The 4.7-MW project would save the equivalent amount of fossil-fueled generation and capacity, thereby helping to conserve non-renewable energy resources and reduce atmospheric pollution; (2) the recommended environmental measures proposed by the applicant, as modified by staff, would adequately protect and enhance environmental resources affected by the project; and (3) it includes all agency mandatory conditions. The overall benefits of the staff alternative would be worth the cost of the proposed and recommended environmental measures.
In the following section, we make recommendations as to which environmental measures proposed by the applicant or recommended or required by agencies and other entities should be included in any license issued for the project. In addition to the applicant's proposed environmental measures, we recommend additional staff-recommended environmental measures to be included in any license issued for the project. We also discuss which measures we do not recommend including in the license.
Based on our environmental analysis of the applicant's proposal discussed in section 3 and the costs discussed in section 4, we recommend including the following environmental measures proposed by the applicant in any license issued for the project.
The applicant proposes the following environmental measures:
• Implement the ESCP filed with the license application to minimize soil erosion and dust, protect water quality, and minimize turbidity in the Beaverhead River;
• Implement the Instream Flow Release Plan filed with license application that includes provisions to temporarily pump flows around Reclamation's existing intake and outlet works to prevent interrupting Reclamation's flow releases into the Beaverhead River during installation of the proposed project's penstock;
• Maintain qualified compliance monitoring staff on site 24 hours per day and 7 days per week during construction when flows are bypassing Reclamation's outlet works to ensure staff promptly responds to a pumping equipment failure or malfunction and ensure Reclamation's flow releases are maintained in the Beaverhead River downstream;
• Implement the CWQMP filed with the license application that includes monitoring and reporting water temperature, DO, total dissolved gas (TDG), and turbidity levels during construction;
• Implement the Revised DOEP filed with the license application that includes installing and operating an aeration basin to increase DO levels of water exiting the powerhouse and monitoring and reporting water temperature, DO, and TDG levels for a minimum of the first five years of project operation to ensure water quality does not degrade during project operation;
• Implement the Vegetation Management Plan filed with the license application that includes provisions for revegetating disturbed areas, wetland protection, and invasive weed control to be implemented before, during, and after construction;
• Conduct a pre-construction survey for raptor nests and schedule construction activities or establish a 0.5-mile construction buffer as appropriate to minimize disturbing nesting raptors;
• Design and construct the project transmission line in accordance with current avian protection guidelines, including installing flight diverters and perch deterrents;
• Implement the Visual Resources Management Plan filed with the license application that includes measures to design and select materials to minimize visual effects of the project;
• Post signs and public notice, limit construction hours, days, and locations, and stage construction traffic to reduce conflicts with recreational users and other motorists;
• Implement the Buffalo Bridge Fishing Access Road Management Plan filed with the license application, including provisions for flagging, traffic control devices, and public notice of construction activities to maintain traffic safety and minimize effects on fishing access;
• Install and maintain an interpretive sign near the dam that describes the concept and function of the hydroelectric project and how it affects the sport fisheries, including any measures taken to eliminate or reduce adverse effects;
• Use a single-pole design for the transmission line, along with materials and colors that reduce visibility and blend with the surroundings; and
• Implement the revised Historic Properties Management Plan (HPMP) filed February 9, 2016. Stop work if any unanticipated cultural materials or human remains are found.
Under the staff alternative, the project would include Reclamation's 4(e) conditions, the applicant's proposals, all of the section 401 water quality certification conditions except for condition 11, and the following additional measures:
• Conduct TDG and DO compliance monitoring at all times during project operation;
• Conduct water temperature monitoring for the first five years of project operation and, after consultation with Montana DFWP, Montana DEQ, and FWS, file a proposal for Commission approval regarding the possible cessation of the temperature monitoring program;
• Install and maintain a pressure transducer and water level alarm in the Beaverhead River during construction when flows are being bypassed around Reclamation's existing intake and outlet works to alert compliance monitoring staff if water levels downstream of the dam are reduced;
• During project operation, notify Montana DFWP in addition to Reclamation in the event of an unplanned shutdown;
• Notify Montana DEQ and Montana DFWP within 24 hours of any deviation from water temperature, DO, TDG, or turbidity requirements during construction and operation and file a report with the Commission within 30 days describing the deviation, any adverse effects resulting from the deviation, the corrective actions taken, any proposed measures to avoid future deviations, and comments or correspondence, if any, received from the agencies;
• Document the results of the pre-construction raptor survey and the measures taken to avoid disturbing raptors by maintaining a record that includes nesting bird survey data, including the presence of migratory birds, eggs, and active nests, the qualifications of the biologist performing the survey, and any avoidance measures implemented;
• Construct the transmission line segments that cross the Horse Prairie and Medicine Lodge drainages outside of the greater sage-grouse breeding season (March 1-April 15); and
• Revise the Historic Properties Management Plan (HPMP) in consultation with the Montana SHPO and Reclamation to include a Treatment Plan to resolve project effects on the Clark Canyon Dam and to clarify consultation procedures in the plan (see section 3.3.6). File the HPMP with the Commission for approval prior to construction.
The following is a discussion of the basis for the additional staff-recommended measures that would have significant effects on project economics or environmental resources, as well as the basis for not recommending some measures proposed by agencies.
The applicant proposes in its CWQMP to provide Reclamation, Montana DEQ, Montana DFWP, and FWS annual water quality monitoring reports during construction. Because the applicant proposes to prepare monitoring reports on an annual basis, any deviations from state water quality criteria for turbidity, temperature, DO, and TDG that occur during construction would not be reported to the Commission until the annual report is submitted. The applicant's proposal does not sufficiently protect water quality in the short term. If water quality monitoring in the reservoir or in the Beaverhead River indicates that deviations from water quality criteria are occurring during project construction, the applicant should take immediate reasonable action to remediate the deviation, and should notify Montana DEQ and Montana DFWP within 24 hours of the deviation. This would give the agencies the opportunity to visit the site quickly, assess the effects of the deviation, and provide the applicant and the Commission with recommendations for ways to prevent future deviations from occurring. Thus, we also recommend that the applicant file a report with the Commission within 30 days of the deviation that describes: (a) The cause, severity, and duration of the incident; (b) any observed or reported adverse environmental impacts resulting from the incident; (c) operational data necessary to determine compliance; (d) a description of any corrective measures implemented at the time of the incident and the measures implemented or proposed to ensure that similar incidents do not recur; and (e) comments or correspondence, if any, received from interested parties regarding the incident.
We estimate that these additional notification and reporting measures would have minimal costs and conclude that the compliance monitoring benefits as well as benefits to aquatic resources during project construction would justify the cost.
The applicant proposes to consult with Montana DEQ on whether to extend the water temperature monitoring program beyond the first 5 years of operation. We recommend this measure but also recommend that the applicant consult with Montana DFWP and FWS and allow the agencies 30 days to review the report before filing a proposal to modify the temperature monitoring requirements for Commission approval. Given their trust responsibilities, also consulting with Montana DFWP and FWS would allow them to weigh in on whether a sufficient record has been established to document the project's compliance with state water temperature criteria during project operation, and to determine if additional temperature monitoring is needed beyond the initial five-year monitoring period. We estimate that this additional coordination and reporting measure would have minimal costs and conclude that the compliance monitoring and aquatic resource protection benefits would justify the minor costs.
We recommend that the applicant continue to monitor TDG and DO for the term of any license issued. Our analysis in section 3.3.2.2 indicates that it would be necessary to monitor these parameters for the term of the license to ensure that adequate DO enhancement is occurring throughout the year as needed, that DO aeration equipment is functioning properly, and to track compliance with TDG and DO criteria. We estimate the annualized cost of this measure would be $1,530, and conclude that the compliance monitoring and aquatic resource protection benefits would justify its costs.
The applicant proposes to provide annual water quality monitoring reports for the first five years of project operation to Reclamation, Montana DFWP, Montana DEQ, and FWS within 60 days following each calendar year (
We estimate that these additional notification and reporting measures would have minimal costs and conclude that the compliance monitoring benefits as well as benefits to aquatic resources during project operation would justify the cost.
During construction of the project's inlet works, use of Reclamation's intake and outlet works would not be available to release flows to the Beaverhead River. During that construction period, the applicant would pump flows from a barge over Reclamation's spillway to discharge into the river. We recommend that the applicant install and operate a minimum flow protection alarm system to alert compliance monitoring staff in the event of a pumping system failure and subsequent water level drop in the tailrace. Our analysis in section 3.3.2.2 indicates that the alarm system would ensure that minimum flows are maintained and backup pumps are brought on-line as rapidly as possible in the event of a pumping system failure. We envision that the alarm system would include: (1) Installation of a pressure transducer at the proposed water quality monitoring station located approximately 300 feet downstream of the dam; and (2) an alarm that would sound in the event that water levels measured by the transducer begin to drop. We estimate the annualized costs of this measure would be $160, and conclude the benefits of ensuring minimum instream flow releases and protecting fish resources when flows are being bypassed during construction would justify the cost.
We recommend that the applicant inform Montana DFWP in addition to Reclamation in the event of an unplanned shutdown or other operating emergency during project operation. We estimate this additional notification would have minimal costs and therefore recommend this measure as it would allow Montana DFWP to provide input on any corrective measures needed to protect aquatic resources during any unplanned shutdowns that occur during operation.
To resolve adverse effects on the Clark Canyon Dam, we recommend that the HPMP be revised to include a Treatment Plan for the dam, as well as address other concerns raised by the SHPO and Reclamation regarding consultation procedures. The Treatment Plan and revised HPMP should be developed by the licensee in consultation with the SHPO and Reclamation, and filed with the Commission for approval within 90 days of license issuance and prior to construction. Because the Treatment Plan essentially replaces the proposed MOA, no additional cost is anticipated.
Staff finds that some of the measures recommended by other interested parties would not contribute to the best comprehensive use of Clark Canyon reservoir and Beaverhead River water resources, do not exhibit a sufficient relationship to project environmental effects, or would not result in benefits to non-power resources that would be worth their cost. The following discusses the basis for staff's conclusion not to recommend such measures.
Interior, Upper Missouri Waterkeeper, and Montana Trout Unlimited recommend that the applicant be required to: (1) Provide 4 percent of the project's gross revenue to fund independent technical studies of Beaverhead River Basin water efficiency improvements or water conservation measures; and (2) support implementation of the 2006 MOU between Reclamation and Montana DFWP for the
Available information indicates that trout populations in the Beaverhead River are adversely affected by low flows that occur during the non-irrigation season, and that fish populations in Clark Canyon Reservoir are adversely affected by low reservoir levels during periods of drought. Funding water conservation measures could help alleviate some adverse conditions to fish that occur in Clark Canyon Reservoir and the Beaverhead River, particularly during drought conditions. Our analysis in section 3.3.2.2, however, indicates that operation of the project as proposed by the applicant would not cause any changes in the water levels of Clark Canyon Reservoir, the quantity of water released by Reclamation into the Beaverhead River for instream flows, or the quality of tributaries entering the reservoir or within the reservoir.
Although we agree that providing funds or support for water efficiency improvements and participating in watershed management and conservation planning activities may provide some benefits to fisheries in
For these reasons we conclude that Interior's, Montana Trout Unlimited's, and Upper Missouri Waterkeeper's recommended measures would be inconsistent with the comprehensive planning standard of section 10(a)(1) of the FPA, and therefore would not be in the public interest.
Montana DEQ's condition 11 stipulates that the applicant hold an annual meeting with watershed stakeholders (
Interior and Montana Trout Unlimited recommend that the applicant evaluate the effects of the project on fish entrainment and impingement. The recommended entrainment evaluation may be useful at assessing the entrainment, impingement, and mortality rates of fish at the dam. However, we believe that sufficient information exists to evaluate the effects of the project on fish entrainment and mortality.
Our analysis in section 3.3.2.2 found that operation of the proposed project would have no effect on the rate of fish entrainment from Clark Canyon Reservoir because the project would not alter the timing or volume of water withdrawals, and all water passing the dam would do so via the existing intake structure (and by the spillway during spill events), as it does under existing conditions. Further, our analysis suggests that the mortality rates of entrained fish under proposed project operation would be similar to existing conditions. During project operation fish would still be subject to high mortality levels when they are exposed to rapid depressurization as they exit the pressure conditions of the deep reservoir and enter the relatively shallow conditions in the tailrace of the dam; therefore, the proposed project would not substantially add to the losses of fish currently occurring at the existing outlet works at mortality rates approaching 100 percent of entrained fishes. The continued high mortality through the dam would limit the potential that fish entrained from the reservoir contribute substantially to the fishery downstream of the reservoir, which consists of self-reproducing trout populations. For these reasons, collecting additional information on entrainment and mortality would have only minimal benefits to the fishery resource.
We estimate that the annualized costs of the entrainment assessment would be $4,540, not including the additional costs of any future measures that could be implemented to reduce entrainment. We conclude that the potential benefits of the entrainment assessment would not justify the cost, and therefore would not be in the public interest.
Montana DFWP and Upper Missouri Waterkeeper recommend that the applicant evaluate the need for alterations to dam infrastructure or operations to minimize downstream turbidity effects resulting from entrainment of organic material or inorganic fine sediment from the reservoir into the project works. The recommended measure is non-specific, and therefore, we are unable to evaluate the benefits and costs of the measure. Because the project would be operated run-of-release, the project would not alter the depth of the reservoir intake, or the rate, volume, or velocity of water withdrawn from the reservoir, nor does the Commission have the authority to require changes to Reclamation's facilities or operations; therefore it is unclear what specific changes in dam infrastructure or operations would be available to the applicant to address Montana DFWP and Upper Missouri Waterkeeper's concerns.
For these reasons, we do not recommend requiring Montana DFWP and Upper Missouri Waterkeeper's recommended evaluation.
The applicant proposes to continuously monitor TDG, DO and water temperature for at least the first five years of project operation. The applicant would monitor DO and temperature in a small chamber located upstream of proposed turbines (Site 1), at a site located in the proposed aeration basin (Site 2), and at a site located about 300 feet downstream of the project in the Beaverhead River (Site 3). The applicant would monitor TDG levels at Sites 2 and 3.
Montana DFWP recommends that the applicant deploy probes at the cone valve and 100, 200, and 300 feet below the project, in addition to the sites proposed by the applicant, and to monitor water quality parameters at these sites for a minimum of three consecutive years. The additional probes would permit the applicant to determine the water quality dynamics within the mixing zone and potentially the best place to document compliance with DO and TDG levels over the long term.
In addition, Upper Missouri Waterkeeper recommends that the applicant evaluate the need for additional monitoring downstream of the project during operation.
Our analysis in section 3.3.2.2 indicates that although TDG and DO may change slightly within the mixing zone, the site recommended by the applicant is likely to be most representative of water quality conditions downstream of the project and would be sufficient to document compliance with water quality conditions. Given the anticipated small changes within so short a distance, there would be little benefit to downstream aquatic resources by conducting this additional monitoring.
We estimate that the annualized costs of monitoring at these additional compliance sites would be $3,500 and conclude that the limited benefits of the additional downstream monitoring would not justify the cost.
Upper Missouri Waterkeeper recommends that the applicant evaluate the need for additional monitoring upstream of Clark Canyon Dam during project operation. The recommended measure is non-specific, and therefore, we are unable to determine the benefits and costs of the measure. The applicant already proposes to collect water temperature and DO concentrations levels of source reservoir water in order to monitor the need for DO enhancement downstream. Conducting monitoring at additional sites upstream would provide general information on water quality conditions within the Clark Canyon Reservoir above the intake or in tributaries feeding the reservoir. However, the project would not affect these upstream areas. Therefore, the recommended monitoring does not have sufficient nexus to the project effects and we do not recommend that additional upstream monitoring be included as a license requirement.
We recommend adopting Interior's recommendation to coordinate with BLM and Montana DNRC for the purposes of complying with federal and state greater sage-grouse plans; however, we do not recommend adopting Interior's recommendation to provide compensatory mitigation to offset any remaining impacts after application of avoidance and mitigation measures. We cannot evaluate the cost or benefits of compensatory mitigation requirements because the agencies have not defined those requirements. Regardless, compensatory mitigation would not be warranted because the applicant's and staff proposed measures adequately minimize potential adverse effects on greater sage grouse for several reasons.
First, the applicant's proposal to prevent perching of predators on the transmission line, and the revegetation measures under the VMP, would deter increased predation and minimize habitat loss. Second, staff's recommended measure to construct the transmission line segments that cross the Horse Prairie and Medicine Lodge drainages outside of the greater sage-grouse breeding season (March 1-April 15) would reduce the risk of project-related disturbances on breeding greater sage-grouse.
The avoidance and mitigation measures recommended in the staff alternative would ensure that the project would have minimal effects on greater sage-grouse and would not affect the population.
Land-disturbing activities associated with the proposed construction and operation of the project would require the removal of vegetation and disturbance of soil. These activities would disrupt the topsoil and result in some temporary erosion in the construction areas that would be largely controlled by implementation of the applicant's proposed ESCP and VMP.
During the construction period there would be an unavoidable loss of habitat along the access road and transmission line right-of way. Bald eagles and ferruginous hawks may be displaced from foraging areas in the stilling basin and along the access road and transmission line ROW during the period of construction and for a short time afterward until vegetation becomes reestablished.
Noise and dust from land-disturbing activities, other construction activities, and construction traffic would diminish the quality of the recreational experience in the vicinity of Clark Canyon Dam and the project site. Project construction traffic would conflict with recreational traffic. The transmission line would introduce a new structural feature within view of several nearby recreation sites and along five miles of Montana Highway 324 where no transmission line currently exists.
Some long-term fish entrainment into project facilities and subsequent injury would occur similar to existing conditions.
Under the provisions of section 10(j) of the FPA, each hydroelectric license issued by the Commission shall include conditions based on recommendations provided by federal and state fish and wildlife agencies for the protection, mitigation, or enhancement of fish and wildlife resources affected by the project. In response to our Ready for Environmental Analysis notice, Interior, on behalf of FWS, submitted 10(j) recommendations for the project on March 17, 2016.
Section 10(j) of the FPA states that whenever the Commission believes that any fish and wildlife agency recommendation is inconsistent with the purposes and the requirements of the FPA or other applicable law, the Commission and the agency shall attempt to resolve any such inconsistency, giving due weight to the recommendations, expertise, and statutory responsibilities of such agency. Table 7 lists Interior's recommendations filed pursuant to section 10(j) and indicates whether the recommendations are adopted under the staff alternative. Environmental recommendations that we consider outside the scope of section 10(j) have been considered under section 10(a) of the FPA and are addressed in the specific resource sections of this document.
Of the 5 recommendations that we consider to be within the scope of section 10(j), we wholly include 3, include 1 in part, and do not include 1. We discuss the reasons for not including those recommendations in section 5.1,
Of Reclamation's 9 preliminary conditions, we consider 8 (conditions 1 through 3 and conditions 5 through 9) to be administrative or legal in nature and not specific environmental measures. We therefore do not analyze these conditions in this EA. Condition 4 requires the applicant to revegetate all newly disturbed land areas with plant species indigenous to the area within 6 months of the completion of the project's construction. All of
Section 10(a)(2)(A) of the FPA, 16 U.S.C.§ 803(a)(2)(A), requires the Commission to consider the extent to which a project is consistent with federal or state comprehensive plans for improving, developing, or conserving a waterway or waterways affected by the project. We reviewed nine comprehensive plans that are applicable to the Clark Canyon Dam Project, located in Montana.
On the basis of our independent analysis, we conclude that approval of the proposed action, with our recommended measures, would not constitute a major federal action significantly affecting the quality of the human environment. Preparation of an environmental impact statement is not required.
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 |